Lackey et al v. SDT Waste and Debris Services, L.L.C. et al

Filing 224

ORDERED that 202 Motion to Compel Answers to Plaintiffs' First Request for Admissions and Production of Documents in Response to Plaintiffs' Third and Fourth Requests for Production of Documents, and for Sanctions and Attorney Fees is DENIED IN PART and DENIED AS MOOT IN PART as stated herein. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TANYA LACKEY, ET AL.

CIVIL ACTION

VERSUS

NO: 11-1087

SDT WASTE AND DEBRIS SERVICES, ET AL.

SECTION: “H” (4)

ORDER

Before the Court is Plaintiffs, Tanya Lackey, et al.’s (collectively “Plaintiffs”) Motion to
Compel Answers to Plaintiffs’ First Request for Admissions and Production of Documents in
Response to Plaintiffs’ Third and Fourth Requests for Production of Documents and for
Sanctions and Attorneys Fees (R. Doc. 202). The motion is opposed. See R. Doc. 208. The motion
was heard by oral argument on April 23, 2014.
I.

Background
This is a class action claim, where plaintiffs are several specific types of workers of Defendant,

SDT. The Complaint alleges, inter alia, that SDT forced specific classes of employees to work during
their 30-minute lunch breaks or risk termination, in violation of the Fair Labor Standards Act of 1938,
29 U.S.C. § 201 et seq. (“FLSA”) (R. Doc. 1, p. 2). Under the FLSA and the Louisiana Whistleblower
Act, La. Rev. Stat. Ann. § 23:967, plaintiffs allege that they are entitled to overtime benefits which
SDT never paid. Id. at 5-6. Plaintiffs further allege that SDT engaged in unlawful retaliation by
terminating the employment of those employees who complained about SDT’s practices. Id. at 6-8.
As to the instant motion, Plaintiffs, Tanya Lackey, et al., (collectively “Plaintiffs”) seek this

Court issue an Order compelling Defendants to respond to their First Request for Admissions and
Production of Documents in Response to Plaintiffs' Third and Fourth Requests for Production of
Documents, which were allegedly propounded on February 27, 2014. See R. Doc. 202-1, p. 2.
Plaintiffs contend that on April 1, 2014, Defendants served their objections to these discovery
requests, they allegedly refused to answer the requests for admission, and failed to provide for
inspection and copying any documents which were requested to be produced. Id. Plaintiffs contend
that they conferred in a good faith attempt to resolve these issues on April 2, 2014, but they were
unable to resolve them. Therefore, they filed the instant motion.

II.

Standard of Review
Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain

discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b)(1). The Rule specifies that “[r]elevant information need not be admissible at the trial
if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.
The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately
informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery
does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Furthermore, “it is well
established that the scope of discovery is within the sound discretion of the trial court.” Coleman v.
American Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994).
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less
expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery
sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Id. In

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assessing whether the burden of the discovery outweighs its benefit, a court must consider: (1) the
needs of the case; (2) the amount in controversy; (3) the parties’ resources; (4) the importance of the
issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the
issues. Id. at 26(b)(2)(C)(iii).

Rule 34 provides that a party may request another party to produce “any designated
documents or electronically stored information ... stored in any medium from which information can
be obtained.” Id. at 34(a)(1)(A). This request “must describe with reasonable particularity each
item or category of items to be inspected.” Id. at 34(b)(1)(A). “The party to whom the request is
directed must respond in writing within 30 days after being served.” Id. at 34(b)(2)(A). “For each
item or category, the response must either state that inspection ... will be permitted as requested or
state an objection to the request, including the reasons.” Id. at 34(b)(2)(B). Although Rule 34 does
not provide that untimely objections are waived, the Fifth Circuit has found that the waiver provision
applies equally to Rule 34. See In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989).
III.

Analysis
Plaintiffs contend that their discovery requests were timely propounded. Specifically,

Plaintiffs contend that they propounded discovery requests by fax and email on February 27, 2014
to Defendants. Therefore, Plaintiffs contend that these requests could have been answered by
Defendants within thirty days, or before the discovery deadline, on March 31, 2014. See R. Doc.
202-1, pp. 2-3. However, Plaintiffs contend that rather than provide responses, Defendants objected
to these requests as untimely. Thus they seek an Order from this Court compelling responses.
In opposition, Defendants contend that even though Plaintiffs’ requests were propounded on
February 27, 2014, because they were faxed and emailed only, pursuant to Fed. R. Civ. P. 6(d), they

