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Parkcrest Builders, LLC v. Housing Authority of New Orleans

United States District Court, E.D. Louisiana

April 19, 2017

PARKCREST BUILDERS, LLC
v.
HOUSING AUTHORITY OF NEW ORLEANS (HANO)

         SECTION: “J” (4)

          ORDER AND REASONS

          KAREN WELLS ROBY UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion for Protective Order and Extension of Time to Respond (R. Doc. 127) filed by Liberty Mutual Insurance Company (“Liberty”), seeking an order of the Court to protect confidential financial and trade secret information; to protect against the Housing Authority of New Orleans's (“HANO”) facially objectionable and improper discovery requests; and enforce and agreement between HANO and Liberty for the extension of time to respond under Federal Rule of Civil Procedure 29. The motion is opposed. R. Doc. 137.

         Additionally, before the Court is a Motion to Compel (R. Doc. 144) filed by HANO seeking to compel Liberty to full respond to its First Set of Interrogatories and Request for Production of Documents-the same discovery at issue in Liberty's motion for protective order.

         The motion is opposed. R. Doc. 155. Both motions will be heard on April 19, 2017.

         I. Background

         The facts of this case are well known to the Court given the extensive pretrial motion practice in this case. See, e.g., R. Doc. 107. As such, the Court will forgo a detailed account of underlying facts and procedural history. At this time, Liberty has filed a motion for protective order and extension of time to respond to discovery. R. Doc. 127. On February 10, 2017, HANO propounded its First Set of Request for Production and Interrogatories to Liberty R. Doc. 127-2, p. 2. On March 16, 2017-three days after Liberty's objections were due and after an email from HANO stating that the discovery was overdue and no extensions had been requested (R. Doc. 127- 4)-Liberty requested an extension of thirty days because of ongoing discussions concerning the revising of the ESI Protocol as well as prior extensions given to HANO. Id. HANO responded by denying Liberty's extension, but by offering an extension of time to respond through March 21, 2017 if Liberty agreed to produce its documents with certain metadata. Id. at p. 3. Liberty states that it accepted this offer. On March 21, 2017, Liberty states that it did respond to the discovery but that its “narrative responses consisted of objections.” Id. Liberty stated that it was willing to work through those objections and requested additional time to respond. HANO responded by asserting that any objections had been waived and offered to allow Liberty to meaningfully respond without objecting until April 3, 2017. On March 24, 2017, Liberty supplemented its responses without accepting HANO's offer as well as filed the instant motion.

         Liberty argues that HANO's interrogatories are improper because they exceed the twenty-five allowed under the Federal Rules. Id. at p. 4. Liberty further argues that many of the request are improper and Liberty should not be forced to respond until those objections are resolved. Liberty also seeks the entrance of a Protective Order/Confidentiality Agreement. Finally, Liberty also seeks an extension of time to respond given the requirements of the ESI Protocol. Id.

         In addition to opposing Liberty's motion, HANO has filed a motion to compel responses to the discovery requests at issue, arguing that because Liberty's responses were late and there is no good cause for the delay, Liberty's objections to the discovery requests are waived. R. Doc. 144.

         II. Standard of Review

         Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . . .” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Rule 26(b)(1) also specifics that discovery must be “proportional to the needs of the case, considering the important of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

         Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

         Rule 26(c) governs the issuances of Protective Orders in discovery. A Court may “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The rule offers a variety of potential options that the Court may use to protect the moving party, including forbidding or limiting the scope of discovery into certain matters. Fed.R.Civ.P. 26(c)(1)(D), (G). “The party seeking the protective order bears the burden to show ‘the necessity of its issuance, which contemplates a particular and specific demonstration of fact[.]'” Cazaubon v. MR Precious Metals, LLC, 14-2241, 2015 WL 4937888, at *2 (E.D. La. Aug. 17, 2015) (quoting In re Terra Int'l, 134 F.3d 302, 306 (5th Cir.1998)). The trial court enjoys wide discretion in setting the parameters of a protective order. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.”). Finally, Rule 26(c)(1) requires a certification that the moving party has conferred or attempted to confer in good faith with the other affected party to attempt to resolve the issue without the court's interference.

         Federal Rule of Civil Procedure 37 provides sanctions for failure to cooperate in discovery. Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from another party. In particular, Rule 37(a)(3)(b)(iii)-(iv) allows a party seeking discovery to move for an order compelling an answer or production of documents where a party “fails to answer an interrogatory” or “fails to produce documents.” An “evasive or incomplete” answer or production is treated the same as a complete failure to answer or produce. Fed.R.Civ.P. 37(a)(4).

         In addition to alleging that the responding party has failed to properly cooperate with discovery, a motion to compel under Rule 37(a) must also “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or ...


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