The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SHARON LEWIS, CIVIL ACTION
Plaintiff
VERSUS NO. 21-198-SM-RLB
BOARD OF SUPERVISORS OF LOUISIANA
STATE UNIVERSITY AND AGRICULTURAL
AND MECHANICAL COLLEGE,
Defendant
ORDER AND REASONS
Now before the court is a Motion for Reconsideration of this Court’s Order on
Motion to Extend Discovery Deadlines1 and a Motion to Compel Production of Cell Phone
Data, Enforce Court’s Orders, and Stay Proceedings, both filed by the Board of
Supervisors of Louisiana State University and Agricultural and Mechanical College (the
“Board”).2 Also before the court is a Motion to Quash filed by Plaintiff Sharon Lewis.3
BACKGROUND
On August 15, 2022, the Board served on Plaintiff requests for production that
“specifically sought production of relevant communications, including[,] but not limited
to, communications between Plaintiff and others that relate to her allegations.”4 These
requests encompassed information on Plaintiff’s personal cell phone.5 In full, they read:
Request for Production No. 13: Please produce all notes and/or
statements by you, including but not limited to, handwritten notes,
electronic notes, letters, memos, emails, timelines, diaries, and
appointment books, that relate to any allegations in the Second Amended
Complaint.
1 R. Doc. 445.
2 R. Doc. 453.
3 R. Doc. 458.
4 R. Doc. 453-1 at p. 2.
5 Id.
Request for Production No. 14: Please produce all communications,
including but not limited to, any statements, written or electronic,
exchanged by and between you and any third parties (other than those
directed to your attorneys) that are related to any of the allegations in the
Second Amended Complaint.
Request for Production No. 15: Please produce all postings, statuses,
or direct messages, whether to or from you, which were exchanged on any
social networking site which are related to your claims, or alleged events, or
relating to any damages you claim herein.6
The parties discussed issues concerning the production of data from Plaintiff’s
personal cell phone at the May 18, 2023, status conference.7 The Court’s minute entry
ordered the parties’ counsel to meet and confer within the following week “to attempt to
resolve discovery disputes surrounding the production of information contained on
Plaintiff’s personal cell phone.”8 The parties met, and, in June 2023, “the Board provided
Plaintiff with proposed search terms and other parameters.”9 Eventually, the parties
agreed on an expert who would retrieve the data,10 Brian Wilson, and Wilson began work
using the agreed-upon custodians and agreed-upon search terms.11
After additional delays in the production of the data from Plaintiff’s cell phone, the
Board raised the issue again at the September 27, 2023, status conference.12 The Court
directed Plaintiff’s counsel to take steps immediately to access the data (gathered using
both search terms and custodians) and review it for privileged or highly personal
communications.13 The Court further ordered Plaintiff to “inform counsel for Defendant”
by October 2, 2023, whether any messages on Plaintiff’s personal cell phone will be
6 R. Doc. 453 at p. 1–2.
7 R. Doc. 342.
8 Id. at p. 2.
9 R. Doc. 453-1 at p. 2.
10 Id. at p. 3.
11 Plaintiff provided a representation of the search terms and related hits. See R. Doc. 457-1 at p. 2.
12 R. Doc. 408.
13 Id. at p. 3.
withheld because they contain information that is subject to attorney-client privilege or
contain information of a highly personal nature” and, by October 4, 2023, produce to the
Court a privilege log and the entries to be withheld.14
On October 4, 2023, Plaintiff filed an unopposed motion for an extension of the
discovery deadlines relating to data from her personal cell phone.15 The Court granted
that extension, allowing Plaintiff until October 19, 2023 to produce the information from
her cell phone and allowing the Board until November 3, 2023, to review the data, conduct
any related discovery, and file any related motions.16
On October 6, 2023, Plaintiff received from Wilson all data from the cell phone,
not just those messages limited to custodians or keywords.17
On October 17, 2023, the expert provided Plaintiff with cell phone data retrieved
pursuant to the custodian search (the “Custodian Data”) while continuing to search for
data responsive to the agreed-upon search terms (the “Keyword Data”).18 On October 20,
2023, the parties jointly moved for another extension of time for Plaintiff to produce both
the Custodian Data and the Keyword Data to the Board and for the Board to review that
data and raise any related issues.19 The Court granted that extension at the October 23,
2023, status conference.20 Plaintiff was allowed until November 1 to produce both the
Custodian Data and the Keyword Data from her cell phone, and the Board was allowed
until November 16, 2023, to review the data, conduct any related discovery, and file any
