Watson et al v. Clear Channel Broadcasting, Inc.

Filing 93

ORDERED that 79 Motion to Compel is GRANTED IN PART and DENIED AS MOOT IN PART and DENIED IN PART as stated herein. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WIL WATSON, ET AL.

CIVIL ACTION

VERSUS

NO:

CLEAR CHANNEL BROADCASTING, INC.
ORDER

SECTION: "I" (4)

13-5503

Before the Court is Defendant, Clear Channel Broadcasting, Inc.’s (“Clear Channel”)
Defendant’s Motion to Compel (R. Doc. 79) seeking this Court issue an Order compelling
Plaintiffs, Wil Watson et al. (collectively “Plaintiffs”) to respond to its discovery in accordance with
Fed. R. Civ. P. 37. See R. Doc. 79, p. 1. The motion is unopposed. It was heard by oral argument
on April 16, 2014.
I.

Background
Plaintiffs, Wil Watson, Gary Watson, Prixie Montgomery, Ave Gains, Darnetta

Mahaffy-Nelson, Dinah Campbell and Brandin Campbell, (collectively “Plaintiffs”) instituted this
action based on discrimination and

disparate impact against Defendant, Clear Channel

Broadcasting, Inc. (“Clear Channel”).1 Plaintiffs, who are all African Americans, allege that “they
are or have recently been, employed by [defendant] as Account Executives (AE) in the New Orleans
market.”2

1
2

See R. Doc. 57, n. 4.
See R. Doc. 57, p. 1, citing R. Doc. 38, ¶4.

Plaintiffs allege that “in February 2009, the defendant’s ‘management’ employees, who are
Caucasian, ‘redistributed accounts [and] promoted the account switch as revenue neutral,’ and
announced that management’s intent was to preserve the existing commission income for all
AE’s.”3
However, plaintiffs alleged that the accounts “which they ‘had spent considerable time and money
developing into significant and dependable advertisers were intentionally, and in a race-conscious way, or
in the alternative, negligently, stripped away and assigned to Caucasian [AE’s]’.” Plaintiffs also contend that
the “new advertising leads were assigned pursuant to a ‘best hands’ policy, which ‘acted so as to perpetuate
race-mediated account assignments’ from 2009 to 2013.”4 The alleged “result of the continuing

redistribution of accounts, whether intentional or negligent, [was that] African-American [AEs] were
disparately, and negatively, impacted, to their severe economic detriment as compared to their
Caucasian counterparts.”5
On August 20, 2013, plaintiffs initiated the above-captioned matter with a complaint alleging
race discrimination by defendant, the current and former employer of the seven plaintiffs. See R.
Doc. No. 1. Defendant filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, R. Doc. No. 4, but the Court dismissed the motion after plaintiffs
filed an amended complaint. See R. Doc. No. 38.6 Defendant re-filed its motion to dismiss, as it
pertained to the amended complaint, which was granted in part and denied in part by the presiding
District Judge on January 22, 2014. See R. Doc. 39; R. Doc. 57. In its Order and Reasons, the

3

Id. at p. 2, citing R. Doc. 38, ¶ 7.

4

Id.

5

Id.

6

See supra, n. 1, citing R. Doc. 57, p. 1, n. 4.

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presiding District Judge granted the motion in part, dismissing with prejudice all of Plaintiffs Title
VII claims which arise before December 16, 2009; all of Plaintiffs state law LEDL claims that arose
before February 20, 2012; and all of Plaintiffs § 1981 claims that arose before August 20, 2009. Id.
at 19.
As to the instant motion, Clear Channel contends that on October 31, 2013, it served a First
Set of Interrogatories and First Requests for Production on each Plaintiff. See e.g., R. Doc. 79-1, p.
2. On December 16, 2013, Clear Channel contends that it received Plaintiffs’ responses to the initial
written discovery on Clear Channel. Id. Clear Channel contends however, that Plaintiffs failed to
fully respond to each Interrogatory and Request for Production by providing form objections and
refusing to answer many of the discovery requests, and failed to properly answer the Disclosures.
Id. Clear Channel also contends that to avoid court intervention, its counsel repeatedly conferred
with opposing counsel in an effort to obtain complete responses from December 2013. Id. citing R.
Doc. 79-17, pp. 2-27.
Upon its belief that complete responses had been obtained, Clear Channel proceeded with
Plaintiffs’ depositions, only to learn that, in each of their depositions, they admitted to having
discoverable material that they had not produced to their lawyer or to Clear Channel. Id. at 2.
Therefore, counsel for Clear Channel contends that after the depositions, he sought further
correspondence from Plaintiffs in order to obtain the information and documentation that Plaintiffs
had referenced in their depositions, that were not produced.
Clear Channel also contends that it sought authorizations for medical records from all of the
Plaintiffs, as they claim damages for mental anguish and / or physical manifestations thereof.
However, one Plaintiffs, Ave Gaines, did not sign the authorization, nor did she sign a stipulation

