“[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.”
How later courts described this case
- “[A]s a general rule, when a party fails to object timely to interrogatories, production requests, or other discovery efforts, objections thereto are waived.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RYAN COLLINS CIVIL ACTION
VERSUS NO. 20-199-SDD-RLB
CONTROLWORX, LLC
ORDER
Before the Court is Defendant’s Motion to Compel Discovery Responses and for Related
Relief (“Motion to Compel”). (R. Doc. 23). The motion is opposed. (R. Doc. 30). Defendant
filed a Reply. (R. Doc. 34).
Also before the Court is Plaintiff’s Unopposed Motion for Oral Argument. (R. Doc. 35).
Having considered the written record, the Court finds oral argument unnecessary. For the
following reasons, Defendant’s Motion to Compel is granted.
I. Background
On April 2, 2020, Ryan Collins (“Plaintiff”) commenced this employment discrimination
action, seeking relief under the Family and Medical Leave Act (“FMLA”) or the Louisiana
Employment Discrimination Law, including La. R.S. 23:323, against his former employer
ControlWorx, LLC (“Defendant”). (R. Doc. 1).
On September 18, 2020, Plaintiff provided his initial disclosures, which identified 15
documents and ten recordings of conversations between Plaintiff and Defendant’s employees.
(R. Doc. 23-2). That same day, Plaintiff served written discovery on Defendant. (R. Doc. 23-3).
Plaintiff’s original counsel withdrew on October 5, 2020. (R. Doc. 16).
On October 20, 2020, Plaintiff, while proceeding pro se, produced five audio recordings
to Defendant. (R. Doc. 23-4; see R. Doc. 23-5). That same day, Defendant served its First Sets of
Interrogatories and Requests for Production on Plaintiff. (R. Doc. 23-6). Plaintiff provided
certain responses and objections to the discovery requests, but did not produce any additional
documents or recordings. (R. Doc. 23-7).
Plaintiff’s current counsel enrolled on December 3, 2020. (R. Doc. 20). Despite having
obtained new counsel, Plaintiff did not supplement his discovery responses.
On June 3, 2021, Defendant sent a letter to Plaintiff detailing deficiencies with respect to
his discovery responses and asked Plaintiff to supplement his responses by June 10, 2021. (R.
Doc. 23-8).
On June 11, 2021, Plaintiff informed Defendant that “he suffered a flood and loss of
electronic data” and asked whether Defendant opposed a motion for an extension of the
discovery deadlines. (R. Doc. 23-9). Defendant asked for clarification on the amount of time
requested and the loss of electronic data. (R. Doc. 23-10). Ignoring Defendant’s requests for
clarification, Plaintiff again asked whether Defendant opposed an extension of time. (R. Doc. 23-
11). Defendant asked for clarification again. (R. Docs. 23-12). It appears that this request for
clarification was ignored. The parties ultimately held a telephone conference on June 18, 2021,
which resulted in Defendant agreeing to allow Plaintiff until July 15, 2021 to correct deficiencies
in his discovery responses, contingent on Plaintiff allowing his deposition to be retaken to the
extent necessary after the receipt of supplemental discovery responses. (R. Doc. 23-16).
Defendant represents that “Plaintiff’s counsel agreed and, subject to this agreement, the parties
proceeded with Plaintiff’s deposition on June 23.” (R. Doc. 23-1 at 7).
On June 23, 2021, Plaintiff produced additional documents at the beginning of his
deposition and disclosed that he had additional information relevant to this litigation on personal
hard drives that had not been produced, but appeared to have been destroyed in the referenced
flooding. (R. Doc. 23-18).1 Defendant represents that one week later, on June 29, 2021, it
appeared for a Rule 30(b)(6) deposition in which Plaintiff produced, for the first time, a thumb
drive containing 28 audio recordings not previously produced to Defendant. (R. Doc. 23-1 at 8;
see R. Doc. 23-5).
On July 1, 2021, the deadline to complete non-expert discovery, Defendant timely filed
the instant Motion to Compel seeking an order compelling Plaintiff to preserve evidence, to
respond to discovery requests, and to supplement initial disclosures and discovery responses. (R.