related motions.21
14 Id.
15 R. Doc. 416.
16 R. Doc. 417.
17 R. Doc. 445-1 at p. 6.
18 Id.
19 R. Doc. 435.
20 R. Doc. 437.
21 R. Doc. 437 at p. 2.
On October 23, 2023, the expert provided Plaintiff a second production, limited to
the Keyword Data.22
On November 1, 2023, Plaintiff filed another motion, this time opposed, for an
extension of time to produce both the Keyword Data and Custodian Data.23 Plaintiff’s
counsel has consistently represented that the Custodian Data is a massive amount of data,
more than he can reasonably review for privilege.24 The Court granted the motion at a
status conference the next day, November 2, 2023,25 and, given “the volume of the
information produced from Plaintiff’s cell phone,” the Court further ordered that
Plaintiff’s counsel was required to produce only “that data transmitted to Plaintiff’s
counsel by the parties’ joint expert on October 23, 2023,”26 that is, the Keyword Data. The
Court ordered that by November 8, 2023, Plaintiff “provide that data to defense counsel,
subject to redactions for highly personal or irrelevant communications and attorney-
client communications” and “provide the Court with the withheld data and a privilege
log.”27
On November 8, 2023, the Board filed its Motion to Reconsider Court’s November
2, 2023 Ruling on Production of Plaintiff’s Cell Phone Data, and Request for Expedited
Consideration (the “motion to reconsider”).28 The Board asked the court to “order
Plaintiff to review and produce her cell phone information responsive to the [previously
agreed-upon] custodians, or, in the alterative, require Plaintiff to confer with the Board
22 R. Doc. 445-1 at p. 7; R. Doc. 463 at p. 1.
23 R. Doc. 438.
24 See R. Doc. 438 at p. 1 (“The expert . . . produced 16 GB of data to Plaintiff on October 17, 2023.”) It is
unclear what is contained in that 16 GB of data (e.g., text messages, images, videos) or how many specific
entries are contained in the data set that required the review of Plaintiff’s counsel.
25 R. Doc. 441.
26 Id. at p. 2.
27 Id.
28 R. Doc. 445.
in an effort to pare down the custodians and corresponding data requiring review.”29 In
response to the Board’s motion to reconsider, the Court granted the Board’s request for
expedited consideration and ordered the parties, by November 15, 2023, to “meet and
confer regarding ways in which to narrow or limit the custodians and corresponding data
from Plaintiff’s personal cell phone requiring review.”30
That same day, November 8, 2023, Plaintiff’s counsel produced all Keyword Data
and a privilege log to the Court for in camera review. This production was flawed in
significant ways. The Excel file containing the messages was corrupted and could not be
opened, a voicemail file from Plaintiff’s cell phone attached to the email could not be
played using any media player, and other irrelevant documents were also provided.
Further, the provided privilege log did not provide the text of the messages to be reviewed,
so even had the spreadsheet been operational, it would have required the Court to
compare dozens of messages listed on the privilege log as privileged with the scores of
messages produced.
Also on November 8, 2023, Plaintiff sent a working spreadsheet of all Keyword
Data, with privileged data included, to the Board. Counsel for the Board reported in a
December 1, 2023, email to the Court that, upon receipt of the spreadsheet from Plaintiff’s
counsel on November 8, the Board’s counsel “discovered that it contained entries that
were seemingly attorney-client privileged.” The Board’s counsel represents they “notified
Plaintiff’s counsel of the disclosure of privileged information, but “[r]ather than sending
the Board’s counsel an updated spreadsheet omitting the privileged information,
Plaintiff’s counsel requested that [the Board’s counsel] delete the privileged information.”
The Board’s counsel represents this has been done. As a result, the Board now has all of
29 R. Doc. 445 at pp. 1–2.
30 R. Doc. 451.
the Plaintiff’s Keyword Data that was collected by the keyword search, less any privileged
communications.
On November 13, 2023, via the Court’s efile address, Plaintiff sent the Court a
working Excel spreadsheet of all Keyword Data. On November 15, at the Court’s
instruction, Plaintiff sent the Court a spreadsheet of just those messages in the Keyword
Data withheld as privileged or highly personal, a corresponding privilege log, and a key to
identify the persons associated with the phone numbers included in the spreadsheet.
On November 13, 2023, the Board filed its Motion to Compel Production of Cell
Phone Data, Enforce Court’s Orders, and Stay Proceedings Under Rule 37(b) and Request
for Expedited Consideration (the “motion to compel”).31 In its motion, the Board asks the
Court to order Plaintiff “to produce all responsive data . . . in compliance with this Court’s
orders” and seeks a stay of certain remaining discovery deadlines.32 Plaintiff filed a
response in opposition on November 15, 2023.33
Separately, on November 15, 2023, Plaintiff filed her Motion to Quash the Board’s
Discovery Request for Plaintiff’s Private Cell Phone Data outside of November 2020 and
December 2020 Time Periods (the “motion to quash”).34 In that motion, Plaintiff seeks to
substantially limit the Board’s requests for production as to Plaintiff’s “private cell phone
data” and asks the Court to “narrowly tailor” the Board’s discovery of the data on
Plaintiff’s cell phone, including limiting the discoverable time period to just November
