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Tingle v. Hebert

United States District Court, M.D. Louisiana

June 9, 2017

BRETTE TINGLE
v.
TROY HEBERT, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF THE OFFICE OF ALCOHOL AND TOBACCO CONTROL OF THE LOUISIANA DEPARTMENT OF REVENUE,

          RULING AND ORDER ON DEFENDANT'S MOTION TO COMPEL AND FOR ATTORNEY'S FEES

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion to Compel Discovery and for Attorney's Fees (the “Motion to Compel”), filed by Troy Hebert (“Hebert”), in his individual capacity and in his official capacity as the former Commissioner of the Louisiana Office of Alcohol and Tobacco Control (“ATC”).[1]

         The Motion to Compel is opposed[2] and Hebert has filed a reply.[3] In the Motion to Compel, Hebert seeks to compel Plaintiff to produce certain e-mails and text messages sent or received by Plaintiff on his personal cell phone and through his personal email accounts, as well as information that Plaintiff deleted from his ATC-issued cell phone prior to returning it to the ATC.[4]

         For the reasons that follow, the Motion to Compel is GRANTED in part.[5] Hebert's request for reasonable expenses and attorney's fees under Fed.R.Civ.P. 37(a)(5)(A) is DENIED.

         I. Background

         On September 16, 2015, Plaintiff filed a Complaint in this Court against Hebert, asserting claims of retaliation under 42 U.S.C. §§ 1981 and 1983, invasion of privacy under the United States and Louisiana Constitutions, and defamation under Louisiana law.[6] In the Complaint, Plaintiff alleges that he was terminated from his employment with the ATC by Hebert in retaliation for his participation as a witness in race discrimination charges filed by three of his former co-workers against the ATC with the Equal Employment Opportunity Commission (“EEOC”) and his participation as a witness in the ensuing litigation against the ATC and Hebert in that matter, as well as his participation as a witness in litigation against the Louisiana Department of Revenue brought by another former co-worker, Randall Kling, who claims Hebert retaliated against Kling by terminating Kling's employment with the ATC after Kling complained of Hebert's discriminatory practices at the ATC.

         On January 30, 2017, Hebert filed the instant Motion to Compel, seeking to compel Plaintiff to respond to Request for Production Nos. 8, 9, 10, 11 and 12, which request the following documents: (1) all text messages exchanged between Plaintiff and any former or current ATC employee between January 1, 2012 and the present; (2) all e-mails sent, received or exchanged by or between Plaintiff and any former or current ATC employee between January 1, 2012 and the present from any email accounts maintained or accessed by Plaintiff; (3) any text messages or emails sent, received or exchanged by Plaintiff referring to Hebert or Plaintiff's employment with the ATC; (4) all text messages sent or received from Plaintiff's ATC-issued cell phone between January 1, 2012 and February 25, 2015; and (5) any emails, text messages, data, information or documents deleted from Plaintiff's ATC-issued cell phone before the phone was returned to the ATC in February 2015.[7]

         Plaintiff raised the same objection to Request for Production Nos. 8 and 9, asserting that he had returned his ATC-issued cell phone to the ATC and, therefore, does not have possession, custody, or control of any text messages or e-mails other than those previously provided by Hebert.[8] With respect to Request for Production No. 10, Plaintiff asserted that Hebert is already in possession of all ATC text messages and e-mails and Plaintiff objected to producing private communications because “information previously provided to the Defendant in good faith has been used to harm the Plaintiff and his associates.”[9] Plaintiff did not object to Request for Production No. 11 and appears to have produced documents in response thereto.[10] Plaintiff responded to Request for Production No. 12 by asserting that, “There are no such documents to the Plaintiff's knowledge.”[11]

         As a result of a discovery conference held pursuant to Fed.R.Civ.P. 37(a)(1) on December 9, 2016, Plaintiff served Hebert with supplemental discovery responses on December 21, 2016. Hebert asserts, however, that Plaintiff did not produce any additional documents and merely added objections to his original discovery responses. In his supplemental responses to Request for Production Nos. 8, 9 and 10, Plaintiff asserted that he did not use his personal cell phone or personal email addresses for ATC business, so the contents of any text messages or emails sent or received from those email accounts or that device are irrelevant, not discoverable, and not reasonably calculated to lead to the discovery of admissible evidence.[12]

         In the Motion to Compel, Hebert asserts that the emails and text messages requested are relevant to the claims and defenses in this case. Specifically, Plaintiff claims he was wrongfully terminated and that Hebert conducted an unreasonable search of the text messages on Plaintiff's ATC-issued cell phone and Hebert asserts that Plaintiff was terminated for non-retaliatory reasons, including sending a racially inflammatory text message to another ATC employee. Thus, Hebert contends that Plaintiff's text messages and how the ATC came to acquire those text messages is a central issue in this case. Hebert also asserts that the communications are relevant because Hebert “believes Plaintiff has been and continues to communicate with current and former employees of the ATC, coaching them, and providing misinformation about Hebert and the ATC in an effort to stir employees up against Hebert and to bring litigation against the ATC.”[13] Hebert claims that he requested the text messages and emails to determine whether and when Plaintiff contacted ATC employees about suing the ATC and what information Plaintiff provided. Hebert further asserts that the “confidential information” that Plaintiff removed from his ATC-issued cell phone before returning it to the ATC is relevant to Plaintiff's invasion of privacy claim regarding the subsequent search of the cell phone.

