UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

 

IN RE SKANSKA USA CIVIL SOUTHEAST : In Admiralty 

INC. AND SKANSKA USA, INC., AS OWNERS : 

OF THE BARGE KS 6013, : Cases all 

 : consolidated with 

PRAYING FOR EXONERATION FROM OR : 3:20-cv-5890-RV-MJF 

LIMITATION OF LIABILITY : 

THE UNITED STATES OF AMERICA’S RESPONSE IN OPPOSITION TO 

SKANSKA’S OBJECTION TO DISCOVERY ORDER NO. 2 

INTRODUCTION 

 The United States of America submits this Response in Opposition to Skanska’s 

Objection to Magistrate Judge Cannon’s Discovery Order No. 2. See ECF 1201. On June 

19, 2021, after receiving numerous briefs and hearing oral argument on the issues, 

Magistrate Judge Cannon denied Skanska’s Motion to Compel which sought to force the 

United States and the other claimants to substantively respond to parts of Skanska’s 

voluminous discovery requests. See ECF 1192. In the Order, Magistrate Judge Cannon 

found Skanska’s discovery requests were both irrelevant to the claims and issues in the 

case, and also unreasonably burdensome as they were not proportionate to the needs of 

the case. Skanska has filed an Objection to the Magistrate Judge’s Order attacking only 

the finding of irrelevancy. Skanska’s failure to timely object to the other independent 

ground for denial of its Motion means that the Objection is moot and should be denied. In 

addition, Skanska has failed to demonstrate that the Court’s Order was clearly erroneous 

or contrary to the law, and should be denied. 

 

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ARGUMENT 

1. THE STANDARD OF REVIEW. 

 Skanska’s Objection is devoid of a standard of review for the Court. The 

Objection is made pursuant to Fed. R. Civ. P. 72(a) which states: 

When a pretrial matter not dispositive of a party's claim or defense is 

referred to a magistrate judge to hear and decide, the magistrate judge 

must promptly conduct the required proceedings and, when appropriate, 

issue a written order stating the decision. A party may serve and file 

objections to the order within 14 days after being served with a copy. A 

party may not assign as error a defect in the order not timely objected to. 

The district judge in the case must consider timely objections and modify 

or set aside any part of the order that is clearly erroneous or is contrary to 

law. 

As a non-dispositive order on discovery, the District Court’s review of a Magistrate 

Judge’s Order is to determine if that Order is not clearly erroneous or contrary to the law. 

TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1259–60 

(M.D. Fla. 2013). “A finding is ‘clearly erroneous’ when although there is evidence to 

support it, the reviewing court on the entire evidence is left with the definite and firm 

conviction that a mistake has been committed.” Id. at 1260 (citing United States v. United 

States Gypsum Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law ‘when it fails 

to apply or misapplies relevant statutes, case law or rules of procedure.’” Id. (citing 

S.E.C. v. Kramer, 778 F.Supp.2d 1320, 1326–27 (M.D. Fla. 2011)). 

 The standard to be applied by the District Court to the Magistrate Judge’s ruling 

on a non-dispositive motion is highly deferential. Wentz v. Veritas, No. 6:17-cv-1164 

ORL-18-GJK, 2019 WL 11504451, at *2 (M.D. Fla. Apr. 29, 2019). And, therefore, the 

burden on Skanska to overturn the Order is exceptionally challenging to meet. See Nat’l 

Ass’n for the Advancement of Colored People v. Fla. Dep’t of Corrs., 122 F. Supp. 2d 

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1335, 1337 (M.D. Fla. 2000). Skanska’s Objection does not come close to meeting that 

standard. 

 In its Objection, Skanska argues that the Order regarding discovery is dispositive 

of the question of liability, stating the Order “precludes Skanska from ever obtaining 

evidence necessary to present the defense that it was reasonable in its anticipation of the 

severity of Hurricane Sally, this order is essentially a ruling on the merits of Skanska’s 

defense.” See ECF 1201 at 5. Of course, it is no such thing. At trial Skanska is to be 

judged by whether its actions as a maritime construction contractor were reasonable 

given what it knew from available sources about the path of Hurricane Sally in the days 

leading up to it making landfall. Nothing about this Order deprives it from presenting that 

evidence and making that argument. 

2. SKANSKA FAILED TO OJBECT TO THE ORDER ON THE GROUNDS OF 

PROPORTIONALITY. 