and December of 2020.35 On November 19, 2023, the Board filed its response in
opposition to Plaintiff’s motion to quash.36
31 R. Doc. 453.
32 Id.
33 R. Doc. 457.
34 R. Doc. 458.
35 Id.
36 R. Doc. 463.
On November 20, 2023, the Court emailed the Board to ask “whether the Board
has custody of, or access to, the LSU cell phones used by any of the current or former LSU
employees whose testimony the Board claims is relevant to this action.” The Court also
asked “whether the Board has obtained from Mr. Ausberry any communications he
received from Plaintiff on his LSU cell phone or his personal cell phone.” The Board
replied that day via emailed letter.37
At the November 22, 2023, pretrial conference,38 the Court discussed cell phone
discovery with the parties and summarized the above timeline. Because the Board’s
November 20 letter with respect to the Custodian Data indicated a willingness to reduce
the number of custodians, the Court asked the Board to offer a more limited set of
custodians. The Board tentatively agreed to seek messages from Plaintiff’s personal phone
with three custodians: Verge Ausberry and two individuals whose names remain under
seal from the public.39 At the conference, the Court directed Plaintiff’s counsel to ask the
data retrieval expert how many messages on Plaintiff’s personal phone were between
Plaintiff and Verge Ausberry. Via email on November 24, 2023, Plaintiff’s counsel
reported there were 1,036 messages between Plaintiff and Verge Ausberry. The Court then
asked Plaintiff to provide those messages for in camera review.
On November 27, 2023, via efile, Plaintiff’s counsel provided a cloud storage link
to the messages between Plaintiff and Verge Ausberry; those messages are a portion of
the Custodian Data. The Court has reviewed those messages in camera.
The Court now rules on the Board’s motion for reconsideration, the Board’s motion
to compel, and Plaintiff’s motion to quash.
37 Included in this Order and Reasons as Attachment 1.
38 R. Doc. 494.
39 The two individuals have made allegations of sexual harassment against certain athletics department
employees at LSU.
LAW AND ANALYSIS
The focus of the three motions is the Plaintiff’s production of communications
from her personal cell phone. The Board’s position is that those communications are
discoverable because “Plaintiff has placed human interaction at the center of this case,”
and her “interactions” with the agreed-upon custodians, as recorded in the
communications on her cell phone, are “relevant to the claims and defenses in this
matter.”40 In response, Plaintiff contends the Board’s requests for production are “overly
broad, not relevant[, nor] proportional to Plaintiff’s Title IX and Title VII claims.”41
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that discovery must
be “proportional to the needs of the case,” and Courts must weigh whether “the burden or
expense of the proposed discovery outweighs its likely benefit.”42 When weighing the costs
and benefits of certain discovery under Rule 26, Courts must consider “the importance of
the issues at stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources,” and “the importance of the discovery in
resolving the issues.”43 To be sure, “Rule 26(b) has never been a license to engage in an
unwieldy, burdensome, and speculative fishing expedition.”44 “The parties may begin
discovery without a full appreciation of the factors that bear on proportionality,” 45 but
ultimately, “[t]he parties and the court have a collective responsibility to consider the
proportionality of all discovery and consider it in resolving discovery disputes.”46
40 R. Doc 463 at p. 3. The Board also makes a separate argument that Plaintiff’s objections to the the Board’s
requests for production, as provided in her motion to quash, are untimely. See id. at pp. 3–4.
41 R. Doc. 458-1 at p. 1.
42 Fed. R. Civ. P. 26(b)(1).
43 Id.
44 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir.2011) (quotation omitted).
45 Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 467 (N.D. Tex. 2015).
46 Id.
Rule 34 of the Federal Rules of Civil Procedure, which governs the production of
electronically stored information (“ESI”) like Plaintiff’s communications on her personal
cell phone, explicitly provides that a request for production of ESI must fall “within the
scope of Rule 26(b)”;47 in other words, such a request must be proportional to the needs
of the case.
“Inspection or testing of certain types of [ESI] or of a responding party's electronic
information system may raise issues of confidentiality or privacy.”48 “The utility of
permitting a forensic examination of personal cell phones must be weighed against
inherent privacy concerns.”49 Further, the utility of the examination must be clearly
defined and specified: “[M]ere skepticism that an opposing party has not produced all
relevant information” and “a mere desire to check that the opposition has been forthright
in its discovery responses” do not suffice to “warrant drastic discovery measures like an
exhaustive computer forensic examination.”50 Courts should “guard against” the “undue
intrusiveness” that may result from such an examination.51
Because the Keyword Data, less attorney-client communications, has been
produced to the Board, the Court need only consider the production of the Custodian
Data. The Court has reconsidered its order that Plaintiff’s counsel was required to produce
only “that data transmitted to Plaintiff’s counsel by the parties’ joint expert on October
23, 2023,” that is, the Keyword Data. The Court will require Plaintiff to provide to the
Board that portion of the Custodian Data consisting of communications between Plaintiff
and Verge Ausberry from July 17, 2016 to March 24, 2021, provided to the Court on
47 Fed. R. Civ. P. 34(a).
48 Committee Notes on Rules—2006 Amendment, Fed. R. Civ. P. 34.
49 Tingle v. Hebert, CV 15-626-JWD-EWD, 2018 WL 1726667, at *8 (M.D. La. Apr. 10, 2018) (citation
omitted).
