United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the court are the University of Louisiana System's ("Defendant") Motion and Incorporated Memorandum for Extension of Discovery Deadline in Accordance with FRCP Rule 16 filed on January 29, 2015 (R. Doc. 18) and Defendant's Amended Motion for Extension of Discovery Deadline in Accordance with FRCP Rule 16 filed on February 2, 2015 (R. Doc. 23). Melinda Mitchell ("Plaintiff") filed an Opposition. (R. Doc. 30). Defendant filed a Reply. (R. Doc. 40). Defendant has also filed a Motion for Leave to File Supplemental Brief in Support of Defendant's Motion to Compel. (R. Doc. 48).
Also before the court is Defendant's Motion to Compel Discovery Responses and for Discovery Sanctions Pursuant to FRCP 26, 33 and 34 and Incorporated Memorandum. (R. Doc. 21). Plaintiff filed an Opposition. (R. Doc. 28). Defendant filed a Reply. (R. Doc. 42).
Also before the court is Defendant's Motion for Leave to Retake the Deposition of Plaintiff and Motion to Increase the Time Permitted for Plaintiff's Deposition. (R. Doc. 19). Plaintiff filed an Opposition. (R. Doc. 29). Defendant filed a Reply. (R. Doc. 38).
Because these discovery motions are interrelated, the court considers them together in this consolidated order. The court held oral argument on the foregoing discovery motions on April 1, 2015.
This is an employment discrimination and reprisal/retaliation action. In her Petition, Plaintiff alleges that she was hired by the Defendant as a "Programmer/Data Analyst" in January of 2008. (R. Doc. 1-2). Plaintiff alleges that in or about late 2012, she applied for a position as Executive Director but was not selected based upon her age and race, and after filing a complaint with Defendant's Human Resources Director, was subsequently moved to a new position with increased duties but no increase in salary. (R. Doc. 1-2). Defendant removed the action on December 23, 2013. (R. Doc. 1). Based on a proposed deadline suggested by the Defendant (R. Doc. 13 at 4), the court entered a scheduling order on March 26, 2014 setting the deadline to complete all discovery except experts on February 2, 2015. (R. Doc. 14).
On April 15, 2014, Plaintiff provided Defendant with her initial disclosures along with several documents on a disk. (R. Doc. 29-1). At oral argument, plaintiff's counsel explained that the initial disclosures included handwritten notes by Plaintiff of certain conversations with various co-workers. In addition to these notes, Plaintiff also recorded some or all of those same conversations. Plaintiff's counsel represented that she was not aware of the existence of the underlying recordings until January 25, 2015, when Plaintiff identified the recordings as potentially useful for the purpose of impeaching the deposition testimony of some of her former coworkers.
The record suggests, and oral argument confirmed, that Defendant did not begin conducting discovery until approximately one month prior to the discovery deadline. On December 31, 2014, Defendant propounded Interrogatories and Requests for Production on the Plaintiff by fax, email, and mail. (R. Doc. 21-2 at 24). Plaintiff represents that in light of the New Year holiday, her counsel did not review the fax and mailed copies until January 5, 2015. (R. Doc. 28 at 2). Plaintiff is silent with regard to when her counsel viewed the copy sent by email on December 31, 2014. ( See R. Doc. 21-2 at 26).
On January 9, 2015, Defendant noticed Plaintiff's deposition to take place at defense counsel's office on January 28, 2015, and the parties subsequently agreed that the deposition would take place on January 27, 2015. (R. Doc. 19 at 1). After an approximately 1.5 hour delay caused by a dispute over its location,  Plaintiff's deposition took place at defense counsel's office and lasted 5 hours, 17 minutes. (R. Doc. 19 at 2). There is no indication in the record that the delay in the commencement of the deposition was the reason why the deposition did not last the full 7 hours. Plaintiff represents that defense counsel rested and Plaintiff's counsel concluded the deposition with limited questioning. (R. Doc. 28 at 1-2).
On January 29, 2015, Defendant filed its original motion for extension of the discovery deadline and requested a 60-day extension of the fact discovery deadline set for February 2, 2015. (R. Doc. 18). Defendant represented that it needed this extension (1) to conduct the deposition of Ruslan Hemed, a non-party witness that Plaintiff released on the morning of his scheduled deposition on January 22, 2015; (2) to review one terabyte of data that Plaintiff's counsel stated would be produced later that day; and (3) to conduct additional discovery "without limitation" including seeking supplemental discovery responses, conducting additional depositions, and filing additional discovery motions. (R. Doc. 18 at 2-3).
Later that same day, Plaintiff provided Defendant with the promised one terabyte of data (which consists of 1, 976 audio recordings indexed by date and time) on a hard drive. (R. Doc. 19 at 2; R. Doc. 28 at 2-3; R. Doc. 42-1 at 1-31). At oral argument, plaintiff's counsel stated that she requested Plaintiff to provide all audio recordings she had in her possession after Plaintiff informed her of their existence on January 25, 2015. Plaintiff's counsel stated that she produced all of these audio files without prior review to ensure she responded in full to Defendant's discovery requests.
On January 30, 2015, Plaintiff produced a binder containing 600-700 documents with an accompanying index of those documents. (R. Doc. 19 at 2; R. Doc. 28 at 2; R. Doc. 28-1 at 9-14).
At approximately 2:00 p.m. on February 2, 2015, Plaintiff provided written responses to Defendant's Interrogatories by hand delivery. (R. Doc. 28 at 7; R. Doc. 21-9). Plaintiff's counsel provided a certificate of service and her Rule 26(g) signature at approximately 4:00 p.m. by fax (R. Doc. 28 at 7; R. Doc. 21-9 at 15).
