Torres-Lugo v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRIC T OF LOUISIANA

CARLOS TORRES-LUGO CIVIL ACTION

VERSUS NUMBER: 20-210

BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION “A” (5)

ORDER AND REASONS

Before the Court is Plaintiff’s Motion for Sanctions, based upon various alleged

violations of Federal Rule of Civil Procedure 30(b)(6). (Rec. doc. 101). Defendants (referred

to hereinafter as “BP”) filed an opposition to the motion (rec. doc. 115) and Plaintiff filed a

reply memorandum. (Rec. doc. 122). Contrary to my usual practice, I permitted BP to file a

sur-reply memorandum. (Rec. doc. 127). I subsequently granted leave for Plaintiff to file a

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supplemental reply memorandum. (Rec. doc. 128).

I held a hearing on the motion, which failed to allay my frustration or resolve the

issues raised in the motion. Accordingly, I ordered additional briefing by BP. (Rec. doc. 131).

As promised, I then held a second hearing. (Rec. doc. 133).

Based upon this unusually fulsome briefing and multiple hearings, the Court finds

that Plaintiff’s motion is well-taken for the following reasons.

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I almost never allow the filing of sur-replies. In this case, not only did I grant leave for BP to file such a

pleading, I thereafter allowed Plaintiff to file yet another reply and then called for more briefing from BP, all for

a fairly straightforward discovery dispute. To be clear, I understand that these issues permeate a docket of

similar cases that numbers in the hundreds. I cannot stress enough that the parties in this single-plaintiff case

ought to take these ruling to heart across the docket. As a humble Magistrate Judge, I can do no more than

I. THE RELEVANT PROCEDURAL HISTORY

A. The First Corporate Deposition and Motion to Compel

This dispute started with Plaintiff’s effort to convene a Rule 30(b)(6) deposition on a

wide range of issues. After a period of some negotiation, that deposition took place on

February 27, 2022. To say the least, there were issues.

Those issues were brought to my attention via Plaintiff’s “Motion to Compel Rule

30(b)(6) Deposition of BP Defendants.” (Rec. doc. 66). That motion was based on the idea

that BP’s sole designated representative was prevented by BP’s counsel from testifying about

certain “Areas of Inquiry” (hereinafter referred to as “Topics”) as a corporate representative.

The deponent was Dave Dutton, Ph.D. Dr. Dutton (“Dutton”) is a former employee of

BP and served as the Industrial Hygiene Lead for the Deepwater Horizon (“DWH”) response

under the Unified Command. (Rec. doc. 115). At the February 2022 corporate deposition,

Dr. Dutton apparently testified satisfactorily to 18 of Plaintiff’s 24 topics of inquiry. The

motion to compel arose from BP’s position that its designee should not have to testify about

the other six. The areas of inquiry that concern the Court in this motion number only two

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and I will limit the analysis in this opinion to those topics. Here they are, along with BP’s

written responAsreesa, p orfo Ivnidqeudir jyu sNt ob.e 1fo5r:e the deposition:

Knowledge of the interface between epidemiology studies and

the field of toxicology concerning any and all chemicals to which

BP Oil Spill response workers were actually or potentially

exposed to oil or dispersants. This knowledge should include,

but not be limited to, the following:

a) The effects of oil and dispersants and all of their

chemical components on human beings and human health;

b) Study of the effect of all the oil and dispersants on

workers performing spill response work, such as the

plaintiff herein;

c) The health hazards associated with or caused by people

being exposed to crude and/or weathered oil; and

d) The health hazards associated with or caused by people

being exposed to dispersants.

(Rec. doc. 77-3 at 19).

Here was BP’s written objection to that area of Inquiry:

Defendants object to this request because it is vague, ambiguous

and fails to describe with reasonable particularity the subject

matter on which Plaintiff seeks testimony. Absent further

clarification, Defendants cannot identify or designate a witness

or witnesses to testify in response to this request. Defendants

further object to this request as overbroad, unduly burdensome,

not relevant to any claim or defense in this case, not

proportional to the needs of the case, and not reasonably

calculated to lead to the discovery of admissible evidence

relevant to any issue that may be litigated at trial pursuant to

Section VIII.G.3 of the MSA. Defendants specifically object to this

request insofar as information regarding BP’s “[k]knowledge of

the interface between epidemiology studies and the field of

toxicology” and the potential human health effects of exposure

to oil and/or dispersants is not relevant to any issue that may

be litigated at trial pursuant to Section VIII.G.3 of the MSA and is

beyond the scope of discovery permissible under Section

VIII.G.5 of the MSA. Testimony and information regarding the

interface between epidemiology and the field of toxicology and

the potential human health effects of exposure to oil and/or

dispersants necessarily involve complex scientific issues that

Id. will be addressed by Defendants’ experts and disclosed in

compliance with the Court’s Case Management Order deadlines.

( )(emphasis added).

The othAerre rae loefv Iannqt utoirpyic N: o. 16:

Knowledge of any epidemiological studies that BP, or anyone

acting on BP’s behalf, has done on its own or in conjunction with

any oil company group or other oil company concerning the

potential health hazards for workers that have done oil spill

Id. response clean-up work, including but not limited to, BP Oil Spill

response workers.

