Raine v. BrandSafeway

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

LEILANI RAINE CIVIL ACTION

VERSUS NO. 24-265-BAJ-RLB

BRANDSAFEWAY LLC, ET AL.

ORDER

Before the Court is Defendant’s Motion to Compel Discovery Responses filed on August

28, 2024. (R. Doc. 8). The deadline to file an opposition has expired. LR 7(f). Accordingly, the

motion is unopposed.

I. Background

On or about April 13, 2023, Leilani Raine (“Plaintiff”) initiated this action in the 23rd

Judicial District Court, Ascension Parish, Louisiana, naming as defendant BrandSafeway [LLC]

(“Defendant”) and the fictitious entity XYZ Insurance Company. (R. Doc. 1-1 at 11-13). Plaintiff

alleges that she suffered personal injuries while working as an asbestos worker at the BASF

plaint in Geismar, Louisiana when she “tripped and fell due to a defective and unreasonably

dangerous scaffolding entryway that had been constructed by [Defendant].” (R. Doc. 1-1 at 11-

12). Defendant removed this action on April 3, 2024, asserting that an exercise of diversity

jurisdiction under 28 U.S.C. § 1332 is proper. (R. Doc. 1).

On June 24, 2024, Defendant served its First Set of Discovery Requests to Plaintiff,

which consist of 23 interrogatories and 36 requests for production. (R. Doc. 8-2). Request for

Production No. 33 seeks Plaintiff’s written authorization consenting to the release of medical,

employment, government, and financial records. After Plaintiff failed to provide responses to

these discovery requests, the parties held a discovery conference on July 15, in which Plaintiff’s

counsel obtained an extension until July 22, 2024 to provide responses. (R Docs. 8-3, 8-4). No

responses were provided. Defendant then informed Plaintiff that a motion to compel would be

filed if responses were not received by July 26, 2024. (R. Doc. 8-5).

On July 24, 2024, the parties filed a Joint Motion for Entry of Protective Order. (R. Doc.

6). The Court granted the motion and entered the Protective Order, which governs the exchange

of confidential information in discovery, into the record. (R. Doc. 7).

It is unclear whether counsel for the parties discussed another extension of Plaintiff’s

deadline to provide discovery responses. At any rate, on August 15, 2024, Plaintiff’s counsel

mailed a copy of Plaintiff’s responses to the discovery requests, stating in the cover letter that

because Plaintiff lives out of state, Plaintiff’s counsel would be providing signed releases once

she returns to his office. (R. Doc. 8-7 at 1).

On August 20, 2024, defense counsel sent an email stating that if Defendant did not

receive “verified responses and signed authorizations” by August 27 at noon, that Defendant

would file a motion to compel. (R. Doc. 8-8).

On August 28, 2024, Defendant filed the instant Motion to Compel (R. Doc. 8), which

seeks an order compelling Plaintiff to provide signed interrogatory responses and written

authorizations and an award of reasonable fees. Plaintiff failed to respond to the instant Motion

to Compel with a timely opposition. See LR 7(f).

II. Law and Analysis

A. General Legal Standards for Discovery

“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)).

B. Verification of Interrogatories

Plaintiff did not sign or verify, under oath, any of her 23 answers to Defendant’s

interrogatories.

Rule 33(b)(3) provides that “[e]ach interrogatory must, to the extent it is not objected to,

be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3); see Dugas v.

Mercedes-Benz USA, LLC, No. 12-02885, 2014 WL 458083, at *2 (W.D. La. Feb. 3, 2014)

(warning counsel that “verification of discovery responses is required” by Rule 33(b)(3) and

noting that “further violation of that requirement will not be tolerated). Furthermore, Rule

33(b)(5) provides that the “person who makes the answers must sign them and the attorney who

objects must sign any objections.” Fed. R. Civ. P. 33(b)(5).

Given the foregoing, the Court will order Plaintiff to sign and verify, under oath, her

answers to Defendant’s interrogatories within 7 days of the date of this Order. See Brown v.

Clark, No. 18-1069, 2019 WL 3728274 (M.D. La. Aug. 7, 2019).

C. Signed Authorization Forms

Defendant’s Request for Production No. 33 requests Plaintiff to provide written

authorization consenting to the release of medical, employment, government, and financial

records. (R. Doc. 8-2 at 15-16). Defendant provided the blank authorization forms. (R. Doc. 8-2

at 20-43).