Doc. 23). In particular, Defendant seeks the following relief from the Court:
(1) order Plaintiff to amend and/or supplement his written responses to
Defendant’s discovery requests to provide complete answers to each request and
order Plaintiff to provide all responsive information and documents in the manner
required by the Federal Rules of Civil Procedure and as discussed herein; (2) if
Plaintiff is unable to locate responsive documents to any request after a diligent
search, order him to expressly so state and to explain the search conducted; (3)
order Plaintiff to answer supplemental interrogatories from Defendant, not to
exceed 20, regarding all audio recordings made of Defendant’s employees,
specifically the creation, perseveration, chain of custody, and control of such
recordings (including the 28 recordings recently produced); (4) order Plaintiff to
affirmatively state whether the “electronic information” lost in the recent flooding
included any information pertinent to this lawsuit and to submit any drives,
devices, or other media wherein the information was stored to a computer forensic
specialist for examination, to be mutually agreed on by the parties and at
Plaintiff’s expense; (5) order Plaintiff to resubmit himself for a supplemental
deposition (consistent with his prior agreement) after complying with any order
compelling discovery that the Court may issue; and (6) order Plaintiff to
reimburse Defendant for its attorney’s fees and expenses incurred as a result of
this motion and other extraordinary efforts to obtain discovery to which it is
clearly entitled.
(R. Doc. 23-1 at 2-3).
On July 16, 2021, Plaintiff sought an extension of the deadline to complete discovery to
respond to the Motion to Compel on the bases that (1) his home was flooded on May 18, 2021,
and (2) his counsel had a family emergency requiring travel. (R. Doc. 24). The Court denied the
1 Plaintiff produced tax information for the years 2018-2020 the day before the deposition. (R. Doc. 23-17).
motion to the extent it sought an extension of the non-expert discovery deadline, and set the
deadline for Plaintiff to file an opposition to the motion to compel on July 29, 2021. (R. Doc.
25).
On July 23, 2021, Plaintiff filed a motion for reconsideration. (R. Doc. 26). The Court
denied the motion with respect to additional discovey, and directed counsel to confer regarding
whether the circumstances support an extension of time for Plaintiff’s opposition to the Motion
to Compel. (R. Doc. 27).
On July 27, 2021, Plaintiff filed an unopposed motion seeking an extension of the
deadline to respond to the Motion to Compel to August 6, 2021. (R. Doc. 28). The Court granted
the motion. (R. Doc. 29).
On August 6, 2021, Plaintiff filed his opposition. (R. Doc. 30). Plaintiff appears first to
argue that Defendant’s Motion to Compel does not comply with Local Rule 37 because it does
not quote “verbatim” each discovery request and response at issue. (R. Doc. 30 at 1). Plaintiff
then focuses on the failure of Plaintiff’s current counsel to obtain documents from Plaintiff’s
former counsel, the May 18, 2021 flooding and counsel’s family emergency, and assertions
regarding productions made prior to and after the filing of the instant Motion to Compel. (R.
Doc. 30 at 1-5). Plaintiff does not assert that he has complied with his discovery obligations. At
most, Plaintiff argues that Defendant’s requests for production of documents are “unreasonably
cumulative or duplicative” because the information has been provided at Plaintiff’s deposition,
and can be obtained through other more convenient, less burdensome, and less costly means,
such as Plaintiff’s medical records obtained through medical authorizations. (R. Doc. 30 at 5-7).
On August 13, 2021, Defendant filed a Motion for Summary Judgment. (R. Doc. 32).
This motion remains pending before the district judge.
On August, 10, 2021, Plaintiff provided Defendant with a document titled “Supplemental
Answer to Discovery.” (R. Doc. 34-1). In its reply memorandum, Defendant argues that the
supplemental responses are deficient because Plaintiff failed to verify his answers to any
interrogatories as required under Rule 33(b)(3); Plaintiff’s responses to requests for production
do not satisfy Rule 34(b)(2)(E)(i); and the supplemental responses to Interrogatory No. 17 and
18, and Request for Production No. 12, remain incomplete.
