Opinion
Civil Action No: 03-489, Section: "R" (3).
November 15, 2004
ORDER AND REASONS
The parties move the Court in limine to exclude evidence and testimony. For the following reasons, the Court DENIES Bird-Johnson's motions and DEFERS ruling on ENSCO's motion until the time of trial.
I. BIRD-JOHNSON'S MOTIONS IN LIMINE
A. Spoilation
Bird-Johnson moves the Court to find that ENSCO has destroyed evidence relevant to the litigation and to make inferences adverse to ENSCO from the allegedly destroyed evidence. Bird-Johnson directs its motion at certain oil analysis reports and component parts that it alleges are material to the issues in this case.
The Court declines to find that ENSCO spoiled evidence. The spoilation of evidence doctrine concerns the intentional destruction of evidence. Menges v. Cliffs Drilling Co., 2000 WL 765082, at *1 (E.D. La. June 12, 2000). Before a court can make an adverse inference concerning destroyed evidence, the party in control of the evidence must have had an obligation to preserve it. Id. at 2. If the party had an obligation to preserve the evidence, the court must then determine whether the evidence was intentionally destroyed. Id. See also Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir. 1999) (noting that an adverse inference is predicated on the bad conduct of the party that allegedly destroyed the evidence).
Here, Bird-Johnson fails to demonstrate that ENSCO had an obligation to preserve the oil analysis reports. It was never ENSCO's theory that faulty lubrication caused the TITAN's damages. Further, Bird-Johnson's initial theory of what caused the TITAN's failure related to certain bearings, not lubrication. It was not until January of 2004 that Bird-Johnson requested the oil analysis reports. By that time, ENSCO had already sold its entire fleet of vessels and delivered all of the related documents to Tidewater Marine, Inc. Bird-Johnson has not shown that ENSCO knew or should have known that the oil analysis reports were potentially relevant to the litigation when it transferred these documents to Tidewater. Thus, Bird-Johnson simply has not proved that ENSCO had an obligation to preserve the reports. Moreover, it is not clear that the analysis reports were actually destroyed. ENSCO alleges that it sold its fleet and delivered all of the related documents to Tidewater. There is no evidence that Bird-Johnson attempted to obtain the reports from Tidewater.
Likewise, Bird-Johnson failed to demonstrate that ENSCO spoiled the component parts of the propeller hubs. Bird-Johnson argues that when the TITAN was disassembled and repaired in the spring of 2001, ENSCO made no effort to mark and identify component parts taken from the propeller hubs. Additionally, Bird-Johnson argues that ENSCO prevented its experts from examining all of the parts of the hubs because ENSCO reincorporated some of the parts into the TITAN when it was rebuilt. Bird-Johnson's arguments are unpersuasive. The teardown and repair of the TITAN began in April of 2001. Bob Davis, a Bird-Johnson representative, arrived on April 2, 2001 to supervise the inspection and teardown of the hubs. Davis remained on-site until April 9, 2001 reporting the damages he found to Bird-Johnson. Therefore, Bird-Johnson had access to the TITAN for inspection of any potential evidence, Bird-Johnson had an opportunity to determine what caused the TITAN's failure before it was reassembled, and Bird-Johnson could have requested that particular component parts be marked and identified for future use. Bird-Johnson's argument that it was not on notice of ENSCO's warranty claim at that time is disingenuous. ENSCO's warranty claim was foreseeable in light of ENSCO's request that Bird-Johnson investigate the failure of parts of the vessel that Bird-Johnson recently overhauled. Cf. Menges, 2000 WL 765082, at *3 (declining to find spoilation because, inter alia, the plaintiff gave the defendant full access to his medical records before undergoing his surgery, which allegedly destroyed evidence).
B. Photographs
Bird-Johnson objects to certain photographs of the hubs on the basis of authenticity. The Court denies the motion. Bird-Johnson has not shown the Court that the pictures are not authentic. Moreover, ENSCO has represented to the Court in its brief and at the pre-trial conference that the person who took the photographs will testify at trial and identify the pictures. Therefore, the Court will admit the photographs into evidence if ENSCO lays the proper foundation.
C. Newly Disclosed Witnesses
Bird-Johnson objects to Bill Landen and Jamie Milke as witnesses because ENSCO identified them after the September 7, 2004 deadline. Bird-Johnson withdrew its objection to Landen at the pre-trial conference. Additionally, ENSCO is not calling Milke to testify at trial. Therefore, the motion to exclude these two witnesses is denied as moot.
D. ENSCO's 30(b) (6) Deposition
Bird-Johnson moves to exclude several categories of evidence because ENSCO's 30(b) (6) designee was unable to answer questions about topics Bird-Johnson identified for the deposition. As noted above, ENSCO sold all of its vessels to Tidewater. At the time of the 30(b) (6) deposition, ENSCO had no employees and therefore designated ENSCO International employee Tom Schexnayder for the deposition. According to Bird-Johnson, Schexnayder should have conducted an investigation with former ENSCO employees to enable him to answer Bird-Johnson's questions at the deposition.
The Court denies the motion. This is a discovery issue that Bird-Johnson should have resolved before trial by filing a motion to compel with the magistrate judge. Bird-Johnson, however, did not bring its dissatisfaction with the 30(b) (6) deposition before the magistrate judge. If there had been a deficiency in ENSCO's discovery response, this could have been corrected before trial. Moreover, ENSCO has raised issues as to whether it controlled or had access to former employees. The eve of trial is not the time to get embroiled in a distracting dispute over discovery. Because Bird-Johnson did not pursue its remedies appropriately during discovery, the Court will not grant it the drastic relief it seeks now. The Court notes that no party is prejudiced by this decision. ENSCO identified its former employees who had knowledge of the issues in its voluntary discovery disclosures and discovery responses. Both parties had ample opportunity to depose these former employees to obtain the information they needed.
E. Other Exhibits
Bird-Johnson objects to several exhibits that ENSCO intends to offer into evidence at trial. Bird-Johnson has failed to brief its objections. Instead, Bird-Johnson has supplied the Court with only a list of exhibits and a few words identifying the general basis of the objection. Bird-Johnson provides no explanation why its objections are applicable to the identified exhibits. Therefore, Bird-Johnson's motion to exclude those exhibits is denied.
III. ENSCO'S MOTION IN LIMINE
ENSCO moves to limit the testimony of Robert Davis to his factual testimony and to preclude any expression of opinion by Davis. Specifically, ENSCO moves to exclude Davis's opinion regarding the viability of certain bearings. The Court defers ruling on this motion until trial.
IV. CONCLUSION
For the above reasons, the Court DENIES Bird-Johnson's motions and DEFERS ruling on ENSCO's motion until the time of trial.