Plaintiff did not object to Request for Production No. 33. Instead, Plaintiff responded

with “Attached.” (R. Doc. 8-7 at 11). Plaintiff did not, however, provide signed authorization

forms. As discussed above, Plaintiff’s counsel represented that Plaintiff would sign the

authorization forms the next time she traveled to Louisiana and visited Plaintiff’s counsel’s

office. (R. Doc. 8-7 at 1). Plaintiff’s counsel did not provide a time frame for when these

authorizations would be provided or otherwise explain why Plaintiff could not sign and return

the forms by electronic means.

The Fifth Circuit has suggested, in dicta, that Rule 34 may be an appropriate mechanism

by which to require a party to sign an authorization form. See McKnight v. Blanchard, 667 F.2d

477, 481-82 (5th Cir. 1982). Various district courts have compelled parties to sign authorization

forms. see Baqer v. St. Tammany Par. Gov't, No. 20-980, 2023 WL 4846828, at *5 (E.D. La.

July 28, 2023) (“[N]umerous courts within the Fifth Circuit, including this Court, have

recognized that Rule 34, along with Rule 37, empower federal courts to compel parties to sign

written authorizations consenting to the production of various documents.”) (citing cases); see

also Zamora v. GC Servs., LP, No. 15-00048, 2016 WL 8853096, at *4 (W.D. Tex. Aug. 19,

2016) (“Recognizing a split in authority as to whether a party may be compelled to sign an

authorization for the release of records through a discovery request under Rule 34, the majority

of courts have concluded that a party may be so compelled.”) (citing cases).

Here, Plaintiff has had the opportunity (1) to provide written objections to signing the

releases and (2) to file an opposition to the instant Motion to Compel explaining why she should

not be compelled to sign the authorization forms. Plaintiff has waived her objections with respect

to these forms, other than those pertaining to 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.”).

Under these circumstances, and given the entry of a Protective Order governing the

exchange of confidential information in this action, the will order Plaintiff to execute the

authorization forms as sought by Request for Production No. 33 within 7 days of the date of this

Order. See Brocks v. Prime Prop. & Cas. Ins. Co., Inc., No. 22-903, 2023 WL 3102564, at *3

(M.D. La. Apr. 26, 2023).

D. Award of Reasonable Expenses

Finally, Defendant seeks an award of reasonable expenses incurred in bringing the instant

Motion to Compel.

Rule 37 provides the following:

(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After

Filing). If the motion is granted--or if the disclosure or requested discovery is

provided after the motion was filed--the court must, after giving an opportunity to

be heard, require the party or deponent whose conduct necessitated the motion,

the party or attorney advising that conduct, or both to pay the movant's reasonable

expenses incurred in making the motion, including attorney's fees. But the court

must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain

the disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection was

substantially justified; or

(iii) other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A).

Here, the Court will not award recovery of reasonable expenses. Defendant does not

argue that Plaintiff’s discovery responses dated August 15, 2024 were untimely. The record

indicates that after the responses were received, defense counsel did not seek to resolve the

specific issues raised in this Motion to Compel by conferring in good faith to obtain verified

interrogatory responses and signed written authorizations without court action. Instead, defense

counsel sent, by email, a unilateral demand and deadline to provide the foregoing. (See R. Doc.

8-8). Defendant does not certify, as required by the Court’s Scheduling Order, that defense

counsel attempted to confer in person or by telephone for the purposes of amicably resolving the

particular issues raised by this Motion to Compel. (See R. Doc. 5 at 1).

Under these circumstances, the Court will not award the recovery of expenses.

III. Conclusion

For the foregoing reasons,

IT IS ORDERED Defendant’s Motion to Compel Discovery Responses (R. Doc. 8) is

GRANTED. Plaintiff shall provide signed and verified interrogatory responses and signed

written authorization forms within 7 days of the date of this Order. Failure to comply with this

Order could result in any appropriate sanctions in accordance with the Federal Rules of Civil

Procedure.

IT IS FURTHER ORDERED that the parties shall bear their own costs.

Signed in Baton Rouge, Louisiana, on September 19, 2024.

S

RICHARD L. BOURGEOIS, JR.

U NITED STATES MAGISTRATE JUDGE