And BP’s response:

Defendants object to this request because it is vague, ambiguous

and fails to describe with reasonable particularity the subject

matter on which Plaintiff seeks testimony. Absent further

clarification, Defendants cannot identify or designate a witness

or witnesses to testify in response to this request. Defendants

further object to this request as overbroad, unduly burdensome,

not relevant to any claim or defense in this case, not

proportional to the needs of the case, and not reasonably

calculated to lead to the discovery of admissible evidence

relevant to any issue that may be litigated at trial pursuant to

Section VIII.G.3 of the MSA. Defendants specifically object to this

request insofar as information regarding epidemiological

studies that BP “has done on its own or in conjunction with any

oil company group or other oil company” is not relevant to any

issue that may be litigated at trial pursuant to Section VIII.G.3 of

Id. the MSA and is beyond the scope of discovery permissible under

Section VIII.G.5 of the MSA.

( )(emphasis added).

BP claimed in brief that these were proper and appropriate objections that validated

its decision not to designate a witness pursuant to the deposition notice. For two reasons, I

disagreed.

First, note the underlined passages in BP’s responses. These are commonly known as

boilerplate objections and are uniformly and categorically improper. As this Court has

previously stated:

The Federal Rules of Civil Procedure take a “demanding attitude

toward objections.” 8 C. Wright & A. Miller, Federal Practice and

Procedure: CSieveil, §e .2g1., 7M3c (L2e0o1d4, )A. l eCxoaunrdtes rt,h Proowugehl o&u tA tphfefe cl,o Pu.nCt. rvy.

hQauvaer lleosng interpreted the rules to prohibit general, boilerplate

objections.

, 894 F.2d 1482, 1485-86 (5th Cir. 1990) (simply

objecting to requests as "overly broad, burdensome, oppressive

and irrelevant," without showing "specifically how each

[request] is nsoete raellseov Aanletx oarn dheorw v .e FacBhI question is overly broad,

burdensome or oppressive” is inadequate to "voice a successful

objection."); , 192 F.R.D. 50, 53 (D.D.C.

St. Paul Reinsurance Co., Ltd. v. Commercial

mFinakaen caia sl pCeocripf.ic, detailed showing of how an interrogatory is

burdensome);

, 198 F.R.D. 508, 511-12 (N.D. Iowa 2000)(a mere

statement by a party that an inWteurrroligtzaetor ryC oi.s (“Hovoellryl y Sbprroinagds,

bDuivridsieonns)o mv.e , Uo.Sp.p rEe.sEs.iOv.eC .and irrelevant” is not adequate to

voice a successful objection);

, 50 F.R.D. 421, 424 (N.D. Miss.

1970)(objections to discovery requests must be specific, and

general objections that the information sought is irrelevant,

immaterial, oppressive, conclusory or already in possession of

the requesting party are insufficient). An objection to a

discovery request is boilerplate when it merely states the legal

grounds for the objection without: (1) specifying how the

discovery reSqtu. ePsatu li Rs edinesfuicriaenncte aCnod. (2) specifying how the

objecting party would be harmed if it were forced to respond to

Chevron Midsttrheea mre qPuipeeslti.n es LLC v. Settoon Towin, g19 L8. LF..CR.,. D. at 512.

, Civ. A. No. 13-2809, 2015 WL

269051 (E.D. La. Jan. 21, 2015).

As noted, the underlined objections are classic boilerplate. A statement that a request

is “overbroad,” without explaining why it is so, is boilerplate. A statement that a request is

"unduly burdensome,” without explaining why, is boilerplate. A statement that a request is

“not proportional to the needs of the case,” without explaining why, is boilerplate. And a

statement that a request is “not reasonably calculated to lead to the discovery of admissible

evidence” is not only boilerplate but archaic, given that the cited language was excised from

the Federal Rules seven years ago.

Not only are these objections improper boilerplate, they are arguably impermissible

general objections. While they are not set forth in an old-school introductory section

denominated “General Objections,” they are instead simply included verbatim as objections

to virtually every request in the deposition notice.

The second malady in BP’s approach is that, despite its apparent objections to every

was only when the deposition actually convened that BP’s counsel made the altogether

bizarre announcement on the record that BP was retroactively designating the prior,

unspecified deposition testimony of its paid litigation experts as its own corporate testimony

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for purposes of the soon-to-be-taken Rule 30(b)(6) deposition. (Rec. doc. 66-7). Despite

this, and for reasons as yet unexplained, BP nonIedt.heless allowed Dutton to answer questions

on Topics 15 and 16 in his personal capacity. ( ).

Sometime after the deposition concluded, in an email to Plaintiff’s counsel, BP’s

counsel explained that it was BP’s position that “it goes far beyond the scope and purpose of

a 30(b)(6) to require a corporate fact witness to render expert opinions.” (Rec. doc. 66-8).

