Greater New Orleans Fair Housing Action Center, Inc. et al v. Ditta

Filing 36

ORDER AND REASONS ON MOTIONS re (1) Plaintiffs' 19 Motion to Compel Discovery Responses and for a Protective Order and (2) Defendant's 21 Motion to Compel Plaintiffs to Produce Recordings and Narratives of Defendant's Own Stateme nts. For the reasons stated herein, IT IS ORDERED that defendant's motion is GRANTED, and plaintiffs' motion is DENIED IN SUBSTANTIAL PART AND GRANTED IN LIMITED PART in that, pursuant to Fed. R. Civ. P. 26(d)(2), the discovery that is the subject of these motions must proceed as set forth herein. Under this odd circumstance, IT IS ORDERED that, if defendant seeks sanctions in connection with these motions, he must file a new motion, noticed for submission under Local Rule 7.2 and set ting out the amount sought and the reasons for any such request, supported by his counsel's affidavit(s) and in the manner required by Local Rule 54.2. Otherwise, no sanctions will be awarded.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/28/13. (tbl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREATER NEW ORLEANS FAIR HOUSING
ACTION CENTER, INC. ET AL.

CIVIL ACTION

VERSUS

NO. 13-511

GERALD DITTA

SECTION “I” (2)
ORDER AND REASONS ON MOTIONS

This is an action under the federal Fair Housing Act. 42 U.S.C. 3601 et seq.
Plaintiffs, Greater New Orleans Fair Housing Action Center, Inc. (“the Center”) and
Kawana Clark, allege that defendant, Gerald Ditta, discriminated against Clark and perhaps
other prospective tenants based on race and gender in his decisions on whether to extend
leases for rental property he owns. During its pre-lawsuit investigation of Ditta’s leasing
practices, the Center surreptitiously recorded a number of Ditta’s statements and conducted
surveillance of him in his dealings with agents of the Center posing as prospective tenants.
Plaintiffs now refuse to produce those secretly recorded materials to Ditta, including his
own statements, even though they have been requested in discovery, probably should have
already been disclosed even without request as part of plaintiffs’ mandatory disclosures,
and apparently may be used by plaintiffs at trial, until after Ditta provides his own
discovery responses and deposition testimony.
Two related motions are pending before me: (1) Plaintiffs’ Motion to Compel
Discovery Responses and for a Protective Order, Record Doc. No. 19; and (2) Defendant’s

Motion to Compel Plaintiffs to Produce Recordings and Narratives of Defendant’s Own
Statements, Record Doc. No. 21. Timely written opposition memoranda to both motions
have been filed. Record Doc. Nos. 25 and 26. Both sides were granted leave to file replies.
Record Doc. Nos. 30 and 32. Having considered the record, the applicable law and the
written submissions of counsel, I reject plaintiffs’ position, grant defendant’s motion and
issue the order contained herein concerning the sequence of discovery.
Plaintiffs’ motion to compel seeks two kinds of relief: (1) an order compelling
defendant to answer their Interrogatories Nos. 3, 4, 5, 11 - 17 and Request for Production
No. 1, which defendant has objected to answering until after he has received the
surreptitiously obtained materials in plaintiffs’ possession; and (2) “a protective order
permitting disclosure of digital recordings and written summaries of tests conducted at
Defendant’s property until after Defendant responds to Plaintiffs’ discovery requests and
until after Defendant and his agents are deposed.” Record Doc. No. 18 at p. 1.
Defendant’s motion is the mirror image of plaintiffs’ motion. In his motion,
defendant also seeks two kinds of relief: (1) an order “compelling Plaintiffs to immediately
produce to Defendant, in response to discovery requests propounded August 8, 2013, any
and all electronic recordings and narratives evidencing Defendant’s prior statements” and
(2) a discovery sequencing order pursuant to Fed. R. Civ. P. 26(d)(2), permitting defendant
to receive and review the secretly recorded materials from plaintiffs “prior to

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supplementing his discovery responses and prior to the commencement of party and
witness depositions.” Record Doc. No. 21 at p. 1.
Fed. R. Civ. P. 26(d) addresses the sequence of discovery. “Unless, on motion, the
court orders otherwise, . . . . (A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery”
(emphasis added).
As to discovery of a party’s own prior statements, Fed. R. Civ. P. 26(b)(3)(C)
provides: Any party . . . may, on request and without the required showing, obtain the
person’s own previous statement about the action or its subject matter. If the request is
refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of
expenses.”
As to motions for protective orders, Fed. R. Civ. P. 26(c)(1) provides in pertinent
part:
A party or any person from whom discovery is sought may move for a protective
order . . . The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense, including
. . . specifying terms, . . . for the . . . discovery.”
The requirement “of a showing of good cause to support the issuance of a protective order
indicates that ‘[t]he burden is upon the movant 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.

