Gabarick v. Laurin Maritime (America), Inc.

274 F.R.D. 208, 79 Fed. R. Serv. 3d 519, 2011 U.S. Dist. LEXIS 82588, 2011 WL 1485646
CourtDistrict Court, E.D. Louisiana
DecidedApril 18, 2011
DocketCivil Action Nos. 08-4007, 08-4012, 08-4023, 08-4025, 08-4031, 08-4046, 08-4055, 08-4058, 08-4059, 08-4060, 08-4156, 08-4261, 08-4317, 08-4505, 08-4600, 08-4701
StatusPublished
Cited by1 cases

This text of 274 F.R.D. 208 (Gabarick v. Laurin Maritime (America), Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gabarick v. Laurin Maritime (America), Inc., 274 F.R.D. 208, 79 Fed. R. Serv. 3d 519, 2011 U.S. Dist. LEXIS 82588, 2011 WL 1485646 (E.D. La. 2011).

Opinion

ORDER

KAREN WELLS ROBY, United States Magistrate Judge.

Before the Court is a Motion to Compel Deposition Before Magistrate Judge Roby (R. Doc. 1107) filed by Laurin Maritime (America) Inc., Laurin Maritime AB, White-fin Shipping Co., Ltd., and Anglo-Atlantic Steamship Limited seeking an Order requiring D.R.D. Towing Company LLC’s witnesses (“DRD”), Julie Dantin Schmidt and Randall Dantin, to appear for a second deposition before the undersigned so that the Court may determine whether the witnesses can properly invoke their Fifth Amendment rights during the course of the deposition. On March 22, 2011, DRD filed a response. (R. Doc. 1114.) This motion was heard with oral argument on Wednesday, December March 30, 2011.

I. Background

On July 24, 2008, Plaintiffs Stephen Marshall Gabariek and Bernard Attridge filed this class action Complaint. (R. Doc. 1, p. 1.) On August 6, 2008, the case was consolidated with several other cases resulting from the same underlying incident.1 (See R. Doc. 10). [210]*210On July 23, 2008, the M/V Tintomara, a tanker, collided into Barge DM932 while traveling near Mile Marker 97 of the Mississippi River near the Crescent City Connection. (R. Doc. 1, ¶¶ 1, 5.) The barge was towed by the M/V Mel Oliver. Id. As a result of the collision, Barge DM932 split in half, causing a spill of 500,000 gallons of No. 6 Heavy Fuel oil which had recently been loaded on the barge at the St. W. Stone Oil Distributer located in Gretna, Louisiana. Id. As a result of the spilled oil, the Plaintiffs allege that serious and dangerous environmental contamination of the Mississippi River occurred, and an 80 mile stretch of the Mississippi River has been closed to navigation. Plaintiffs also complain that prevailing winds have caused toxic gases from the oil to spread from the site of the collision to the French Quarter and the Uptown Area of New Orleans, exposing class members. Class members also complain that lost revenues have resulted from the closure of portions of the Mississippi River caused from the oil spill. Class members further complain that water intakes for Algiers, Gretna, St. Bernard Parish, and Plaquemines Parish have closed in order to prevent contamination to drinking water. (R. Doc. 1, ¶¶ 10-13.)

The M/V Mel Oliver was operated by DRD Towing, Inc. (“DRD”) and was owned by American Commercial Lines, LLC (“ACL”). ACL contends that DRD operated the tug pursuant to a bareboat charter agreement. However, the Tintomara Interests contests whether a true bareboat charter agreement existed between DRD and ACL.

DRD, one of several entities held under the Dantin Holding Group, was operated by three (3) principals. Randall Dantin (“Dan-tin”) served as DRD’s operating manager. Julie Dantin Schmidt (“Schmidt”) served as the bookkeeper, and Danny Dantin serves as the President. After the accident, DRD pled guilty to utilizing unlicensed personnel in violation of the Waterways Safety Act. Dan-tin pled guilty to obstruction of justice for destroying DRD’s electronic and bookkeeping information. It is unknown whether Schmidt has been questioned by the authorities or received a target letter for any involvement she may have had in DRD’s or Dantin’s wrongdoings.

As to the instant motion, on February 15, 2011, the Tintomara Interests deposed Schmidt and on February 17, 2011, they deposed Dantin2. In response to almost every question posed, including basic background questions, both witnesses refused to respond and instead pled the Fifth Amendment privilege. The Tintomara Interests contend that the Privilege was improperly invoked as to several of the questions posed and the witnesses’ failure to respond to non-incriminating questions warrants a second deposition of both witnesses. The Tintomara Interests further seek to re-depose the two witnesses before the undersigned so that any claim of Fifth Amendment privilege can be promptly resolved.

DRD filed a response, indicating that its counsel does not serve as criminal counsel for either deponent. However, if the Court were to find that a blanket invocation of the Privilege was improper, it would not oppose their redeposition so long as each deponent is permitted to have criminal counsel present.

II. Standard of Review

Under Federal Rule of Civil Procedure 26(d),“[ujnless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.” Fed.R.Civ.P. 26(d). The principal effect of Rule 26(d) is “to eliminate any fixed priority in the sequence of discovery.” Advisory Committee’s Note to Fed.R.Civ.P. 26(d), 1970 Amendments. A court has discretion to vary the usual priority, however, such relief is granted “only for ‘the most [211]*211obviously compelling reasons.”’ Advisory Committee’s Notes to Fed.R.Civ.P. 26(d), 1970 Amendments (quoting 2A Barron & Holtzoff, Federal Practice and Procedure 44-47 (Wright ed.1961)).

III. Analysis

The Tintomara Interests contend that both deponents improperly asserted a blanket Fifth Amendment Privilege to the questions posed during their depositions. The Tintomara Interests contend that, although the deponents may have a legitimate Fifth Amendment Privilege as to questions which run the risk of self-incrimination, the questions asked of the deponents during their depositions did not bear such risk. The Tintomara Interests contend that he following broad categories of topics, in which it seeks to depose the witnesses, do not invoke the privilege: (1) general background information; (2) contract negotiations between DRD and ACL; (3) each entity’s performance under the contract, including insurance, maintenance repairs, and financing; (4) DRD’s relationship with other entities held under the Dantin Holding Group; and (5) ACL’s knowledge of DRD’s actions under the contract.

The Tintomara Interests contend that the deponents failure to respond to questions which do not implicate the Fifth Amendment Privilege necessitates a second deposition of each witness. They further request that the deponents be redeposed before the undersigned so that a prompt judicial resolution may be obtained if issues relating to the Fifth Amendment Privilege should arise.

DRD’s counsel does not serve as criminal counsel for either deponent. However, DRD’s counsel insists that both deponents have a legitimate privilege to at least some questions and therefore requests that if the deponents are re-deposed, they be permitted to have criminal counsel present.3

“A blanket refusal to answer questions at depositions on the grounds that they are privileged is an improper invocation of the Fifth Amendment.” Securities and Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660

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Bluebook (online)
274 F.R.D. 208, 79 Fed. R. Serv. 3d 519, 2011 U.S. Dist. LEXIS 82588, 2011 WL 1485646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabarick-v-laurin-maritime-america-inc-laed-2011.