Lathan Co. v. State, Dep't of Educ.

1

THE LATHAN COMPANY v. STATE OF LOUISIANA, DEPARTMENT OF EDUCATION, RECOVERY SCHOOL DISTRICT AND JOHN WHITE IN HIS OFFICIAL CAPACITY AS THE STATE OF LOUISIANA SUPERINTENDENT OF EDUCATION

GUARANTEE COMPANY OF NORTH AMERICA v. STATE OF LOUISIANA, DEPARTMENT OF EDUCATION, RECOVERY SCHOOL DISTRICT

Nos. 2023 CA 0309, 2023 CA0310

Court of Appeals of Louisiana, First Circuit

February 21, 2024

On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 612067 c/w 635780 Honorable Donald R. Johnson, Judge Presiding

Lloyd N. Shields Elizabeth L. Gordon Adrienne C. May Adrian A D' Arcy Jeffrey K. Prattini Andrew G. Vicknair New Orleans, LA Attorneys for Plaintiff -Appellee, The Lathan Company

Steven F. Griffith, Jr. Benjamin W. Janke Camalla K. Guyton Kennard B. Davis New Orleans, LA Attorneys for Defendant -Appellant Jacobs Project Management Co./CSRS Consortium

Before: McClendon, Hester, and Miller, JJ.

HESTER, J.

Defendant, Jacobs Project Management Co./CSRS Consortium (Jacobs/CSRS),^[1] appeals a judgment of the trial court granting a motion for sanctions filed by The Lathan Co., Inc. (Lathan), striking all of Jacobs/CSRS's defenses to Lathan's claims, disallowing the introduction of any evidence in support of such defenses, and casting Jacobs/CSRS with all fees, costs, and expenses. For the reasons that follow, we reverse in part, vacate in part, amend in part, affirm in part, as amended, and remand for further proceedings consistent herewith.

FACTS AND PROCEDURAL HISTORY

This protracted litigation began in 2012 and originated from a 2010 construction project at the William Frantz School in New Orleans, Louisiana, (the "project") in which Lathan served as the general contractor. At present, the only remaining defendant is Jacobs/CSRS, who served as the State of Louisiana, Department of Education, Recovery School District's (RSD) representative and construction manager on the project.

Previously this matter came before this court on Lathan's appeal of the trial court's grant of Jacobs/CSRS's motion for summary judgment, which dismissed Lathan's claims against Jacobs/CSRS. Lathan Company, Inc. v. State, Department of Education, Recovery School District, 2016-0913 (La.App. 1st Cir. 12/6/17), 237 So.3d 1, writ denied, 2018-0026 (La. 3/9/18), 237 So.3d 1191. The applicable factual and procedural history, as set forth in Lathan Company, Inc., is as follows:

On August 13, 2010, The Lathan Company, Inc., entered into a public works contract with the State of Louisiana, Department of Education, Recovery School District ("the RSD") to renovate William Frantz School in New Orleans. Billes Partners, LLC ("Billes") served as architect on the project. Jacobs Project Management Company/CSRS Consortium ("Jacobs"), through a contract with the RSD, served as the construction manager on the project.

On May 14, 2012, Lathan filed a "Petition for Mandamus," naming the RSD and John White, in his official capacity as the Louisiana Superintendent of Education, as defendants, seeking an order requiring the RSD to make payment of all undisputed amounts owed for Lathan's work. In an amended petition filed on August 1, 2014, Lathan added Billes and Jacobs as defendants.

Lathan's lengthy amended petition, consisting of twenty-five pages and two hundred eighteen paragraphs, alleged, in pertinent part, that Jacobs owed a duty to Lathan to conduct constructability reviews and to oversee and administer the project according to the standard of care of similar professionals in the industry, which Jacobs did not do.

In response, Jacobs filed a motion for summary judgment, seeking a dismissal of Lathan's claims against it. In its memorandum in support of its motion, Jacobs asserted that Lathan's general negligence claims must fail because Jacobs owed no duty to Lathan, since Lathan was not a party to the contract between Jacobs and the RSD. Jacobs additionally urged that because it owed no duty to Lathan, Lathan's [the Louisiana Unfair Trade Practices Act ("LUTPA")] claims must fail as a matter of law. Notwithstanding whether a duty was owed, Jacobs also argued that Lathan's allegations did not rise to the level of an unfair trade practice that is actionable under LUTPA. Alternatively, Jacobs argued that a majority of Lathan's claims against it were prescribed.