Despite this position, BP explained to the Court in a subsequent opposition memorandum

that its counsel had directed Dutton at the deposition “to answer in his personal capacity if

able, not on behalf of the company.” (Rec. doc. 77 at 5) (emphasis added). This disclosure

was important for two reasons: First, it undermines BP’s insistence that these topics called

for expert testimony in the first place. Why, after all, should a BP witness be allowed to testify

“in his personal capacity” in the expert arena, but not be so permitted as a 30(b)(6) designee?

Second, it indicates that, as of the date of the first 30(b)(6) deposition, BP’s counsel didn’t

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This is not how a litigant objects to providing testimony pursuant to a properly issued Rule 30(b)(6)

deposition notice. Serving an avalanche of boilerplate objections and allowing the deposition to proceed

without taking interim steps is not proper practice. And it is not enough to “signal” a position in advance of the

deposition, which is as much as BP concedes it did before the deposition started. (Rec. doc. 115 at 2 n.3).

What is not proper practice is to refuse to comply with the notice, put the

burden on the party noticing the deposition to file a motion to compel, and

then seek to justify non-compliance in opposition to the motion to compel.

Put simply and clearly, absent agreement, a party who for one reason or

another does not wish to comply with a notice of deposition must seek a

New England Carppreontteecrtsi Hvee aolrtdhe Br.e nefits Fund v. First DataBank, Inc.

even know whether Dutton was “able” to testify about the designated topics in his personal

capacity. This leads the Court to conclude now that, as of the first deposition, Dutton had not

been prepared – by counsel at least – to testify as a 30(b)(6) designee on these topics and, at

least in counsel’s view, may not have been “able” to provide any meaningful testimony at all.

This will become important in the Court’s analysis of the present motion.

In ruling on the motion to compel, I found that the topics at issue categorically did not

require BP to designate a representative to render expert opinions, as they all sought

testimony about BP’s knowledge of certain topics (as opposed to its opinion(s) about them).

These topics included dermal and biomonitoring and the decision-making processes at BP

around conducting such testing during the cleanup operations. I agreed with Plaintiff’s

argument that BP’s suggestion that it need not designate a witness to testify on worker

exposure, monitoring, and health impacts when, at the time of the spill response, BP was

actually making decisions on worker exposure, monitoring, and health impacts, was absurd.

It was clear to me that, for reasons passing understanding, BP and its lawyers had

decided it simply did not have to designate anyone to testify in these areas, despite the clear

requirements of Rule 30(b)(6), and despite not seeking a protective order in advance of the

deposition. In what should have been a predictable outcome, I dismissed BP’s arguments,

explaining to BP’s counsel that (1) the subject topics did not call for expert testimony and (2)

the paid-for testimony of litigation experts cannot in any event be substituted for corporate

testimony about corporate knowledge of relevant topics under 30(b)(6). I therefore ordered

another deposition to go forward and ordered BP to designate an appropriate witness to

testify to topics 15, 16, 19, 20, and 22. (Rec. doc. 87).

Notably, as it concerns the issue of dermal and bio-testing, I explicitly stated that

these topics were covered by the deposition notice:

THE COURT: Is Mr. Falcon going to argue that BP should have

done a dermal and bioassay monitoring on the front-end? Do

you anticipate that that will be one of his arguments?

MR. WILMORE: I would anticipate he did. And we offered

testimony specifically, unobjected to testimony in this corporate

deposition about those very things, and Mr. Falcon cross-

examined BP's experts at length on those very things.

THE COURT: Put the experts to the side. We're talking about

whether one party has the right under the federal rules to

question the company under Rule 30(b)(6) about those same

topics, that's what we're talking about. And as I appreciate it, he

is going to argue that BP made that decision and they shouldn't

have made that decision. And now there's evidence that the

very workers that he says BP exposed to these substances

without the proper monitoring were, in fact, injured, at least

partially because BP did not monitor them while they were

exposed to those substances. That’s what he wants to ask the

company about. I think that’s fair game.

Rec. Doc. 134 at 17.

The second 30(b)(6) deposition went forward on May 19, 2022. The present Motion

for SanBct.i oTnhs eq Sueicckolnyd f Coollropwoerdat. e Deposition and Motion for Sanctions

As noted, the second deposition took place May 19, 2022. Surprisingly (to the Court

at least), BP chose to designate Dutton yet again, despite its counsel apparently being unsure

during the first deposition whether Dutton was even able to answer questions on these

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topics in his personal capacity. (Rec. doc. 77 at 5).

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In explaining that BP would only allow Dutton to answer questions on the subject topics in his personal

capacity, BP’s counsel stated at the beginning of the deposition: “Yeah, we're not instructing him not to answer.·

To the extent that he has an idea, he can tell you.” (Rec. doc. 66-7 at 9). This, coupled with the “if he’s able”

Following the completion of that deposition, Plaintiff filed the subject motion for

sanctions. In it, he claims that Dutton was unprepared to testify as a Rule 30(b)(6) corporate

designee because he failed to do the work necessary to prepare himself for that role.

