United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion to Compel (R. Doc. 54)
filed on October 17, 2017. Plaintiff supplemented her filing
with Defendant's Answers to Plaintiff's
Interrogatories and Requests for Production. (R. Doc. 57).
The motion is opposed. (R. Doc. 58). Plaintiff then filed an
“amendment” to the motion to Compel (R. Doc.
and a Reply (R. Doc. 64).
before the Court is Plaintiff's Motion to Compel (R. Doc.
67) filed on December 5, 2017. Plaintiff has filed a
supplemental brief. (R. Doc. 70). The motion is opposed. (R.
before the Court is Plaintiff's Motion to Compel Further
Responses to Plaintiff's Second Set of Requests for
Admission (R. Doc. 79; R. Doc. 80) filed on December 15,
2017. The motion is opposed. (R. Doc. 103).
before the Court is Plaintiff's Motion to Compel Further
Responses to Plaintiff's Third Set of Requests for
Admission (R. Doc. 82; R. Doc. 83) filed on December 15,
2017. The motion is opposed. (R. Doc. 102). Plaintiff filed a
Reply. (R. Doc. 109).
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).
about June 7, 2017, Plaintiff served Defendant with
twenty-five interrogatories and fifty requests for
production. (R. Doc. 58-1). After obtaining an extension from
Plaintiff, Defendant provided its responses, including a
four-page privilege log, on July 24, 2017. (R. Doc. 57-1).
Defendant asserts that it produced 511 responsive documents
in this initial production. (R. Doc. 58 at 1-2).
August 22, 2017, Plaintiff sent an email to defense counsel
outlining alleged deficiencies with regard to Defendant's
responses to Interrogatory Nos. 4, 8, 11, 13, 14, 15, 17, 18,
21, 22, and 24, and Request for Production No. 18. (R. Doc.
58-3). Defendant provided responses to the alleged
deficiencies on August 28, 2017. (R. Doc. 58-5).
September 1, 2017, Defendant provided supplemental responses
to its initial disclosures and Plaintiff's Requests for
Production. (R. Doc. 58-6).
September 20, 2017, Plaintiff sent an email to defense
counsel outlining alleged deficiencies with regard to
Defendant's responses to Interrogatory Nos. 2, 5, 6, 7,
19, 20, 21, 23, and 24, and Request for Production Nos. 1, 2,
5, 6, 7, 12, 19, 21, 23, and 24. (R. Doc. 58-7).
September 27, 2017, the parties held a discovery conference,
and Defendant agreed to supplement certain responses by
October 6, 2017. (R. Doc. 58-9).
October 5, 2017, Defendant provided supplemental responses
(either informally or formally) to Interrogatory Nos. 1, 2,
4, 8, 11, 14, 15, 21, and 25, and Request for Production Nos.
15, 18, and 25. (R. Doc. 58-10).
October 13, 2017, Plaintiff sent an e-mail to defense counsel
stating that she still has not received “some
responses” to her discovery requests. (R. Doc. 54-1 at
October 17, 2017, Plaintiff filed her first Motion to Compel
certain discovery responses, representing that Defendant
agreed to provide certain responses by October 13, 2017, but
has failed to do so. (R. Doc. 54). Plaintiff states that the
attached “Exhibit ‘A' lists the specific
documents requested that remain outstanding and/or provides
why the responses were insufficient.” (R. Doc. 54 at
1). The attached Exhibit A lists ten categories of
information sought by Plaintiff. (R. Doc. 54-1 at 1-2).
October 23, 2017, Defendant provided Plaintiff with a copy of
a proposed protective order governing the exchange of
confidential information, indicating that “[o]nce it is
approved, [Defendant] will produce to [Plaintiff] any
responsive documents that are within the scope of the
order.” (R. Doc. 58-12).
November 6, 2017, Defendant filed its Opposition. (R. Doc.
58). Defendant argues that Plaintiff's Motion should be
denied on the basis that it does not identify the specific
interrogatories and/or requests for production at issue in
violation of Local Rule 37. (R. Doc. 58 at 3-4).
Nevertheless, Defendant addresses each of the ten issues
raised by Plaintiff in Exhibit A and attempts to identify the
specific interrogatories and/or requests for production at
issue. (R. Doc. 58 at 4-10). Among other things, Defendant
asserts that for certain categories all responsive documents
have been produced, some information has been withheld on the
basis of confidentiality, and/or the information sought was
not originally sought in a timely discovery request.