Lathan opposed the motion, contending that Jacobs owed it a duty given the high degree of control and power that Jacobs, as a learned professional, held and had exercised (or failed to exercise) over Lathan. Additionally, Lathan argued that its claims against Jacobs were timely because: (1) Billes and Jacobs are joint tortfeasors and thus, the 2012 suit against Billes interrupted prescription as to Jacobs; and (2) Jacobs was still performing work on the project and thus, Lathan's claims against Jacobs are governed by the continuing tort doctrine.

Following argument, the trial court granted Jacobs's motion for summary judgment, finding that Jacobs owed Lathan no duty. As such, the trial court concluded that in the absence of a duty, Lathan could not recover under its negligence theory or LUTPA claims.

Lathan Company, Inc., 237 So.3d at 3-4. On appeal, this court reversed in a split decision, finding the trial court erroneously concluded that there was (or could be) no duty owed by the project manager to the general contractor.^[2] Id. at 10.

The 2019 Requests for Production

On remand, Lathan propounded requests for production of documents on Jacobs/CSRS on July 31, 2019. After multiple extensions were granted by Lathan, Jacobs/CSRS provided responses on October 2, 2019. However, the responses included perfunctory general objections and a singular, duplicated response to all thirty distinct requests. As part of the response, Jacobs/CSRS produced 319 pages of project documents, referred to certain items from the "Project [F]ile" previously produced by the RSD, and further responded that the Project File was owned and possessed by the RSD,^[3] which Jacobs/CSRS was contractually prohibited from producing to third parties.

Lathan filed a motion to compel on November 8, 2019, seeking to require Jacobs/CSRS to produce all responsive documents in its possession in a reasonably usable format and to produce a privilege log of those documents it claimed were privileged. According to Lathan, the Project File previously produced by the RSD and identified by Jacobs/CSRS in its October 2019 responses were produced in "PDF format" and did not include many of the attachments to emails or other documents to which an attachment was referenced. Jacobs/CSRS opposed the motion, arguing that the Project File through April 30, 2014 was already produced in the litigation by the RSD and that on November 26, 2019 it produced the balance of the Project File from April 30, 2014 through the present. In light of the previous and current production, Jacobs/CSRS maintained that it complied with the discovery requests.

In reply, Lathan argued that Jacobs/CSRS could not hide behind the RSD's prior production of documents in response to the request for production of documents specifically directed to it and that Jacobs/CSRS did not claim that production of responsive documents would cause it to incur an undue burden or expense. While acknowledging that Jacobs/CSRS produced post-April 30, 2014 Project File documents, Lathan maintains that this production was incomplete.

Ultimately, the trial court granted, in part, Lathan's motion, compelling Jacobs/CSRS to produce its post-April 2014 Project Files in the form in which they are ordinarily maintained and which are reasonably usable. Jacobs/CSRS was also ordered to produce a proper privilege log. The January 24, 2020 order further provided that, to the extent that the November 2019 production of its post-April 2014 documents complies with all requirements of the order and that all corrupt files have been corrected and properly produced, Jacobs/CSRS would not be required to further produce such documents. To the extent the November 2019 production did not comply, Jacobs/CSRS was ordered to "reproduce all such documents in strict accordance with this [order]." The order was silent as to pre-April 2014 Project Files.

The RSD Subpoena

On October 6, 2020, Lathan caused a subpoena duces tecum to be issued to the RSD, seeking from it documents^[4] exchanged between the RSD, Jacobs/CSRS, and other parties concerning Lathan's work and design deficiencies, among other documents.^[5] Lathan specifically sought "all written and electronic correspondence between [the RSD] and Jacobs, [the RSD] and Billes, and [the RSD] and CSRS regarding the Project," as well as "all documents in [the RSD's] possession, custody, or control regarding the Project" and Jacobs/CSRS's "project file."

The RSD responded to the subpoena and, through follow up correspondence with counsel for Lathan, indicated that it produced all responsive and non-privileged emails in native format after searching its records using the terms "Frantz" and "Lathan." The RSD informed Lathan that its own records are stored on a state server which is separate and apart from Jacobs/CSRS's data over which the RSD has no control. According to the RSD Jacobs/CSRS maintained a project file for each RSD project, and it produced the applicable Project File as of April 2014 during the 2015 discovery prior to being dismissed from the suit. The RSD further indicated that it was unable to locate the original transmittal it received from Jacobs/CSRS for the 2015 document production. Counsel for the RSD stated that "Jacobs/CSRS provided to the RSD, and the RSD has produced to Lathan, all subsequent project file documents." Moreover, counsel for the RSD clearly conveyed...