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Matthews v. J & J Service Solutions, LLC

United States District Court, M.D. Louisiana

May 23, 2017




         Before the court is a Motion to Compel Discovery and Initial Disclosures (the “Motion to Compel”)[1] filed by defendant, J&J Service Solutions, LLC (“Defendant”). Although no formal opposition to the Motion to Compel has been filed, on March 3, 2017 counsel for both parties participated in a telephone status conference with the court to discuss the Motion to Compel.[2]Following that conference, the parties were instructed to meet and confer regarding the Motion to Compel, and Defendant filed two Supplemental Certifications regarding the parties' efforts to resolve the issues raised in the Motion to Compel without court intervention.[3] For the reasons set forth herein, Defendant's Motion to Compel is GRANTED IN PART and DENIED IN PART.

         I. Background

         On September 19, 2016, Plaintiff, Dana A. Matthews (“Plaintiff”) filed a Complaint against Defendant alleging employment discrimination and retaliatory discharge.[4] Plaintiff alleges that she “is a Caucasian female who was formerly employed by [Defendant] in the capacity of team lead for the purpose of performing retail remodeling contracts for various retail outlets, and in particular, Pep Boys.”[5] Plaintiff alleges that she reported to Chris Doenges, “who was then project manager of a job for Pep Boys in Columbus, Ohio…”[6] and that during the course of that project, she was subjected “to constant demeaning, sexist, insulting, and derogatory comments by Mr. Doenges.”[7] Plaintiff further alleges that following her complaints regarding Mr. Doenges and while working on another project for Defendant, she was “without warning, summarily and unjustifiably discharged” from Defendant's employment.[8] Plaintiff alleges that “not only was she a victim of sexist discrimination in the workplace by defendant, but her discharge from employment with defendant was unlawful and retaliatory in nature due to her attempts to inform defendant's administration of the conduct of Chris Doenges….”[9]

         On February 3, 2017, Defendant filed the instant Motion to Compel.[10] In the Motion to Compel, Defendant asserted that it served Defendant's First Set of Interrogatories and Requests for Production of Documents (the “Discovery Requests”) on Plaintiff on November 23, 2016 and that Plaintiff had failed to timely provide initial disclosures and failed to timely respond to the Discovery Requests. Thereafter, Defendant submitted a Supplemental Memorandum in Support of the Motion to Compel (the “Supplemental Memorandum”).[11] In the Supplemental Memorandum, Defendant explained that following the filing of the Motion to Compel, Plaintiff submitted initial disclosures as well as responses to the Discovery Requests; however, Defendant asserted that Plaintiff's responses to the Discovery Requests included various objections that had been waived due to Plaintiff's failure to timely respond.[12] In addition to asserting that certain objections to the Discovery Requests were waived, Defendant also asserted that Plaintiff failed to include a sworn verification and that the document production was not Bates labeled and that certain documents were illegible or had part of their text cut off.[13]

         On March 3, 2017, counsel for the parties participated in a telephone status conference with the undersigned to discuss the Motion to Compel.[14] During the conference, counsel for Defendant confirmed that Plaintiff had produced initial disclosures, a signed verification, HIPAA release, and Request for Transcript of Tax Return. Counsel for Defendant additionally explained that while Plaintiff had produced some documents, those documents were not Bates labeled and it appeared that Plaintiff had not provided certain electronically stored information. Counsel for Plaintiff agreed to Bates label Plaintiff's production of documents and make an effort to provide more legible copies of documents previously produced, if available. The court also acknowledged defense counsel's concern regarding the production of electronically stored information, and instructed counsel for Plaintiff to revisit this issue to make a determination regarding the accessibility of electronically stored information (including emails and archived social media) via a device other than the device purportedly lost by Plaintiff due to flooding. The undersigned ordered that, in the event counsel for Plaintiff confirmed that Plaintiff had produced all documents within her possession and control (including all electronically stored information), Plaintiff was to submit a supplemental verification attesting to that fact no later than March 20, 2017. Further, the court required the parties to confer regarding the remaining issues raised in Defendant's Motion to Compel, and ordered Defendant to file a Supplemental Certification setting forth, inter alia, whether the parties were able to resolve any of the remaining issues raised in the Motion to Compel.[15]

         On March 20, 2017, Defendant filed the required Supplemental Certification for the Motion to Compel (the “First Supplemental Certification”).[16] Therein, Defendant reported that following a March 17, 2017 telephone conference, Plaintiff had provided the following signed verification:

I have answered the Interrogatories and Request for Production of Documents and all of the answers provided therein are true and correct to the best of my knowledge, information and belief; I have provided all information within my possession and control, including electronically store [sic] information and have bate [sic] stamped all documents provided to counsel for J&J Services Solutions, LLC.[17]

         Defense counsel further stated that she received a disc containing over 300 documents on the date the Supplemental Certification was due, but had not had an opportunity to review the production “to determine whether outstanding issues have been resolved.”[18] Additionally, counsel for Defendant explained that Plaintiff's counsel's assistant has indicated that Plaintiff was working to provide “better answers” to the Discovery Requests, but that “[i]t is not clear when supplemental responses will be received.”[19] Based on the First Supplemental Certification, the court ordered Plaintiff provide Defendant with supplemental responses to the Discovery Requests by April 4, 2017.[20] The court further ordered Defendant to file either a Second Supplemental Certification setting forth the status of the remaining issues raised in the Motion to Compel or a Motion to Withdraw the Motion to Compel by April 11, 2017.[21]

         On April 11, 2017, Defendant filed its Second Supplemental Certification for the Motion to Compel Discovery.[22] Therein, Defendant asserts that despite this court's order, Defendant did not receive any supplemental responses by April 4, 2017 or thereafter, [23] and that Plaintiff's counsel's assistant informed Defendant that Plaintiff “does not have any further discovery responses to provide.”[24] Defendant therefore contends that Plaintiff has failed to: (1) submit written responses to interrogatories and requests for production with the untimely objections omitted; and (2) supplement her written responses to Interrogatories numbers 2, 3, 4, 5, 7, 10, 11, 12, 18, and 19 as well as Requests for Production numbers 7, 8, 15, 18, 23, 26, 27, and 40.[25]

         As an initial matter, in light of the parties' representations during the March 3, 2017 telephone conference and Defendants' subsequent certifications and Supplemental Memorandum, [26] the court DENIES as moot Defendant's Motion to Compel to the extent the motion seeks an order compelling Plaintiff to provide Initial Disclosures, a sworn verification, Bates labeled documents, and/or clear/more legible copies of certain documents.

         II. Law and Analysis

         A. Legal Standards

          “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1).

         “Generally, the scope of discovery is very broad, though it is not unlimited.” Heck v. Buhler, 2015 WL 7432367, at * 2 (M.D. La. Nov. 23, 2015) (citing Crosby v. Louisiana Health Serv. & Indent. Co., 647 F.3d 258, 264 (5th Cir. 2011)). See also, Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014) (“The general scope of discovery is broad and permits the discovery of ‘any nonprivileged matter that is relevant to any party's claim or defense.' The rules governing discovery are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials.”) (internal citations omitted). “It is well established that the scope of discovery is within the sound discretion of the trial court.” Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014). “For purposes of discovery, relevancy is construed broadly to encompass ‘any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue related to the claim or defense of any party.'” Fraiche v. Sonitrol of Baton Rouge, 2010 WL 4809328, at *1 (M.D. La. Nov. 19, 2010) (quoting Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); Fed.R.Civ.P. 26(b)(1)). However, the court must limit the frequency or extent of discovery if it determines that:

“(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).

         Motions to compel discovery responses are governed by Rule 37(a) of the Federal Rules of Civil Procedure. “Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling production or answers against another party when the latter has failed to produce documents requested under Federal Rule of Civil Procedure 34 or to answer interrogatories under Federal Rule of Civil Procedure 33.” Gondola v. USMD PPM, LLC, 2016 WL 3031852, at *2 (N.D. Tex. May 27, 2016) (citing Fed.R.Civ.P. 37(a)(3)(B)(iii)-(iv)). “The party resisting discovery must show specifically how each discovery request is not relevant or otherwise objectionable.” Gondola, 2016 WL 3031852 at *2 (citing McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). In response to a request for production under Rule 34, “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed.R.Civ.P. 34(b)(2)(B). Further, “an objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed.R.Civ.P. 34(b)(2)(C). In response to an interrogatory under Rule 33, “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed.R.Civ.P. 33(b)(3). In addition, “[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed.R.Civ.P. 33(b)(4).