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indicating that she would not be seeking certain damages that would obviate the need for her
medical records. Id.at 3; citing Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470-474 (N.D. Tex.
2005). Therefore, Clear Channel filed the instant motion, contending that because discovery closes
on April 15, 2014, and trial is scheduled for June 23, 2014, it seeks an Order from this Court
compelling production of certain documents, such as Ave Gaines’ medical records from third party
providers, as well as documents referenced during depositions to be produced. Id.
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 assessing whether the burden of the discovery outweighs its benefit, a court

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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:
Clear Channel’s motion addresses the allegedly deficient discovery responses in several

categories. The Court shall address them in turn:
A.

Initial Disclosure Responses

Clear Channel contends that Plaintiffs’ responses to their initial disclosures in accordance
with Fed. R. Civ. P. 26(a), as Plaintiffs failed to provide a computation of each category of damages
they claim they suffered. See R. Doc. 79-1, p. 4. Instead, Clear Channel contends that Plaintiffs
merely stated “they are entitled to receive back pay, loss of income and/or earnings potential with
benefits, punitive damages, general damages, attorney’s fees and costs with legal interests as set out
in the Complaint.” Id. As such, Clear Channel now contends that this computation should have

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included an identification of any accounts or leads each Plaintiff claims for which they contend that
they should have been compensated for and was not. Id. Therefore, Clear Channel requests this
Court order plaintiffs to provide complete answers to this disclosure.
Fed. R. Civ. P. 26(a)(1)(iii) requires: “A computation of each category of damages claimed
by the disclosing party— who must also make available for inspection and copying as under Rule
34 the documents or other evidentiary material, unless privileged or protected from disclosure, on
which each computation is based, including materials bearing on the nature and extent of injuries
suffered.” See id.
During oral argument, counsel for Clear Channel indicated that counsel for Plaintiffs, on
April 15, 2014, produced several responses of Plaintiffs’ showing approximate amounts of damages
in “loan credit payments” “401k disbursements” and “lost revenue” from Plaintiffs Prixie
Montgomery and Brandin Campbell. However, counsel for Clear Channel indicated that even though
these responses were provided, they are still insufficient to comply with the specifications mandated
by Fed. R. Civ. P. 26(a), as the responses fail to indicate, for example, where the lost wages derived
from, whether it be from accounts or lost commission, and what the lost wages are in relation to
these specific claims.
In opposition, counsel for Plaintiffs represented that he and his co-counselor were still
attempting to collect and compute this information, but that they were not sure yet themselves of the
total damages attributable. The Court found that the damages must be computed in compliance with
Fed. R. Civ. P. 26(a). As such, the Court granted Clear Channel’s request, and held that Plaintiffs
must supplement their responses to produce the information mandated by Rule 26, including the
computation of damages as to each particular claim of Plaintiffs with regards to each and every

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account, commission or lost revenue they allege. Plaintiffs are ordered to supplement their responses
no later than ten (10) days from the oral argument on this motion, or by April 27, 2014.
B.