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)).
“Once a party moving to compel discovery establishes that the materials and information
it seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon
the party resisting discovery to substantiate its objections.” Wymore v. Nail, No. 14-3493, 2016
WL 1452437, at *1 (W.D. La. Apr. 13, 2016) (citing McLeod, Alexander, Powel and Apffel, P.C.
v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
B. Defendant’s Compliance with Local Rule 37
As an initial matter, Plaintiff appears to argue that Defendant failed to comply with Local
Rule 37, which provides the following:
Motions addressed to issues concerning discovery propounded under Fed. R. Civ.
P. 33, 34, 36 and 37 must quote verbatim each interrogatory, request for
production, or request for admission to which the motion is addressed, followed
immediately by the verbatim response or objection which provided thereto.
LR 37. In support of this argument, Plaintiff writes the following sentence fragment: “The
memorandum in support[.]” (R. Doc. 30 at 1). Plaintiff provides no further argument on this
issue or otherwise identify which discovery requests at issue have not been properly raised in the
Motion to Compel.
The Court has reviewed Defendant’s Motion to Compel and finds that it complies with
Local Rule 37, as the Motion to Compel specifically seeks relief regarding the following
discovery requests (and corresponding responses, if any) that are quoted verbatim in the motion:
Interrogatory Nos. 17, 18, 22, Request for Production Nos. 5, 6, 7, 8, 9, 12, 16, 17, 18, 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32.2
C. Plaintiff’s Post-Opposition “Supplemental Answer to Discovery”
After filing his opposition, Plaintiff provided Defendant with supplemental responses to
the discovery requests at issue. Plaintiff did not mention this discovery response in his
Opposition. The Court was first made aware of this document when Defendant sought leave to
file a reply memorandum.
It is unclear to what extent this document moots the issued raised in the instant Motion to
Compel. Defendant acknowledges that the document corrects “a few of the problems previously
identified” but then goes on to identify remaining issues. (R. Doc. 34 at 3-6).
To ensure full compliance with this Order, the Court will require Plaintiff to re-submit
supplemental responses to Defendant in accordance with the terms of this Order, even to the
extent Plaintiff relies upon assertions in the untimely “Supplemental Answer to Discovery.” The
Court will address the particular issues raised in Defendant’s Reply with respect to these
supplemental responses. The Court does not, however, conclude whether and to what extent that
the “Supplemental Answer to Discovery” moots any issues raised in the Motion to Compel.
The Court advises Plaintiff that his supplemental response to any requests for production
required by this Order must specifically identify which documents he has produced (or will
produce) that are responsive to each particular document request. See Fed. R. Civ. P.
34(b)(2)(E)(i). Furthermore, Plaintiff must verify and sign his supplemental answers to any
interrogatories at issue in this Order. See Fed. R. Civ. P. 33(b)(3), (5).
2 Defendants represent that Plaintiff did not provide responses to Requests for Production Nos. 11, 13, 14, and 15
but are not seeking relief with respect to those document requests because Plaintiff provided the authorizations
requested.
D. Written Discovery Requests With No Objections
The record indicates that Plaintiff failed to provide any response or objection to Request
for Production Nos. 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32.
Defendant agreed to provide Plaintiff until July 15, 2021 to correct these and other deficiencies
contingent on Plaintiff agreeing to leave his deposition open. (R. Doc. 23-16). Plaintiff did not
timely supplement his responses.
As Plaintiff did not make any timely objections to the foregoing requests for production,
the Court finds that Plaintiff has waived his objections to the discovery requests, with the
exception of those pertaining to any applicable privileges or immunities. See In re United States,
864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object timely to
interrogatories, production requests, or other discovery efforts, objections thereto are waived.”);
B&S Equip. Co. v. Truckle Servs., Inc., No. 09-3862, 2011 WL 2637289, at *6 (E.D. La. July 6,
2011) (finding waiver of all objections to “discovery requests based on relevance, unduly
burdensome, over broad, or any other objection not grounded on the attorney client or the work
product privilege.”). Accordingly, the Court will require Plaintiffs to provide responses to
Defendant’s Request for Production Nos. 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,
29, 30, 31, and 32 without any objections other than those pertaining to any applicable privileges
or immunities.