         B. Sufficiency of Plaintiff's Discovery Responses

         Per the instant Motion to Compel as supplemented and modified by Defendant's additional briefing and certifications, Defendant seeks an order from this court compelling: (1) Plaintiff to submit written responses to the Discovery Requests, “with the untimely objections omitted”; and (2) Plaintiff to supplement written responses to certain discovery requests.[27]

         i. Untimely Objections

          “‘As a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.'” Scott v. United States Postal Service, 2016 WL 7440468, at * 4 (M.D. La. Dec. 27, 2016) (quoting In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989)). See also, B&S Equip. Co. v. Truckla Servs., Inc., 2011 WL 2637289, at *6 (E.D. La. July 6, 2011) (finding waiver of all objections to “discovery requests based on relevance, unduly burdensome, over broad, or any other objection not grounded on the attorney client or the work product privilege.”). The time period to respond to interrogatories and requests for the production of documents is thirty (30) days after service under Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). See also, Johnson v. PPI Technology Services, L.P., 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013) (finding plaintiffs and third-party defendant waived their objections to defendant's discovery requests by not objecting to the requests until more than two and a half months after the requests were propounded); B&S Equipment Co., Inc. v. Truckla Services, Inc., 2011 WL 2637289, at *4 (E.D. La. July 6, 2011) (finding that defendants had waived all objections to plaintiff's discovery requests based on relevance, over breadth, unduly burdensomeness, or any other objection unrelated to privilege by failing to timely respond to plaintiff's discovery requests). Further, the Fifth Circuit has held that conclusory objections that the requested discovery is “overly broad, burdensome, oppressive and irrelevant” are insufficient to voice a successful objection to an interrogatory or request for production. McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982)).

         Defendant propounded the Discovery Requests on November 23, 2016, [28] and Plaintiff provided her responses on February 8, 2017 (i.e., after Defendant filed the instant Motion to Compel).[29] Accordingly, Plaintiff's responses were submitted well after the thirty-day time period set forth under Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A).[30] Plaintiff has provided no basis for this court to find an exception to the general rule that untimely objections (other than with respect to privilege) are waived. Further, a review of Plaintiff's objections to the Discovery Requests shows that, to the extent Plaintiff ultimately objected to the discovery requests, her objections tended to be boilerplate objections related to over breadth of the requests and relevancy.[31] The undersigned finds that Plaintiff has waived such untimely and non-specific objections (other than those related to privilege). However, despite these objections, and with the exception of Request for Production number 23 (discussed below), Plaintiff also provided a substantive response to each objected-to Interrogatory or Request for Production. Moreover, it appears that where Plaintiff had documents responsive to a particular request, Plaintiff produced those documents subject to her objections.[32]Accordingly, while Plaintiff's untimely responses have resulted in a waiver of her objections, in the interest of efficiency, the court will not require Plaintiff to resubmit her responses to Interrogatory numbers 2, 3, 6, 7, 9, and 16 or Requests for Production numbers 1, 2, 4, 11, 32, 33, 37, 39, or 41 with such waived objections omitted. Additionally, without further information from Defendant regarding particular documents that were purportedly withheld based on Plaintiff's objections, the court cannot find that an order compelling Plaintiff to produce additional documents should issue. Accordingly, the court DENIES Defendant's Motion to Compel to the extent it seeks to compel Plaintiff to provide responses to Interrogatory numbers 2, 3, 6, 7, 9, and 16 or Requests for Production numbers 1, 2, 4, 11, 32, 33, 37, 39, or 41 with the untimely objections omitted.

         With respect to Request for Production number 23, Plaintiff objected on the basis that the request “seeks documentation of an irrelevant nature that is also violative [sic] of plaintiff's rights to privacy.”[33] Request for Production number 23 requests that Plaintiff:

Produce any and all documents related to your attempts to correspond or communicate with current or former employees of J&J by electronic means, including, but not limited to, Facebook, Myspace, Twitter, LinkedIn, Snapchat, text message, and email from October 28, 2014 through the present.

