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Injured captain not allowed to subpoena third party to obtain industry practice evidence

This case arises out of a barge breakaway on the Mississippi River during Hurricane Ida. A long list of parties sued or were sued. Two of the parties included a fleet boat captain who alleged he was injured during the breakaway and the fleeter who had custody of the barges that broke away during the storm.

This decision concerns a discovery dispute between the fleet boat captain and a third-party company and barge fleeter (Harbor Towing and Fleeting).

The fleet boat captain sent a subpoena to Harbor Towing (and ten other entities) seeking information about what these companies did to prevent breakaways during Hurricane Ida. Harbor Towing and the ten other entities had no role or involvement in the underlying breakaway or litigation.

The fleet boat captain’s legal team was trying to develop evidence to support their negligence claim against the fleeter Magnolia Fleet. Specifically, the legal team was attempting to develop evidence of industry custom and practice from third parties like Harbor Towing to compare to the actions/inactions of the defendant fleeter Magnolia Fleet.

Harbor Towing filed a motion to quash arguing the subpoena was an improper fishing expedition not allowed under the discovery rules. It argued that requiring a third party to produce company documents simply to provide a litigant with an industry practice comparison is unreasonable and unduly burdensome for the third party.

The court agreed in part with Harbor Towing and quashed the subpoena holding:

Claimant has not established how the policies or procedures of a non-party/competitor of Magnolia Fleet, with no involvement whatsoever in the incident at issue, could have any possible relevance to any claim or defense. To the extent Claimant seeks such information in an effort to establish industry practice, merely introducing examples of what some other competitors do falls short of establishing industry custom or practice. Further, in light of the limited, if any, relevance of the information sought to any claim or defense and considering the proportionality standard with particular consideration of movant’s status as a non-party, the subpoena duces tecum must be quashed.

So the fleet boat captain’s legal team was not allowed access to the records of Harbor Towing.

Please feel free to contact me at (504) 553-1435 or if you have any questions or would like to discuss.


Adam Davis


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