50 Id. at *6 (collecting cases) (citations and quotations omitted).
51 Committee Notes on Rules—2006 Amendment, Fed. R. Civ. P. 34.
November 27, 2023, via efile, in a cloud storage link. No attorney-client or other privilege
is applicable to these text messages, and the data is relevant to at least some of the issues
to be decided in this action. The Court will not require the Plaintiff to provide the text
messages included in the Custodian Data between Plaintiff and A.J. or N.J. Those two
individuals have been deposed by the Board in connection with this litigation and, it
appears from the deposition, the Board is in possession of text messages from at least one
of their cellphones. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that
discovery must be “proportional to the needs of the case,” and Courts must weigh whether
“the burden or expense of the proposed discovery outweighs its likely benefit.” The Court
finds that the production of the text messages between Plaintiff and Verge Ausberry is
sufficient to meet the needs of the case and that the burden of any further production
would outweigh its likely benefit.
CONCLUSION
Upon consideration of the facts and the law, and the parties’ arguments, the
Motion for Reconsideration52 is GRANTED IN PART. The Court’s Order included in
the Court’s November 2, 2023, Minute Entry53 with respect the Custodian Data will be
reconsidered.
52 R. Doc. 445.
53 R. Doc. 441.
Keyword Data
The Board’s Motion to Compel Production of Cell Phone Data54 with respect to the
Keyword Data is DENIED as moot, and the Plaintiff’s Motion to Quash55 is DENIED as
moot. The Plaintiff is not required to provide any additional Keyword Data to the
Defendant.
Custodian Data
The Board’s Motion to Compel Production of Cell Phone Data56 with respect to the
Custodian Data is GRANTED IN PART, and the Plaintiff’s Motion to Quash57 is
DENIED IN PART.
IT IS ORDERED that Plaintiff produce to Defendant by Sunday, December
3, 2023, her private cell phone text messages between herself and Verge Ausberry from
July 17, 2016, to March 24, 2021.58
Supplemental Exhibit Lists
IT IS FURTHER ORDERED that Plaintiff or Defendant may add text messages
from the production on Sunday December 3, 2023 to their exhibit lists by filing a
supplemental exhibit list by Monday, December 4, 2023, at 5:00 p.m.59 Any text
messages added as exhibits must be included in a separate bench book delivered to the
Court by Tuesday, December 5, 2023, at 12:00 p.m.
54 R. Doc. 453.
55 R. Doc. 458.
56 R. Doc. 453.
57 R. Doc. 458.
58 These are the email messages sent to the Court’s efile address by the Plaintiff on November 27, 2023. The
parties are reminded that the Court will not allow the introduction of cumulative evidence at trial, including
cumulative text and email messages. Neither will the Court allow the introduction of purely personal
cellphone messages between Plaintiff and her family and friends. Fed. R. Evid. 403.
59 Neither party may include as exhibits any videos produced from Plaintiff’s cell phone because any
probative value they may have is exceeded by the possibility of unfair prejudice. Fed. R. Evid. 403.
IT IS FURTHER ORDERED that Plaintiff and Defendant may file objections to
any of the text messages listed on a supplemental exhibit list by Wednesday,
December 6, 2023 at 12:00 p.m.
IT IS FURTHER ORDERED that the Court will hold a videoconference with all
counsel on Thursday, December 7, 2023 at 11:00 a.m. to discuss trial preparation,
including objections to exhibits.6° The Court will provide instructions for participating in
the conference to all parties.
IT IS FURTHER ORDERED that the Board’s Motion for Reconsideration® and
Motion to Compel Production of Cell Phone Data®? are otherwise DENIED as the
additional production requested is disproportional of the needs of the case.®3
New Orleans, Louisiana, this 2nd day of December, 2023.
SUSIE fone
UNITED STATES DISTRICT JUDGE
60 The Court will consider the Plaintiffs Motions in Limine with respect to her LSU and private cellphones
at that time, as well as the Board’s opposition. R. Docs. 478, 479, and 504.
61R, Doc. 445.
62 R. Doc. 453.
63 The Board’s request for attorneys’ fees and costs is denied.
12