Plaintiff must specifically respond to each of the following requests for production and
produce non-privileged responsive documents. To the extent applicable, Plaintiff must identify
any responsive documents that have already been produced with respect to each request for
production. If Plaintiff does not have any responsive documents in his possession, custody, or
control with respect to any of the following requests for production, he must specifically state so
in his response. Request for Production Nos. 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,
29, 30, 31, and 32 are as follows:
Request for Production No. 12: All documents reflecting or relating to the
invoices, billing, charges, costs, or payments to any physician, medical
professional, mental health counselor, therapist, psychologist, psychiatrist, social
worker, and other health care provider of any type identified in response to
Defendant’s First Set of Interrogatories.
Request for Production No. 16: All documents reflecting any loss, damage, or
harm allegedly sustained by Plaintiff as a result of alleged unlawful treatment in
the Complaint, or otherwise allegedly caused by any violation of law alleged in
the Complaint.
Request for Production No. 17: All documents and tangible items that support
the allegation that Plaintiff has suffered a loss of income and other harms,
including, but not limited to, past and future wages, benefits, expenses, liquidated
damages, pain and suffering, loss of reputation, loss of enjoyment of life, and
compensatory damages” as referenced in Paragraph 33. of the Complaint and
general damages in paragraph 4. of the Complaint’s prayer for relief.
Request for Production No. 18: All documents and tangible items that support
the allegations that “Plaintiff had a disability” and of Defendant’s failure to
accommodate that disability that adversely affected his status as an employee as
referenced in Paragraph 11 of the Complaint.
Request for Production No. 19: All documents and tangible items that reflect or
support the damages allegedly owed to Plaintiff as referenced in Paragraph 33 of
the Complaint and Paragraph 4 of the Complaint’s prayer for relief, including any
documents reflecting or containing information sought in Defendant’s
Interrogatory No. 19.
Request for Production No. 20: All documents and tangible items that you may
introduce in support of the allegation that Defendant violated “Plaintiff’s rights
under the FMLA and Louisiana law,” as alleged in Paragraph 1 of the
Complaint’s prayer for relief.
Request for Production No. 21: All documents, including correspondence and
electronic mail, you were provided by any third party either in response to a
subpoena or voluntarily relating to the allegations in your Complaint.
Request for Production No. 22: For every company, organization, other entity,
and person identified in response to Interrogatory No. 15, produce all documents
reflecting any of the information identified in subparts (a)-(d) thereof.
Request for Production No. 23: For every company, organization, other entity,
and person by whom Plaintiff has been employed since his employment at
ControlWorx ended, produce his personnel and payroll files, including records
reflecting the position held, promotions, demotions, performance reviews,
evaluations, write-ups, performance improvement plans, discipline, and
compensation.
Request for Production No. 24: All written and recorded statements identified in
response to Defendant’s Interrogatory No. 5.
Request for Production No. 25: All sworn testimony provided by Plaintiff in
any proceeding described in Defendant’s Interrogatory No. 7.
Request for Production No. 26: All pleas of nolo contendere or guilty, or other
convictions, described in Defendant’s Interrogatory No. 8.
Request for Production No. 27: All documents reflecting income, benefits, or
other financial assistance described in Defendant’s Interrogatory No. 17.
Request for Production No. 28: All documents, including communications,
emails, texts, posts, shares, or other electronic or digital expression of any kind, in
which Plaintiff referred to, commented on, communicated about, memorialized,
or in any other way addressed the facts alleged and subject matters described in
the Complaint, and/or any way in which he was allegedly mistreated or harmed as
alleged in the Complaint, excluding those that are entirely confidential between or
among Plaintiff and any legal counsel retained to represent him in this matter.
Request for Production No. 29: A copy of the “job description” referenced in
Paragraph 10 of the Complaint.
Request for Production No. 30: The “[t]en recordings and segments of
recordings of conversations between Collins and Defendant’s employees relating
to his work restrictions, schedule change, and termination” referenced in
Plaintiff’s Rule 26 Initial Disclosures.