Plaintiff’s complaints about Dutton as corporate deponent are numerous. First, Plaintiff

argues that, if Dutton’s testimony is correct, it establishes “the total and complete absence of

record keeping by BP regarding one of the most significanti .de.ecisions that BP made regarding

worker safety and health during the oil spill response, , its decision to not do worker

biomonitoring or dermal monitoring.” (Rec. doc. 122). He claims that Dutton could identify

no documentation (1) memorializing BP’s decision to do no biological or dermal monitoring

of the workers, (2) memorializing BP’s analysis or its decision-making process in coming to

its decision to do no biological or dermal monitoring, (3) memorializing BP’s consideration

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or analysis of NIOSH’s recommendations to undertake biomonitoring and dermal

monitoring of the workers, or (4) memorializing BP’s toxicological analysis of the weathered

crude oil to which the workers were exposed. Plaintiff suggests that the idea that there

would be “no documentation of such critical decisions and information within a major

corporation would seem amazing and unbelievable, but the proposition would have to be

accepted as true if it were based on the testimony of a representative with the knowledge,

who had done the research and preparation required of a Rule 30(b)(6) deponent.” (Rec.

doc. 119-1 at 2). Here, Plaintiff claims, BP and Dutton failed in their collective duty to

prepare.

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NIOSH is an acronym for the National Institute of Occupational Safety and Health, which was working, along

Plaintiff argues strenuously that evidence provided by BP – including Dutton’s own

emails – proves that he did not adequately prepare himself and suggests that this is part of

an intentional strategy by BP. Worse than putting forward a 30(b)(6) witness who says “I

don’t know” a lot, Plaintiff complains that Dutton made affirmative statements as the

company, reinforced by a patina of authority as the proper corporate designee, that are

undermined, if not contradicted, by BP’s and Dutton’s own documents (at least one of which

wasn’t produced in unredacted form until after the second deposition).

In response, calling the present motion a “trumped-up discovery dispute,” BP begins

with a layout of the topics that the Court ordered it to respond to, along with some fancy

graphics setting out its own gloss on what the Court must have meant when it ordered it to

sit for a second 30(b)(6) deposition. (Rec. doc. 115 at 3-5). Rather unbelievably, given the

statements I made on the record at the previous hearing making it clear that issues of dermal

testing and biomonitoring were “fair game” in the court-ordered second corporate

deposition, BP argued that “biomonitoring” and “dermal exposurIde. measurements” were not

included in the five topics the Court ordered BP to respond to. ( at 5).

Then, in a rather incongruent segue, BP goes on to insist that Dutton was fully

prepared to testify to these topics anyway, even though they were apparently outside the

scope of the deposition notice. Dozens of footnotes, along with a 38-page declaration of

Dutton himself, set out what he did to prepare for this second deposition.

But this motion and the Court’s consideration of it doesn’t turn on what the witness

says he affirmatively considered – the resolution of this motion turns on whether the Plaintiff

is right about what Dutton did not do. The outcome here turns on whether Dutton, as BP’s

designee, did the minimum necessary to pass muster under Rule 30(b)(6).

II’Iv. e detLeArmWin AeNdD th AaNt hAeL dYiSdI Sn ot do nearly enough.

At the outset, it is important to recall thMati ctkhliess ivs. oBnPe E oxfp lmoraantyio hnu &n dPrreoddsu cotfi osnim, Iinlac.r

cases pending in this district. One such case is ,

No. 17-3566 (E.D. La.). In that case, I ordered BP to produce, no later than April 18, 2022,

sIodm. e 11,600 emails of Dutton’s, which had been identified as responsive in that case by BP.

( at rec. doc. 74).

In a March 22, 2022 hearing in that case about Dutton’s own emails, BP’s counsel

represented to the Court that BP had already – by March 22I, d2.002 – identified 11,600 of

Dutton’s emails responsive to Plaintiff’s discovery requests. ( Id .at rec. doc. 67). I ordered

those documents to be produMciecdk lneos later than April 18, 2022. ( at rec. doc. 74).

This mention of the production is relevant because core documents upon

wMhicikclhe sPlaintiff relies in support of the present motion for sanctions were produced in the

case, some before and at least one only after Dutton appeared as the 30(b)(6)

deponent for a second time in this case.

These documents are also important because (1) Dutton didn’t review the vast

majority of them prior to the second deposition and (2) some of them undermine certain

aspects of Dutton’s testimony as BP, strongly (if not dispositively) establishing that he was

not suited for designation as a 30(b)(6) deponent on the subject topics.

In this vein, it is important to understand Dutton’s own testimony about what he did

and did not do to prepare for the second Rule 30(b)(6) deposition. That “preparation” is

adequately summed up in the following passage from that deposition. It is lengthy, but

helpful in understanding the deficiencies in the witness’s preparation. I have underlined the

more important questions and answers for emphasis.

EXAMINATION BY MR. FALCON:

Q. So since you're the one, and – and Mr. Tremmel were ones

that decided not to do the biomonitoring, and what

investigation and what background do you have in order for you

to make the determination that BP did not have to do

biomonitoring?

MR. SEILER:

Objection.