Interrogatories

Clear Channel contends that Plaintiffs response to Interrogatory Number 4, which sought for
Plaintiffs to identify any and all financial losses, including but not limited to, lost earnings, benefits
payments, liquidated damages, attorney’s fees, and costs which they attributed to the alleged acts
of Clear Channel. This interrogatory also sought for Plaintiffs to identify each alleged financial loss
with specificity, giving the dates on which each loss or expense was incurred, the amounts involved,
and the nature of each loss or expense.
In response to this Interrogatory each Plaintiff objected on the basis of overbreadth and
unduly burdensome, as the request was not limited by date or by individual who sustained the loss.
See R. Doc. 79-1, p. 5. Each of the Plaintiffs also responded that they were unable to adequately
respond to the interrogatory as they were still in the process of obtaining more information and
calculations. Id. Therefore, Clear Channel requests that the Court compel Plaintiffs to respond fully
to this request with a response that includes an itemization of all damages as requested, including
a designation by account of Plaintiffs who claimed to have lost to the extent they seek such damages.
Id. at 5-6.
Counsel for Plaintiffs reiterated that he and his co-counselor were still attempting to collect
and compute this information, but that they were not sure yet themselves of the total damages
attributable to each particular claim of Plaintiffs with regards to each and every account, commission
or lost revenue they allege.
The Court found this response to be insufficient, and ordered Plaintiffs to supplement their

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responses no later than ten (10) days from the oral argument on this motion, or by April 27, 2014.
to provide more complete information regarding the damage calculations of each of the plaintiffs
claims of lost wages, mis-assigned leads, agency accounts, commissions, loan credit payments and
401k / fidelity disbursements.
C.

Deficient Requests for Production
1.

Alleged Mental Anguish Damages

Clear Channel contends that it requested each of the Plaintiffs to complete and return a
HIPPA Complaint Authorization for Release of Health Information, in Request for Production
Number 3, and an Authorization for Disclosure of Protected Health Information Psychotherapy
Notes, in Request for Production Number 47, which would permit Defendant to obtain information
from Plaintiff’s medical providers, including those no longer employed by Clear Channel. See R.
Doc. 79-1, p. 6. All of the Plaintiffs produced these documents, except for one Plaintiff, Ave Gaines.
Id. As a result, Clear Channel seeks an Order from this Court requiring Plaintiff, Ave Gaines to
produce these documents in response to Requests for Production Numbers 3 and 47.
During oral argument, counsel for Plaintiffs indicated that Plaintiff Ave Gaines did not seek
to assert a claim for medical expenses, but rather, she only asserted a general pain and suffering
claim. Therefore, he contended that her medical authorization was not necessary. The Court
disagreed, and held that she either sought to maintain the claim for mental anguish damages, and
would sign the authorization form, or she would forgo the claims by stipulation, and not be required
to produce her medical authorization.
Counsel for Plaintiffs had his co-counsel contact Plaintiff Ave Gaines, to determine whether
she sought to forgo or pursue her emotional distress claims. Plaintiff Gaines represented to her

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attorney that she sought to forgo her emotional distress claims so as to avoid her being required to
produce her medical authorization and medical records. As such, counsel for Plaintiffs indicated on
the record that Plaintiff Gaines would execute a stipulation with her signature, by Monday, April
21, 2014, verifying her forfeiture of this claim. Therefore, the Court finds that upon Ave Gaines
concession on the record, and the confection of the stipulation Clear Channel’s request is denied as
moot.
2.

Alleged Financial Losses

Clear Channel contends that because each of the Plaintiffs’ claim that they have suffered
financial losses, including running up credit card debt and incurring other loans simply to pay their
monthly expenses, as a result of its alleged conduct. See R. Doc. 79-1, p. 8. As a result, Clear
Channel requested credit card statements, information regarding their financial losses and
information regarding their monthly expenses since 2008, but Plaintiffs have not produced complete
information to these responses which will allow Defendant to defend such claims.
Therefore, Clear Channel seeks an Order from this Court compelling the Plaintiffs to respond
fully to their discovery requests, which sought for Plaintiffs to produce documents, objects, things,
notes or letters which relate and / detail their claims of liability, damages and financial losses; as
well as for Plaintiffs to produce credit card statements reflecting interest, to the extent which
Plaintiffs seek damages for increased credit card debt. See e.g., R. Doc. 79-10. The specific requests
at issue for the Plaintiffs are:
Brandin Campbell Request for Production Response Nos. 6, 13, 43, 46
Dinah Campbell Request for Production Response Nos. 6, 13, 43
Ave Gaines Request for Production Response Nos. 6, 13, 43, 46

