Pea v. Ponchatoula City et al

Filing 27

ORDERED that 14 Motion to Compel Discovery is GRANTED in PART, DENIED in PART, and DENIED AS MOOT as stated herein. Signed by Magistrate Judge Karen Wells Roby. (cml, ) M

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLAUDE PEA

CIVIL ACTION

VERSUS

NO:

CITY OF PONCHATOULA, ET AL.

SECTION: “A” (4)

13-0542

ORDER
Before the Court is a Motion to Compel Discovery (R. Doc. 14), filed by Defendants, the City
of Ponchatoula, and Robert F. Zabbia (collectively “Defendants”), seeking an order from this Court
compelling Plaintiff, Claude Pea (“Pea”) to respond to its Interrogatories and Requests for Production
of Documents. Id. The motion is opposed. See R. Doc. 16. A reply to the opposition has been filed.
See R. Doc. 21. The motion was originally scheduled to be heard on the briefs on January 15, 2014,
but rescheduled and heard by oral argument on January 22, 2014.
I.

Background
Pea filed the instant action pursuant to 42 U.S.C. § 2000e-5, the Equal Employment

Opportunities Commission (“EEOC”) enforcement provision for Title VII Civil Rights disputes,
against the City of Ponchatoula (“the City”), and its duly elected Mayor, Robert Zabbia (“Zabbia”).
See R. Doc. 1, p. 2, ¶¶ 4-5. Pea was allegedly employed as a maintenance worker in the Street
Department of the City for over thirty years until his employment was terminated by Zabbia on or
about March 26, 2012, for allegedly supporting another mayoral candidate other than Zabbia for
election. See id., at ¶29.

As to the instant motion, Defendants collectively argue that they propounded Interrogatories
and Requests for Production of Documents on September 18, 2013. See R. Doc. 14-1, p. 1. Upon Pea’s
alleged failure to respond, Defendants contend that a “Rule 37(a)(1) discovery conference was set and
plaintiff requested additional time to provide responses.” Id. Although the date, or the additional time
is not provided for the Court, the Defendants contend that this additional time has now lapsed as well,
as seeks this Court compel Pea to respond to its discovery requests.
In opposition, Pea states that he provided responsive documents of initial disclosures on
December 4, 2013, and responded with written responses on January 7, 2014. See R. Doc. 16 p. 1.
Therefore it contends that the Defendants motion is now moot.
On January 20, 2014, Defendants filed a reply, which argued that some of Pea’s responses
remain deficient, as they refer generally to information or documents previously produced to
Defendants, but do not specify where in the “undifferentiated mass of records” these particular records
are located. See R. Doc. 19-1, p. 1-2. Therefore, Defendants seek an Order from this Court compelling
Pea to respond with sufficiency to Interrogatory Numbers: 3, 4, 7, 8, 10, 11, 17, 18 and Request for
Production Number 12.
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.” Rule
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
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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 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 33(d) provides that if the answer to an interrogatory can be determined by "examining
... (or) compiling a party's business records, and if the burden of … ascertaining such answer is
substantially (similar) for either party, the responding party may answer by: specifying in the
records… in sufficient detail to enable the interrogating party to locate and identify them as readily
as the responding party could.” Id. at 33(d)(emphasis added).
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
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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).
Rule 37 provides that “[a] party seeking discovery may move for an order compelling an
answer, designation, production, or inspection. This motion may be made if: . . . (iii) a party fails
to answer an interrogatory submitted under Rule 33, or (iv) a party fails to respond that inspection
will be permitted – or fails to permit inspection – as requested under Rule 34. Fed.R.Civ.P.
37(a)(3)(B). Rule 37 also provides, “[i]f the motion is granted—or if the ... requested discovery is
provided after the motion was filed—the court must, after giving an opportunity to be heard, require
the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees,” unless the Court finds that the opposing
party’s nondisclosure was “substantially justified, or that other circumstances make an award of
expenses unjust.” Id. at 37(a)(5)(A). Rule 37 sanctions are ultimately guided by the purpose of
reimbursing the movant and deterring further discovery violations. See Day v. Allstate Insurance
Co., 788 F.2d 1110, 1114 (5th Cir. 1986).
III.

