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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN THE MATTER OF IN RE 

SKANSKA USA CIVIL 

SOUTHEAST INC. AND 

SKANSKA USA, INC. AS 

OWNERS OF THE BARGE KS 

5531 PRAYING FOR 

EXONERATION FROM OR 

LIMITATION OF LIABILITY 

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ADMIRALTY RULE 9(H)

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CIVIL ACTION NO.

3:20-CV-05980-LC/HTC

DISCOVERY ORDER No. 3

Re: ADDITIONAL DISCOVERY RELATING TO PRIOR STORMS

Prior to the District Judge’s referral of discovery disputes to the undersigned, 

Claimants and Petitioner Skanska USA Civil Southeast, Inc. (“Skanska”) agreed to 

an ESI protocol pursuant to which Skanska would run certain agreed-upon search 

terms on an ESI database and/or project server database. Because the parties could 

not agree on the exact date range for the search terms to be run, the parties agreed, 

given the upcoming trial date, to focus their priorities initially on the date range of 

September 10 to September 30, 2020.

1

 In addition to the ESI discovery, Claimants 

1 This agreement was in no way intended to limit the Claimants’ ability to ask for documents 

outside of that date range but was agreed upon solely for the purpose of facilitating discovery. 

Claimants have since indicated that they are willing to limit the search to a date range of September 

10 to October 31, provided they can ask for specific documents outside that range upon a showing 

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also issued written discovery to Skanska, which the parties, after a meet and confer, 

agreed would include the production of certain information related to prior storms 

based on specific date ranges and utilizing specific search terms.2

 See Exhibit 1. 

Claimants now come to the Court seeking for Skanska to run the following 

additional searches in their ESI/project server database(s). First, Claimants seek to 

have Skanska run three (3) additional search terms, **demob, remob,**  and 

“01742361,” on the “storm search” date ranges (i.e., date ranges related specifically 

to prior storms). See id (for date ranges). Second, Claimants seek to have Skanska 

conduct a search of ESI utilizing certain key terms for a period from July 29, 2016 

(the date of the Skanska contract with the Florida Department of Transportation for 

the construction of the Pensacola Bay Bridge), to the date of the documents currently 

collected in the ESI and project serve databases. See Exhibit 2. 

Skanska has objected to these additional requests on two grounds: (1) 

relevance, and (2) burdensomeness or proportionality. As to relevance, Skanska 

argues that what its hurricane plan was prior to the plan in place for Hurricane Sally 

and what it did relative to prior storm events is not relevant. Skanska contends the 

of necessity and relevance. Skanska has not agreed to this proposal yet, as it needs to consider the 

burden and breadth of conducting this additional search for materials after September 30 and 

reviewing those documents for privilege.

2 These agreed-upon terms appear to be limited to identifying documents related to Skanska’s 

conduct or response during prior weather events. Although Skanska has agreed to produce 

responsive documents utilizing these search terms, these documents have not yet been produced 

in light of Skanska prioritizing its production of cell phone data. 

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Case No. 3:20-cv-05980-LC-HTC 

reasonableness of its conduct and its lack of privity and knowledge should be 

confined to what Skanska knew or had reason to know about Hurricane Sally, its 

barges, and what it did between the dates of September 10 and September 16, 2020. 

Claimants argue, on the other hand, that the conduct Skanska took regarding other 

storm events (both prior to and after Hurricane Sally) bears on the reasonableness of 

Skanska’s conduct in the face of Hurricane Sally. 

As an initial matter, the Court agrees with the Claimants that some information 

relating to Skanska’s conduct concerning prior storms and why it changed its 

hurricane preparedness plan over the years is relevant. As set forth in the Court’s 

Discovery Order #2, the Eleventh Circuit stated in Fischer v. S/Y NERAIDA, 508 F.3d 

586, 594 (11th Cir. 2007), whether a vessel owner is exonerated from liability 

because of a force majeure is dependent on whether he did everything in his power 

to prevent the accident. In other words, the question is whether Skanska took all 

reasonable measures to prevent the allisions. 

And, what Skanska did in response to prior storm events and what it knew or 

learned from prior storm events certainly must have informed its decision in 

September 2020. At a minimum, such information could bear on what Skanska was 

capable of doing. See Matter of Francis, 2017 WL 5495108, at *4 (S.D. Cal. Nov. 