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Darnetta Mahaffy Nelson Request for Production Response Nos. 6, 13, 43
Prixie Montgomery Request for Production Response Nos. 6, 13, 43, 45
Gary Watson Request for Production Response Nos. 6, 13, 43, 45
Wil Watson Request for Production Response Nos. 6, 13, 44
During oral argument, Clear Channel and Plaintiffs were unable to reach an agreement as
to the time frame of the requests as to each of the Plaintiffs. However, during oral argument, the
Court determined that no credit card statements from earlier than February 1, 2009 would be
required to be produced, as the presiding district judge dismissed the Plaintiffs’ claims extending
beyond 2009.
Therefore, the parties agreed to meet with the undersigned on April 17, 2014, to supply the
Court with the relevant time period. However, after the hearing and the parties emailed the Court
with the following time period for the credit card statements that would be required to be produced,
from February 1, 2009, as follows:
1) to March 1, 2014 for Wil Watson, Darnetta Mahaffy-Nelson, and Dinah Campbell;
2) to 3/29/2013 for Brandin Campbell;
3) to 1/04/2013 for Gary Watson;
4) to 12/09/2011 for Ave Gaines; and
5) to 5/04/2011 for Prixie Montgomery.
Therefore, the Court finds that Clear Channel’s request as to these statements is granted as
to the time frame set forth above. Plaintiffs are required to supplement their responses to these
requests no later than ten (10) days from the oral argument on this motion, or by April 27, 2014.
D.

Deposition Testimony or Stipulation

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Lastly, Clear Channel contends that Plaintiffs produced an account list that was clearly
obtained from Clear Channel’s premises. The document is over 900 pages long, and bears bates
numbers PL2 200001 to PL2 200934.3 This document is clearly confidential information belonging
to Clear Channel. At their deposition, each and every Plaintiff denied ever seeing the document or
producing it to Plaintiffs’ counsel, yet somehow, Clear Channel contends that the document was
produced by Plaintiffs’ counsel during discovery. See R. Doc. 79-1, pp. 8-9. Therefore, Clear
Channel seeks an Order from this Court compelling Plaintiffs and their counsel to identify how this
confidential document made it outside of the custody of Clear Channel and into the hands of
Plaintiffs’ counsel.
During oral argument, counsel for Plaintiff represented that he did not recall where he
obtained this document, nor could any of his clients ascertain the source of this confidential
document. The Court inquired as to whether or not Clear Channel had formerly requested this
information via request for admission and / or by interrogatory request. Clear Channel indicated that
it had not. Therefore, the Court determined that the request was premature.
However, before the Court finalized its ruling, counsel for Plaintiffs stated on the record that
even if Clear Channel propounded a formal request to identify the origin of the document which
Plaintiffs were asked about during their depositions, it would be futile, as neither counsel for
Plaintiffs, nor Plaintiffs themselves had any knowledge as to where this document came from.
Therefore, because of counsel for Plaintiffs stipulation on the record that the source is unknown, the
Court denied Clear Channel’s request.
IV.

Conclusion
IT IS ORDERED that Defendant, Clear Channel Broadcasting, Inc’s Defendant’s Motion

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to Compel (R. Doc. 79) is GRANTED IN PART and DENIED AS MOOT IN PART and
DENIED IN PART.
IT IS GRANTED as to Clear Channel’s requests for supplementation to Plaintiffs’ Initial
Disclosures, Interrogatory Number 4, and Request for Production Response Nos. 6, 13, 43, 46 as to
Brandin Campbell; Request for Production Response Nos. 6, 13, 43 as to Dinah Campbell; Request
for Production Response Nos. 6, 13, 43, 46 as to Ave Gaines; Request for Production Response Nos.
6, 13, 43 as to Darnetta Mahaffy Nelson; Request for Production Response Nos. 6, 13, 43, 45 as to
Prixie Montgomery; Request for Production Response Nos. 6, 13, 43, 45 as to Gary Watson; and
Request for Production Response Nos. 6, 13, 44 as to Wil Watson, as indicated in detail above.
Plaintiffs are hereby ordered to produce this supplementation no later than ten (10) days from
the oral argument on said motion, or by April 27, 2014.
IT IS DENIED AS MOOT as to Clear Channel’s Request for Production of Document
Numbers 3 and 47 as to Ave Gaines.
IT IS DENIED as to Clear Channel’s request to determine the origin of the confidential
document disclosed to Plaintiffs.
New Orleans, Louisiana, this 24th day of April 2014

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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