Request for Production No. 31: All documents that you contend constitutes a
“record of a chronic shoulder condition and related disorders” as referenced in
Paragraph 22 of the Complaint.
Request for Production No. 32: All documents that you contend show that you
have a disability as alleged in the Complaint.
(R. Doc. 23-6 at 18-22).
As discussed above, the Court will not parse the language of Plaintiff’s untimely
“Supplemental Answer to Discovery” to determine whether and to what extent each response is
satisfactory. It appears, however, that Defendant has found Plaintiff’s untimely supplemental
responses generally to be satisfactory with respect to these requests for production with the
exception of Plaintiff’s response to Request for Production No. 12.
Plaintiff’s supplemental response to Request for Production No. 12 states “Please see
medical records.” (R. Doc. 34-1 at 9). Defendant represents that no medical records have been
produced. (R. Doc. 34 at 6). Plaintiff must respond fully to this document request by producing
all responsive documents sought in full.
IT IS ORDERED that Plaintiff must respond to Defendant’s Request for Production
Nos. 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32, and produce any
non-privileged responsive documents, within 10 calendar days of the date of this Order, or as
otherwise agreed upon by the parties. The Court reaches no decision on the sufficiency of
Plaintiff’s untimely “Supplemental Answer to Discovery” other than to find that the
supplemental response to Request for Production No. 12 is insufficient as discussed above.
E. Written Discovery Requests With Objections
1. Interrogatory Nos. 17-18 and Request for Production No. 9
Interrogatory Nos. 17-18 and Request for Production No. 9 collectively seek information
with respect to Plaintiff’s claims for damages. Interrogatory No. 17, and Plaintiff’s response, are
as follows:
Interrogatory No. 17: Identify each source of income, benefits, or other financial
assistance (“proceeds”) Plaintiff has received or is owed since his employment at
ControlWorx ended, including but not limited to proceeds from employment by
any company, organization, or other entity; self-employment; work as an
independent contractor; services provided as casual or temporary labor; as an
owner or partner in any business or endeavor; unemployment benefits; disability
insurance benefits; workers’ compensation benefits; Social Security benefits;
pension or annuity; other retirement; and alimony or other court-ordered
payments. For each source, provide the name of the source, the address of the
source, and the amount of proceeds received or owed.
Response to Interrogatory No. 17: OBJECT to the question as overbroad. Seeks
information that is not relevant to any claim and not proportional to the needs of
the case.
(R. Doc. 23-7 at 5-6). Interrogatory No. 17 requests Plaintiff to identify all sources of income
since Plaintiff’s employment with Defendant ended. This information is relevant and
proportional to Plaintiff’s claim for damages, including “loss of income” and “past and future
wages, benefits, [and] expenses. . . .” (R. Doc. 1 at 5). Though detailed, the request is not overly
broad.
Plaintiff’s supplemental answer to Interrogatory No. 17 provides the name and address of
Plaintiff’s current employer, and states that Plaintiff “has supplied tax information with detailed
information about proceeds and the source of those proceeds with all of their contact
information.” (R. Doc. 34-1 at 5). In reply, Defendants assert that “[a]t the very least, Plaintiff
should be required to identify the documents which he alleges he has ‘supplied’ with greater
specificity.” (R. Doc. 34 at 5). It is unclear why there is confusion regarding the tax information
“supplied” by Plaintiff. Nevertheless, to satisfactorily respond to this interrogatory, Plaintiff must
identify the specific documents he is relying on to respond to this interrogatory “in sufficient
detail to enable the interrogating party to locate and identify them as readily as the responding
party could.” See Fed. R. Civ. P. 33(d)(1).
Interrogatory No. 18, and the respective response, are as follows:
Interrogatory No. 18: Itemize and describe each element of monetary damages
or relief sought in the Complaint, including a brief description of the item of
damage, the total amount claimed, and the method or formula used to compute the
amount, including the time period over which the amount should be computed. If
the dollar amount of any item of damage is not yet known, state the method or
formula by which you contend such amount should be computed (and the time
period over which you contend such amount should be computed), and describe
all documents or other information that you claim to need in order to be able to
complete the damages calculation.
