1 

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 : 

UNITED STATES OF AMERICA’S 

MOTION TO ENFORCE THE PROTECTIVE ORDER 

INTRODUCTION 

 The United States of America submits this Motion to Enforce the Protective Order which 

quashed the depositions of several government personnel. Despite that order Skanska recently 

noticed the depositions of the following Navy personnel, all of which were included in the 

Protective Order issued by the Court on July 30, see ECF 1226: 

1. Burt Fenders (sic) 

2. CAPT Timothy Kinsella 

3. MA3 Russ Aguda 

4. LCDR Stephen Pakola 

5. Kimberly Tessier 

6. MA1 Anthony Vazquez 

In requesting these depositions, Skanska has not demonstrated a legitimate reason for deposing 

the witnesses separate from the reasons previously rejected by both Magistrate Judge Cannon 

and the District Court. Skanska’s actions in, again, requesting these depositions are an abuse of 

discovery. The United States requests the Court grant this Motion to Enforce the Protective 

Order and quash these notices. 

 

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FACTUAL BACKGROUND 

 As the Court is aware, Skanska has sought discovery from the United States and other 

claimants related to their own preparations for Hurricane Sally: 

1. On June 19, 2021, the Court issued Discovery Order No. 2 defining the scope of 

discovery in this phase, focusing it on determining Skanska’s liability, and whether there 

was privity and knowledge as defined in the Limitation of Liability Act. See ECF 1192. 

2. While Discovery Order No. 2 was focused on written discovery, it stated “[i]t is not the 

Claimants’ or the US Navy’s conduct that are at issue; it is Skanska’s, and nothing in the 

cases relied upon by Skanska changes that fact.” Id. at 5. The Court stated that Skanska 

cannot use disparate examples, like what the Navy did or did not do in preparation for 

Hurricane Sally, as a test of reasonableness for Skanska’s actions. Id. at 4. The Court 

ultimately found that Skanska’s challenged written discovery was both irrelevant and 

disproportionate to the needs of the case. Id. 

3. Skanska appealed that Order to the District Court which overruled Skanska’s objection 

on July 13, 2021. See ECF 1205. 

4. Subsequent to the issuance of the Order by the District Court, Skanska requested 21 

depositions of United States government personnel. Those 21 depositions were the 

subject of an oral motion for a protective order made during the parties’ regularly 

scheduled status conference on July 21 which was supported by a detailed letter from 

government counsel copied to Magistrate Judge Cannon. See Ex. 1. Those 21 depositions 

included the 6 individuals who have been noticed by Skanska here. 

5. Prior to the July 21 status conference, Skanska, by email, requested Magistrate Judge 

Cannon order the United States to file a written motion for a protective order seeking to 

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quash the 21 depositions. Magistrate Judge Cannon, citing the practice of the case and the 

need for expediency given the approaching trial date denied Skanska’s request and 

accepted the United States’ oral motion along with its letter as laying out the United 

States’ position. See ECF 1210 at 2. 

6. After hearing argument, Magistrate Judge Cannon issued a Show Cause Order to Skanska 

on July 21 to demonstrate why the depositions did not violate Discovery Order No. 2. See 

ECF 1210. Skanska did not respond directly to the Show Cause Order but rather filed a 

pleading that appeared to ask the Court to reconsider Discovery Order No. 2. See ECF 

1215. In that pleading Skanska reduced its 21 depositions to 2, which included CAPT 

Kinsella who is again named in the new deposition notices. 

7. Magistrate Judge Cannon granted the United States’ oral Motion for a Protective Order 

on July 30. See ECF 1226. 

8. On August 4 Skanska, via email, delivered five notices of deposition with the following 

language: 

“We are entitled to take depositions, subject to the magistrate’s limitation. That limitation 

is not a bar to fact depositions. Accordingly, attached are notices for several witnesses. 

Please contact me if you wish to arrange different dates and times for zoom depositions. 

