Nautimill S.A. v. Legacy Marine Transportation, LLC, No. 2:2015cv01065 - Document 104 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 91 Michael J. Thompson, Jr.'s motion to quash Legacy Marine Transportation, LLC's trial subpoena.. Signed by Judge Sarah S. Vance on 7/18/16. (jjs)
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Nautimill S.A. v. Legacy Marine Transportation, LLC Doc. 104 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA NAUTIMILL S.A. CIVIL ACTION VERSUS NO: 15-10 65 LEGACY MARINE TRANSPORTATION, LLC SECTION: R(5) ORD ER Michael J . Thompson, J r. has filed a motion to quash or modify his trial subpoena. Legacy Marine Transportation, LLC opposes Thom pson’s m otion, and argues that Thom pson’s testim ony regarding an affidavit com pleted by David Hasselm an in another case is necessary to impeach Hasselm an. The Court grants Thom pson’s m otion because the subpoena is unduly burdensome and because Legacy failed to tender m ileage or witness fees. The decision to quash a subpoena is within the discretion of the district court. United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992). Under Rule 45, this Court m ust quash a subpoena which “subjects a person to undue burden.” Fed. R. Civ. P. 45(3)(A)(iv). Factors to be considered when determ ining whether a subpoena poses an undue burden include the “relevance of the inform ation requested” and “the need of the party” for the Dockets.Justia.com testim ony. W iw a v. Roy al Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 20 0 4). Legacy does not m ake clear why the affidavit statem ents are relevant to this case beyond the m ere assertion that they are. Further, the Court finds that Thom pson’s testim ony will be unnecessarily cum ulative. Although Hasselm an’s credibility is at issue in the case, Legacy m ay impeach Hasselm an regarding the preparation of the affidavit using the document itself and Hasselm an’s correspondence with Thom pson. Because the inform ation sought from Thom pson is available from other sources, im posing the burden of appearing at trial on Thom pson is unnecessary. Zabresky v. von Schm eling, No. 12-20 , 20 13 WL 140 2324 (M.D. Pa. 20 13) (third-party trial subpoena was quashed because inform ation sought was of protected nature, posed unnecessary burden, and was available from other sources). In addition, Legacy does not dispute Thom pson’s assertion that it failed to tender witness or m ileage fees. “The plain m eaning of Rule 45 (b)(1) requires sim ultaneous tendering of witness fees and the reasonably estim ated m ileage allowed by law with service of a subpoena. The courts uniform ly agree with this interpretation of rule 45(b)(1), as do the leading treatises on civil procedure.” In re Dennis, 330 F.3d 696, 70 4-0 5 (5th Cir. 20 0 3) (internal quotations, m odifications, and citations om itted). The Court 2 finds that Legacy’s failure to tender these fees provides an additional basis for granting Thom pson’s m otion. See id. (upholding district court’s granting of m otion to quash on grounds that subpoenaing party failed to tender m ileage fees). Finally, the Court notes that, although Thom pson does not represent any party in this case, he represents Operaciones Tecnicas Marinas, S.A.S. (“OTM”) in a suit against Diversified Marine Services, LLC. See Operaciones Tecnicas Marinas, S.A.S. v. Diversified Marine Services, LLC, et al., No. 1530 932 (E.D. La.). That case is currently on appeal before the Fifth Circuit. Operaciones Tecnicas Marinas, S.A.S. v. Diversified Marine Services, LLC, et al., No. 15-30 932 (5th Cir.). OTM’s com plaint lists Robert Boudreaux, Legacy’s principal, as Diversified’s agent of service and Diversified is represented by Legacy’s counsel in this m atter. See Operaciones Tecnicas Marinas, S.A.S. v. Diversified Marine Services, LLC, et al., No. 15-30 932, R. Doc. 1, (E.D. La. J uly 31, 20 12) (com plaint). Several courts have recognized the need to sharply lim it depositions of opposing counsel. See United States v. Yonkers Bd. of Educ., 946 F.2d 180 , 185 (2d Cir. 1991) (“[D]epositions of opposing counsel are disfavored . . . .”); Shelton v. Am . Motors Corp., 80 5 F.2d 1323, 1327 (8th Cir. 1986) (“Taking the deposition of opposing counsel not only disrupts the adversarial system 3 and lowers the standards of the profession, but it also adds to the already burdensome tim e and costs of litigation.”) Although Thom pson is not opposing counsel to Legacy in this case, the Court finds that the concerns anim ating the above decisions further support quashing Legacy’s subpoena. For the reasons described above, the Court GRANTS Michael J . Thom pson, J r.’s motion to quash Legacy Marine Transportation, LLC’s trial subpoena. New Orleans, Louisiana, this _ 18th _ day of J uly, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 4
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