Response to Interrogatory No. 18: Front Pay, Back Pay, Compensatory
damages. FMLA damages allowed under law. Damages are continuing and have
not been quantified at this time. A calculation of damages can be made by
calculating a 40 hour work week.
(R. Doc. 23-7 at 6). Discovery is closed. Plaintiff has not argued that he is relying on a damages
expert to calculate his damages. The information sought is within the scope of discovery and
must be produced to the extent it was not provided in Plaintiff’s initial disclosures. See Fed. R.
Civ. P. 26(a)(1)(A)(iii) (requiring disclosure of “a computation of each category of damages
claimed by the disclosing party--who must also make available for inspection and copying as
under Rule 34 the documents or other evidentiary material, unless privileged or protected from
disclosure, on which each computation is based, including materials bearing on the nature and
extent of injuries suffered. . . .”).
Plaintiff’s supplemental answer to Interrogatory No. 18 provides that Plaintiff was paid
$23.00 per hour and identifies the specific calculation of attorney’s fees and costs sought. (R.
Doc. 34-1 at 5). The supplemental response does not provide any specific calculation of any
other damages. This information must be provided in a supplemental response.
Request for Production No. 9 seeks records substantiating any incurred legal fees sought
by Plaintiff in the litigation:
Request for Production No. 9: All documents, records, bills, statements, invoices,
and accountings reflecting legal services and costs incurred by Plaintiff and that will
be sought to be recovered in this action, including attorney fees, paralegal fees,
litigation expenses, and expert witness fees.
Response to Request for Production No. 9: OBJECT calls for attorney client
privilege, the question as overbroad. Seeks information that is not relevant to any
claim and not proportional to the needs of the case.
(R. Doc. 23-7 at 12). The Court will narrow the scope of the request to all billing statements
pertaining to legal services and costs sought by Plaintiff in this litigation as identified in his
supplemental response to Interrogatory No. 18. To the extent Plaintiff is claiming attorney-client
privilege over any records identified, he may produce them in redacted form and produce an
appropriate privilege log under Rule 26(b)(5).3 It appears that Plaintiff has complied with this
request for production by submitting a “statement of expenses and fees by current counsel.” (See
R. Doc. 34-1 at 8).
IT IS ORDERED that Plaintiff must provide supplemental responses to Interrogatory
Nos. 17-18 and Request for Production No. 9, as detailed above, within 10 calendar days of the
date of this Order, or as otherwise agreed upon by the parties. The Court reaches no decision on
the sufficiency of Plaintiff’s untimely “Supplemental Answer to Discovery” other than to find
that the supplemental response to Interrogatory Nos. 17-18 are insufficient as discussed above.
2. Interrogatory No. 22 and Request for Production No. 5
Interrogatory No. 22 and Request for Production No. 5 collectively seek information
pertaining to Plaintiff’s preparation of initial disclosures and responses to written discovery.
Interrogatory No. 22, and Plaintiff’s response, are as follows:
Interrogatory No. 22: Identify every person who provided any information
included in or used to prepare Plaintiff’s initial disclosures and these answers to
these interrogatories, including any supplements thereto, and identify any
documents to that were reviewed or used in the preparation of such disclosures
and answers.
3 While the Court does not make a ruling at this time with respect to the applicability of the attorney-client privilege
to legal billing records, the Court notes that other courts have held that attorney billing records are only protected by
the attorney-client privilege to the extent they reveal the nature of services or type of work performed. See, e.g., C.J.
Calamia Const. Co., Inc. v. ARDCO/TraverseLift Co. LLC, No. 97-2770, 1998 WL 395130, *3 (E.D. La. July 14,
1998) (“[T]ime sheets and billing records are protected by the attorney-client privilege to the extent that they reveal
the nature of services performed and/or the type of work performed by an attorney. Thus, billing statements and
records that simply reveal the amount of time spent, the amount billed, and the type of fee arrangement between
attorney and client are fully subject to discovery.”).