The depositions are not likely to go more than an hour and some might be shorter.” 

See Ex 2. No other information or justification was presented as to what subject matter 

would be addressed in the depositions, or how they did not violate Discovery Order No. 

2, or the later protective order on depositions.1

 

9. On August 5 counsel for the United States responded to Skanska’s request indicating that 

it appeared these deposition notices were in violation of the Court’s ruling; but that if 

 

1

 On August 2 Skanska also requested, from the other claimants, the depositions of 11 

individuals. 

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Skanska could provide a written list of topics, per witness, that Skanska would inquire 

about in the depositions, and that were not in violation of the prior orders, that the United 

States would produce the witnesses. See Ex. 2. 

10. Skanska then added a sixth witness to its request for depositions. See Ex. 2. This witness 

was also previously part of the Protective Order. 

11. Skanska responded to the United States’ email stating: “The magistrate’s order does not 

require listing of topics, rather that my questions not delve into ‘prohibited’ areas, which 

I have advised we do not intend to do. However, to address your request, we intend to ask 

questions regarding observations and statements produced in discovery.” 

12. Following that email exchange counsel for both parties had two telephone calls to meet 

and confer per L.R. 7.1(B). 

LOCAL RULE 7.1(C) CERTIFICATION 

 Prior to filing this Motion, the undersigned counsel attempted to resolve this issue in 

good faith with Skanska’s counsel. As outlined above, and in the attached exhibit, those efforts 

did not succeed. See Ex. 2. 

ARGUMENT

 Skanska is seeking its fourth bite at the proverbial apple with these deposition notices. It 

has been decided that the actions of the United States Navy in preparing the facilities and 

personnel of Naval Air Station Pensacola for the impacts of Hurricane Sally are not relevant to 

the upcoming phase of trial. Yet Skanska persists in seeking discovery about these actions. 

Skanska’s newest requests disregard the letter and spirit of the orders of this Court, and the 

Federal Rules of Civil Procedure, and do so without justification. 

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 Fed. R. Civ. P. 26(c) allows a party from whom discovery is sought to seek a protective 

order. A&M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., No. 16-cv-62610, 

2017WL4882511, at *2 (S.D. Fla. Oct. 30, 2017). “‘The court may, for good cause, issue an 

order to protect a party or person from annoyance, embarrassment, oppression, or undue burden 

or expense’ by, for example, forbidding or limiting the disclosure or discovery of a certain matter 

or specifying the terms of the discovery.” Id. Good cause is a well-established legal term which 

“generally signifies a sound basis or legitimate need to take judicial action.” In re Alexander 

Grant & Co. Litig. 820 F.2d 352, 356 (11th Cir. 1987). Courts have broad discretion in discovery 

to determine whether, and to what extent, a protective order is appropriate. Lohr v. Zehner, 2:12-

cv-533-MHT, 2014WL12742197, at *1 (M.D. Ala. Mar. 6, 2014). Magistrate Judge Cannon 

granted the United States’ Motion for a Protective Order to quash the depositions of government 

personnel on July 30. See ECF 1226 at 3. That Order was consistent with the prior Discovery 

Order No. 2 which limited the scope of discovery in this phase to determining whether Skanska 

was negligent in the release of its barges, and whether Skanska had privity and knowledge as is 

defined by the Limitation of Liability Act. See ECF 1192 at 5-6. 

 As mentioned above, Skanska had previously requested the depositions of these six 

witnesses. They were the subject of the United States’ July 19 letter which was sent to 

Magistrate Judge Cannon so the issue might be discussed during the regularly scheduled status 

conference on July 21. Magistrate Judge Cannon’s Show Cause Order that came out of that 

status conference explicitly incorporated that letter. See ECF 1210 at 1. In response to the Show 

Cause Order, Skanska stated that all but two of the depositions were likely unnecessary. See ECF 

1215 at 7. That would have included five of the six depositions Skanska has now noticed. This 

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seems at odds with Skanska’s present position that these depositions are legitimately sought for a 

relevant purpose. 