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1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978) (emphasis
added)); see also United States v. Talco Contractors, Inc., 153 F.R.D. 501, 513 (W.D.N.Y.
1994) (“Good cause must be established and not merely alleged.”).
It is my often-expressed opinion that Fifth Circuit case law and the applicable
Federal Rules of Civil Procedure clearly and unambiguously require the production of a
party’s prior statements and surveillance materials before that party’s deposition, when
those materials have been requested in discovery and in the absence of a showing of good
cause of the specific and particularized type required in In re Terra. Concerning a party’s
statements, see Vinet v. F & L Marine Management, Inc., 2004 WL 3312007 (E.D. La.
April 29, 2004) (citing, among other things, Fed. R. Civ. P. 26(b)(3) and Miles v. M/V
Mississippi Queen, 753 F.2d 1349, 1350-53, (5th Cir. 1985) (Judge Rubin explaining in
Miles that the Rule 26(b)(3) requirement that a party’s statement be produced upon request
is “mandatory, not discretionary,” that this “court’s refusal to order production of the
[plaintiff’s] statements was erroneous,” and that “[a] rule intended to prevent trial by
ambush and to further adequate pretrial preparation has been violated . . . . A district court’s
failure to abide by the literal dictate of the rule is clearly error and we so hold.”) (emphasis
added)), Baggs v. Highland Towing, L.L.C., 1999 WL 539459 (E.D. La. July 22, 1999).
Concerning surveillance materials, see Karr v. Four Seasons Maritime, Ltd., 2004 WL
797728 (E.D. La. April 12, 2004) (citing, among other things, Chiasson v. Zapata Gulf
Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993)). To permit plaintiff to withhold these
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materials from discovery would be contrary to the binding authorities cited above and
would unnecessarily risk reversal. Other judges of this court, including the presiding
district judge in this case, have repeatedly avoided the error plaintiff’s position risks by
requiring production of a party’s statements and surreptitiously recorded surveillance
materials upon request and before the party is deposed. See Robertson v. National Ry.
Passenger Corp., 1999 U.S. Dist. Lexis 8150 (E.D. La. 1999 (Africk, M.J.); Cosse v. Albert
& Judy, Inc., 1994 WL 594264 (E.D. La. 1994) (Judge Feldman upholding then Magistrate
Judge Africk) and other cases cited by defendant at Record Doc. No. 21-2 p. 10.
Plaintiff has wholly failed to make the particular and specific demonstration of fact
required by Terra to support issuance of the protective order it seeks. The argument made
in plaintiffs’ motion papers that defendant will “tailor his testimony” or “craft” what he
hereafter says based on his review of the materials, Record Doc. No. 25 at pp. 3, 4 n. 5 and
Record Doc. No. 19-3 at p. 8, is precisely the kind of stereotyped and conclusory statement
found insufficient to support a protective order in In re Terra. No evidence related to Ditta
himself, no empirical data, no generalized behavioral studies have been submitted to
establish that the truth is more likely to be obtained from defendant in his deposition
testimony and interrogatory answers if these surreptitiously recorded materials, many of
which appear to be years-old, are withheld as opposed to being produced. I cannot conclude
that a person will automatically lie to conform today’s testimony to yesterday’s recording
or statement.
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On the contrary, a fuller, clearer, less confusing and more illuminating deposition,
including any explanations defendant might make about what is contained in the secretly
made recordings, will undoubtedly result if production is required before deposition. For
reasons similar to those expressed by Judges Bard, Lay and Nordbye – which I previously
quoted in Vinet, 2004 WL 3312007, *3 – I reject the unsubstantiated view that the
withholding of one party’s statements or surveillance of him obtained by the agents of the
opposing party is a better way to find the truth than complying with the disclosure
requirements contained in Fed. R. Civ. P. 26(b)(3)(C) and binding Fifth Circuit precedent
such as Miles and Chiasson.
Plaintiffs’ reliance on the Fifth Circuit’s decision in Miles is particularly misplaced.
As I detailed in Vinet, 2004 WL 3312007, *3, the Miles court recognized that a trial court
has “some latitude” to order discovery in the sequence requested in this case by the Center.
Miles, 753 F.2d at 1351. However, Judge Rubin in Miles repeatedly described the failure
of the trial court to require production of a party’s prior statement upon request as error.
Reversal in Miles was avoided only because the error in that particular case was found to
be harmless – but it was error nonetheless – an error these motions offer this court the
opportunity to avoid; thus justifying Judge Rubin’s statement in Miles that he was
“confident that . . . district judges will heed the mandate [of Rule 26(b)(3)] in the future.”
Id. at 1353.

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Civil discovery is not a game of “gotcha” or a cable television reality program
featuring secretly made recordings of its subjects. Like trial itself, civil discovery is a
search for the truth requiring all parties to put their cards on the table before trial, so that
the action may be determined or settled openly, honestly and with full knowledge of the
material evidence. Accordingly, IT IS ORDERED that defendant’s motion is GRANTED,
and plaintiffs’ motion is DENIED IN SUBSTANTIAL PART AND GRANTED IN
LIMITED PART in that, pursuant to Fed. R. Civ. P. 26(d)(2), the discovery that is the
subject of these motions must proceed as follows:
No later than November 1, 2013, plaintiffs must produce to defendant any and all
electronic recordings and narratives evidencing defendant’s prior statements in response
to defendant’s discovery requests propounded on or about August 8, 2013, and must
provide defendant with new written discovery responses clearly stating, without objection,
that they have done so.
No later than November 8, 2013, defendant must provide plaintiffs with full,
complete and verified supplemental written answers to plaintiffs’ Interrogatories Nos. 3,
4, 5, 11 - 17 and his written response to Request for Production No. 1, including the actual
production of all non-privileged materials responsive to Request No. 1.
Immediately upon receipt of this order, counsel for both sides must meet and confer
and schedule all remaining depositions, which must commence no earlier than November
15, 2013 (i.e. one week after completion of the discovery ordered above).
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In his opposition to plaintiffs’ motion, Record Doc. No. 26 at p. 10, but nowhere that
I see in his own motion, defendant appears to seek an award of fees and costs incurred in
connection with these issues. Under this odd circumstance, IT IS ORDERED that, if
defendant seeks sanctions in connection with these motions, he must file a new motion,
noticed for submission under Local Rule 7.2 and setting out the amount sought and the
reasons for any such request, supported by his counsel’s affidavit(s) and in the manner
required by Local Rule 54.2. Otherwise, no sanctions will be awarded.

New Orleans, Louisiana, this

28th

day of October, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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