THE WITNESS:

So it wasn't -- This decision was just down to Fred and I. This

was the industrial hygiene team, which included folks from

other groups as well as BP. The decision was never made to go

out and do biomonitoring because people felt that the

conclusions wouldn't be helpful.

EXAMINATION BY MR. FALCON:

Q. People concluding doesn't help me, and it's not BP's position.

Before you talk about anybody else -- Coast Guard, OSHA or

anyone else, I want BP's position on, what did BP do itself, as the

responsibility upon party for this spill, to as -- to make sure, to s

-- to as -- assure itself that biomonitoring that had been

recommended, that NIOSH said they should do, what did BP

actually do to investigate and study this question?

MR. SEILER:

Objection. He's answered that repeatedly.

MR. FALCON:

No, I have not gotten BP's answers yet. He's just telling me some

other people are doing that.

EXAMINATION BY MR. FALCON:

Q. What did BP do?

MR. SEILER:

Objection. Object to the characterization of his prior responses.

BP had regular phone calls. We hi [sic] experts in -- in industrial

hygiene, certified industrial hygienists in other words. We

interacted with people from other organizations, including

OSHA, on monitoring in general. And the kind of monitoring we

were doing, the kind of monitoring, the results we were having.

We're sharing that with OSHA and Coast Guard and NIOSH and

other folks. And this topic of, "You need to go out and do

biomonitoring never came up other than when NIOSH said they

were thinking about doing it but never followed through.

EXAMINATION BY MR. FALCON:

Q. S -- Still. So did B -- The -- Besides that, did BP do its own

internal investigation with people that had expertise in

biomonitoring to determine whether or not it needed to be

done?

A. We brought experts to the table and had --

Q. The --

A. -- discussions about -- Let's -- Let me finish -- all forms of

industrial hygiene monitoring. And we continued to add certain

sampling -- procedures, and -- and at times wou [sic]-- you

know, stopped other procedures. But where we did all kinds of

different industrial hygiene monitoring. It's a free form. So ...

Q. Who did you -- Who did you bring to the table?

A. Well, we had daily calls with OSHA, and we had Coast Guard

folks and -- Let me finish. You want to know who's at the table.

I'm going to tell you.

Q. Names.

A. Coast Guard and OSHA sat at the same table. We had these

calls. We had folks from each of the different incident command

posts. All participating on the calls and talking about -- exactly

about what kinds of monitoring need to be done.

Q. Okay. So I still need who were the people? What persons from

OSHA or Coast Guard were ac – So name the people that were on

these calls that BP relied upon.

A. And 12 years after the fact, I don't have a list of everybody

that OSHA put out – out on the table. I remember Cindy Coe was

response. But there were -- I -- There's just too many to re -- to

remember, an -- And it's too much time to -- to -- has passed

since I -- we've had those discussions.

So, I mean, we had daily discussions on scheduled phone calls,

to talk about our monitoring needs and talk about the

monitoring results as well.

Q. What documents exist to memorialize B -- BP's decision to not

do dermal or bioassay monitoring?

MR. SEILER:

Objection.

THE WITNESS:

I'm not aware of any documents that would memorialize that.

That was probably the -- That was the results of ongoing

discussions that we had. We didn't necessary -- We did not

record every conversation that we had.

EXAMINATION BY MR. FALCON:

Q. Did you go and look for any documents that would

memorialize BP's decision not to do the dermal sampling?

MR. SEILER:

Objection.

THE WITNESS:

I personally didn't go and – and look for that. But I know from

my experience and having worked the response that we didn't

do it.

EXAMINATION BY MR. FALCON:

Q. All right.

A. And what I mean by that, we didn't do biomonitoring.

Q. And you didn't do dermal sampling either?

A. You've asked that question many times --

Q. Right.

A. -- and the answer is still the same, yes. We did not do dermal

monitoring. We had a different program in place to prevent

exposure. We basically tested the materials they would work

generally very mild with regard to weathered oil, and we pro --

provided adequate personal protective equipment to -- to

protect against any exposures that might occur.

Q. And -- But you did not send E-mails or prepare a document or

do anything to put into the record after this extensive discussion

from NIOSH about biomonitoring? You as the person

responsible for determining whether BP should do it, did

nothing to memorialize your decision not to do it; correct?

MR. SEILER:

Objection.

THE WITNESS:

I don't recall specifically. I know that we produced all of my E-

mails. You have access to those. I have not had a chance to

review all of them.

EXAMINATION BY MR. FALCON:

Q. How many of the 11,600 E-mails did you review before your

deposition today?

A. I didn't count. I just basically opened up files and -- and -- and

somewhat randomly opened up E-mails throughout that

document. But I don't know how many. I didn't count.

Q. Ten?

A. It was more than ten. I don't remember.

Q. Less than a hundred?

A. I don't know. I don't know.

Q. Well, I -- I need to know. 'Cause you -- You have a duty to

prepare for your deposition today, and the duty means you have

to go and look at documents, you have to search for documents,

and you have find people in BP that have answers if you don't

have answers.

So I need to know, what did you do to fulfill your duty?

MR. SEILER:

Objection. He's answered your questions many times.