16, 2017) (“‘Privity or knowledge’ may be active or constructive; therefore in 

addition to showing lack of knowledge or the cause of the loss, the owner must also 

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demonstrate that it has avail[ed] itself of whatever means of knowledge are 

reasonably necessary to prevent conditions likely to cause a loss.” (emphasis 

added)); American Dredging Co. v. Lambert, 81 F.3d 127, 129 (11th Cir. 1996) 

(looking at whether vessel owner had “foreknowledge” of events that resulted in 

collision or knowledge of the condition of the vessel prior to the accident). 

Indeed, as the Claimants point out, in Skanska’s amended response to 

Interrogatory #11, Skanska specifically explains that it “decided Rig 20 could safely 

remain on site driving piles during the day on Sunday, at the end of which it would 

be secured, centered between the bridge and fishing pier with anchors set and spuds 

down . . . [because] [t]his arrangement had been used successfully (no barge 

movement) in a prior storm in August 2020, so it was deemed safe based [on] the 

anticipated conditions.” Skanska cannot rely on its action or inaction during prior 

events to explain its action or inaction during Hurricane Sally, while at the same time 

objecting to the Claimants having access to that same information. 

Whether the information sought is relevant, of course, does not the end the 

analysis, as the Court must also consider whether the burden of the production is 

proportional to the needs of the case, and in particular here, whether it would result 

in an extension or delay of the September trial date. See Fed. R. Civ. P. 26(b). In 

considering the Claimants’ additional requests, the Court finds that requiring Skanska 

to re-query its databases and review additional documents for production that have 

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*demob,* *remob,* and the associated cost code to not be proportional to the needs 

of this case. In reviewing the emails Claimants have provided to support their request 

for this additional search, the Court notes that the emails appear to reference the 

demobilization or remobilization of equipment or construction activities before and 

after a weather or other event. Likewise, in Skanska’s amended response to 

Interrogatory No. 12, Skanska describes demobilization and remobilization as 

referencing when it would stop work on the project and restart work after a tropical 

event. 

Thus, it seems to the Court that a query based on these additional terms is 

unlikely to result in documents relating to the specific conduct at issue, which is (1) 

why Skanska did not follow its Hurricane Preparedness Plan (if that is the case), and

(2) whether the conduct Skanska took regarding the barges was reasonable or 

negligent. Additionally, the Court notes that in Skanska’s amended answer to 

Interrogatory No. 2, Skanska identified the dates it demobilized and remobilized as 

to all pertinent prior storm events and Hurricane Sally, and thus, to the extent that 

Claimants believe there is any issue as to that timing or the number of employees 

available to address the pertinent weather events, Claimant has the information it 

needs or can obtain the same more directly through deposition testimony. 

As the United States interjected at the hearing held on June 22, 2021, and as 

argued by Skanska at the June 23, 2021 hearing, these terms are industry terms and 

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could produce mostly irrelevant documents. Thus, the Court will not require Skanska 

to engage in an additional search for these terms. Of course, the Court’s 

determination does not preclude Claimants from seeking reconsideration once 

Claimants have reviewed all documents produced by Skanska should they determine 

that there is missing information that can be obtained only through this additional 

query. 

Claimants’ second request appears to be isolated to search terms designed to 

identify documents bearing on Skanska’s hurricane preparedness plans in years prior 

to Hurricane Sally and also why Skanska may have altered or changed its plan. The 

Court finds this second request is more likely to provide relevant information, and 

thus responsive documents should be produced. 

As Skanska explains in its amended answer to Interrogatory No. 7, the 

hurricane preparedness plan is “not a static document.” Instead, it is modified “to 

address the status of the project, the amount of equipment deployed on the water, the 

status of construction activities in the pre-cast yard, etc.” While one of Claimants’ 

claims of negligence is based on their allegation that Skanska did not follow the 

hurricane plan in place for Hurricane Sally, as the Court understands it, Skanska may 

argue that regardless of whether it followed the plan, its conduct was reasonable 

based on the known conditions. Whether such conduct was reasonable could depend 

on why certain changes were made to the plan. For example, if Skanska contends it 

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did not have to move the barges to East Bay, the question may then become why that 

was a part of the hurricane plan and when it got added. Likewise, as stated above, 

what Skanska may have learned from prior iterations of the plan bears on what it did 

in response to Hurricane Sally.

However, in balancing the needs of the Claimants for this discovery with the 

extent of documents already produced by Skanska, as well as the limited issues set 

for trial in September, the Court finds it to appropriate to limit the search terms to a 

more manageable production to include only the following terms: “incident 

management plan,” “recovery plan,” “emergency prepar*,” and “preparedness plan.” 