Analysis

In support of its motion, Defendants contend that Pea failed to submit timely responses to its
discovery requests which were propounded on September 18, 2013. See id. As a result, the Defendants
contend that the Plaintiff must be compelled to respond completely.
In opposition, Pea states that he provided responsive documents of initial disclosures on
December 4, 2013, and responded with written responses on January 7, 2014. See R. Doc. 16 p. 1.
Therefore it contends that the Defendants motion is now moot.
On January 20, 2014, Defendants sought leave to file a reply memorandum in support of its
motion to compel, arguing that some of Pea’s responses remain deficient, as they refer generally to

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information or documents previously produced, but do not specify where in the “undifferentiated mass
of records” produced to Defendants, these particular records are located. See R. Doc. 19-1, p. 1-2. (See
also Keybank Nat. Ass’n v. Perkins Rowe Ass., LLC., 09-497, 2011 WL 765925 (M.D. La. Feb 25,
2011) (where a party answered an interrogatory by generally referring to information or documents
previously provided did not satisfy the requirement that the answer be made fully, in writing, under
oath and signed by the party in accordance with Fed. R. Civ. P. 33 and 34). Therefore, Defendants seek
an Order from this Court compelling Pea to respond with sufficiency to Interrogatory Numbers: 3, 4,
7, 8, 10, 11, 17, 18 and Request for Production Number 12.
During oral argument counsel for Defendants indicated that Request for Production Number
12 is not at issue, but that Request for Production Number 13 is what is actually at issue. As such, the
motion to compel as to Request for Production Number 12 is denied as moot.
The Court shall analyze the merits of Defendants’ argument as to Interrogatory Numbers 3, 4,
7, 8, 10, 11, 17, 18, and Request for Production Number 13 in turn.
A.

Interrogatory Numbers 3 and 4:

Interrogatory Numbers 3 and 4 both sought the identity, name, address and phone numbers of
eyewitnesses to the alleged occurrences upon which this action is based, as well as other people with
any knowledge thereof.
Plaintiff, Pea’s response for both of these interrogatories directed defendants that the identities
of the people with such knowledge were already identified in the Plaintiff’s initial disclosures.
Therefore, Pea believed that his response was sufficient. See R. Doc. 16-3, p. 2. During oral argument,
counsel for defendants contended that he needed more information from Pea, as his response merely
referenced the initial disclosures, which provided only the names of the potential eyewitnesses, which
is insufficient for them to be able to identify, contact and locate the witnesses. Counsel for Pea
responded that he may not be able to track down all this information, and that he believed his response

referencing the initial disclosures was sufficient.
The Court finds that Plaintiff’s response to Interrogatory Number 3 is insufficient and must be
supplemented to provide the phone numbers, addresses and location of the eyewitnesses listed as a part
of Plaintiff’s responses to initial disclosures. The Court also finds that to the degree Plaintiff knows
the location of an eyewitness at the time of the occurrence he or she allegedly witnesses, he must
supplement his response with this information as well. Because of the large overlap between the two
interrogatories, the Court found that in light of its decision compelling Plaintiff to supplement its
response to Interrogatory Number 3, Plaintiff’s response to Interrogatory Number 4 is sufficient.
B.

Interrogatory Number 7:

Interrogatory Number 7 sought a complete statement of facts of the case from the Plaintiff’s
point of view, and, also to describe how each of the parties propounding these Interrogatories was
allegedly involved in or allegedly caused or contributed to the happening of the alleged occurrences.
Plaintiff, Pea’s response directed defendants to see the information that was provided to the
Equal Employment Opportunity Commission (EEOC). See R. Doc. 16-3, p. 2. During oral argument,
counsel for Pea contended that his response was sufficient, as he had produced Pea’s entire EEOC file
to the defendants, which consisted of approximately thirty (30) pages, including the intake
questionnaire, which provides responsive information to their request.
Defendants’ represented that it had in fact received the EEOC file, but that it had received any
written responses to this Interrogatory.
The Court finds that because Plaintiff produced the entire EEOC file, it need not reproduce any
documents to Defendants, rather, it must simply identify the intake questionnaire for Defendants.
C.

Interrogatory Numbers 8, 10, 11 and Request for Production Number 13:

During oral argument, the Court combined Interrogatory Numbers 8, 10, and 11, as well as
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Request for Production Number 13,1 together, as they sought a form of damage calculations and or
description of the nature and extent of the damages which Plaintiff allegedly suffered.
While Plaintiff indicated in his written responses that he produced the records, he confirmed
during the hearing that the only documents which were produced were his tax returns. The returns
were purportedly proof of lost wages, but did not prove any other damages sought by the
Interrogatories or Request for Production Number 13.
The Court finds Plaintiff’s response to request number 13 is insufficient, as income tax returns
in and of themselves are an insufficient response to substantiate Plaintiff’s damages claim, as plaintiff
seeks damages for back-owed wages, future wages, future loss of earnings, future compensatory
damages, among other general damages. As a result, the Plaintiff shall supplement this response by
identifying with particularity the documents that have already been produced, which substantiate
Plaintiff’s damages claims. To the extent these documents have not yet been produced, Plaintiff is also
ordered to supplement the response with those documents as well.
1