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should be afforded three more days to respond to the discovery. Therefore, Defendants contend that
the three additional days renders their responses due on April 1, 2014, one day outside the discovery
period. As such, Defendants contend that Plaintiffs’ requests are untimely. Furthermore, Defendants
contend that Plaintiffs fail to cite any jurisprudence or provide any reasons in support of why they
failed to seek discovery until the end of the discovery period, as this action has been pending since
2011. See R. Doc. 208. Therefore on this basis alone, Defendants contend that their motion to
compel should be denied.
During oral argument, counsel for Defendants argued that in particular, Requests for
Production Numbers 1, 2, 3, 4, and 6 all seek information which has already been produced by the
parties throughout the course of this litigation. Specifically, Defendants contend that Request
Numbers 1 and 21 sought for forms which drivers allegedly filled out during their employment with
SDT. Thus, Defendants contend that Plaintiffs knew about these forms long before the case was
filed. Defendants also contend that one of the forms was introduced in a deposition in October 2013,
but Plaintiffs did not propound any requests until February 2014. Therefore, Defendants contend that
Plaintiffs had knowledge of these forms long before February 2014, but provide no reason as to why
they filed untimely discovery requests.
Defendants also contend that Request for Production Numbers 3, 4 and 6,2 which sought for

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Request for Production Number 1, which sought for copies of all driver check out procedure forms dated
from May 2008 until present such as those produced as "Exhibits P-56 A to P-56 LL to Charley Martin's deposition,
for all plaintiffs in the lawsuit," and Request Number 2 which sought for copies of all forms dated from "May 2008
until present such as those produced as Exhibits P-55 to Charley Martin's deposition, for all plaintiffs in the lawsuit."
See R. Doc. 202-1, p. 4.
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Request for Production Number 3 sought for copies of all memoranda (if any) “signed from May 2008
until present by any plaintiff in this lawsuit,” and Request for Production Number 4 sought “for a copy of all records
which indicate that either SDT or IESI or Progressive Waste paid any plaintiff in the lawsuit for working through his
or her meal break for the period May 6, 2008 until present.” See R. Doc. 202-1, pp. 4-6.

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signed versions of several policy memoranda, as well as for documents related to Plaintiffs obtaining
adjustments to their checks, were duplicative of timely requests and responses which Defendants
already provided to Plaintiffs. Therefore, counsel for Defendants contend that they are under a duty
to supplement, and need not reproduce materials that were produced as early as 2011.
After considering the parties arguments, the Court agreed with Defendants and found that
Request for Production Numbers 1, 2, 3, 4, and 6, untimely sought production of information already
requested and produced by Defendants in this action. Therefore, the Court found these requests were
duplicative and unduly burdensome, in addition to being untimely propounded. As such, Plaintiffs’
motion is denied as to Requests for Production Numbers 1, 2, 3, 4, and 6.
Lastly, Request for Production Number 5,3 which sought copies of documents relating to a
prior wage and hour investigation conducted by the Wage and Hour Division of the Department of
Labor, was ultimately resolved by counsel for the Defendants, The Court notes that the Defendants
objected to this request on relevancy grounds, noting that the investigation involved wage and hour,
not lunch breaks, and did not pertain to drivers. However, despite the relevancy objection, counsel
for the Defendants agreed to produce all the documents it had related to this investigation, but
reserved their rights to object to the use of this information at trial. Thus, Plaintiffs’ request as to
Number 5 was therefore denied as moot.
IV.

Conclusion
IT IS ORDERED that Plaintiffs, Tanya Lackey, et al.’s (collectively “Plaintiffs”) Motion

to Compel Answers to Plaintiffs’ First Request for Admissions and Production of Documents

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Request for Production Number 5, sought for a copy of all documents relating to the Investigation of SDT
Waste and Debris Services, LLC (Case Number 1556956), conducted by the District Office of the Wage and Hour
Division of the Department of Labor in 2010. See R. Doc. 202-1, p. 5.

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in Response to Plaintiffs’ Third and Fourth Requests for Production of Documents and for
Sanctions and Attorneys Fees (R. Doc. 202) is DENIED IN PART and DENIED AS MOOT IN
PART.
IT IS DENIED as untimely and duplicative regarding Requests for Production Numbers 1,
2, 3, 4, and 6.
IT IS DENIED AS MOOT as to Request for Production Number 5, for the reasons assigned
above.
New Orleans, Louisiana, this 29th day of April 2014.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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