United States District Court, E.D. Louisiana
WYNEIKA TILLMAN ET AL.
JERRY J. LARPENTER ET AL.
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
filed a Motion to Compel Discovery. Record Doc. No. 98.
Plaintiffs were granted an extension of time until February
2, 2018, to file an opposition, Record Doc. No. 103, but did
not file any opposition. IT IS ORDERED that the motion is
GRANTED IN PART AND DENIED IN PART, as follows.
hand, the motion to compel and the discovery responses it
seeks are untimely. On the other hand, in two respects,
plaintiffs have failed to comply with the court's prior
order or to supplement some responses as promised and
required by Fed.R.Civ.P. 26(e)(1).
here-the court has entered a scheduling order setting a
deadline, Record Doc. No. 18, the schedule “may be
modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4) (emphasis
added). “In determining whether the movant has met its
burden under Rule 16(b)(4), the court considers four factors:
(1) the party's explanation, (2) the importance of the
requested relief, (3) potential prejudice in granting the
relief, and (4) the availability of a continuance to cure
such prejudice.” Choice Hotels Int'l, Inc. v.
Goldmark Hospitality, LLC, No. 3:12-CV-0548-D, 2014 WL
80722, at *2 (N.D. Tex. Jan. 9, 2014) (quotation omitted)
(citing S&W Enters., L.L.C. v. SouthTrust
Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.
2003)); accord Borden v. United States, 537 F.
App'x 570, 574 (5th Cir. 2013) (citing Reliance Ins.
Co. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th
Cir. 1997); Geiserman v. MacDonald, 893 F.2d 787,
791 (5th Cir. 1990)). The good cause standard applies to
discovery deadlines established by the court, Colonial
Freight Sys., Inc. v. Adams & Reese, L.L.P., 542 F.
App'x 142, 145 (5th Cir. 2013); Paz v. Brush
Engineered Mat'ls, Inc., 555 F.3d 383, 390 (5th Cir.
2009), and “require[s] the movant ‘to show that
the deadlines cannot reasonably be met despite the diligence
of the party needing the extension.'” Puig v.
Citibank, N.A., 514 F. App'x 483, 487-88 (5th Cir.
2013) (quoting S & W Enters., 315 F.3d at 535).
deadline for completion of all discovery in this case was
March 10, 2017. Record Doc. No. 18 at p. 2. It was extended
to June 8, 2017, but only for three limited purposes that did
not include the interrogatories and requests for
production that are the subject of this motion. Record Doc.
Nos. 49, 50. Motions were required to be filed no later than
would permit hearing on July 12, 2017, thus requiring filing
no later than June 25, 2017. Record Doc. No. 50; Local Rule
7.2. The court established these deadlines more than nine
months ago, yet defendants did not file the instant motion
until January 9, 2018, more than six months after
the deadlines for discovery and motions expired. Although the
presiding district judge on August 31, 2017 rescheduled the
final pretrial conference and trial dates until March 14 and
April 9, 2018, respectively, she did not extend the
discovery or motions filing deadlines that had already
lapsed. Record Doc. No. 96.
the Rule 16 good cause factors weighs against permitting this
late discovery and motion. Defendants provide no
explanation for their delay. Diligent pursuit of supplemental
responses to defendants' written discovery requests when
initial responses are allegedly insufficient would have
included filing a motion to compel or a motion to extend
deadlines months ago, before the discovery and motions
deadlines expired. Defendants state in their memorandum that
plaintiffs provided “amended discovery responses”
to their discovery requests in October 2016 (although no such
amended responses are attached to the motion). However,
defendants admit that they did not seek additional responses
from plaintiffs' counsel until defendants took
plaintiffs' depositions in March 2017 and that defendants
did not follow up with plaintiffs' counsel in writing
regarding supplemental responses until August 30, 2017.