         In opposition, Plaintiff asserts that Hebert failed to cite any authority or otherwise explain why the information sought is discoverable.[14] Plaintiff asserts that Hebert fails to adequately state how any of the requested information is relevant to his defense of Plaintiff's claims of retaliation under 42 U.S.C. § 1983, invasion of privacy under state and federal law, defamation, wrongful termination, and Plaintiff's Fourth Amendment violation claim based on the illegal search and seizure of emails and text messages from his ATC-issued cell phone. Plaintiff concedes that he sent one inappropriate communication to another ATC employee (his wife), but argues that its admissibility is vigorously contested since the communication was the fruit of an illegal search and seizure. Plaintiff also denies the legitimacy of any ATC “policy” prohibiting ATC employees from using their ATC-issued cell phones for personal use and asserts that any such policy was the product of Hebert's whim on any given day. Plaintiff asserts that he previously testified that the emails, text messages, and other information deleted from his ATC-issued cell phone prior to returning it to the ATC included bank statements, Coast Guard passwords, and text messages between Plaintiff and his family and friends.[15] Plaintiff also testified that he did not delete any text messages and emails between himself and ATC employees.[16]

         Plaintiff argues that although Hebert conclusively states that other possibly existing racially-charged text messages and/or emails between Plaintiff and his family members are relevant, Hebert fails to explain how such information is discoverable to prove any of Hebert's defenses. Plaintiff cites a recent Fifth Circuit opinion, in which the Court held that, “as the ultimate issue is the employer's reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer's decision is not evidence that tends to illustrate the ultimate issue and is therefore simply irrelevant at this stage of the inquiry.” Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 237 (5th Cir. 2016) (emphasis in original). Plaintiff points out that Hebert cites no authority for his position that a party must produce personal, confidential and irrelevant communications between himself and his family and friends to the requesting party, especially where, as here, the requesting party previously published such information in news media outlets throughout Louisiana to harass Plaintiff. Plaintiff denies Hebert's assertion that Plaintiff has been communicating with ATC employees and encouraging them to sue the ATC. Plaintiff asserts that even if the requested communications supported Hebert's assertion, Hebert fails to explain what defense these communications would support. Nonetheless, Plaintiff included a short privilege log for the information that has been withheld on the basis that it is privileged, irrelevant, and/or consists of private/personal information.[17] Plaintiff asserts that the documents can be made available for an in camera inspection should the Court so desire.

         In reply, Hebert reasserts many of the arguments raised in the Motion to Compel, emphasizing that Plaintiff has not provided any emails from his private email accounts, any text messages from his personal cell phone, or the information Plaintiff deleted from his ATC-issued cell phone prior to returning it to the ATC.[18] Hebert contends that because Plaintiff participated in the EEOC charges and lawsuits of three other ATC employees-Charles Gilmore, Damian McDowell, and Larry Hingle-Plaintiff's emails and text messages with Gilmore, McDowell and Hingle are relevant. Hebert further asserts that because Plaintiff has identified many ATC employees as witnesses in this matter, Plaintiff's communications with these employees are relevant and discoverable, whether they were sent or received on Plaintiff's personal cell phone, Plaintiff's personal email accounts, or Plaintiff's ATC-issued cell phone. Hebert further asserts that Plaintiff's privilege log fails to sufficiently identify the information Plaintiff is withholding, as the log does not identify whether the information was withheld from Plaintiff's ATC-issued cell phone, his personal cell phone, or his personal email accounts. Hebert also asserts that the privilege log fails to describe the topic of the communications and fails to specify the sender and the recipient of each message. Because there is a protective order in place, Hebert asserts Plaintiff should produce the text messages and emails requested.

         II. Law and Analysis

         Under the Federal Rules of Civil Procedure, 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. Fed.R.Civ.P. 26(b)(1). A determination of relevancy is tied to applicable substantive law and then weighed against six proportionality factors. Any information sought that is not relevant to a party's claim or defense is not discoverable, regardless of proportionality. The Court must additionally 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).

         Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible things. Under Rule 34, a party has 30 days after service of discovery to respond or object in writing to the request for production. Fed.R.Civ.P. 34(b)(2)(A). If a party fails to respond fully to requests for production in the time allowed by Rule 34(b)(2)(A), 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).

         A. Hebert's Requests for Plaintiff's Emails and Text Messages from Plaintiff's Private Email Accounts and Personal Cell Phone Are Not Proportional to the Needs of the Case.

         In the Motion to Compel, Hebert seeks to compel Plaintiff to respond to the following discovery requests:

REQUESTS FOR PRODUCTION NO. 8:
Produce all text messages exchanged between you and any former or current employee of the ATC between January 1, 2012, until present.
REQUEST FOR PRODUCTION NO. 9:
Produce all electronic mail (e-mail) messages sent, received or exchanged by or between you and any former or current employee of the ATC between January 1, 2012, until present. Defendant seeks emails from any email accounts maintained or accessed by Plaintiff, including, but not limited to “uscgtingle@yahoo.com, ” ...

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