John Molaison and Danielle Molaison Versus Cust-O-Fab Specialty Services, LLC; Excel Modular Scaffold and Leasing Corporation; Turner Industries Group, LLC; Abc Insurance Corporation; Xyz Insurance Corporation; And 123 Insurance Corporation

JOHN MOLAISON AND DANIELLE NO. 21-CA-585
MOLAISON
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
CUST-O-FAB SPECIALTY SERVICES, LLC;
EXCEL MODULAR SCAFFOLD AND STATE OF LOUISIANA
LEASING CORPORATION; TURNER
INDUSTRIES GROUP, LLC; ABC
INSURANCE CORPORATION; XYZ
INSURANCE CORPORATION; AND 123
INSURANCE CORPORATION

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 72,83, DIVISION "B"
HONORABLE KIRK A. VAUGHN, JUDGE PRO TEMPORE,
PRESIDING

June 01, 2022

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Hans J. Liljeberg

VACATED, IN PART;
AFFIRMED, IN PART;
REMANDED WITH INSTRUCTIONS
MEJ
SJW
HJL

COUNSEL FOR INTERVENOR/APPELLANT,
DENKA PERFORMANCE ELASTOMER, LLC
Jerry L. Stovall, Jr.
Christopher A. Mason
Alexa Candelora

COUNSEL FOR DEFENDANT/APPELLEE,
CUST-O-FAB SPECIALTY SERVICES, LLC
John P. Wolff, III
Chad A. Sullivan
Tori S. Bowling
Sydnee D. Menou
Brandi A. Barze

COUNSEL FOR PLAINTIFF/APPELLEE,
JOHN MOLAISON AND DANIELLE MOLAISON
Andre' P. Gauthier
Lee J. Amedee, III

JOHNSON, J.

Appellant/Nonparty, Denka Performance Elastomer, LLC (hereinafter

referred to as “Denka”), appeals the trial court’s ruling that denied its motion for

summary protective order and motion to quash subpoenas duces tecum and for

corporate deposition in favor of Appellees/Defendants, Cust-O-Fab Specialty

Services, LLC (hereinafter referred to as Cust-O-Fab”) and Turner Industries

Group, L.L.C. (hereinafter referred to as “Turner Industries”), from the 40th

Judicial District Court, Division “B”. For the following reasons, vacate the

judgment, in part, affirm, in part, and remand the matter with instructions.

FACTS AND PROCEDURAL HISTORY

This matter arises from a pending litigation involving a petition for damages

filed by Plaintiffs, John Molaison and Danielle Molaison, against Cust-O-Fab,

Turner Industries, Excel Modular Scaffold and Leasing Corporation, and their

respective insurers on April 12, 2018. In their petition, Plaintiffs allege that on

July 27, 2017, Mr. Molaison was at an industrial, neoprene manufacturing facility

owned by Denka in LaPlace, Louisiana. Mr. Molaison was employed as an

operator by Denka at the facility and was assisting in the preparation of a recovery

column for entry by workers who would be performing repairs of the column. The

petition further alleges that Mr. Molaison fell 22 feet through an open hole while

inspecting the recovery column on the second floor in the area where a reboiler had

been removed. Cust-O-Fab and Turner Industries are alleged to be responsible for

the installation and verification that all scaffolding, barricades, gates, tags, and

warning tapes were in place, and ensuring that the area surrounding the recovery

column and reboiler posed no threat to the safety and welfare of persons in said

area. Cust-O-Fab and Turner Industries both filed answers to the petition and

asserted Plaintiff (Mr. Molaison) and third-party faults as affirmative defenses.

Cust-O-Fab, Turner Industries, and Plaintiffs issued subpoenas for

21-CA-585 1

documents and for La. C.C.P. art. 1442 corporate deposition to Denka, a nonparty,

nonresident of Louisiana, in August of 2019. The subpoenas contained 43 separate

document requests and 88 topics for requests, and depositions were scheduled to

take place on October 2 and 3, 2019 at Cust-O-Fab’s office in Baton Rouge,

Louisiana. In opposition, Denka filed a motion for summary protective order and

motion to quash subpoenas for documents and for 1442 corporation deposition.

Denka asserted that it was not subject to the subpoena power of the trial court, and

the subpoenas for documents and for 1442 corporation deposition had no relevance

to any claim asserted by Plaintiffs or affirmative defenses raised by Cust-O-Fab

and Turner Industries.

A hearing on Denka’s motions was held on October 18, 2019. The trial

court took the matter under advisement. On March 3, 2020, after multiple delays

due to COVID-19, the trial court rendered its judgment that denied Denka’s

motions. The judgment also limited the discovery requests to one corporate

representative and two fact witnesses to the accident, Boyd Detillier and Brett

Steib. In its reasons for judgment, the trial court found that Cust-O-Fab and

Turner Industries were entitled to discover as much relevant factual information

pertinent to the current litigation, provided that the requested information is not

privileged. However, the court also agreed with Denka that the scope of the

discovery requests was onerous, particularly for a nonparty to the litigation. Thus,

in an effort to satisfy the parties’ concerns, the court ordered that Denka appoint

one corporate representative and the two fact witnesses to the accident.

Denka filed a supervisory writ with this Court, seeking review of the March

3, 2020 judgment. This Court found that the judgment was a final, appealable

judgment, and remanded the matter to the trial court for preparation of an appeal.

Molaison v. Cust-O-Fab Specialty Services, LLC, 20-136 (La. App. 5 Cir.

6/1/20)(unpublished writ disposition). The instant appeal followed.

21-CA-585 2

ASSIGNMENTS OF ERROR

On appeal, Denka alleges the trial court erred in: 1) ruling that Denka, a

nonresident, nonparty corporation, is subject to the subpoena power of a Louisiana

trial court; 2) ruling that Defendants were allowed to demand “pre-suit”

depositions from Denka for the purpose of searching for evidence to prove

Denka’s fault; 3) failing to conduct an analysis of whether Defendants showed

good cause to issue subpoenas to Denka, proving that the demands were relevant

and for non-privileged information; and 4) failing to provide guidance to the

parties of the topics and testimony of the employees, if any, that were found to be

relevant and non-privileged.

LAW AND ANALYSIS1

General Principles of Law

In Centanni v. Centanni, 21-30, p. 4 (La. App. 5 Cir. 10/19/21); --- So.3d ---,

2021WL4852145, writ denied, 21-1851 (La. 2/15/22); 332 So.3d 1184, this Court

provided the following discussion concerning discovery:

The basic objectives of the Louisiana discovery process are to:
1) afford all parties a fair opportunity to obtain facts pertinent to the
litigation; 2) discover the true facts and compel disclosure of these
facts wherever they may be found; 3) assist litigants in preparing their
cases for trial; 4) narrow and clarify the basic issues between the
parties; and, 5) facilitate and expedite the legal process by
encouraging settlement or abandonment of less than meritorious
claims. The discovery statutes are to be liberally and broadly
construed to achieve their intended objectives. A party generally may
obtain discovery of any information, not privileged, which is relevant
to the subject matter involved in the pending action. The test of
discoverability is not the admissibility of the particular information
sought, but whether the information appears reasonably calculated to
lead to the discovery of admissible evidence.

There are limitations to these rules, however, when justice
requires that a party or other person be protected from annoyance,
embarrassment, oppression, or undue burden or expense. When
seeking to subpoena documents and information from a non-party,
Louisiana courts require a showing of relevancy and good cause.

1
Turner Industries did not file a brief in this matter.

21-CA-585 3

(Internal citations omitted).

Upon motion by a party or by the person from whom discovery is sought,

and for good cause shown, the court in which the action is pending may make any

order which justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense, including one or more of

the following: 1) that discovery not be had; 2) that the discovery may be had only

on specified terms and conditions, including a designation of the time or place; 3)

that the discovery may be had only by a method of discovery other than that

selected by the party seeking discovery; 4) that certain matters not be inquired into,

or that the scope of the discovery be limited to certain matters; 5) that discovery be

conducted with no one present except persons designated by the court; 6) that a

deposition after being sealed be opened only by order of the court; 7) that a trade

secret or other confidential research, development, or commercial information not

be disclosed or be disclosed only in a designated way; and 8) that the parties

simultaneously file specified documents or information enclosed in sealed

envelopes to be opened as directed by the courts. La. C.C.P. art. 1426(A). If the

motion for a protective order is denied in whole or in part, the court may, on such

terms and conditions as are just, order that any party or person provide or permit

discovery. La. C.C.P. art. 1423(B).

Appellate courts review a trial court’s rulings on motions to quash and for

protective orders concerning subpoenas duces tecum under an abuse of discretion

standard. In re Subpoena Duces Tecum by Inspector General of City of New

Orleans to Duplantier, Hrapman, Hogan & Maher, 21-10 (La. App. 4 Cir. 8/4/21);

326 So.3d 1265, 1273.

Right to Subpoena

Denka alleges that the trial court erred in ruling that Denka is subject to the

subpoena power of a Louisiana court. It argues that, as a nonresident, nonparty

21-CA-585 4

corporation, the trial court simply does not have any authority to order Denka to

appear and produce documents in Louisiana, even though it would otherwise be

subject to personal jurisdiction of the court. It contends that Phillips Petroleum

Co. v. OKC Ltd. Partnership, 93-1629 (La. 4/11/94); 634 So.2d 1186, supports its

position.

Cust-O-Fab argues that the trial court’s ruling was correct and appropriate

under Louisiana law and the facts of this case because Phillips, supra, does not

control in this matter. It asserts that Phillips is distinguishable from the particular

facts of this case because Denka has specific connections to this litigation, and

Denka’s non-resident status is a legal fiction. It alleges that Denka’s corporate

headquarters is located in LaPlace, Louisiana, and Denka maintains the chemical

plant facility where the accident occurred in Louisiana. Cust-O-Fab further asserts

that the plaintiff, Mr. Molaison, claims no memory of the accident, and Denka

performed an investigation of the accident but refused to allow the subcontractors

to participate; thus, all of the information about the cause, mechanism, or other

circumstances surrounding the accident lie solely within the knowledge of Denka

and its employees. It maintains that Denka has effectively prohibited access to

relevant, non-privileged information and has delayed discovery essential to this

matter.

In Phillips, supra, the Louisiana Supreme Court considered the issue of

whether the issuance of a subpoena duces tecum to an out-of-state nonparty

corporation, which required that nonparty to appear and produce documents at a

deposition being held in Louisiana, was sanctioned by Louisiana law. In that

matter, a petroleum company (Phillips Petroleum Company) brought suit against a

corporation (Box Energy Corporation) for an alleged failure to properly account

for Phillips’ share of profits for a federal offshore mineral lease. Phillips issued a

subpoena duces tecum to CKB Petroleum, a nonparty to the litigation, which was a

21-CA-585 5

Texas corporation with its principal office in Dallas, Texas. Although CKB was

qualified to do business in Louisiana and had a Louisiana agent for service of

process, CKB did not maintain an office in Louisiana. CKB’s only activity in

Louisiana was the maintenance of a pipeline. CKB moved to quash the subpoena,

which was denied by the trial court and affirmed by the appellate court. Id. at

1187.

Upon review, the supreme court rejected the argument that, because CKB

qualified to do business in Louisiana and had a designated agent for service of

process, CKB could be subjected to the subpoena power of a Louisiana court. The

court found that CKB’s only “presence” in Louisiana was designating an agent for

service of process, which facilitated its being sued in a Louisiana court and

exposed to personal jurisdiction. Id. at 1188. The supreme court concluded that—

because there was no statutory or other authority for a Louisiana court to compel a

nonresident, nonparty witness to attend and/or produce documents at a deposition

to be held in Louisiana and La. C.C.P. art. 1435 specifically provided that the

deposition of a nonresident witness shall be governed by the compulsory process

of the state in which the witness resides—a Louisiana court could not order a

nonresident, nonparty witness to appear and/or produce documents at a deposition

in Louisiana, even if that nonresident, nonparty is subject in another context to the

personal jurisdiction of the court. Id. at 1188-89.

In this matter, Denka maintains a facility in Louisiana, which is the facility

where the accident occurred. Denka also employs workers, like John Molaison, in

Louisiana. Thus, under these circumstances, we find that this case is

distinguishable from Phillips. Because the set of facts in this matter are

distinguishable from those in Phillips, we hold that Phillips does not control the

21-CA-585 6

instant discovery issue presented. Therefore, we find the discovery rules control2,

and the trial court did not err in ruling that Denka is subject to the subpoena power

of a Louisiana court. (See, Bernard v. State Farm Mut. Auto. Ins. Co., 98-2509

(La. App. 4 Cir. 6/30/99); 742 So.2d 609, 612, where the Louisiana Fourth Circuit

found that Phillips did not control when the subpoenaed nonparty witness was a

former Louisiana resident who moved out of state but continued to practice

medicine and treat patients in Louisiana.)

Deposition Testimony

Denka alleges the trial court erred in allowing the subpoenas for documents

and depositions because they constitute an impermissible violation of Denka’s due

process rights and improper pre-suit discovery. It argues that Cust-O-Fab and

Turner Industries’ purposes of their pre-litigation discovery demands are to

conduct a fishing expedition to attribute some quantum of fault or liability against

Denka without first pleading the factual allegations and theories of liability. Denka

contends that the subpoenas are a calculated attempt to deny it the fundamental

right of due process of law to meet the accuser and be able to mount a defense after

accusations of material facts and law have been made in the petition, answer, or

incidental demand.

Cust-O-Fab argues that the scope of the requested discovery is appropriately

tailored to discovery of information critical to the contractors’ defense of Mr.

Molaison’s claims. It asserts that, under Louisiana’s pure comparative fault

system, Denka may still be allocated fault on the verdict form, even if it is not

obligated to pay in tort by operation of workers’ compensation immunity. It

maintains that it is entitled to develop its defense on fault. It contends that the trial

court’s ruling balanced the parties’ interests and honored the spirit of the law, such

2
After the commencement of an action, any party may take the testimony of any person,
including a party, by deposition upon oral examination. La. C.C.P. art. 1437.

21-CA-585 7

that it should not be reversed.

Discovery is not to be used as a fishing expedition. Petch v. Humble, 41,301

(La. App. 2 Cir. 8/23/06); 939 So.2d 499, 506, writ denied, 06-2482 (La.

12/15/06); 945 So.2d 692. A party generally may obtain discovery of any

information, not privileged, which is relevant to the subject matter involved in the

pending action. Centanni, supra. The test of discoverability is not the

admissibility of the particular information sought, but whether the information

appears reasonably calculated to lead to the discovery of admissible evidence. Id.

Discovery should be allowed where such discovery “relates to the claim or defense

of the party seeking discovery or to the claim or defense of any other party,

including the existence, description, nature, custody, condition, and location of any

books, documents, or other tangible things and the identity and location of persons

having knowledge of any discoverable matter.” State ex rel. Ieyoub v. Racetrac

Petroleum, Inc., 01-458 (La. App. 3 Cir. 6/20/01); 790 So.2d 673, 685, quoting La.

C.C. P. art. 1422.

Here, both Cust-O-Fab and Turner Industries have pleaded the fault of a

third party as an affirmative defense. Cust-O-Fab argues that documents produced

by Denka in response to a previous subpoena duces tecum reflect Denka

considered ultimate questions central to a determination of liability in this matter,

and testimony is needed to develop central facts for trial. Pursuant to La. C.C.P.

art. 1442, Cust-O-Fab and Turner Industries are not required to plead their

affirmative defense with particularity prior to seeking discovery from Denka.

Accordingly, we do not find that the trial court erred in allowing Cust-O-Fab and

Turner Industries to discover information relevant to their defenses.

Analysis of Good Cause

Denka alleges the trial court erred in allowing the subpoenas for documents

and depositions because Cust-O-Fab and Turner Industries failed to show that the

21-CA-585 8

onerous subpoena demands are relevant to any pleaded claim or defense and are

needed for good cause. Denka argues that all or nearly all of the demands for

corporate testimony and documents from it are based upon deposition topics and

document requests attempting to fish for evidence of alleged fault against it. It

contends that subjecting it to the overbroad discovery and deposition demands is

an undue hardship, and the ruling should have been resolved by granting Denka’s

motion in toto and issuing permanent protective orders. Denka further argues that

many of the demands for topics and depositions are for privileged documentation

and testimony—e.g., documentation prepared by Denka or its attorneys, surety,

indemnitor, expert, or agent; any financial information or insurance of Denka;

confidential information regarding vendors used by Denka to procure equipment

and materials; post-accident investigations and/or subsequent remedial measures;

confidential medical records and compensation earnings records concerning

specific Denka employees, namely Brett Steib and Boyd Detillier; and, attorney-

client privileged work product—and would be non-discoverable, even if Denka

were a named party to the lawsuit.

Cust-O-Fab asserts that Denka intentionally interposed its counsel and

excluded the defendant contractors from the post-incident investigation in a

preemptive effort to limit access to its findings. It maintains that Denka seeks

application of the attorney-client privilege and work product doctrine far beyond

the scope of those protections, and Denka should not be allowed to shield

information from discovery simply by stamping its attorney’s name to the

investigation and information. It argues that cursory statements of privilege are

insufficient to meet Denka’s burden on this issue, especially where the information

sought is plainly factual and generally unsuitable to a privilege claim. Cust-O-Fab

further asserts that the requested discovery is appropriately tailored to obtain

needed information, and the fact that Denka possesses a large volume of the

21-CA-585 9

information needed to determine this case does not render the request for the

information improper.

Here, the trial court denied Denka’s motion for protective order and motion

to quash subpoenas for documents and for 1442 corporate deposition. The court

limited the discovery requests for Denka to one corporate and two fact witnesses to

the accident, Boyd Detillier and Brett Steib. In its written reasons for judgment,

the court found that Cust-O-Fab and Turner Industries were entitled to discover as

much relevant information that is pertinent to the instant litigation, provided that

the requested information is not privileged. However, the court agreed with Denka

that the scope of the 43 separate document requests and 88 topic and issue requests

were onerous, particularly for a nonparty to the litigation, and limited the number

of witnesses in an attempt to satisfy the concerns of the parties. Nevertheless, the

court did not determine which requests were onerous or specify the scope of the

requests Cust-O-Fab and Turner Industries were entitled to discover. Therefore,

we find that the trial court erred in failing to limit the scope of the requests.

Accordingly, we vacate the judgment, in part, and remand to the trial court

with the instruction to render a ruling that determines all of the issues set forth

before it, which includes the limitations applicable, if any, to the specific discovery

requests.

Guidance for Relevant and Non-Privileged Information

Alternatively, Denka argues that the matter should be remanded to the trial

court to determine the specific scope, nature, and extent of the allowable topics for

the corporate representative deposition and depositions of Denka employees. It

argues that the trial court’s judgment is incapable of being reasonably complied

with in its current form.

Because of our finding in the previous assignment of error, this issue is

21-CA-585 10

moot.

DECREE

For the foregoing reasons, we vacate the March 3, 2020 trial court judgment,

in part, affirm, in part, and remand the matter with the instructions provided within

this opinion. In all other respects, the judgment is affirm. Each party is to bear

their own costs of this appeal.

VACATED, IN PART;
AFFIRMED, IN PART;
REMANDED WITH INSTRUCTIONS

21-CA-585 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 1, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-585
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE KIRK A. VAUGHN, JUDGE PRO TEMPORE (DISTRICT JUDGE)
ALEXA CANDELORA (APPELLANT) CHRISTOPHER A. MASON (APPELLANT) JERRY L. STOVALL, JR. (APPELLANT)
CHAD A. SULLIVAN (APPELLEE) TORI S. BOWLING (APPELLEE) RYAN R. BROWN (APPELLEE)
THOMAS E. BALHOFF (APPELLEE) ANDRE' P. GAUTHIER (APPELLEE) DANIEL E. BECNEL, III (APPELLEE)

MAILED
LEE J. AMEDEE, III (APPELLEE) KATHRYN W. BECNEL (APPELLEE) BRANDI A. BARZE (APPELLEE)
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