Request for Production Number 13 sought “[c]opies of any records or documents allegedly reflecting and /
or substantiating the damages which you claim were suffered by plaintiff herein,” as all of these discovery requests
are intertwined. See R. Doc. 14-3, p. 10.
Interrogatory Number 8: State with precision the nature and extent of any damages which you claim you have
suffered as a result of the occurrences upon which the above entitled and numbered matter is based. As to each item of
damage which you claim, state its dollar value, how it is calculated, and the date(s) upon which it was incurred or is
expected to be incurred. Plaintiff, Pea’s response reads as follows: “All persons with knowledge were identified in the
initial disclosures.” See R. Doc. 16-3, p. 2.
Interrogatory Number 10: If you contend that the alleged occurrences upon which the above entitled and
numbered matter is based resulted in any loss of time, income, earnings or loss of earning capacity from any business,
occupation or employment, give precise details, stating the amount claimed as earnings therefore, your duties and
position, the exact dates on which you were prevented from pursuing that income, your rate of pay or earnings during
such time, the method by which you compute the amounts and figures used in that computation, and the identity of any
of your employers. Plaintiff, Pea’s response reads as follows: “All persons with knowledge were identified in the initial
disclosures.” See R. Doc. 16-3, p. 3.
Interrogatory Number 11: State whether you have within your control, or have knowledge of, any transcripts
of testimony in any proceeding arising out of the alleged occurrences upon which the above entitled and numbered matter
is based. If so, state the date, the subject matter, the name and business address of the person recording said testimony
and the name and address of person who has present possession of each said transcript of testimony. Plaintiff, Pea’s
response read as follows: “Copies of my tax returns in my possession have been produced. I will sign an authorization
to obtain copies on presentation of same.” See id. at p. 3.

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Because of the interrelated nature of Interrogatory Numbers 8, 10, and 11, with Request for
Production Number 13, the Court finds that Plaintiff’s responses to Interrogatories 8, 10, and 11 are
sufficient in light of Plaintiff’s supplementation of its response to Request for Production Number 13.
D.

Interrogatory Numbers 17 and 18:

Interrogatory Numbers 17 and 18 sought both a listing of exhibits and a production of
exhibits of evidence that Plaintiff intends to use at trial.
In response to these interrogatories, Plaintiff stated that he already provided a copy of all the
documents he had about his case or in his EEOC file, that were in his possession. See R. Doc. 16-3,
p. 3-4. During oral argument counsel for Defendants admitted that responsive documents had in fact

been received.
Rule 16 of the Federal Rules of Civil Procedure governs the deadlines and dates set by the
Court. A scheduling order controls the subsequent course of an action unless it is modified by the
court. See E.E.O.C. v. Bonneville Hot Springs, Inc., No. 07-5321, 2008 WL 3891272 (W.D. Wash.
at *1 (W.D. Wash. Aug. 19, 2008); citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608
(9th Cir. 1992). The Court’s Scheduling Order also governs the timing and disclosure of witness
and exhibit lists. Id. See also Rainbow Play Sys., Inc., v. Backyard Ventures Mgmt., No. 06-4166,
2008 WL 4372978 at *2 (D.S.D. Sept. 22, 2008).
Based on the foregoing, this Court finds that Plaintiff’s response is sufficient as provided,
as the production of evidentiary documents are governed by the Court’s Scheduling Order, and do
not have to be produced before the deadlines provided there. See e.g., Fed. R. Civ. P. 16; Stansbury
v. E-Z Serve Convenience Stores, No. 96-1099, 1997 WL 10159 (E.D. La. Jan. 10, 1997); Derouselle

8

v. Wal-Mart Stores, Inc., 934 F. Supp. 214 (W.D. La. 1996).2
Accordingly,
IT IS ORDERED that Defendants’ the City of Ponchatoula, et al.’s Motion to Compel
Discovery (R. Doc. 14) is GRANTED IN PART, DENIED IN PART, and DENIED AS MOOT.
IT IS GRANTED as to Interrogatory Numbers 3 and 7, and Request for Production Number
13 as set forth in detail above, no later than ten (10) days from the issuance of this Order.
IT IS DENIED as to Interrogatory Numbers 4, 8, 10, 11, 17 and 18.
IT IS DENIED AS MOOT as to Request for Production Number 12.
New Orleans, Louisiana, this 4th day of February 2014.

____________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

2

This Court issued a Scheduling Order on August 15, 2013. See R. Doc. 23. This Order was vacated after a
status conference with the presiding district judge on January 23, 2014, continuing the trial and staying all the
previously set deadlines. See R. Doc. 23.
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