United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's Motion to Compel (R. Doc. 55)
filed on October 20, 2017. The motion is opposed. (R. Docs.
before the Court is Defendant's Motion to Depose
Plaintiff Beyond the Discovery Deadline (R. Doc. 71) filed on
December 7, 2017. The motion is opposed. (R. Doc. 87).
Defendant has filed a Reply. (R. Doc. 99).
before the Court is Defendant's Second Motion to Compel
(R. Doc. 78) filed on December 15, 2017. The motion is
opposed. (R. Doc. 100).
argument on the foregoing motions was held on January 9,
2018. (R. Doc. 108).
Johnson (“Plaintiff”) is proceeding pro
se and in forma pauperis. (R. Doc. 3).
Plaintiff brings this employment discrimination against
Plaintiff's former employer, East Baton Rouge School
System (“Defendant”), pursuant to the Americans
with Disabilities Act, Title VII of the Civil Rights Act of
1964, and various Louisiana state statutes. (R. Docs 1, 40).
alleges that while employed at Glasgow Middle School, a data
breach occurred and staff members were coerced into
participating in a cover up. Plaintiff alleges that her
employment was terminated in retaliation for her refusal to
participate in the cover up. Plaintiff raises a wide-range of
claims “[b]ased on [whistleblower protection] for
public employees, retaliation/reprisal, conspiracy, COBRA
notification violation, harassment, racial discrimination,
defamation, and forgery.” (R. Doc. 40 at 1). With
regard to damages, Plaintiff seeks reinstatement of her
employment, lost income and benefits, statutory penalties,
damages related to emotional stress, and punitive and
compensatory damages. (R. Doc. 40 at 4).
7, 2017, Defendant served Plaintiff with eleven
interrogatories and sixteen requests for production, and
requested available dates for a deposition. (R. Doc. 55-1).
August 11, 2017, Defendant inquired into the status of
Plaintiff's discovery responses and available deposition
dates. (R. Doc. 55-2). Plaintiff requested an extension to
provide responses in light of her desire to obtain
third-party discovery, and subsequently agreed to provide
responses by August 20, 2017. (R. Doc. 55-4). In her written
responses provided on August 20, 2017, Plaintiff objected to
the discovery requests on the basis that they were overly
broad, unduly burdensome, not proportional to the needs of
the case, and/or the information sought was protected
pursuant to the work product doctrine. (R. Doc. 55-5).
Defendant represents that Plaintiff did not produce any
documents or dates for her deposition. (R. Doc. 55-14 at 3).
August 24, 2017, Defendant sent Plaintiff a letter requesting
supplemental discovery responses, including a privilege log,
and deposition dates by September 1, 2017. (R. Doc. 55-6).
August 29, 2017, the Court held a telephone status conference
at Defendant's request (R. Doc. 45), and subsequently
extended the non-expert discovery deadline to December 15,
2017 (R. Doc. 47).
September 5, 2017, Plaintiff informed Defendant that she was
working on providing “complete responsive
documents” and a privilege log. (R. Doc. 55-7).
September 20, 2017, Plaintiff provided her supplemental
responses and a privilege log identifying 12 withheld
documents. (R. Doc. 55-10). Defendant represents that
Plaintiff produced six documents and failed to provide an
available date for her deposition. (R. Doc. 55-14 at 4).
September 27, 2017, the parties held a discovery conference,
and Plaintiff agreed to supplement certain responses by
October 6, 2017. (R. Doc. 55-11).
October 6, 2017, Plaintiff provided second supplemental
responses for Interrogatory Nos. 1-11, and Request for
Production Nos. 1-11. (R. Doc. 55-12). Among other things,
Plaintiff stated that she has “no reason” to
amend her previous responses to the requests for production
and certain interrogatories. Plaintiff indicated that she was
available to have her deposition taken on November 1, 2, or
3. Plaintiff subsequently produced 10 responsive documents
and copies of two subpoenas. (R. Doc. 55-13).