MR. FALCON:

THE WITNESS:

Well, I have answers, and my answers are based on my own

personal experience, and I don't remin – remember si -- sitting

here today writing an E -- E-mail about not doing biomonitoring.

I know we made a decision not to do that. We didn't do it. I know

that NIOSH talked about doing it, and they decided not to do it.

EXAMINATION BY MR. FALCON:

Q. Did you look at less than a hundred E-mails?

A. I don't recall how many E-mails I looked at. Maybe it was less

than a hundred, but I realized I couldn't get through 11,000 or

so E-mails between then and now.

Q. Did you ask for more time so that you could prepare yourself

properly for today?

A. I think I prepared myself more than adequately for today.

Q. Did you talk to anybody at BP, any of these -- Let me show a

organizational chart. Well, just talk about the ones that are on

these E-mails. The BP personnel on the E-mails we've talked

about so far today, have you discussed any of these issues with

-- with any of those personnel from BP?

A. I have not contacted anybody from BP. I didn't feel I needed

to. Based on my memory and recollection of working the

response, I understand what was and wasn't done with regard

to biomonitoring.

(Rec. doc. 101-11 183-

92)(emphasis added).

To summarize this testimony, BP decided not to do biomonitoring because “people

felt that the conclusions wouldn't be helpful,” but Dutton could not name any of those people.

BP “brought in” people from the Coast Guard, OSHA, NIOSH, and “other folks” to discuss

biomonitoring, they had meetings and “daily discussions on scheduled phone calls,” but

Dutton could not remember a single name of any of those people, save one. Why? Because

there were too many names to remember and too much time has passed. Despite there being

too many people to remember 12 years after the fact, Dutton did not go back in preparation

for this deposition to look for any documents or emails memorializing BP’s decision not to

do dermal or biomonitoring, relying instead on his “experience and having worked the

response.” (Rec. doc. 101-11).

Indeed, Dutton failed even to review his own emails on the subject, randomly

selecting a fraction to review, despite the fact that BP’s counsel had segregated 11,600 of

them as far back as March 2022. He claimed he didn’t have enough time to review them

before the deposition, but neither he nor his counsel requested more time. And, finally,

despite not reviewing more than a handful of his own emails, he did not attempt to reach out

to or speak with a single other BP employee or former employee involved in the cleanup

operations, including the BP employees emailing back and forth with NIOSH about the very

topic of this deposition – biomonitoring and dermal testing.

This summary pretty much covers the waterfront in terms of what Dutton did not do

to prepare for the second 30(b)(6) deposition. Based on everything listed above, which

notably comes from the witness’s own testimony, the Court easily finds that the witness was

not adequately prepared for the deposition and that sanctions are warranted. This is not

quite the end of the story, however.

As noted above, Plaintiff also complains about the late production of two documents

that his counsel says he should have had for use during the deposition. One is an email train

included in the record as Exhibit 9 to the motion for sanctions. The email train had been

previously produced, but with a section redactIedd. . (Rec. doc. 101-10). Days after the

deposition, BP produced an unredacted copy. ( ). Plaintiff’s counsel complains that he

should have had the unredacted language before the deposition with which to cross examine

the company.

The email train begins with a July 16, 2010 email, in which Max Kiefer, NIOSH Director

for its Western States Offices emails Fred Tremmel of BP advising of NIOSH’s

“disengagement from overseeing the exposure database analysis.” (Rec. doc. 101-13). There

is no reason stated for NIOSH’s decision to end its involvement with the exposure database.

However, Kiefer attaches to the email an exposure study proposal from the National

6

Research Council’s Division on Earth and Life Studies, which is called the “NRC proposal”.

Kiefer advises Tremmel that the “NRC proposal was Isdu.ggested to me as an option for

you to pursue statistical analysis of BP exposure data.” ( ). Notably, the NRC proposal

states that “Study toIpdi.cs will include. . . . Biomonitoring, health surveillance, and sentinel

illness reports. . . .” ( at 3) (emphasis added).

The next day, July 17, 2010, Tremmel forwards KiIedfe. r’s email to various BP personnel

and contractors with a “High” Importance designation. ( ). Dutton is among the recipients.

The entirety of Tremmel’s mesIsda.ge to these individuals was redacted in the version

originally produced to Plaintiff. ( at 2). The now unredacted version provided to counsel

days after the second Dutton deposition states in relevant part, “What doI dw.e want to do with

the NRC proposal? Any other thoughts about what else we might do?” ( ).

This would appear to be BP asking itself what, if anything, it should do about a second

scientific agency suggesting biomonitoring be undertaken.

Notwithstanding that the very existence of this email undermines Dutton’s testimony

that there are no documents memorializing BP’s decision-making around biomonitoring,

because “we did not record every conversation that we had,” (rec. doc. 101-11 at 188), it

certainly should have been produced to Plaintiff prior to the deposition so that counsel could

question the company on the response to these two queries.

The second email turns out to have been part of an 88,000-page production made by

BP five weeks prior to the second Dutton deposition. (Rec. docs. 115 at 19, 119-1 at 10).