November 13, 2017, Plaintiff filed her purported
“amendment” to her Motion to Compel, asserting
that Defendant should be compelled to produce supplemental
responses to Interrogatory Nos. 4, 10, 14, 15, 21, 23, and
24, and Request for Production Nos. 3, 4, 10, 13, 18, 21, 23,
and 24. (R. Doc. 59). Plaintiff subsequently filed a Reply
addressing the 10 issues discussed in the Motion to Compel,
identifying Interrogatory Nos. 13 and 25 as being associated
with the first and ninth categories identified in Exhibit A
of the Motion to Compel. (R. Doc. 64).
to the close of discovery, Plaintiff also filed her Motion to
Compel responses to her First Set of Requests for Admission
(R. Docs. 79, 80), her Motion to Compel responses to her
Second Set of Requests for Admission (R. Docs. 82, 83), and
her Motion to Compel responses to her Third Set of Requests
for Admission (R. Docs. 82, 93). Defendant oppose these
motions on the basis that its responses are adequate and/or
Plaintiff failed to hold a discovery conference prior to the
filing the foregoing motions. (R. Docs. 96, 102, 103).
argument, the Court ordered the parties to meet-and-confer
regarding Defendant's proposed protective order governing
the exchange of confidential information, and for Defendant
to file an appropriate motion seeking entry of such a
protective order on or before January 16, 2018. (R. Doc.
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)).
must respond or object to written discovery requests within
30 days after service of the discovery. See Fed. R.
Civ. P. 33(b)(2); 34(b)(2)(A); 36(a)(3). These default dates
may be modified by stipulation between the parties.
Fed.R.Civ.P. 29(b). 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. With regard to requests
for admission, a matter is deemed admitted if not timely
answered. Fed.R.Civ.P. 36(a)(3). An “evasive or
incomplete disclosure, answer, or response must be treated as
a failure to disclose, answer or respond.” Fed.R.Civ.P.
Plaintiff's First Motion to Compel (R. Doc. 54)
support of this motion, Plaintiff does not identify the
specific discovery requests in response to which she is
seeking supplemental responses. Instead, Plaintiff identifies
ten issues on which she seeks supplemental production.
Accordingly, Plaintiff has violated Local Rule 37, which
requires a party moving to compel responses to discovery
requests to “quote verbatim each interrogatory, request
for production, or request for admission to which the motion
is addressed, followed immediately by the verbatim response
or objection which provided thereto.” LR 37.
Nevertheless, given that Plaintiff is proceeding pro
se, and Defendant has identified certain Interrogatories
and Requests for Production that appear to be at issue, the
Court will consider whether any additional information and/or
clarifications of responses must be provided by Defendant in
light of the instant motion.
“issues” raised by Plaintiff, and the Court's
resolution of those issues, are as follows:
Issue No. 1
All documents concerning the persons that have knowledge of
the facts relevant to the allegations in the complaint.
Including all Glasgow Middle school IEP files (with signature
pages) from the time in which the Plaintiff was an employee.
The files were not included with discovery. The identity of
all persons with whom the Defendant and its officers have
communicated concerning the allegations in the Complaint.
Defendant did not provide the names or respond to where the
files were secured.
represents that it provided responsive information in
original and supplemental answers to Interrogatory Nos. 1 and
2. (R. Doc. 58 at 4). Defendant further represents that
Plaintiff's requests for production did not seek
“All Glasgow Middle School IEP files (with signature
pages) from the time in which Plaintiff was an employee,
” and that Plaintiff's interrogatories did not seek
the location of where the IEP files were secured. (R. Doc. 58
at 5). At oral argument, Plaintiff was unable to identify any
specific written discovery requests seeking the foregoing
information. No. additional response is required.
Issue No. 2
Produce all documents concerning the witnesses identified by
the Defendant to the incident which led to the Plaintiffs
termination. The defendant has not produced any documents
about the person named as an eyewitness to the incident.
represents that it has produced all information responsive to
this issue in response to various discovery requests,
including Interrogatory Nos. 1 and 4, and Request for
Production Nos. 1 and 3. (R. Doc. 58 at 5). No. additional
response is required.