Response to Interrogatory No. 22: OBJECT calls for attorney client privilege,
the question as overbroad. Seeks information that is not relevant to any claim and
not proportional to the needs of the case.
(R. Doc. 23-7 at 7). This interrogatory is overly broad to the extent it seeks, without limitation,
the identification of all documents reviewed and used in the preparation of disclosures and
answers regardless of whether the underlying documents are relevant to a claim or defense in this
action. The Court will limit this interrogatory to the identification, by name, of every person who
assisted Plaintiff in preparing his initial disclosures and answers to his interrogatories, including
any supplemental disclosures and interrogatories. This response will not require the disclosure of
any attorney-client privileged information.
Request for Production No. 5, and Plaintiff’s response, are as follows:
Request for Production No. 5: All documents referred to, relied upon, identified,
reviewed, referenced, listed, or consulted in preparing Plaintiff’s initial
disclosures and responses to any of ControlWorx’s discovery requests in this
matter, including any supplements thereto.
Response to Request for Production No. 5: OBJECT calls for attorney client
privilege, the question as overbroad. Seeks information that is not relevant to any
claim and not proportional to the needs of the case.
(R. Doc. 23-7 at 10). As with Interrogatory No. 22, this document request is overly broad to the
extent it seeks, without limitation, all documents reviewed and used in the preparation of
disclosures and answers regardless of whether those documents are relevant to a claim or defense
in this action. The Court will limit this request to all documents specifically identified in
Plaintiff’s initial disclosures and answers to his interrogatories, including any supplemental
disclosures and interrogatories.
In particular, Defendant sought the production of documents identified in Plaintiff’s
initial disclosures, namely the 15 documents with Bates numbers COLLINS 00001-00031, in
addition to “[t]en recordings and segments of recordings of conversations between Collins and
Defendant’s employees relating to his work. (R. Doc. 23-2 at 2-3). It appears that Plaintiff has
produced these documents and this issue is resolved. (See R. Doc. 34-1 at 6-7).
IT IS ORDERED that Plaintiff must provide supplemental responses to Interrogatory
No. 22 and Request for Production No. 5, as detailed above, within 10 calendar days of the date
of this Order, or as otherwise agreed upon by the parties.
3. Requests for Production Nos. 6-9
Requests for Production Nos. 6-9 collectively seek documents pertaining to Plaintiff’s
allegations of discrimination, failure to accommodate, and other alleged unlawful treatment.
Request for Production Nos. 6-9, and Plaintiff’s response, are as follows:
Request for Production No. 6: All documents that memorialize, substantiate, or
support the allegations of discrimination, failure to accommodate a disability,
retaliation, or other unlawful treatment as described in the Complaint, including, but
not limited to:
a. affidavits, declarations, handwritten statements, videotaped statements,
audio recordings, or other recorded statements from Plaintiff or any other
persons, including but not limited to current or former employees, agents, and
representatives of ControlWorx; and,
b. logs, diaries, calendars, notes, records, and other documents made or kept
by Plaintiff that memorialize or reflect the way in which Plaintiff was
allegedly treated unlawfully at ControlWorx according to the allegations and
claims asserted in the Complaint.
Response to Request for Production No. 6: OBJECT calls for attorney client
privilege, the question as overbroad. Seeks information that is not relevant to any
claim and not proportional to the needs of the case.
Request for Production No. 7: All communications, emails, texts, messages, videos,
and other documents, including all electronically stored information and social media
posts, tweets, or replies, regarding the facts and circumstances that are the subject of
the allegations in the Complaint that Plaintiff sent to or received from any person,
excluding any legal counsel retained to represent Plaintiff in connection with this
matter to the extent such communications are subject to the attorney-client privilege.
Response to Request for Production No. 7: OBJECT calls for attorney client
privilege, the question as overbroad. Seeks information that is not relevant to any
claim and not proportional to the needs of the case.
Request for Production No. 8: All documents reflecting any complaints or reports
of failure to accommodate a disability, or other unlawful treatment, as alleged in your
Complaint made by Plaintiff to management, human resources personnel, or other
person in a supervisory or leadership position at ControlWorx.
