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Berenson v. Administrators of Tulane University Educational Fund

United States District Court, E.D. Louisiana

December 13, 2017

GERALD S. BERENSON
v.
THE ADMINISTRATORS OF THE TULANE UNIVERSITY EDUCATIONAL FUND

         SECTION “R” (2)

          ORDER AND REASONS ON MOTION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         Plaintiff's motion to compel discovery responses and production, Record Doc. No. 57, is pending before me. Specifically, Berenson seeks additional responses and/or document production as to his Interrogatories Nos. 8, 11, 15 and 21 and Requests for Production (hereinafter “Requests”) Nos. 15, 17, 18, 19, 27, 33, 34, 35, 43, 44, 45, 46, 47 and 48 of his second set of discovery requests, and Requests Nos. 45, 48, 49, 50 and 51 of his third set. In addition, plaintiff seeks an order requiring defendant to produce all documents listed on its privilege logs or, alternatively, in camera review by the court of these materials. Record Doc. No. 57-1 at p.16. Defendant filed a timely opposition memorandum. Record Doc. No. 65. Having considered the written submissions of the parties, the record and the applicable law, IT IS ORDERED that the motion is GRANTED IN PART and DENIED IN PART as follows.

         As an initial matter, defendant's objections to the four interrogatories and 21 requests for production assert two (2) kinds of objections that can be addressed in a manner applicable to all requests as to which these objections are made. First, defendant's objections that the interrogatories and/or requests are overly broad because they are not limited to the relevant time frame previously established by the court, 2013 to the present, Record Doc. No. 38 at pp. 4-5, are sustained. All new responses ordered herein are limited to the time period 2013 to present.

         Second, defendant's objections to production of responsive materials on grounds that they are confidential, commercially sensitive or proprietary materials are overruled, but only in that I find that the protective order previously entered in this case, Record Doc. No. 37, is sufficient to protect defendant's confidentiality interests, and all materials as to which those objections have been asserted must be produced, subject to the protective order.

         In addition, weighing the proportionality considerations in this instance, I find that much of the disputed, broad-ranging discovery sought by Berenson; for example, concerning requests for all names of various personnel and their employment files, informed consent forms and financial information beyond what relates to the claims and defenses at issue in this case, is not proportional or relevant to the needs of this case. After the substantial amendments to the Federal Rules of Civil Procedure that became effective on December 1, 2015, the scope of permissible discovery is now limited to “nonprivileged matter that is [both] relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1) (emphasis added). Determining whether the requested discovery is permissible because it is proportional to the needs of the case requires consideration of “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.” Id. The burden and expense of the proposed broad-ranging discovery outweighs its likely benefit, given that the only claims that remain in this case are plaintiff's breach of contract, Louisiana Discrimination in Employment Act, Federal Age Discrimination in Employment Act of 1967, interference with employment and defamation claims. Record Doc. No. 24.

         Applying the foregoing general standards, the court addresses the individual discovery requests as follows.

         (A) INTERROGATORIES

         The motion is granted in part and denied in part as to Interrogatories Nos. 8 and 11. The requested information concerning research professors “terminated or laid off . . ., or separated from Tulane” must be provided, subject to the previously entered protective order. All objections are overruled, with the exception of temporal scope objections. The motion is denied insofar as it seeks information outside the relevant time period, previously defined by the court as 2013 to present.

         The motion is denied as to Interrogatory No. 15. Although all objections, except as to work product and privilege, are overruled, the responsive information provided subject to these objections in accordance with Fed.R.Civ.P. 33(d), coupled with the privilege logs, is sufficient.

         The motion is denied as to Interrogatory No. 21, which exceeds the proportionality limits of Rule 26(b)(1) and seeks much that is not relevant to claims or defenses in this case. All objections are sustained.

         (B) REQUESTS FOR PRODUCTION

         The motion is granted in part and denied in part as to Request No. 15 of plaintiff's second set of discovery requests. Although the attorney-client privilege and work-product objections may be well founded, the current responses are evasive and incomplete. Fed.R.Civ.P. 37(a)(4). Plaintiff must provide new written responses to these requests, removing the convoluted, circular cross-references to previously produced documents and other written responses and clearly stating either that all non-privileged, non-work product materials in its possession, custody or control have been produced, together with actual production, or that it has no responsive materials in its possession, custody or control, limited to the relevant time period previously established by the court. To eliminate the confusion and uncertainty arising from defendant's convoluted current responses, IT IS ORDERED that each separate written response must also identify by Bates stamp number or other identifier all responsive materials being produced in response to this particular request.

         The motion is granted in part as to Request No. 17 of plaintiff's second set of discovery requests. The request is overly broad in its reference to “any allegations by Dr. Berenson” and is hereby limited to plaintiff's allegations concerning his claims remaining in this case. Defendant must provide a new written response to this request, removing the convoluted, circular cross-references to previously produced documents and clearly stating either that all non-privileged, non-work product materials in its possession, custody or control have been produced, together with actual production, or that it has no non- privileged, non-work product responsive materials in its possession, custody or ...


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