Skanska will need to run these terms from July 29, 2016 to October 31, 2020. Once 

again, this determination does not preclude Claimants from seeking additional 

documents once they have reviewed Skanska’s production and upon a showing of 

need.

DONE and ORDERED this 24th day of June 2021.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

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Date Range: 08/17/2017­10/22/2017 OR 05/20/2018­

06/10/2018 OR 08/30/2018­09/28/2018 OR 08/24/2019­

09/15/2019 OR 10/13/2019­11/10/2019 OR 06/01/2020­

06/27/2020 OR 08/19/2020­09/02/2020

Date Field: Family Date

Custodians: Beddow, Tyler;Bender, William;Stephens, 

Sarah;Salamanca, Alvaro;Rubio, Eduardo;Project Server, 

Skanska;Rodgers, Robert;Mcglynn, Patrick;Johnson, 

Nicholas;Hill, Robert;Fulton, Tom;Francis, Dan;Demarco, 

Thomas;Benton, Ronnie

Total Count: 3,372 With Families: 5,330

Global Deduplication Applied

Key Terms Without 

Families

With

Families

Total Unique 

Documents 

Per Term

Hurricane* 1969 3526 875

Tropical 1024 1801 175

Weather* w/4 forecast* 574 641 305

Damage* w/2 (recover* OR assess*) 267 613 51

Storm* w/4 prepar* 224 506 25

"Risk Management" 116 311 28

Evacuate* 87 286 8

"Condition 1" 58 90 11

"Condition one" 55 189 0

"Condition 4" 51 80 12

"Condition three" 45 92 1

"Condition four" 44 90 0

"Condition two" 44 90 0

Break* w/2 free 36 53 16

"Condition 2" 32 55 11

Break* w/2 loose 27 50 11

"Condition 3" 25 48 9

Brok* w/2 loose 18 36 1

Butcherpen 17 26 12

Brok* w/2 free 10 24 3

Aground 6 14 1

"Butcher pen" 000

SEARCH SET #1 OF 3

PHASE 2 ESI SEARCH TERMS

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IN RE SKANSKA USA CIVIL SOUTHEAST INC. 

CIVIL ACTION NO. 3:20-CV-05980 

SEARCH TERMS AND METHODOLOGY - AT ISSUE

SEARCH SET #2 

Hurricane Preparedness Terms 

Date Range:   07/29/2016‐06/10/2021 

Date Field:  Family Date 

Custodians: Beddow, Tyler;Bender, William;Stephens, Sarah;Salamanca, 

Alvaro;Rubio, Eduardo;Project Server, Skanska;Rodgers, Robert;Mcglynn, 

Patrick;Johnson, Nicholas;Hill, Robert;Fulton, Tom;Francis, Dan;Demarco, 

Thomas;Benton, Ronnie 

Total Count: 3,277 With Families: 6,482 

Global Deduplication Applied 

Key Terms  Total Docs  Total Docs with 

Families 

Total Unique 

Documents 

Per Term 

Gale*  717  1,361  459 

Landfall  714  1347  338 

"Incident management plan"  630  1418  455 

Boom* w/2 lower*  578  1202  265 

"Recovery plan*"  547  1134  312 

"Safe harbor" AND NOT (financ* OR stock* OR ERISA OR retir*)  174  361  45 

"Emergency prepar*"  166  435  29 

"Preparedness plan"  154  399  54 

"pre hurricane"  87  133  0 

Pre‐Hurricane*  87  133  0 

SEARCH SET #3  

Post‐September 2020 

Date Range:  10/01/2020 to 06/10/2021 

Date Field:  Family Date 

Custodians: Beddow, Tyler;Bender, William;Stephens, Sarah;Salamanca, 

Alvaro;Rubio, Eduardo;Project Server, Skanska;Rodgers, Robert;Mcglynn, 

Patrick;Johnson, Nicholas;Hill, Robert;Fulton, Tom;Francis, Dan;Demarco, 

Thomas;Benton, Ronnie 

Total Count: 6,034 With Families: 9,477 

Global Deduplication Applied 

Key Terms  Total Docs  Total Docs with 

Families 

Total Unique 

Documents 

Per Term 

Sally*  6034  9477  ‐‐ 

Note ‐ I excluded email header and only included email subject in the search 

to reduce chances of hitting on a person's name ‐ this accounts for the 

difference with the last search 

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