         The undersigned finds that Plaintiff has waived her objections to Request for Production number 23 and therefore GRANTS Defendant's Motion to Compel a written response to Request for Production number 23. The court ORDERS Plaintiff to submit a response to Request for Production number 23, without objections (with the exception of any objections pertaining to any applicable privileges and/or immunities), no later than fourteen (14) days from the date of this Ruling and Order.

         ii. Supplemental Responses

         Defendant also seeks an order compelling Plaintiff to supplement written responses to certain specific Discovery Requests.[34] When considering Defendant's Motion to Compel additional responses to these requests, the undersigned keeps in mind Plaintiff's March 17, 2017 sworn verification, in which she stated that she “answered the Interrogatories and Request for Production of Documents and all of the answers provided therein are true and correct to the best of my knowledge, information and belief; I have provided all information within my possession and control, including electronically store [sic] information…”[35] Despite this sworn verification, Defendant asserts that an order compelling Plaintiff to supplement her responses to the following Discovery Requests should be issued:

INTERROGATORY NO. 2: State whether you personally have ever communicated with any past or present employees of J & J concerning the allegations raised in your Complaint since your separation from employment with J & J. If so, explain in detail each such communication (including those by phone, Internet, and in person); state the date of the communication; with whom you communicated; the substance of the communication; identify any witnesses to the conversation; and identify all documents concerning or exchanged during the communication.
ANSWER TO INTERROGATORY NO. 2: Objection. Interrogatory Number Two seeks information which is overly and unduly burdensome and irrelevant to the instant litigation and violative of the privacy of plaintiff. Plaintiff further objects to said interrogatory in that same seeks information which was prepared in anticipation of litigation. Subject to said objection, and without waiving same, plaintiff has communicated at various times before and since her discharge by defendant with the following former co-employees: Mike Daw, Keith Jones, John Stennis, Tammy Latimer, Araina Deslonie, Jerry Rools, Rhomsa Lee, Mike Vance, Kelly Costanza and others that plaintiff cannot remember at present. Plaintiff cannot recall the dates or modes of communication or the exact substance of the communications, but does recall that said communications involved the discriminatory, sexist, unlawful and humiliating nature of the comments and treatment of women in general by Chris Doenges, and plaintiff particularly, while employed by defendant and management's refusal to do anything about it.

         With respect to Interrogatory number 2, Defendant asserts that Plaintiff's response is deficient in that it does not state whether there were any witnesses to the conversations and does not identify any documents associated with or exchanged during the conversations.[36]

         INTERROGATORY NO. 3: Identify all persons whom you believe have any information or knowledge, or claim to have the same, with respect to any facts or matters relating to each and every allegation contained in your Complaint, and with respect to each such person, state the following: a) the subject matter of each such person's knowledge; b) the date, place and circumstances of the obtaining of such knowledge or information; c) whether such person has been interviewed by you or by your representative or counsel either prior to or subsequent to the commencement of the present action; d) whether you or your representative has obtained statements, reports, memoranda or recordings from any individuals identified; and e) the current address and telephone number for the witness.

ANSWER TO INTERROGATORY NO. 3: See response to Interrogatory Number Two above, as well as my husband. My attorney has not yet obtained any recorded statements.

         Defendant contends Plaintiff's response to Interrogatory number 3 is deficient because it fails to: “(1) identify the subject matter of any information known by Plaintiff's husband or describe how he obtained such information; (2) state whether Plaintiff's husband or any of her former co-workers have been interviewed in connection with this litigation; or (3) provide current contact information for any of the individuals identified.”[37]

INTERROGATORY NO. 4: Describe in detail each and every written and oral evaluation, criticism, counseling, warning or discipline you received during your employment with J & J including, the date(s); action(s) taken; the substance of the communications; the supervisor(s) involved; and any witness thereto.
ANSWER TO INTERROGATORY NO. 4: Other than below, to the best of my recollection, I received no oral or written warnings or criticisms during my employment with defendant other than my unjustified discharge from employment. I was unjustifiably sent home and suspended for two weeks once from a Pep Boys job in Baltimore, MD for “failing to return a rental car” that I could not return. Mike Daw was a witness. Chris Doenges was the supervisor.

