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Johnson v. East Baton Rouge School System

United States District Court, M.D. Louisiana

January 19, 2018

TABBATHA JOHNSON
v.
EAST BATON ROUGE SCHOOL SYSTEM

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before 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. 59)[1] and a Reply (R. Doc. 64).

         Also 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. Doc. 96).

         Also 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).

         Also 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).

         Oral argument on the foregoing motions was held on January 9, 2018. (R. Doc. 108)

         I. Background

         Tabbatha 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).

         Plaintiff 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).

         On or 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).

         On 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).

         On September 1, 2017, Defendant provided supplemental responses to its initial disclosures and Plaintiff's Requests for Production. (R. Doc. 58-6).

         On 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).

         On September 27, 2017, the parties held a discovery conference, and Defendant agreed to supplement certain responses by October 6, 2017. (R. Doc. 58-9).

         On 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).

         On 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 43).

         On 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).

         On 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).

         On 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.

         On 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).

         Prior 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).

         At oral 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. 108).[2]

         II. Law and Analysis

         A. Legal Standards

         “Unless 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).

         “The 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)).

         A party 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. 37(a)(4).

         B. Plaintiff's First Motion to Compel (R. Doc. 54)

         In 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.

         The “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.

         Defendant 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.

         Defendant 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.

         Defendant 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).

         The 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.

         IT 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.

         Defendant 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?

         Defendant 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 required.[3]

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.

         Defendant 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 8).

         At oral 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 disciplined.

         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 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, 2015.

         IT 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.

         Defendant 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 ...


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