343 So.3d 866
La. Ct. App.2022Background
- Plaintiffs John and Danielle Molaison sued Cust-O-Fab, Turner Industries, Excel Modular Scaffold, and insurers after John Molaison fell through an open hole at a Denka neoprene plant in LaPlace, LA on July 27, 2017. Denka employed Molaison and owned the facility where the accident occurred.
- Cust-O-Fab, Turner Industries, and Plaintiffs served subpoenas duces tecum and La. C.C.P. art. 1442 corporate-deposition notices on nonparty Denka (43 document requests; 88 deposition topics).
- Denka moved for a protective order and to quash, arguing it was a nonresident, nonparty beyond the subpoena power of a Louisiana court and that the demands were overbroad, prejudicial, and sought privileged/pre-suit fishing.
- The trial court denied the motions but limited depositions to one corporate representative and two fact witnesses (Boyd Detillier and Brett Steib); it declined to resolve the precise scope of requested topics/documents.
- On appeal, the Fifth Circuit (1) concluded Phillips Petroleum did not control because Denka maintained a Louisiana facility and employees, (2) affirmed defendants’ ability to pursue discovery relevant to third-party fault, but (3) vacated the trial court’s order in part and remanded for it to define and limit the specific scope of allowable discovery and privilege rulings.
Issues
| Issue | Denka's Argument | Cust-O-Fab/Turner Argument | Held |
|---|---|---|---|
| Whether a nonresident, nonparty corporation (Denka) may be compelled by a LA court to produce documents and give depositions in Louisiana | Court lacks authority to order a nonresident, nonparty to appear/produce in LA; Phillips controls | Denka has substantial Louisiana connections (facility, employees) so Phillips is distinguishable; discovery rules apply | Distinguishable from Phillips; Denka subject to LA subpoena power under the facts here |
| Whether pre-suit depositions and wide-ranging discovery constitute impermissible fishing or violate due process | Requests are pre-suit fishing expedition to allocate fault before allegations are pled; denies due process | Discovery into third-party fault is permissible to develop defenses under comparative-fault rules | Pre-suit discovery to develop affirmative defenses is allowed; defendants may seek relevant, nonprivileged information |
| Whether defendants showed good cause / relevancy to subpoena Denka and whether requests are overbroad or privileged | Requests are overbroad, impose undue burden on a nonparty, and seek privileged/post-accident/protected materials | Denka insulated investigation and improperly claims privilege; factual materials are discoverable and defendants need access | Trial court should assess relevancy/privilege; allowing discovery was not erroneous, but trial court erred by not limiting scope and identifying non-discoverable items |
| Whether trial court provided sufficient guidance/limits on permissible topics/documents | Order as written is impossible to comply with; court must delineate allowable topics and limits | Limited discovery (one corporate rep + two witnesses) was a reasonable balancing measure | Court’s limitation to three witnesses appropriate, but remand required so trial court can specify and limit particular discovery requests and privilege rulings |
Key Cases Cited
- Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186 (La. 1994) (LA Supreme Court held a nonresident, nonparty cannot be compelled to appear/produce in Louisiana absent statutory authority)
- Bernard v. State Farm Mut. Auto. Ins. Co., 742 So.2d 609 (La. App. 4 Cir. 1999) (distinguishing Phillips where nonparty retained meaningful Louisiana contacts)
- Petch v. Humble, 939 So.2d 499 (La. App. 2 Cir. 2006) (discovery must not be a fishing expedition)
- State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 790 So.2d 673 (La. App. 3 Cir. 2001) (scope of discoverable material under La. C.C.P. art. 1422)
Decision: VACATED in part, AFFIRMED in part, and REMANDED with instructions that the trial court define the specific permissible scope and privilege limitations for Denka’s production and depositions.