United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Compel the City of
Baton Rouge / Parish of East Baton Rouge (R. Doc. 91) filed
on March 9, 2018. The motion is opposed. (R. Doc. 97).
Plaintiff has filed a Reply. (R. Doc. 109).
Lewis, by and on behalf of the minor child L.A.J.
(“Plaintiff”), filed this civil rights action
regarding the arrest, incarceration, and death of Lamar
Johnson while held at the East Baton Rouge Parish Prison. (R.
Doc. 1; R. Doc. 27). The deadline to complete non-expert
discovery is August 24, 2018. (R. Doc. 84).
December 11, 2017, Plaintiff served her First Set of Requests
for Production of Documents Directed to Defendant The City of
Baton Rouge/Parish of East Baton Rouge (the
“City-Parish”), which consists of 42 independent
requests for production. (R. Doc. 91-3). The sole defense
counsel enrolled at the time, Mr. Arthur H. Andrews,
responded the next day by stating that “[i]t looks as
though your discovery will take some time to address, ”
and asked whether there would be any objection to any request
for an extension of time to respond. (R. Doc. 91-6 at 1).
Plaintiff's counsel, Mr. John Adcock, responded by
stating he was amenable to extensions of time, but would
prefer to discuss how much time was necessary after defense
counsel reviewed an attached proposed agreement regarding the
production of electronically stored information
(“ESI”). (R. Doc. 91-6 at 1-2).
December 20, 2017, after other email exchanges and an initial
discussion with defense counsel, Plaintiff's counsel
provided three proposed “test searches” to obtain
information responsive to the document requests, and a list
of questions regarding the manner in which the searches were
conducted and the results of the searches. (R. Doc. 91-8 at
1). Plaintiff's counsel represents that defense counsel
“agreed to run the test searches, ” would send
them to the City-Parish's Information Services
(“IS”) Department, and would check on the
progress made the following week. (R. Doc. 91-2 at 3).
Plaintiff's counsel further represents that defense
counsel “did not request more time or express any
reservation about meeting the deadline for furnishing
Plaintiff with the [City-Parish's] answers to the Doc
Requests.” (R. Doc. 91-2).
January 7, 2018, in response to Plaintiff's counsel's
inquiries, Mr. Andrews provided the following response:
“Here is Michael Schillage's email. He is
co-counsel, or will be, and he can answer your questions, not
I. I know Michael is here today drafting a brief to the 5th
Cir [sic] that is dues [sic] Monday, so I doubt he has time
for you. As for me, despite the fact that I haven [sic] idea
what is going on or how you do it, I have a court appearance
on a rule nisi and a status conference and a deposition,
which leaves me out on Monday.” (R. Doc. 91-8 at 2).
Mr. Schillage then responded that the test searches were sent
to the City-Parish's IS Department and that no responses
were received. (R. Doc. 91-8 at 2-3). Plaintiff's counsel
requested a telephone conference. (R. Doc. 91-8 at 2). On
January 9, 2018, defense counsel stated that the IS
Department had certain questions and that he would be
available for a call that afternoon or the next day. (R. Doc.
91-8 at 4). Plaintiff's counsel represents that defense
counsel did not request an extension of the January 10, 2018
deadline to provide a written response to Plaintiff's
requests for production of documents. (R. Doc. 91-2).
January 12, 2018, counsel held a telephone conference in
which defense counsel conveyed to Plaintiff's counsel
that the City-Parish's IS Department had not yet run any
test searches, and that there were concerns regarding the
expansiveness of ESI to be identified by the search terms. (R
Doc. 91-9 at 1-2).
January 19, 2018, Plaintiff's counsel confirmed that the
City-Parish's “discovery responses were due over a
week ago, ” conveyed frustration with the delay on
running the test searches, and requested a date for when the
City-Parish would produce the requested discovery. (R. Doc.
91-9 at 3-4).
January 22, 2018, defense counsel provided “seven
individualized searches by time restriction, ” and
stated that it would take approximately two months to run the
searches, followed by a review for privilege and
confidentiality. (R. Doc. 91-9 at 4-5). Plaintiff's
counsel responded with a series of questions about the
proposed search terms and timeline. (R. Doc. 91-9 at 6).
January 26, 2018, defense counsel stated that the IS
Department was running searches on the last two of the seven
proposed search terms, explained the time required to run the
searches, and stated that he could not provide a timeline for
the review of documents because it depended upon the quantity
of documents obtained. (R. Doc. 91-9 at 7).
January 29, 2018, defense counsel stated that the search of
the two sets of search terms run by the IS Department
returned “roughly 210, 000 emails.” (R. Doc. 91-9
at 8). Counsel then held another telephone conference, in
which, among other things, defense counsel (Mr. Schillage)
stated that he was only working on the production of
responsive e-mail ESI, and not “all ESI documents or
all RFPs, ” and that on the December 20, 2017 telephone
conference, Plaintiff's counsel stated that he
“preferred that the [City-Parish] produce one finalized
set of responses . . . rather than piecemeal responses
requiring supplementation.” (R. Doc. 91-9 at 10).
February 1, 2018, Plaintiff's counsel inquired, among
other things, about who was gathering non-email discovery,
and requested production of any responsive documents already
gathered. (R. Doc. 91-9 at 11-12). Plaintiff's counsel
stated that “I do not think your client is meeting
their discovery obligations consistent with the federal
rules, ” and as mentioned during the telephone
conference on January 29, 2018, that Plaintiff would
“be filing a motion to compel.” (R. Doc. 91-9 at
February 2, 2018, counsel held another telephone conference
in which Plaintiff's counsel informed defense counsel
that Plaintiff had retained Bill Schiefelbein, an e-discovery
expert, to coordinate a discussion with the City-Parish's
IS Department, the terms of which counsel discussed in a
series of e-mails on February 5-6, 2018. (R. Doc. 91-12).
February 9, 2018, counsel, two IS Department representatives,
and Mr. Schiefelbein held a telephone conference. (R. Doc. 97
February 21, 2018, Plaintiff's counsel requested the
following information from defense counsel: “who is
working on non-email related discovery, the progress of it
and, with regard to the rolling discovery process, when we
can expect to receive the first batch of discovery.”
(R. Doc. 91-9 at 12).
February 26, 2018, after additional discussions,
Plaintiff's counsel provided “revised search
terms” and defense counsel ...