 Magistrate Judge Cannon’s Order ruled that Skanska’s discovery was improper 

for two independent reasons—1) relevancy; and 2) proportionality. In evaluating the 

latter point, Magistrate Judge Cannon cited the appropriate standard under Rule 26, and 

found that “(g)iven “the minimal potential relevance of the requested [discovery],” the 

Court finds it “is not proportional to the needs of this case.” See ECF 1192 (internal 

citations omitted). Skanska does not challenge that independent basis for denying its 

Motion to Compel. See Rhiner v. Sec’y Fla. Dept. of Transp., 817 Fed. Appx. 769, 779-

80 (11th Cir. 2020) (failure to timely raise means waiver of right to challenge). 

Therefore, even if the Court finds that the Order is clearly erroneous or contrary to law as 

to the issue of relevancy, this other basis for denying the discovery remains, making the 

Objection moot. 

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3. SKANSA HAS FAILED TO MEET ITS BURDEN OF SHOWING THAT THE 

MAGISTRATE JUDGE’S ORDER WAS CLEARLY ERRONEOUS OR 

CONTRARY TO LAW. 

 As noted, nowhere does Skanska specifically state that it is challenging 

Magistrate Judge Cannon’s Order on either the “clearly erroneous” or “contrary to law” 

basis. However, based on the text of the Objection, including the sentence “Magistrate 

Judge Cannon erroneously concluded that this information was not relevant to Skanska’s 

defenses in this matter” one can assume that it was the former. See ECF 1201 at 1. 

Skanska has not proven that the Order was clearly erroneous, all that it has done has 

demonstrated that Skanska disagrees with Magistrate Judge Cannon’s otherwise wellreasoned articulation of the law and its application to the facts of this discovery dispute. 

Skanska made the same arguments already before the Court and they were deemed 

insufficient. Nothing has changed. 

 Essentially, as to the government, Skanska is attempting through this discovery to 

compare its behavior as a maritime construction contractor with 55 barges located in the 

middle of Pensacola Bay to the Navy’s actions in boarding up windows at the Navy 

Exchange miles inland. Equally inapposite, it is seeking voluminous information about 

the sortieing of Navy aircraft inland from Naval Air Station Pensacola. 

 As pointed out in the United States’ letter brief to Magistrate Judge Cannon and 

cited in the Court’s Order, the Navy lacks any barges or afloat assets located at Naval Air 

Station Pensacola. See ECF 1192 at 5. Further, the United States did not lose control of 

any of its afloat (or ashore) assets leading to damage on private property. The only afloat 

assets located at Naval Air Station Pensacola belong to the United States Coast Guard, 

and they are self-propelled, manned, and mission-ready at all times. Id. The condition of 

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these USCG vessels is obviously categorically different than Skanska’s unmanned and 

unprepared construction barges. Any comparisons are completely inappropriate. 

 Skanska had access to the same publically available weather information from the 

National Oceanic and Atmospheric Administration and commercial weather providers 

that everyone in Pensacola had. It is the reasonableness of Skanska’s decisions as a 

construction company, based on such available information that is at question. The 

United States’ decisions about preparations are not at issue here and should not serve as a 

benchmark for Skanska.. The United States’ analogy in its letter brief remains apt: You 

are stopped at a traffic light waiting for it to change and a Skanska truck rear ends you 

because its brakes failed due to apparent poor maintenance practices. You sue Skanska 

and in discovery it sends you requests asking for information on how you maintained 

your brakes saying it is relevant to Skanska’s duty of care in maintaining its brakes. 

 It is akin to using discovery to blame the victim. Skanska will be well able to 

prove a defense of the reasonableness of delay, if meritorious, with reference to generally 

available weather information. Its present “over-the-top” discovery is an effort to derail 

the claimants from preparing for the rapidly approaching trial and completely 

unnecessary. Nothing, in Skanska’s Objection changes the soundness of Magistrate Judge 

Cannon’s decision. 

CONCLUSION 

 For the above-stated reasons the United States requests the Court deny Skanska’s 

Objection. 

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DATED: July 9, 2021 

 Respectfully submitted, 

VARU CHILAKAMARRI 

Assistant Attorney General 

U.S. Department of Justice, Civil Division 

 JASON R. COODY 

 Acting United States Attorney 

 Northern District of Florida 

 

 /s/ ROBERT KELLY 

 THOMAS BRIGHT 

ROBB HYDE 

 ROBERT KELLY 

Trial Attorneys 

 Torts Branch, Civil Division 

 U. S. Department of Justice 

 P.O. Box 14271 

 Washington, D.C. 20044-4271 

 (202) 616-4046 

 thomas.j.bright@usdoj.gov 

robb.hyde@usdoj.gov 

Robert.Kelly@usdoj.gov 

 

 Attorneys for Claimant 

 UNITED STATES OF AMERICA 

CERTIFICATION 

 I hereby certify that on this date, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF System. Notice has been sent using that system to all 

counsel of record. 

 /s/ Robert Kelly __ 

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