Gabarick v. Laurin Maritime (America), Inc.
Gabarick v. Laurin Maritime (America), Inc.
Opinion of the Court
ORDER
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.
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 Dantin
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
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.
“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, 668 (5th Cir. 1981) (quoting Note, Plaintiff as Deponent: Invoking the Fifth Amendment, 48 U.Chi.L.Rev. 158, 164 (1981)). “Even if the danger of self-incrimination is great, [the party’s] remedy is not to voice a blanket refusal to produce his records or testify. Instead, he must present himself with his records for questioning, and as to each question and each record elect to raise or not to raise the defense.” Id. quoting United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969)(footnote omitted).
Whether a party is entitled to invoke the Fifth Amendment is not a determination for the party, and instead is a question for the Court after conducting “a particularized inquiry, deciding, in connection with each specific area that the questioning party seeks to explore, whether or not the privilege is well-founded.” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Even where a party has a legitimate claim of privilege with respect to certain questions or lines of inquiry, that person may not be entitled to invoke his privilege to remain totally silent. Only where the court finds that a witness could “legitimately refuse to answer essentially all relevant questions,” United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir. 1975), because of the threat of incrimination from any relevant questioning is a person totally excused from responding to relevant inquiries. Otherwise, a person is entitled to invoke the privilege “(o)nly as to genuinely threatening questions .... ” United States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). See generally United States v. Goodwin, 625 F.2d 693, 700-01 (5th Cir. 1980). Therefore, a blanket invocation of the fifth amendment privilege is insufficient to relieve a witness of the responsibility to answer questions posed during discovery and to claim the privilege with respect to each inquiry. See National Life Insurance Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595, 598-600 (3d
It is clear that both witness’ blanket assertion of the Fifth Amendment Privilege was improper. Both witnesses cited the Privilege to questions which could not remotely be construed as running the risk of self-incrimination. In fact, the only questions in which Dantin did not plead the Fifth was in response to questions asking his name, address, and birthday. (See R. Doc. 1107-3, p. 6.) Schmidt, on the other hand, indicated that she “take[s] the Fifth on everything ... Can I just say that, or do I have to say it every time?” (R. Doc. 1107-6, p. 7.) She then proceeded to respond “Taking the Fifth” to each and every question posed, including “How far did you get in school?”, “How are you presently employed?”, and “What was the first job you had out of school?” (R. Doc. 1107-6, pp. 8-9.)
As a result, the Court finds that a second deposition of each witness is warranted. Further, the Court will permit the Tintomara Interests to redepose the witnesses before the undersigned in order to provide a prompt resolution if either deponent asserts the Privilege in response to the Tintomara Interests questioning. The Court makes no determination at this time as to whether the broad topics proposed by DRD invoke the Fifth Amendment Privilege and instead will make its determination on a question by question basis. Both deponents are permitted to have criminal counsel present.
Further, because both witnesses failed to respond to questions which could not reasonably require the invocation of the Fifth Amendment Privilege, Schmidt and Dantin shall bear the costs of conducting their respective deposition.
IV. Conclusion
Accordingly,
IT IS ORDERED that the Motion to Compel Deposition Before Magistrate Judge Roby (R. Doc. 1107) is hereby GRANTED.
IT IS FURTHER ORDERED that Julie Dantin Schmidt and Randall Dantin shall be deposed United States Magistrate Judge’s Courtroom located at 500 Poydras Street, Room B-431, New Orleans, Louisiana on Friday, May 13, 2011, beginning at 10:00 A.M.
IT IS FURTHER ORDERED that Julie Dantin Schmidt and Randall Dantin shall bear the costs of their respective depositions.
. The instant case was consolidated with the following cases: Civil Action No. 08-4012, Austin Sicard, et al. v. Laurin Maritime (America) Inc., et al., Civil Action No. 08-4023, Whitefin Shipping Co. Limited, as owner of the M/V Tintomara, petitioning for Exoneration from or Limitation of Liability, Civil Action 08-4025, George C. McGee et al. v. Laurin Maritime (America) Inc., et al, Civil Action 08-4031, Bernadette Glover v. Laurin Maritime (American) Inc., et al, Civil Action No. 08-4046, American Commercial Lines, LLC as owner of Barge DM-932, Praying for Exoneration from or Limitation of Liability, Civil Action No. 08-4055, Jefferson Magee et at v. Ameri
. At the time of Dantin’s deposition, he had pled guilty but had not surrendered himself to begin serving his 19 month sentence.
. Counsel for the Tintomara Interests represented during the hearing that Chip Forey, Schmidt's criminal defense attorney, does not oppose a second deposition. However, he does not waive Schmidt’s Fifth Amendment Privilege. DRD informed the Court that while Dantin was previously represented by counsel in his criminal matters, he is no longer represented.
Reference
- Full Case Name
- Stephen Marshall GABARICK v. LAURIN MARITIME (AMERICA), INC.
- Cited By
- 1 case
- Status
- Published