Plaintiff’s counsel originally argued that it was produced late but corrected the record to

indicate that they “missed” the document, apparently owing to the size of the production.

(Rec. doc. 119-1 at 10). While the timing of the production of the document is no longer an

issue, its substance nonetheless sheds some light on the preparation issue.

The document in question is a July 31, 2010 BP internal email thread with the subject

7

“Pulling thIde. IH Monitoring Plug.” (Rec. doc. 101-12). Dr. Dutton is copied on the entire

thread. ( ). The monitoring that BP is considering discontinuing is its air monitoring

program whIdic.h, it is undisputed, was finding no worker exposure to airborne toxic

chemicals. ( ).

In this email, BP’s John Fink observes to a group including Dutton, “Although we are

documenting zero exposures in most monitoring efforts, the monitoring itself adds value in

thIde. eyes of public perception, and zeros add value in defending potential future litigation.”

( ).

Plaintiff’s counsel observes that, in the deposition itself, Dutton testified that, at the

same time this email was circulated, the industrial hygiene team – comprised of some or all

of the recipients of this email – wasn’t concerning itself with litigation: “I'm not aware of any

litigation at that point in time. These people were industrial hygienists. They were part of

the industrial hygiene program, and they're pa -- involved in the collection of the data….”

(Rec. doc. 101-10 (citing rec. doc. 101-11 at 91:2-13)). This document, at the very least,

undermines that assessment. The Court doubts Dutton would have provided such self-

serving testimony if he had been aware – by reviewing his own emails – of this discussion

about optics and litigation defense among his own industrial hygiene team.

Rule 30(b)(6) streamlines the discovery process. It places the

burden of identifying responsive witnesses for a corporation on

the corporation. Obviously, this presents a potential for abuse

which is not extant where the party noticing the deposition

specifies the deponent. When a corporation or association

designates a person to testify on its behalf, the corporation

appears vicariously through that agent. If that agent is not

knowledgeable about relevant facts, and the principal has failed

to designate an available, knowledgeable, and readily

identifiable witness, then the appearance is, for all practical

Resolution Trupsut rCpoorspe. sv,. nSoo uatphpeeranr aUnncieo na tC aol.l, . Inc.

, 985 F.2d 196, 197 (5th Cir.

1993).

The Court is not certain whether Dutton could have been a proper designee for the

subject topics because his lack of preparation makes answering that question impossible.

The Court is convinced, however, that his lack of preparation for deposition specifically

ordered by the Court disqualifies him as a Rule 30(b)(6) witness on these topics going

forward.

BP is now– and for years has been –in possession of documents that readily identify

other witnesses qualified to testify as corporate deponents on these topics. Perhaps the

appropriate person is Dr. Richard Heron, who, according to Plaintiff, was BP’s

Health/Medical Lead for the BP spill response and BP’s top medical professional responsible

for Oil Spill response worker-health and safety matters. (Rec. doc. 101-10). Documents long

NIOSH on its recommendations regarding biomonitoring, including a July 2, 2010, email from

Margaret Kitt of NIOSH to Heron, which reads in part:

Hi Richard:

I just wanted to update you on NIOSH's plan to extend response

worker exposure characterization and quantification by

incorporating a feasibility study on biomonitoring as a part of

the expanded HHE efforts BP has asked NIOSH to do. In light of

air sampling yielding undetectable levels of toxins, or levels far

below established limits, we are concerned about making sure

the dermal route of exposure is well-characterized.

Also, as we heard from the IOM workshop last week, the topic of

biomonitoring needs to be addressed. We have a group within

our NIOSH Division of Applied Research and Technology that

have expertise in biomonitoring. There is also another group at

CDC/NCEH with expertise in this area. Both groups have been

working with Dr. Bruce Bernard to develop a scientifically

sound protocol to use as a path forward. In fact, NIOSH would

like to have the IOM review this protocol and provide input. We

certainly will share the protocol with you once the draft is

8

completed.

(Rec. doc. 101-

14)(emphasis added).

Or perhaps the proper designee is Dr. David Flower, listed on BP’s organizational chart as an

9

occupational Imd.edicine doctor within BP, to whom Heron forwarded Kitt’s email, asking for

comments. ( ).

Whether the proper designee is Heron and/or Flower, or even someone else, it is clear

from these documents that they are more suitable designees on the topic of dermal and bio-

monitoring than Dutton, particularly when Dutton failed to look for their emails or speak to

them in preparing for his deposition.

