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Lewis v. East Baton Rouge Parish

United States District Court, M.D. Louisiana

June 11, 2018




         Before 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).

         I. Background

         Adrienne 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).

         On 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).

         On 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).

         On 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).[1] 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).

         On 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).

         On 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).

         On 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).

         On 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).

         On 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).

         On 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 12).[2]

         On 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).

         On February 9, 2018, counsel, two IS Department representatives, and Mr. Schiefelbein held a telephone conference. (R. Doc. 97 at 3).

         On 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).[3]

         On February 26, 2018, after additional discussions, Plaintiff's counsel provided “revised search terms” and defense counsel ...

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