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Roberts v. Lessard

United States District Court, M.D. Louisiana

March 29, 2018

BRIAN ROBERTS
v.
MAJOR SHANNON LESSARD, ET AL.

          ORDER

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

         Before the Court is Plaintiff's Motion to Compel Discovery (R. Doc. 53) filed on February 28, 2018. The deadline for filing an opposition has expired. LR 7(f). Accordingly, the Motion is deemed to be unopposed.

         I. Background

         On January 6, 2017, Brian Roberts (“Plaintiff”) commenced this civil rights action under 28 U.S.C. § 1983 against Major Shannon Lessard, Major Kevin Durbin, and Lieutenant Lindell Slater (collectively, “Defendants”). (R. Doc. 1). Plaintiff alleges that on December 26, 2015, while an inmate housed in Golf 2, B Tier, at Elayn Hunt Correctional Center (“EHCC”), he had a stroke and Defendants denied him adequate medical treatment in deliberate indifference to his constitutional rights.

         Plaintiff served the discovery requests at issue on May 11, 2017. (R. Doc. 53-4). Defendants provided responses on August 7, 2017. (R. Doc. 53-5).[1]

         On October 13, 2017, Plaintiff filed a Motion to Compel seeking supplemental responses to Interrogatory Nos. 5 and 8, and Request for Production Nos. 2, 10, 12, and 13. (R. Doc. 35). Defendants opposed the motion on the basis that Plaintiff did not participate in a proper discovery conference before filing the Motion. (R. Doc. 41).

         On December 1, 2017, the Court denied the foregoing motion on the basis that Plaintiff's counsel did not attempt to hold a conference in “good faith” as required by Rule 37(a)(1). (R. Doc. 45). The Court specifically provided, however, that “Plaintiff may reassert his Motion to Compel after the parties meet-and-confer on the substantive discovery issues raised in the motion, and with the filing of a Rule 37 certificate specifically setting forth (1) how the conference was scheduled and agreed upon, (2) who participated in the conference, (3) when the conference took place, (4) whether the conference was conducted by phone or in person, (5) the duration of the conference, (6) the specific, itemized topics that were addressed at the conference, and (7) whether any issues were resolved by the parties. In the alternative, the Rule 37 certificate must detail Plaintiff's counsel's good faith attempts to confer with defense counsel and provide evidence that defense counsel refused to confer after reasonable notice.” (R. Doc. 45 at 4).

         On December 28, 2017, Plaintiff's counsel's office counsel sent an e-mail to defense counsel requesting dates to meet-and-confer on the discovery dispute. (R. Doc. 53-7 at 1). Plaintiff represents that no response was provided. (R. Doc. 53 at 3).

         On January 31, 2018, Plaintiff's counsel's office sent an e-mail to defense counsel requesting a discovery conference on February 2, 2018 at 10:30 a.m. (R. Doc. 53-12 at 2). Defense counsel responded by stating that she had “a meeting scheduled at that time and [would] be unavailable for the remainder of the day, ” adding that she would be “available for Monday, February 2, 2018 at 10:30 [a.m.].” (R. Doc. 53-12 at 2).[2]

         On February 1, 2018, Plaintiff's counsel sent the following e-mail to defense counsel: “You need to call either today or earlier. We have deadlines running and cannot give you more time. You are well aware of the deficiencies in this case and you have done NOTHING to remedy the. [sic] Under Rule 37, we may proceed when you fail to respond or object timely. WE are waiting for your call.” (R. Doc. 53-9 at 1).

         On February 5, 2018, Plaintiff's counsel's office sent an e-mail to defense counsel stating that Plaintiff's counsel was unavailable, and requested defense counsel's availability for the remainder of the week. (R. Doc. 53-12 at 1). Plaintiff's counsel's office sent a follow-up e-mail on the morning of February 6, 2018. (R. Doc. 53-12 at 1). Defense counsel immediately responded that she was unavailable, adding that she had “some availability tomorrow afternoon” if Plaintiff's counsel was available then. (R. Doc. 53-12 at 1).

         There is no indication in the record that Plaintiff's counsel further attempted to schedule a discovery conference pertaining to the issues raised in the instant Motion over the following three weeks.

         On February 28, 2018 (the day before the close of non-expert discovery on March 1, 2018), Plaintiff filed the instant Motion. (R. Doc. 53).

         II. Law and Analysis

         A. Plaintiff's Non-Compliance with Rule 37(a)(1)

         Rule 37(a)(1) of the Federal Rules of Civil Procedure provides that any motion to compel “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Failure to comply with the meet and confer requirement may constitute sufficient reason to deny a motion to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014); see also Forever Green Athletic Fields, Inc. v. Babcock Law Firm, LLC, No. 11-633 (M.D. La. July 2, 2014) (denying motion to compel where defense counsel made a single attempt by email to meet and confer and did not do so in a good faith effort to resolve the dispute without court intervention).

         Plaintiff submitted a “Rule 37 Certificate on Motion to Compel.” (R. Doc. 53-3). The certificate lists various irrelevant interactions between counsel that occurred prior to the Court's denial of Plaintiff's first Motion to Compel. (R. Doc. 53-3 at 1-2). The certificate also states the following: “It is very clear that Defendants do not intend to provide supplemental responses and Plaintiff has gone above an [sic] beyond to hold a conference and receive supplemental responses. Plaintiff has shown good faith attempts to confer with defense counsel and has provided evidence that defense counsel refused to confer after reasonable notice.” (R. Doc. 53-3 at 3).

         The Court concludes that Plaintiff's counsel's attempts to hold a discovery conference fall short of the requirements of Rule 37(a)(1). The sole communication actually sent by Plaintiff's counsel on February 1, 2018 in no way demonstrates a good faith attempt to confer without court resolution. Furthermore, the remaining correspondences between Plaintiff's counsel's office and defense counsel demonstrate a willingness on behalf of defense counsel to schedule an appropriate time and place for a conference.

         While Plaintiff has not satisfied the requirements of Rule 37(a)(1), Defendants did not oppose the instant motion. Accordingly, the Court will resolve the motion on its merits and deny the award of any recoverable expenses in light of Plaintiff's non-compliance with Rule 37(a)(1).

         B. The Discovery Requests at Issue

         1. Interrogatory No. 5

         INTERROGATORY NO. 5:

         Please identify each guard who was present during the discovery of [Plaintiff's] illness on December 26, 2015, and describe the action(s) taken by each or the role each played.

         (R. Doc. 53-4 at 4).

         RESPONSE TO ...


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