October 20, 2017, Defendant filed its First Motion to Compel.
(R. Doc. 55). Defendant seeks supplemental productions in
response to Interrogatory Nos. 2, 3, 5, 8, 11, and Request
for Production Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, and
15. Defendant also seeks an order allowing them to depose
Plaintiff after the supplemental responses have been
provided. In opposition, Plaintiff represents that she
“has now produced nearly fifty pages of responsive
documents.” (R. Doc. 56). Plaintiff does not, however,
provide any substantive arguments in support of her refusal
to provide supplemental responses to the foregoing discovery
December 3, 2017, Plaintiff provided Defendant with an
updated privilege log identifying additional withheld audio
recordings and her EEOC charge. (R. Doc. 78-17).
December 7, 2017, Defendant filed its motion requesting that
it be allowed to depose Plaintiff beyond the current
discovery deadline of December 15, 2017. (R. Doc. 71). In
opposition, Plaintiff asserts that Defendant has been
negligent in not securing documents necessary to take
Plaintiff's deposition and that there is not good cause
for modification of the discovery deadline. (R. Doc. 87).
December 15, 2017, Defendant filed its Second Motion to
Compel. (R. Doc. 78). Defendant seeks an order compelling
Plaintiff to “(a) produce responsive documents that are
complete and legible, (b) supplement her Initial Disclosures
to comply with FRCP 26(a), (c) produce copies of subpoenas
served on third parties and information received in response
to those subpoenas, and (d) produce audio recordings and the
EEOC charge of Walita Paul. . . .” (R. Doc. 78 at 1).
Law and Analysis
otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
non-privileged 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). 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).
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). Rule
26(c)'s “good cause” requirement indicates
that the party seeking a protective order has the burden
“to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact
as distinguished from stereotyped and conclusory
statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v.
Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
33 and 34 provide a party with 30 days after service of the
discovery to respond or object. See Fed. R. Civ. P.
33(b)(2) and 34(b)(2)(A). If a party fails to respond fully
to discovery requests made pursuant as to Rules 33 and 34 in
the time allowed by the Federal Rules of Civil Procedure, 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.
16(b)(4) of the Federal Rules of Civil Procedure allows for
the modification of a scheduling order deadline upon a
showing of good cause and with the judge's consent. The
Fifth Circuit has explained that a party is required
“to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the
extension.” Marathon Fin. Ins. Inc., RRG v. Ford
Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting
S&W Enters., LLC v. Southtrust Bank of Ala., NA, 315
F.3d 533, 535 (5th Cir. 2003)).
Defendant's First Motion to Compel (R. Doc. 55)
Plaintiff's Previous Legal Proceedings and Work
Nos. 2, 3, 5, and 11 seek information regarding
Plaintiff's previous legal proceedings and work history.
The discovery requests, and Plaintiff's most recent
supplemental responses, are as follows:
Interrogatory No. 2:
Please list each and every grievance, lawsuit or other legal
or administrative proceeding, including criminal charges,
EEOC charges, workers' compensation claims and
unemployment claims, in which plaintiff has been a party,
including the caption of the lawsuit or proceeding, the court
or agency in which it was pending, the case or matter number,
the general nature of the case or proceeding, and the
Plaintiff's October 6, 2017 Response to
Interrogatory No. 2:
Plaintiff objects because it is overly broad. Because it
seeks information that is irrelevant and not proportional to
the needs of the case. Plaintiff will produce copies of
Social security determination and unemployment claims since
Interrogatory No. 3:
For all employers for whom plaintiff has worked subsequent to
the date on which her employment with the School System
ended, please state:
a. the name of the employer;
b. the address and telephone number of the employer;
c. the dates of plaintiff's employment;
d. plaintiff's rate of pay and total earnings received
from the employer; and
e. if plaintiff is no longer employed with the employer, the
reason for her termination.
Plaintiff's October 6, 2017 Response to
Interrogatory No. 3:
Plaintiff will subpoena documentation to produce for this
request. Plaintiff will ...