The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
DO NO HARM CASE NO. 5:24-CV-00016
VERSUS JUDGE EDWARDS
JOHN BEL EDWARDS MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
Before the Court is the Objection to Memorandum Order Compelling
Production (R. Doc. 25) (“Magistrate Appeal”) filed by the Defendant, Governor Jeff
Landry. The Governor seeks the reversal of the Memorandum Order issued by
Magistrate Judge Hornsby (R. Doc. 24), wherein he granted in part and denied in
part the Motion to Compel filed by the Plaintiff, Do No Harm (R. Doc. 20). After a
thorough review of the record and for the reasons set forth herein, the Court finds
that the Magistrate Judge’s ruling was not clearly erroneous or contrary to law.
Accordingly, the Memorandum Order is AFFIRMED.
The Plaintiff brought this suit to challenge the constitutionality of La. R.S.
37:1263(B), which it argues imposes a racial mandate on the Governor when making
appointments to the Louisiana Board of Medical Examiners (the “Board”). At issue in
this Magistrate Appeal is the Magistrate Judge’s Order requiring the Governor to
supplement his responses to the Plaintiff’s discovery requests by obtaining
information from the Board and the Louisiana State Archives. The Governor argues,
among other things, that the Magistrate Judge clearly erred in deciding that the
Governor had the “legal right and practical ability” to obtain the documents from the
state archive.1 In response, the Plaintiff asserts that the Governor “makes no
substantive argument,” but that the Governor merely disagrees with the Magistrate
Judge that it would be easier for him to obtain the materials from the archive (R. Doc.
28 at 4).
All discovery matters have been referred to the Magistrate Judge in accordance
with 28 U.S.C. §636(b)(1)(A) and Standing Order 3.112 of this Court. Under Rule
72(a) of the Federal Rules of Civil Procedure, a party may appeal a magistrate judge’s
order on a referred matter to the district judge. The district judge may set aside the
magistrate judge’s order when it is “clearly erroneous or contrary to law.” 28 U.S.C.
§636(b)(1)(A). On discovery matters, magistrate judges are “afforded great
discretion.” Albermarle Corp v. Chemtura Corp. 2008 WL 11351528, *1 (M.D. La. Apr.
22, 2008) (citing Merrit v. International Bro. of Boilermakers, 649 F.2d 1013 (5th Cir.
1981)). Under a “clearly erroneous or contrary to law” standard of review, district
courts “shall affirm the decision of the magistrate judge unless, based on all the
evidence, the court is left with a definite and firm conviction that the magistrate judge
made a mistake.” Progressive Waste Solutions of La, Inc. v. Lafayette Consolidated
Government, 2015 WL 222392, *2 (W.D. La. Jan. 14, 2015). “A party is not entitled to
raise new theories or arguments in its objections [to the magistrate judge’s order]
that the party did not present before a magistrate judge.” Fulford v. Transport Service
Co., 2004 WL 744875, *2 (E.D. La. Apr. 2, 2004) (citing Cupit v. Whitley, 28 F.3d 532,
535 (5th Cir. 1994)).
1The Governor does not raise an objection to the Magistrate Judge’s finding pertaining to his obligation
to retrieve materials from the Board. Accordingly, that finding stands.
Here, the Governor has not “overcome [the] high hurdle” required for the Court
to reverse the Magistrate Judge’s ruling. Fulford, 2004 WL 744875, *2. The
Governor’s opposition to Plaintiffs motion to compel and the instant appeal make
clear that the materials in the state archive are “equally” available to both parties.
(R. Doc. 22 at 3; R. Doc. 25 at 7). Further, the assertion that state constitutional and
statutory law constitute “boundaries” which deny the Governor practical access to the
documents is unsupported by the record. The fact that the state archive is the
custodian of the records, without more, does not mean that those records are beyond
the Governor’s legal and practical reach.
The Governor has not shown clear error in the Magistrate Judge’s findings that
he has the “legal right and practical ability” to obtain the records or that it would be
easier for the him to obtain the records. The arguments made by the Governor
concerning various privileges (attorney-client, work product, executive, deliberative
process) and undue burden are waived because they were not presented to the
Magistrate Judge. Accordingly,
IT IS ORDERED that the Governor shall obtain the information and
documents requested and supplement his responses to discovery no later than
December 17, 2024.
THUS DONE in Chambers on this 25th day of November, 2024.
ITED STATES DISTRICT JUDGE