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Dickey v. Apache Industrial Services, Inc.

United States District Court, M.D. Louisiana

September 9, 2019

GARRETT MATTHEW DICKEY
v.
APACHE INDUSTRIAL SERVICES, INC.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff's Motion to Compel. (R. Doc. 22). The motion is opposed. (R. Doc. 27). Plaintiff has filed a Reply. (R. Doc. 30).

         I. Background

         On October 12, 2017, Garrett Matthew Dickey (“Plaintiff”) initiated this action in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming Apache Industrial Services, Inc. (“Defendant” or “Apache”) as the sole defendant. (R. Doc. 1-2). On October 24, 2013, Mr. Scott A. Thibodeaux, the Executive Vice President of Apache, made Plaintiff an employment offer for the position of Account Manager with a $100, 000 annual salary and a bonus of “1% of revenue for all new business opportunities” delivered by Plaintiff, with the bonus being reduced to 3/4% for “routine maintenance contracts” after the third year of employment. (R. Doc. 1-2 at 6-7). Plaintiff is now seeking, in addition to certain wages, fees, and costs, an award of the 1% revenue bonus or an alternative award based on detrimental reliance. (R. Doc. 1-2 at 3-4).

         Apache removed the action on May 23, 2018. (R. Doc. 1). Apache contends that the employment letter was extended to Plaintiff by mistake and without authority, the offer was never accepted by Plaintiff because he applied for and took employment with Apache Painting, Inc. in November of 2013, and Plaintiff is not otherwise entitled to a bonus because he did not deliver a single new business opportunity. (R. Doc. 27 at 1).

         On August 16, 2018, Apache provided its initial disclosures. (R. Doc. 27-1 at 1-9). The documents produced by Apache with its initial disclosures include the employment letter and related emails, Plaintiff's wage information, Plaintiff's personnel file, written discovery requests and responses in this matter, and deposition transcripts and exhibits. (R. Doc. 27-1 at 7). Prior to providing its written initial disclosures, Apache produced flash drives containing the following categories of documents: “Dickey Emails, ”[1] “Dickey Data, ”[2] and “Dickey Customer/Projects.”[3](R. Doc. 27-1 at 7).

         On September 21, 2018, Apache supplemented its written initial disclosures. (R. Doc. 27-1 at 14-15). The day before providing its supplemental written disclosures, Apache produced documents categorized as “Job Setup Sheets” on a “Sharefile.” (R. Doc. 27-1 at 13).

         On November 20, 2018, Plaintiff served his First Set of Interrogatories, Requests for Admissions, and Requests for Production on Apache. (R. Doc. 22-2). Apache provided responses on February 12, 2019. (R. Doc. 22-3). Prior to the filing of the instant Motion to Compel, Plaintiff's counsel attempted to resolve the parties' dispute with respect to the sufficiency of Apache's responses without court intervention, including discussing with opposing counsel “the nature, timing and content of Apache's discovery responses.” (R. Doc. 22-1 at 33-34; see R. Doc. 22 at 4).

         On March 7, 2019, Plaintiff filed the instant Motion to Compel arguing that Apache's responses were untimely and insufficient. Plaintiff seeks an order (1) requiring Apache to identify specific documents responsive to Interrogatory Nos. 1, 3, 4, 5, and 6, and Requests for Production Nos. 1, 2, 4, 5, 12, 21, 24, 25, 26, 27, 28, 37, and 38; (2) requiring Apache to provide responses without objections to Interrogatory Nos. 8 and 10, and Requests for Production Nos. 6, 7, 8, 9, 11, 12, 17, 20, 22, 23, 29, 30, 31, 32, 36, and 37; and (3) striking Apache's denials to Requests for Admission Nos. 2, 3, 4, 6, 8, 12, 13, 14, 15, 17, and 18; and (4) awarding attorney's fees and costs.

         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)).

         Rule 33 of the Federal Rules of Civil Procedure provides for the service of written interrogatories. A party seeking discovery under Rule 33 may serve interrogatories on any other party and the interrogatory “may relate to any matter that may be inquired into under Rule 26(b).” Fed.R.Civ.P. 33(a)(2). “If the answer to an interrogatory may be determined by examining . . . a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the ...


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