At approximately 7:00 p.m. on February 2, 2015, Defendant filed three additional discovery motions. (R. Docs. 19, 21, and 23). Having received the promised one terabyte of data from Plaintiff, Defendant filed its amended motion for extension of the discovery deadline to seek a 120-day extension of the fact discovery deadline to provide it with an opportunity to review the data on the hard drive. (R. Doc. 23 at 2). In light of Plaintiff's productions, Defendant also seeks to retake the deposition of Plaintiff to question Plaintiff on discovery received after Plaintiff's deposition took place on January 27, 2015. (R. Doc. 19). Finally, Defendant has moved to compel complete answers to its written discovery, characterizing certain responses by Plaintiff as "document dumps" and seeking discovery sanctions. (R. Doc. 21).
On February 10, 2015, Plaintiff provided written responses to Defendant's Request for Production of Documents. (R. Doc. 28-1 at 16-41). At oral argument, plaintiff's counsel conceded this response was untimely.
II. Law and Analysis
A. Defendant's Motion to Compel and for Discovery Sanctions
1. Legal Standards
Rule 26(b)(1) of the Federal Rule of Civil Procedure provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." To be relevant, "information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). The scope of discovery is not without limits, however, and the court may protect a party from responding to discovery when: (i) it is unreasonably cumulative or duplicative, or obtainable from some other less-burdensome source; (ii) the party seeking discovery has had the opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(2).
Rule 33 of the Federal Rules of Civil Procedure provides for the service of written interrogatories. A party seeking discovery under Rule 33 may serve interrogatories on any other party and the interrogatory "may relate to any matter that may be inquired into under Rule 26(b)." Fed.R.Civ.P. 33(a)(2). "If the answer to an interrogatory may be determined by examining... a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries." Fed.R.Civ.P. 33(d).
Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible items. A party seeking discovery must serve a request for production on the party believed to be in possession, custody, or control of the documents or other evidence. Fed.R.Civ.P. 34(a). The request is to be in writing and must set forth, among other things, the desired items with "reasonable particularity." Fed.R.Civ.P. 34(b)(1)(A).
Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or object. See Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37. An "evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond." Fed.R.Civ.P. 37(a)(4).
2. Timeliness of Plaintiff's Discovery Responses
A preliminary issue raised by Defendant's Motion to Compel and central to Defendant's other motions is whether Plaintiff timely responded to Defendant's written discovery. Defendant faxed, emailed, and mailed the written discovery to Plaintiff on December 31, 2014. (R. Doc. 21-2 at 24). Plaintiff represents that her counsel first received the fax and mailed copy on January 5, 2015, the Monday after Plaintiff's counsel returned from the holiday weekend. (R. Doc. 28 at 2).
Defendant argues that the deadline to respond to this written discovery was January 30, 2015 in accordance with Rules 33 and 34. (R. Doc. 21 at 5). In contrast, Plaintiff argues that the deadline to respond to written discovery was February 2, 2015 under the theory that January 1, 2015 (a legal holiday) should be excluded from the calculation of the time to respond. (R. Doc. 28 at 2).
Resolution of this issue requires analysis of Rules 5 and 6 of the Federal Rules of Civil Procedure, which respectively govern manners of service and computation of time. Defendant propounded the written discovery at issue by mail (which is governed by Rule 5(b)(2)(C)), by email (which is governed by Rule 5(b)(2)(E)), and by fax (which is governed by Rule 5(b)(2)(E) or Rule 5(b)(2)(F)). There is no evidence before the court that Plaintiff or her counsel agreed to service by e-mail or fax as required by Rule 5(b)(2)(E) or Rule 5(b)(2)(F). Accordingly, the court need only consider service by mail, which is effective "upon mailing" of the written discovery. Fed.R.Civ.P. 5(b)(2)(C). Counting from the first day after service (January 1, 2015), the period for responding would expire on Friday, January 30, 2015. See Fed.R.Civ.P. 6(a). Where service is by mail (or, for that matter, "by electronic means" or "by other means"), the recipient of the discovery is provided with an additional 3 days to respond after "the period would otherwise expire under Rule 6(a)." Fed.R.Civ.P. 6(d). Plaintiff's responses to written discovery were therefore due on Monday, February 2, 2015, the deadline to complete discovery.
Based on the foregoing, Plaintiff's production of documents (on January 29-30, 2015) and written responses to Defendant's Interrogatories (on February 2, 2015) were timely. Plaintiff's written responses to Defendant's Requests for Production provided on February 10, 2015 were untimely.
3. Defendant's Rule 37(a)(1) Certification
The court must also address, as a preliminary matter, whether prior to bringing its motion the Defendant "has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Fed.R.Civ.P. 37(a)(1). Defense counsel certifies that she conferred with Plaintiff's counsel "regarding the production of plaintiff's responses to interrogatories and requests for production in accordance with Rule 37(a)(1)." (R. Doc. 21 at 4). Defense counsel further represents that she "also attempted to confer with counsel by telephone several times on Friday, January 30, 2015 and Monday, February 2, 2015 regarding the voluminous nature of the audio recordings, the documents produced, contents thereof and the witnesses identified" but was unable to reach Plaintiff's counsel prior to filing its Motion to Compel. (R. Doc. 21 at 4).
Plaintiff argues that Defendant did not hold a proper Rule 37 conference prior to filing its Motion to Compel. (R. Doc. 28 at 3). In particular, Plaintiff represents that after she provided her timely written responses to Defendant's Interrogatories at approximately 2:00 p.m. on February 2, 2015, Defendant did not contact Plaintiff regarding those responses ...