Opinion
Civil Action No. 04-1497 Section "K" (2).
December 8, 2004
ORDER AND REASONS
Plaintiff, Wayne Lee, Sr., brought this personal injury action under the Jones Act and general maritime law against defendants Central Gulf Towing, L.L.C. and Duard Eymard Towing, L.L.C. Two motions are currently pending before me: (1) Plaintiff's Motion to Compel, Record Doc. No. 20, which seeks the production to plaintiff of his post-accident statement and a surveillance video, both of which were apparently obtained by defendant's agents; and (2) Defendants' Motion to Compel Deposition of Plaintiff, Record Doc. No. 25. Both parties filed timely opposition memoranda. Record Doc. Nos. 24, 28.
At the request of counsel for defendants, oral argument was conducted concerning defendant's motion on December 8, 2004. Participating were Kristi Post, representing plaintiff, and Patrick McShane, representing defendants. Because both motions concern the conduct of plaintiffs ongoing deposition, I considered them together and conducted oral argument as to both motions at the December 8th hearing.
Having considered the complaint, the record, the submissions of the parties, the representations of counsel at oral argument and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion to compel plaintiff's deposition is GRANTED and plaintiff's motion to compel is DENIED for the following reasons.
I. PLAINTIFF'S MOTION TO COMPEL
It is my often-expressed opinion that Fifth Circuit case law and the applicable Federal Rules of Civil Procedure clearly and unambiguously require the production of a party's statement and surveillance materials before that party's deposition, when those materials have been requested in discovery and in the absence of a showing of good cause to withhold them. Concerning a party's statements, see "Stanley Vinet v. F L Marine Management, Inc.," C.A. No. 04-594 "L" (2), Record Doc. No. 17 (E.D. La. April 29, 2004) (citing, among other things, Fed.R.Civ.P. 26(b)(3); Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1350-53, (5th Cir. 1985) (Judge Rubin explaining in Miles that the Rule 26(b)(3) requirement that a party's statement be produced upon request is "mandatory, not discretionary," that this "court's refusal to order production of the [plaintiff's] statements was erroneous," and that "[a] rule intended to prevent trial by ambush and to further adequate pretrial preparation has been violated. . . . A district court's failure to abide by the literal dictate of the rule is clearly error and we so hold.")). Concerning surveillance film, see "Robert M. Karr v. Four Seasons Maritime, Ltd. et al.," C.A. No. 02-3413 "I" (2), Record Doc. No. 74, 2004 WL 797728 (E.D. La. April 12, 2004) (citing, among other things, Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993)). To my knowledge, there is currently no "general practice in this district" permitting the withholding of these materials in response to discovery requests until after the party's deposition, but even if there were, it would be contrary to the binding authorities cited above.
Thus, except for one peculiar but overriding and important circumstance in this case, I would require the production of both the statement of plaintiff and the surveillance materials, the latter of which I have reviewed in camera, for the reasons discussed in my previous opinions cited above. That compelling, significant circumstance is that counsel jointly agreed to a different procedure concerning these depositions.
As both counsel made clear at oral argument, an agreement was made between defense and plaintiff's counsel that both the statement and the surveillance film would be withheld from production until after completion of plaintiff's deposition. Ordinarily, such an agreement must be by written stipulation, Fed.R.Civ.P. 29, which provides in pertinent part: "Unless otherwise directed by the court, the parties may by written stipulation (1) provide that depositions may be taken . . . at any time or place . . . and in any manner . . ., and (2) modify other procedures governing . . . discovery." The self-evident purpose of this rule is to encourage agreed-upon, lawyer-managed discovery and to eliminate the cost, effort and expense involved in court intervention in discovery through motion practice. No such written stipulation was executed in this case. The purpose of requiring written stipulations is to eliminate the possibility of confusion and disagreement between counsel as to what was agreed upon. In this case, however, there is no confusion or disagreement. At oral argument, plaintiff's counsel conceded, as defense counsel had argued in his motion papers, that an agreement was in fact reached between counsel that plaintiff's deposition would be taken before production of the statement and the surveillance materials.
The orderly and efficient conduct of discovery depends to a large extent on the cooperation of counsel, who must be able to rely upon the agreements they make. An agreement was reached in this case, and there is no confusion or uncertainty about it. Even though the agreement was not one required by the applicable rules and case law, it was an agreement nonetheless of the type permitted and even encouraged by the Federal Rules of Civil Procedure, and I will enforce it in this instance. Thus, plaintiff's motion is denied.
II. DEFENDANTS' MOTION TO COMPEL DEPOSITION OF PLAINTIFF
In this motion, defendants seek to compel plaintiff to answer deposition questions concerning photographs of certain steps aboard a sister vessel to the vessel on which plaintiff's alleged injuries occurred. Defendants represent that the steps aboard the vessel where the alleged accident happened were removed and neither the steps nor photographs of them are available. Plaintiff's counsel instructed plaintiff not to answer these questions during the deposition. In his opposition memorandum, plaintiff argues that questions about the steps aboard a sister vessel, as opposed to the vessel on which he was injured, are irrelevant.
The instruction not to answer these questions during the deposition was not well-founded. Fed.R.Civ.P. 30(d)(1) permits counsel to instruct a witness not to answer on only three grounds, none of which were present in this instance. Moreover, plaintiff's relevance objection is overruled. Discovery is not trial. Permitting use of these photographs in a discovery deposition does not mean that either they or the deposition testimony will be admissible at trial. Because neither the steps nor any photographs of the steps from the subject vessel are available, photographs from its sister vessel are an acceptable alternative option for use during deposition questioning, in the nature of use of a demonstrative aid, for inquiring into how the alleged accident occurred, and in that sense their use at a deposition is reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Plaintiff is, of course, free during his deposition testimony to point out any differences or similarities between the pictured steps and those involved in his accident, and the record must be made clear during questioning that the pictured steps are not the steps where the accident occurred.
For the foregoing reasons, plaintiff must answer these questions when his deposition resumes.
III. REQUESTS FOR AWARDS OF FEES AND EXPENSES
Both sides have requested awards of attorney's fees and expenses incurred in connection with these motions. Both requests are denied. Although defendants are the winners as to both motions, the law supports plaintiff's arguments in support of his motion to compel, and only the agreement between counsel compels the result reached. Plaintiff's opposition to defendant's motion is a good faith argument concerning the facts and the law. Under these circumstances, no award of fees and costs will be made. Fed.R.Civ.P. 37(A)(4)(a).
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Counsel are directed to schedule the continuation of plaintiff's deposition at a mutually convenient time and date at the office of plaintiff's counsel, following which defendants must produce both the statement and the surveillance materials to plaintiff.