Response to Request for Production No. 8: OBJECT calls for attorney client
privilege, the question as overbroad. Seeks information that is not relevant to any
claim and not proportional to the needs of the case.
(R. Doc. 23-7 at 10-12).
The foregoing documents requests seek information within the scope of discovery. The
requests are relevant to Plaintiff’s employment discrimination claims and proportional to the needs of
this case. To the extent Plaintiff claims attorney-client privilege with respect to any responsive
documents, he may withhold or redact the responsive document and produce an appropriate
privilege log under Rule 26(b)(5). According to Plaintiff’s supplemental response, he has appears
produced all responsive documents. (See R. Doc. 34-1 at 6-8).
IT IS ORDERED that Plaintiff must provide supplemental responses to Request for
Production No. 6-9, as detailed above, within 10 calendar days of the date of this Order, or as
otherwise agreed upon by the parties.
E. Additional Discovery Sought by Defendant
Defendant also seeks the opportunity to conduct additional discovery, including the
issuance of supplemental interrogatories regarding Plaintiff’s audio recordings. The Court will
require Plaintiff to appear for a supplemental deposition (consistent with the parties’ agreement)
after supplemental discovery responses are provided consistent with this Order. The
supplemental deposition is limited to one day of 7 hours. Defendant may question Plaintiff
regarding any topic within the scope of discovery, including the creation, preservation, chain of
custody, and control of all audio recordings produced. The Court will not allow additional
written discovery at this time.
F. Flood-Related Loss of Electronically Stored Information
Defendant also seeks an order requiring Plaintiff to state affirmatively whether the
electronically stored information purportedly lost in the recent flooding included any information
pertinent to this lawsuit and to submit the damaged storage devices for an inspection by a
computer forensics specialist. In seeking an extension of his time to oppose this motion, Plaintiff
stated that he and his counsel had “been able to verify that no electronic information was lost and
Mr. Collins had items related to this case in a cloud format.” (R. Doc. 26 at 2). It therefore
appears that Plaintiff has represented that he has not, in fact, lost access to any electronically
stored information in his possession, custody, or control in light of the alleged flood damage.
Defendant may question Plaintiff more about this issue at his reopened deposition.
III. Conclusion
For the foregoing reasons,
IT IS ORDERED that Defendant’s Motion to Compel Discovery Responses and for
Related Relief (R. Doc. 23) is GRANTED IN PART and DENIED IN PART. Plaintiffs must
provide supplemental responses to Defendant’s Interrogatory Nos. 17, 18, 22, and Request for
Production Nos. 5, 6, 7, 8, 9, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,
as detailed in the body of this Order, within 10 calendar days of the date of this Order, or as
otherwise agreed upon by the parties. If Plaintiff is unable to locate responsive documents to any
request for production after a diligent search, he must expressly state this in his supplemental
response and provide a brief explanation of the search conducted.
IT IS FURTHER ORDERED that to the extent Plaintiff finds any response in his
“Supplemental Answer to Discovery” (R. Doc. 34-1) sufficient to comply with this Order, he
must nevertheless restate his supplemental responses in compliance with this Order.
IT IS FURTHER ORDERED that all supplemental responses to interrogatories shall be
verified and signed by Plaintiff.
IT IS FURTHER ORDERED that all supplemental responses to requests for documents
must specifically identify which documents Plaintiff has produced (or will produce) that are
responsive to each particular document request.
IT IS FURTHER ORDERED that Plaintiff must appear for a supplemental deposition,
not to exceed one day of 7 hours, within 30 days of the date of this Order, or as otherwise agreed
upon by the parties. No further written discovery will be allowed at this time.
IT IS FURTHER ORDERED that all supplemental responses to interrogatories shall be
verified and signed by Plaintiff.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Oral Argument (R. Doc. 35) is
DENIED.
IT IS FURTHER ORDERED that the parties shall bear their own costs pursuant to
Rule 37(a)(5)(C).
Signed in Baton Rouge, Louisiana, on September 27, 2021.
S
RICHARD L. BOURGEOIS, JR.
U NITED STATES MAGISTRATE JUDGE