 As to the specific witnesses identified in the notices, none played a role in the events 

leading up to the breakaway of Skanska’s barges: 

• CAPT Timothy Kinsella: He was the commanding officer of Naval Air Station Pensacola. 

Operationally he served as a naval aviator and has no experience in barge operations and has 

not worked with construction barges. He does have second-hand information related to 

damages suffered by the allision of two Skanska barges with the Air Station; however, those 

issues are not at issue in this phase of the case. It is clear from other pleadings and discovery 

filed that Skanska wishes to depose CAPT Kinsella regarding an interview he allegedly gave 

to a local news outlet about the aftermath and severity of the storm. See ECF 1215 at 6. 

Questioning regarding that topic is in direct violation of the Court’s orders. 

• LCDR Stephen Pakola, MA3 Russ Aguda, and MA1 Anthony Vazquez: These are percipient 

witnesses who saw Skanska’s barge strike the Sam Lovelace Bridge that serves as the main 

entrance to Naval Air Station Pensacola, and the golf cart/pedestrian bridge that runs 

underneath. Photographic evidence of those allisions have been provided to Skanska in 

discovery. None of these witnesses had any contact with Skanska employees prior to 

Hurricane Sally.2

 

• Burt Fenters: At the time of Hurricane Sally he was the Emergency Operations Center 

Director for Naval Air Station Pensacola and certainly did not have any role in the actions or 

 

2

 In the United States’ July 19 letter about the 21 depositions, counsel offered to draft a 

stipulation for Skanska about what the witnesses saw in connection with the barges striking Navy 

property and the foundation for the photographs showing it. This would have been the entire 

substance of their testimony. Skanska never accepted or responded to that offer. 

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decisions made by Skanska that lead to the release of the barges. In his position he would 

have been part of the team responsible for the preparation of the Air Station for Hurricane 

Sally and for assessing damages in the aftermath of the storm. Neither of those issues are 

important at this time. 

• Kimberly Tessier: She was a civilian employee with Naval Air Station Pensacola’s Morale, 

Welfare, and Recreation (“MWR”) facilities which included marinas that had recreational 

vessels that could be rented by government personnel. Ms. Tessier had no involvement in 

Skanska’s operations or in the events leading up to the release of the barges. Her sole role 

would have been in preparing the MWR facilities for the impacts of Hurricane Sally and then 

in recovery from the storm after it passed. 

 In short, none of the identified individuals played a role in the actions or decisions made 

by Skanska leading to the breakaway of the barges. Rather, each is sought for deposition to learn 

what decisions the Navy made to prepare for Hurricane Sally, presumably to see if the Navy’s 

conduct was prudent.3 These have no bearing on Skanska’s defense. See Wrangen v. 

Pennsylvania Lumbermans Mut. Ins. Co., 593 F. Supp. 2d 1273, 1278 (S.D. Fla. 2008) (a matter 

is deemed irrelevant if it does not pertain to a claim or defense). 

 

 

 

3

 For further evidence of this intention please see the Requests for Admission Skanska recently 

served on the United States, the vast majority of which are specifically directed to the steps the 

Navy took in evaluating weather information and preparing Naval Air Station Pensacola prior to 

Hurricane Sally making landfall. See Ex. 3. The United States may file a subsequent motion to 

enforce the protective order regarding the Requests for Admission should negotiations with 

Skanska to limit them fail. 

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CONCLUSION 

It is dubious that Skanska legitimately believes these depositions fall outside of the 

Protective Order. It certainly has not offered any persuasive explanation. For the above-stated 

reasons, the United States requests the Court grant this Motion to Enforce the Protective Order 

and quash the deposition notices. 

DATED: August 11, 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 

SAM ESCHER 

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 

Samuel.Escher@usdoj.gov 

Attorneys for Claimant 

UNITED STATES OF AMERICA 

 

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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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