United States District Court, E.D. Louisiana
WADE CRUTCHFIELD, ET AL.
CITY OF NEW ORLEANS, ET AL.
ORDER AND REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiffs' “Motion for Expedited
Discovery” (rec. doc. 29), along with Plaintiffs'
“Ex Parte Motion for Status Conference with Magistrate
Judge Regarding Discovery, ” (rec. doc. 30), which
requests that the “Court set a telephone status
conference regarding discovery before Magistrate Judge North,
at the Court's earliest convenience.”
(Id.). Plaintiffs did not file a motion for
expedited hearing. Defendants filed an opposition to the
motion for expedited discovery. (Rec. doc. 35).
Court granted the Motion for Status Conference and also set
the Motion for Expedited Discovery for submission on November
15, 2017 as a matter of course. Having received
Defendants' opposition memorandum before the status
conference, however, the Court converted that conference to
an expedited hearing on Plaintiffs' Motion for Expedited
threshold matter, the Court notes that, while denominated a
“Motion for Expedited Discovery, ” the underlying
motion is actually a motion to compel brought under Rule 37
of the Federal Rules of Civil Procedure, as it seeks to have
this Court compel Defendants to respond to specific requests
for production by a date certain. (Rec. doc. 29- 2). As such,
counsel for the Plaintiffs was required by the very text of
the Rule to “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 discovery in an
effort to obtain it without court action.” Fed.
R. Civ. P. 37(a)(1).
certification was included with Plaintiffs' motion. The
reason for this became clear to the Court upon review of the
motion papers and the Defendants' opposition memorandum
and was confirmed to the Court's satisfaction during the
telephonic hearing, during which counsel for Plaintiffs
confirmed that, while he had requested a date for a Rule
26(f) conference from Defendants' counsel, he did not
wait for a response to that request before firing off his
motion to compel. As such, the motion was filed in violation
of Rule 37 both because the required certification was
missing and because Plaintiffs' counsel did not make a
meaningful and good-faith effort to resolve the matter
“without court action, ” as required by that
Rule. For that reason alone the motion should be denied.
from the technical deficiency of the present motion is the
fact that it is ill-founded at this time. Plaintiffs'
motion seeks expedited discovery. Although the Federal Rules
do not provide a standard to be employed by the Court in
exercising its authority to order expedited discovery, it is
generally accepted that courts use one of the following two
standards to determine whether a party is entitled to conduct
such discovery: (1) the preliminary-injunction-style analysis
set out in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y.
1982); or (2) the “good cause” standard, which
has been used interchangeably with the
“reasonableness” standard, as articulated in
St. Louis Group, Inc., v. Metals and Additives Corp.,
Inc., et al., 275 F.R.D. 236, 239 (S.D. Tex. 2011).
See BKGTH Prods., LLC v. Does 1-20, No. 13-CV-5310,
2013 WL 5507297 at *4 (E.D. La. Sept. 30, 2013).
Fifth Circuit has yet to adopt one of these standards
definitively, but several district courts within the Circuit
have expressly employed the “good cause” standard
when addressing the question whether to authorize early
discovery. See, e.g., BKGTH Prods., 2013 WL 5507297
at *4 (citing St. Louis Group, 275 F.R.D. at
239-40)(“[w]ithout any binding authority to the
contrary, and in light of the fact that a majority of courts
have adopted the ‘good cause' standard, this Court
believes that a showing of good cause should be made to
justify an order authorizing discovery prior to the Rule
26(f) conference”); see also El Pollo Loco, S.A. de
C.V. v. El Pollo Loco, Inc., 344 F.Supp.2d 986, 991
(S.D. Tex. 2004); Paul v. Aviva Life and Annuity
Co., No. 09-CV-1490, 2009 WL 3815949 at *1 (N.D. Tex.
Nov. 12, 2009); Rodale, Inc. v. U.S. Preventive Med.,
Inc., No. 08-CV-120, 2008 WL 4682043 at *1 (E.D. Tex.
Oct. 21, 2008); U.S. Commodity Futures Trading Comm'n
v. M25 Inv., Inc., No. 09-CV-1831, 2009 WL 3740627 at *1
(N.D. Tex. Sept. 29, 2009); Philip Morris USA, Inc. v.
Tin's, Inc., No. 03-CV-306, 2003 WL 22331256 at *1
(M.D. La. Apr. 23, 2003).
discovery is not the norm.” St. Louis Group,
275 F.R.D. at 240. The burden of showing good cause is on the
party seeking the discovery, see Qwest Commc'ns
Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D.
418, 419 (D. Colo. 2003), and the proposed discovery must be
narrowly tailored in scope to seek only necessary
information. St. Louis Group, 275 F.R.D. at 240;
see also Monsanto Co. v. Woods, 250 F.R.D. 411, 413
(E.D. Mo. 2008)(citing Irish Lesbian & Gay Org. v.
Giuliani, 918 F.Supp. 728, 730-31 (S.D.N.Y.
1996))(“[C]ourts generally deny motions for expedited
discovery when the movant's discovery requests are overly
their motion and during the telephonic hearing, Plaintiffs
failed to demonstrate good cause for accelerating discovery
in this case. Notably, there is a motion to dismiss now
pending in the case that attacks the sufficiency of the
Plaintiffs' Complaint - not the facts underlying that
Complaint. (Rec. doc. 27). Plaintiffs have failed to prove
(or even explain) why there is good cause in this case to
accelerate the discovery schedule, particularly in light of
the pending motion to dismiss. See BKGTH Prods.,
2013 WL 5507297 at *4.
the majority of the Plaintiffs' requests for production
are grossly overbroad. Viewed as a whole, the 52 separate
enumerated requests would, at a minimum, require the
Defendants to locate and gather every document pertaining in
almost any way to any matter on the Defendants' judgment
list (some 684 cases spanning over 20 years), including every
email, correspondence and communication concerning the
judgments and/or settlements of those matters. Were these
requests not overwhelming enough, Plaintiffs' include a
“catchall” request for “any other
documents, communications or electronically stored
information which is related to the subject matter of this
litigation, but was not specifically referenced in any of
the prior requests for production numbers 1 through
51.” (Rec. doc. 29-4 at 14).
Court advised counsel for Plaintiffs during the telephonic
hearing (and reiterates here) that, if and when the case
proceeds to a point where formal discovery is permitted, the
52 previously propounded requests for production should be
withdrawn and re-drafted and should be much more narrowly
tailored to the issue or issues in the case, pending the
outcome of the motion to dismiss.
reasons set forth above, the Plaintiffs Motion for Expedited
Discovery is denied. The case will proceed as contemplated ...