Record Doc. No. 98-1 at pp. 3-4.
importance of further responses to defendants' discovery
requests, including “all Facebook and/or other social
media postings by any of the plaintiffs having to do with the
shooting” at issue, id. at p. 3, appears
minimal in light of plaintiffs' substantially compliant
previous responses and their already completed depositions.
For example, several of the subject responses state that
plaintiffs have no responsive materials to produce.
These responses are sufficient. The prejudice in permitting
the discovery at this late date, more than six months
after the deadlines for completing discovery and
filing motions expired and with only five weeks remaining
before the final pretrial conference, appears substantial
when trial preparation activities should be the parties'
focus. Whether a continuance is available to cure the
prejudice is a matter that defendants would have to direct to
the presiding district judge.
argue that plaintiffs are in no position to oppose this
motion because they waived their objections by their
“failure to object or otherwise respond to the
interrogatories and requests for production of
documents.” Id. at p. 5. This allegation is
inaccurate. Plaintiffs' original responses confirm that
they responded to all requests, including Interrogatory No. 6
and Requests for Production Nos. 2 and 13 regarding Facebook
postings, with written answers and/or objections. Record Doc.
No. 98-2, Defendants' Exh. 1 in globo.
plaintiffs had failed to object, however, “the court
retains discretion to decline to compel production . . . when
the request far exceeds the bounds of fair discovery, even if
a timely objection has not been made.” Meche v.
Maint. Dredging, Inc., No. 10-3653, 2012 WL 519882, at
*2 (E.D. La. Feb. 16, 2012) (citing Fifty-Six Hope Rd.
Music, Ltd. v. Mayah Collections, Inc., No.
2:05-cv-01059-KJD-GWF, 2007 WL 1726558, at *4 (D. Nev. June
11, 2007); Lucero v. Martinez, No. 03-1128, 2006 WL
1304945, at *2 (D.N.M. Mar.11, 2006); Kolenc v.
Bellizzi, No. 95 CIV. 4494, 1999 WL 92604, at *3
(S.D.N.Y. Feb. 22, 1999); Krewson v. City of Quincy,
120 F.R.D. 6, 7 (D. Mass. 1988)); accord Wymore v.
Nail, No. 5:14-CV-3493, 2016 WL 1452437, at *2 (W.D. La.
Apr. 13, 2016); Schooler v. Wal-Mart Stores, Inc.,
No. 14-2799, 2015 WL 4879434, at *1 (E.D. La. Aug. 14, 2015);
Wells Fargo Bank, N.A. v. Hazzan, No. 12-20154, 2012
WL 13014695, at *1 (S.D. Fla. July 17, 2012). This discretion
should be exercised in a circumstance like this one, in which
the court is enforcing its own deadlines imposed in the
interest of orderly and efficient case management and reining
in excessive discovery. See Fed.R.Civ.P. 26(b)(2)(C)
(“On motion or on its own the court must limit
the frequency or extent of discovery . . . if it determines
that: (i) the discovery sought is unreasonably cumulative or
duplicative, . . . (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).”) (emphasis added).
the motion is denied as to most of the relief sought.
However, the motion is granted in limited part as follows. No
later than February 23, 2018, plaintiffs must provide
defendants' counsel with the following: (1) as previously
ordered, Record Doc. No. 36 at p. 4, and required by
Fed.R.Civ.P. 33(b)(1)(B), (3) and (5), verifications under
oath of any unverified interrogatory answers, which are
not attached to any of the copies of answers to
interrogatories provided to me, except those of Tamika Payne,
whose verification has been provided; and (2) supplemental
written responses and production of all responsive documents,
if any, by each plaintiff who previously stated that he or
she would try to locate materials responsive to
defendants' Request for Production No. 2, and any and all
other supplemental responses required pursuant to
plaintiffs' continuing obligation to supplement under
motion is denied insofar as it seeks an award of
attorney's fees and other expenses incurred in connection
with this motion. The motion has been granted in part and
denied in part. Under these circumstances, I find that a
reasonable apportionment of the expenses incurred in