Issue No. 3
The identity of all persons that have made complaints against
the Defendant of employment discrimination, hostile work
environment or retaliation (including a description of the
allegations in detail. And the actions taken by the defendant
in response). In the form of verbal and written complaints,
lawsuits, agency filings, and other means by which employees
have complained about employment discrimination. The
defendant has requested that the Plaintiff sign a protective
order. To only receive the identi[t]y of similarly situated
individuals. The Plaintiff had initially agreed to do.
However, as the Defendant has ceased to engage in the
attempts to resolve discovery issue. The Plaintiff now
declines to do so. And ask that the court rule on the
necessity of a protective order.
represents that it “offered to provide plaintiff with
limited information regarding complaints alleging race
discrimination and retaliation during the period from January
1, 2010 through December 31, 2015, provided she sign a
protective order.” (R. Doc. 58 at 6).
Court agrees with Defendant that the information sought by
Issue No. 3 is overly broad. Having considered the arguments
of the parties, and without making a ruling as to whether
substitute teachers or teachers are similarly situated to
Plaintiff, the Court will require Defendant to provide the
identity of paraprofessionals, substitute teachers, and/or
teachers employed at the same school as Plaintiff who
submitted formal complaints to Defendant regarding
allegations of race discrimination, disability
discrimination, and/or retaliation during the period from
January 1, 2010 through December 31, 2015.
IS ORDERED that Defendant shall produce the
foregoing documents within 14 days from the
date of this Order.
Issue No. 4
The identity and actions of all individuals that participated
in any investigation done by the Defendant in response to the
Plaintiffs Whistle-Blower disclosure. A description their
actions in detail. The documents regarding the investigation
have not produced.
represents that it has produced all information responsive to
this issue in response to Interrogatory No. 7, including
various e-mails, a time line of events, and documents
regarding Defendant's investigation. (R. Doc. 58 at 7).
No. additional response is required.
Issue No. 5
Provide all communications regarding and documentation of
compliance with COBRA notice of continuation of coverage
regarding the Plaintiff. The documents have not been
produced. Defendant has not responded to who the Plaintiffs
health insurance administrator was?
represents that Plaintiff did not seek this information in
her actual discovery requests, and that Defendant responded
“Yes” to Plaintiff's Interrogatory No. 17,
which asked whether the Defendant timely provide
Plaintiff's health insurance plan administrator with
Plaintiff's COBRA eligibility. (R. Doc. 58 at 7). At oral
argument, Defendant explained that it subsequently learned
that it is in fact Plaintiff's health insurance plan
administrator. No. additional response is
Issue No. 6
The identity of all similarly situated persons employed by
the Plaintiff [sic] in the five-year period preceding the
Plaintiffs termination. That were terminated, placed on
leave, disciplined, investigated, or transferred because of
complaints against them or as the result of discipline. The
documents have not been produced.
appears to concede that this information was sought in
response to Plaintiff's Interrogatory No. 11. (R. Doc. 58
at 8). Defendant argues that the request should be limited
“to persons who were terminated for the same reason as
plaintiff, ” and represents that it “offered to
provide plaintiff with a list of all employees who were
terminated for the same reasons as plaintiff during the
period from January 1, 2010 through December 31, 2015,
provided she sign a protective order.” (R. Doc. 58 at
argument, Defendant argued that Plaintiff, who was employed
as a paraprofessional (i.e., teacher's aide) is not
similarly situated to substitute teachers. Furthermore,
Defendant argued that the Court should limit the request to
individuals actually terminated because those individuals are
similarly situated to Plaintiff. Acknowledging the breadth of
the information sought, Plaintiff suggested that the Court
limit the request to employees who were terminated and/or
considered the arguments of the parties, and without making a
ruling as to whether substitute teachers or teachers are
similarly situated to Plaintiff, the Court will require
Defendant to provide the identity of paraprofessionals,
substitute teachers, and teachers employed at the same school
as Plaintiff who were terminated or otherwise disciplined,
placed on leave, or transferred, in light of complaints
against involving threats and/or assault of any employee
during the period from January 1, 2010 through December 31,
IS ORDERED that Defendant shall produce the
foregoing list of individuals within 14 days
from the date of this Order.
Issue No. 7
The identity of all persons that reported the IEP files
referred to in the complaint as missing. The documents have
not been produced.
represents that in response to Interrogatory 19 it produced
an “anonymous, undated letter that was mailed to
parents of students in the ESS Program at Glasgow Middle
School” and otherwise produced documents regarding the
discovery of the missing IEP ...