How far is too far? Overstepping Rule 34 of the Federal Rules of Civil Procedure.
Trevelyn Enterprises, LLC v. SeaBrook Marine, LLC, No. 18-11375, 2020 WL 4437236; 2020 U.S. Dist. LEXIS 137242 (E.D.L.A. Aug. 3, 2020).
By: Ava Maria Wolf
Recently, the United States District Court for the Eastern District of Louisiana confronted the issue of discovery abuse under Rule 34 of the Federal Rules of Civil Procedure. In Trevelyn Enterprises, LLC v. SeaBrook Marine, LLC, a representative of Seahawk Paints (“Seahawk”), violated discovery obligations when he inspected the vessel, M/Y FAIR SKIES, without permission.[1]
The lawsuit stemmed from a contract entered into by the parties on June 5, 2018, in which SeaBrook Marine, LLC (“SeaBrook”) was to conduct repair and maintenance work on M/Y FAIR SKIES, a vessel owned by Trevelyn Enterprises, LLC (“Trevelyn”).[2] SeaBrook then contracted with Seahawk to ensure M/Y FAIR SKIES was primed and painted correctly.[3] During the discovery phase of the lawsuit, M/Y FAIR SKIES was inspected by Trevelyn, Seahawk, and SeaBrook, who all sent representatives on its behalf.[4] On June 16, 2020 Trevelyn sent its expert’s, Mr. Revel Boulon, report to both SeaBrook and Seahawk.[5] Unsatisfied with Mr. Boulon’s report, Seahawk requested another inspection of M/Y FAIR SKIES, with the inspection being conducted by Mr. Bill Wolf; Trevelyn, however, denied the request, as Seahawk previously had an opportunity to inspect the vessel.[6]
After threatening to file a motion to compel, Seahawk sent Mr. Wolf to re-inspect M/Y FAIR SKIES, who was observed taking photographs.[7] Acting on this knowledge, Trevelyn proposed the parties enter into a stipulation, barring Seahawk from using Wolf or his obtained information at trial, while also requiring Seahawk destroy any “photos, notes, samples, etc. obtained by Wolf”; Seahawk rejected the stipulation, forcing Trevelyn to file a Motion for a Protective Order and Sanctions (“Motion”).[8] In its Motion, Trevelyn argued “Seahawk has violated Federal Rule of Civil Procedure 34 by inspecting the M/Y FAIR SKIES without formally requesting a second inspection or filing a motion to compel an inspection when Trevelyn resisted.”[9]
In deciding whether to grant Trevelyn’s Motion, the Eastern District of Louisiana relied heavily on the plain language of Rule 34 of the Federal Rules of Civil Procedure, which allows a party to request “entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”[10] Applying this language, the court found Wolf’s inspection without permission to be in direct violation of Rule 34.[11] Looking back at Seahawk’s initial request to re-inspect M/Y FAIR SKIES, the court noted Seahawk should have pursued its motion to compel.[12] Further, the court questioned why Seahawk even needed new photos of M/Y FAIR SKIES, if they were identical to those previously captured.[13] Nonetheless, the court granted Trevelyn’s Motion in full, barring Seahawk and SeaBrook from using Wolf and his obtained information and tangible materials at trial, while also requiring all information and materials be destroyed.[14]
[1] Trevelyn Enterprises, LLC v. SeaBrook Marine, LLC, No. 18-11375, 2020 WL 4437236, at *4 (E.D.L.A. Aug. 3, 2020).
[2] Trevelyn, 2020 WL 4437236, at *1. (“Trevelyn alleges that SeaBrook did not perform the work in a workmanlike manner and that SeaBrook also damaged the vessel”).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. at *2.
[8] Id. Seahawk based its denial of the stipulation on the fact the photos taken were identical to those previously captured; further, Seahawk argued M/Y FAIR SKIES is in public space, thus subject to inspection without permission.
[9] Id. Seahawk relied on its previous arguments, stating there was no discovery abuse or prejudice suffered.
[10] Id. at *3 (citing Fed. R. Civ. P. 34(b)(2)).
[11] Id.
[12] Id. The court also noted Seahawk could have requested an expedited hearing or simply had a telephone conference with the judge.
[13] Id.
[14] Id. at *5. The Court also awarded Trevelyn reasonable attorney’s fees and costs.