         Defendant asserts that Plaintiff's response to Interrogatory number 4 is deficient because it “does not provide any information regarding the date of her alleged suspension.”[38]

INTERROGATORY NO. 5: If you contend there were individuals similarly situated to you who were treated differently or more favorably, explain in detail and identify; the individual(s), including their job title(s) and duties; the dates on which the incidents of different or favorable treatment occurred; who supervised the individual(s); and describe the treatment you assert was different, including the basis upon which you contend Defendant treated you differently; to whom you at J & J reported this alleged treatment; date(s) on which you made the report(s); and identify any documents that support your answer.
ANSWER TO INTERROGATORY NO. 5: Tammy Latimer and Kelly Costanza-Constantly harassed by Chris Doenges. He wanted me to find ways to get rid of them. They were called "useless", "nigger lovers" and other denigrating remarks. Rhonda Lee-Was constantly harassed by Chris Doenges and I was instructed by John Whipple to tell her that the company had received complaints about her from Floor & Decor corporate offices, which was not true. Ariana Deslonie-Was harassed by Chris Doenges on the job and unjustifiably sent home under the allegation that she could not lift tires. Contrasted with how he treated Richard Boulden, Oscar Sanchez who were allowed to work extra hours, overlooked mistakes, showing up late at work, falsifying work hour records. Female employees were constantly being sent home early, while male employees were allowed to work over.

         Defendant contends Plaintiffs response to Interrogatory number 5 is deficient because it does not specify dates of the alleged incidents of disparate treatment, whether Plaintiff ever reported the alleged incidents, and fails to identify any documents that support her response.[39]

INTERROGATORY NO. 7: Describe in detail each and every item of damages (Including for purposes of this Interrogatory, your claim for attorneys' fees), for which you are making a claim in this action, specify the amount for each item, specify the basis of liability as to J & J, and provide an explanation as to how each such amount was calculated, including a listing and description of each of the factors used.
ANSWER TO INTERROGATORY NO. 7: Objection Interrogatory Number Seven seeks information that constitutes attorney work product. Subject to said objection, and without waiving same, plaintiff herein provides the following: (A) Back pay from August 12, 2015 to date of verdict; (B)$150, 000.00 in compensatory damages for emotional distress, mental anguish, humiliation and damaged reputation; (C) $100, 000.00 in punitive damages; (D)$50, 000.00 in attorney's fees; (E) Legal interest on all sums from date of judicial demand, until paid; (F) All costs of court.

         Defendant asserts this response “is incomplete because it neither specifies the basis for J&J's alleged liability, nor describes how the corresponding monetary figure was calculated for each item of damages listed.”[40]

INTERROGATORY NO. 10: Please describe in detail all efforts you have made to find employment (including self-employment) from the date you were discharged by J & J to the present, including the name and address of every prospective employer, employment agency, placement office, or search firm with which you have had any contact whatsoever, the date and purpose of such contact, and the results of your efforts.
ANSWER TO INTERROGATORY NO. 10: Plaintiff applied online to the following employers in the referenced timeframe: Office Depot; Pet Smart; Kelly Services; Turner Industries, Drive Line, Academy Sports, Lowe's; Target, Bass Pro Shop, CVS Health; BREC; Martin Brower; CB Servicing; Associated Grocery; Enterprise Rent-A-Car; others that plaintiff does not recall.

         Defendant contends Plaintiff s response to Interrogatory number 10 is incomplete because Plaintiff has not describe the outcome of her efforts to seek employment with any of the listed companies.[41]

INTERROGATORY NO. 11: Describe in detail all employment (including part time, temporary and permanent self-employment) held by you since leaving J & J through the date of trial in this matter, and for each such employer, please state the following: the name of the employer; the address where you work(ed); your dates of employment your position(s) or title(s); the name of your immediate supervisor; the pay and benefits you received; and the reason for any termination, layoff or resignation.
ANSWER TO INTERROGATORY NO. 11: None until March 1, 2017. Plaintiff hired by NAPA Auto Parts, Atlanta, GA at $20.00/hour.

         Defendant contends Plaintiffs response to Interrogatory number 11 is incomplete, “in that it fails to provide any of the following information with respect to her employment with NAPA Auto Parts: (1) the address of the store or facility where Plaintiff worked; (2) her job title or position; (3) the name of Plaintiff s immediate supervisor; (4) the benefits she received, if any; and (5) the date and reason Plaintiffs employment was terminated (if applicable). Additionally, Plaintiff lists a date in March 2017 as the commencement of her employment. If this should be March 2016, please supplement the response.”[42]

INTERROGATORY NO. 12: To the extend not provided in response to any other interrogatory, explain in detail every source of income you have had since your last day of work with J & J, through the date of trial in this matter, setting forth the amount of income from each source and the dates received, including, but not limited to earnings, gifts, compensation, and benefits (including wages, unemployment compensation, welfare/TANF payments, food stamps, social security benefits, vacation benefits, health insurance, overtime pay, disability pay, ...

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