8

STehei s email reinforces the Court’s conclusion that Dutton’s failure to even attempt to speak with Heron in

In similar circumstances, the Fifth Circuit has held that when a corporate deponent

such as BP is in possession of documents that clearly identify an individual as having

personal knowledge of the subject of a deposition noRtiecseo launtdio nfa Tilrsu tsot designate that person

as the deponent, such a failure may be sanctionable. , 985 F.2d at 197. And

as to the deponent’s duty to prepare its designee, the Fifth Circuit has made clear in

subsequent decisions that

the deponent “must make a conscientious good-faith endeavor

to designate the persons having knowledge of the matters

sought by [the party noticing the deposition] and to prepare

those persons in order that they can answer fully, completely,

unevasively, the questions posed... as to the relevant subject

matters.” “[T]he duty to present and prepare a Rule 30(b)(6)

designee goes beyond matters personally known to that

designee or to matters in which that designee was personally

involved.” The deponent must prepare the designee to the

extent matters are reasonably available, whether from

Brazos River Aduothcu. vm. GenEt sIo, npiacsst, eInmc.ployees, or other sources. Bank of New

York v. Meridien BIAO Bank Tanza,n 4ia6 9L tFd.3. d 416, 433 (5th Cir. 2006) (quoting United

States v. Taylor , 171 F.R.D. 135, 151 (S.D.N.Y. 1997) and

, 166 F.R.D. 356, 361 (M.D.N.C. 1996)). Indeed, this duty extends to

preparation of issues that, “although not within the [dIeds.ignee's] personal knowledge, [are]

within the corporate knowledge of the organization.”

When the corporate designee is not knowledgeable about relevant facts, and the

deponent has failed to designate an available, knowledgeable, and readily idReenstoilfuiatibolne

wTriutnstess, then the appearance is, for all practical purposes, no appearance at all.

, 985 F.2d at 197. The Court may treat such a failure as a failure to appear for the

depositOiomne agsa tHoo tshpe., LtoLpC ivc.( Cs)m atty .i Isnssu. eC, ow. hich is sanctionable under Rule 37 of the Federal

Rules. , 310 F.R.D. 319, 321 (E.D. La. 2015).

BP predictably argues that the well-established obligations set forth above are

“tempered by a rule of reason, [in that] Rule 30(b)(6) does not require designees to have

complete knowledge of all matters about which they are questioned.” (ReIcd.. doc. 115 at 6). BP

cites a plethora of cases in support of this non-controversial proposition. ( at 7 n.6). But the

present situation in not one in which an overly aggressive deposition-taker complains that he or

she can’t get an answer to one or two specific questions from an otherwise knowledgeable and

prepared witness. Rather, as detailed above, this witness was unable to knowledgably testify

about the entire topic of dermal testing and biomonitoring because he relied almost entirely on

his memory and undertook no meaningful efforts to further prepare himself for the deposition

this Court ordered to take place.

When Dutton appeared for the first deposition, he was allowed to testify about these

testing regimes in his personal capacity to the extent he was “able” to do so, according to BP’s

counsel. In the time between that deposition and this Court’s order requiring a second

deposition, Dutton did not adequately and meaningfully prepare himself as a corporate designee.

His declaration lists all kinds of literature and litigation-related documents that he reviewed, but

the Court views much of that as deflection.

The outcome of this motion turns on what Dutton did not do. First, he failed to review

even his own emails – emails that the Court had to order BP to produce to Plaintiff’s counsMeilc. kTlehse

Court is troubled by the fact that, due to the timing of the production of Dutton’s emails in ,

Plaintiff’s counsel was made to attempt to quickly review 11,000 of those emails when Dutton

himself couldn’t be troubled to do anymore than look at a “random” sampling of them. Having

failed to reacquaint himself with his own emails, he sought shelter in the safe harbor of “that was

along time ago and I can’t possibly remember” trope.

Second, he failed to even try to speak with individuals like Drs. Heron and Flower, despite

the unavoidable fact that he and BP knew that he would be asked questions about their

interactions with NIOSH.

These failures lead the Court to conclude that sanctions are appropriate under Federal

Rules 30, 37 and Fifth Circuit precedent interpreting those rules.

Plaintiff prays for extraordinary relief – docket-wide sanctions that would impact BP’s

defenses in hundreds of cases pending in this district. For what should be obvious reasons, I

cannot impose (or even recommend) such sanctions when this motion was filed in this single

case.

Rather, after full consideration of the facts and events set forth above, along with the law

and arguments of counsel, the Court has determined that the following sanctions are appropriate

and will impose them herein.

First, Plaintiff’s counsel is entitled to recover reasonable costs and fees associated with

the (partially) failed second 30(b)(6) deposition in which Dutton appeared unprepared to

respond to testing questions. Plaintiff’s counsel will submit to the Court documentation to

support an award of reasonable fees and costs for the preparation and taking of that deposition.

The Court will determine what percentage of those fees and costs are recoverable.

Second, BP is ordered to present the appropriate witness or witnesses to sit for yet

another 30(b)(6) deposition on Areas of Inquiry 15 and 16. That witness will not be Dr. Dutton.

Rather than suggest who that person or persons should be, the Court simply directs BP and its

counsel to its earlier observations about the current and former BP employees who actually

interacted with NIOSH and other relevant agencies in determining BP’s course of action vis-à-vis

testing. Plaintiff’s counsel shall be entitled to recover their reasonable fees and costs in taking

To the extent that Plaintiff believes further relief may be appropriate once this last

attempt at a Rule 30(b)(6) deposition is completed, he is free to bring a motion seeking such

relief. 18th July

New Orleans, Louisiana, this day of , 2022.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE