Louisiana Must Produce Documents or It|Could Lose Right to Make Oil-Spill Claims

     NEW ORLEANS (CN) – Louisiana must produce documents for the Deepwater Horizon oil-spill litigation or it could be fined up to $10,000 a day – and it could lose its right to any claims at all, for failure to prosecute, a federal judge ruled.



     According to U.S. District Court Magistrate Judge Sally Shushan’s 5-page order: “While the court appreciates that Louisiana is required to expend funds to produce the documents, it is necessary that its document production be completed so that this MDL [multi district litigation] proceeding may progress as scheduled.”
     Shushan set new deadlines for Louisiana’s document production, and ordered steep fines if the state fails. If it does not turn over documents within 21 days of the deadline, “the court will consider, either on its own motion or the motion of any party, whether the claims of Louisiana in this MDL shall be dismissed in whole or in part for failure to prosecute,” the order states.
     The order is a step on the long legal road stemming from the April 20, 2010 explosion of BP’s Deepwater Horizon drilling rig, which killed 11 and set off the worst oil spill in U.S. history.
     The first trial related to the disaster will be a limitation trial and is scheduled to begin in New Orleans on Feb. 27, 2012.
     Phase one of the trial will focus on events leading up to and including the explosion.
     Phase two will focus on source control and oil discharge quantification issues.
     Phase three will focus on remaining liability issues, including issues with cleanup and dispersants.
     In a Sept. 9 order, Magistrate Judge Shushan said Louisiana cannot offer anything into evidence during the first phase of trial that was not produced by Sept. 23, 2011.
     Nearly three weeks after that deadline, on Oct. 12, Louisiana responded by saying it needed “at least fourteen to sixteen additional weeks to complete document production.”
     The next day, BP responded to Louisiana’s notification it needed more time. BP “reported that since the September 9, 2011 order, Louisiana had produced 87 documents (806 pages in toto) from the Department of Environmental Quality and nothing from the other First Priority Tier state agencies. It had produced no documents from the Office of the Attorney General,” according to Shushan’s order. (Parentheses in original.)
     “On October 21, 2011, counsel for BP and Louisiana were notified that there would be a telephone conference on October 25, 2011 to discuss the status of Louisiana’s document production. Louisiana was reminded that: (1) the depositions of expert witnesses for Phase One are to begin on November 14, 2011; (2) Louisiana’s full Phase One production must be produced sufficiently in advance of that day; (3) the depositions of Phase Two fact witnesses are scheduled to begin on January 17, 2012; and (4) all Phase Two documents must be produced sufficiently in advance of that date for all parties to be adequately prepared. It was notified that the court required firm assurances on document production to meet these deadlines or sanctions would have to be imposed. …
     “On October 25, 2011, there was a telephone conference with the undersigned and District Judge Barbier. The Court emphasized that Louisiana must produce not only the documents within the deadlines, but also a privilege log for any relevant documents withheld from production. While the court appreciates that Louisiana is required to expend public funds to produce the documents, it is necessary that its document production be completed so that this MDL proceeding may progress as scheduled. Again, Louisiana was not able to provide firm deadlines for the completion of its document production. It may not jeopardize the orderly progress of this case,” the order states.
     Shushan ordered Louisiana to produce all documents related to Phase One of the trial by Nov. 3.
     “By this same date, Louisiana shall provide a privilege log for all relevant documents for Phase One which Louisiana claims are protected from disclosure,” Shushan’s order states.
     By Nov. 21, Louisiana must provide all documents related to Phase Two of the trial.
     “If Louisiana fails to comply with either of these deadlines, sanctions shall be imposed as follows: $2,500.00 per day for each day of non-compliance; at the end of seven (7) calendar days, the sanctions shall increase to $5,000.00 per day for each day of non-compliance; at the end of fourteen (14) calendar days, the sanctions shall increase to $10,000.00 per day for each day of non-compliance.
     “At the end of twenty-one (21) days of non-compliance, the court will consider, either on its own motion or the motion of any party, whether the claims of Louisiana in this MDL shall be dismissed in whole or in part for failure to prosecute.”

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