Schooler v. Wal-Mart Stores, Inc.

Filing 28

ORDER & REASONS: ORDERED that 15 MOTION to Compel Responses to Plaintiff's Second Request for Production of Documents Propounded Upon Defendant, Wal-Mart Stores, Inc, MOTION for Attorney Fees is GRANTED IN PART, DISMISSED AS MOOT IN PART AND DEFERRED IN PART, subject to the protective order contained herein.ORDERED that defendant must provide the materials sought by plaintiff in Requests for Production Nos. 2, 8 and 9 to me for in camera review no later than August 21, 2015. After recei ving and reviewing those materials, I will rule on this portion of the motion without further briefing or oral argument. The motion is granted as to Request for Production No. 10. The motion is dismissed as moot insofar as it seeks an extension of time for plaintiff to file his witness and exhibit lists. The motion is denied insofar as it seeks an award of attorneys fees and costs.. Signed by Magistrate Judge Joseph C. Wilkinson, Jr. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JEFFREY SCHOOLER

CIVIL ACTION

VERSUS

NO. 14-2799

WAL-MART STORES, INC.

SECTION “K”(2)

ORDER AND REASONS ON MOTION
Plaintiff’s Second Motion to Compel Responses to Plaintiff’s Second Request for
Production of Documents, Record Doc. No. 15, is pending before me. Defendant filed a
timely opposition memorandum, Record Doc. No. 16, and plaintiff was permitted to reply.
Record Doc. No. 19. Having considered the record, the applicable law and the written
submissions of counsel, IT IS ORDERED that the motion is GRANTED IN PART,
DISMISSED AS MOOT IN PART AND DEFERRED IN PART, subject to the protective
order contained herein.
The motion seeks four forms of relief; specifically, an order (1) compelling
production of documents responsive to plaintiff’s second set of requests for production, (2)
overruling defendant’s objections as waived and untimely, (3) awarding expenses and
attorney’s fees, and (4) extending the deadline by which plaintiff must file and serve his
witness and exhibit lists.

Failure to provide specific written responses to requests for production within the
time period established by Fed. R. Civ. P. 34(b)(2)(A) generally results in the waiver of
objections to the requests. See Poulos v. Naas Foods, Inc., 959 F.2d 69, 74 (7th Cir.

1992) (party “waived any objection to production by failing to object when disclosure
was due”); Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 10, 12-13 (1st Cir. 1991)
(objections to requests for production were waived by failure to make timely objections);
In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a
party fails to object timely to interrogatories, production requests, or other discovery
efforts, objections thereto are waived.”); accord Autotech Techs. Ltd. P’ship v.
Automationdirect.Com, Inc., 236 F.R.D. 396, 398 (N.D. Ill. 2006); Brown-Stahlman v.
Charter Trust Co., No. 04-CV-322-SM, 2006 WL 680874, at *1 (D.N.H. Mar. 16, 2006);
Banks v. Office of Senate Sgt.-at-Arms, 222 F.R.D. 7, 21 (D.D.C. 2004).
However, the court retains discretion to decline to compel production of requested
documents when the request exceeds the bounds of fair discovery, even if a timely
objection has not been made. Fifty-Six Hope Road Music, Ltd. v. Mayah Collections,
Inc., No. 2:05-cv-01059-KJD-GWF, 2007 WL 1726558, at *4 (D. Nev. June 11, 2007);
Lucero v. Martinez, No. 03-1128 JB/DJS, 2006 WL 1304945, at *2 (D.N.M. Mar. 11,
2006); Kolenc v. Bellizzi, No. 95 CIV. 4494, 1999 WL 92604, at *3 (S.D.N.Y. Feb. 22,
1999); see also Young v. United States, 149 F.R.D. 199, 206 (S.D. Cal. 1993) (no waiver
in light of “relatively short tardiness”).
Applying these standards, I find that, by its dilatory response, defendant waived its
objections, except that the court should exercise its discretion to preserve defendant’s
(a) objections concerning work product or privilege; (b) confidentiality objections to
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Requests for Production Nos. 2, 8 and 9, which seek employment or personnel file records
of non-party individuals; and (c) objections to Requests for Production Nos. 1 and 7 on
grounds that they seek defendant’s commercially sensitive or proprietary information.
While defendant’s written responses to plaintiff’s discovery requests generally provide
what may be adequate responsive information, they also are subject to unfounded or
waived objections that obfuscate and confuse both plaintiff and the court concerning
whether a complete response has in fact been made.
Accordingly, the motion is granted as to Requests Nos. 1 and 7, subject to the
protective order contained herein. Defendant must provide new written responses to these
requests, without objections (except those that have not been deemed waived as noted
above), clearly stating that all materials responsive to these requests have been produced,
subject to the following protective order: All materials produced in accordance with this
order in response to these requests must be marked and kept confidential and used only for
purposes of this litigation and must not be disclosed to any one except parties to this
litigation, the parties’ counsel of record and experts retained in connection with this
litigation. All persons to whom such information is disclosed must sign an affidavit that
must be filed into the record, agreeing to the terms of the protective order and submitting
to the jurisdiction of this court for enforcement of those terms. If any party seeks to add
other terms to this protective order, counsel must confer immediately and submit by motion
any proposed protective order.

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The motion is granted as to Request No. 3. The anticipation of litigation/work
product objection is overruled because plaintiff’s own statement is not protected, and
plaintiff is automatically entitled, upon request, to production of his own statement. Fed.
R. Civ. P. 26(b)(3)(C). Defendant must provide a new written response to this request,
without objection, clearly stating that all materials responsive to this request have been
produced.
The motion is granted as to Requests Nos. 4, 5 and 6, only because the current
written responses are erroneous as a matter of law in part, self-contradictory and therefore
evasive. The attorney-client privilege objection is overruled because that privilege applies
only to communications between lawyer and client, and the materials responsive to Request
No. 4 are tangible items that cannot possibly constitute such privileged communications.
On one hand, the work product and anticipation of litigation objections might apply to
materials responsive to these requests. On the other hand, the responses state that defendant
has no such materials, so that there should be nothing to which the objection applies, with
one possible exception responsive to No. 5. Accordingly, IT IS ORDERED that defendant
must provide new written responses to these requests, clearly stating either that it has no
materials responsive to these requests in its possession, custody or control, or both asserting
its work product/anticipation of litigation objection and providing the required log
describing such materials if it has any, Fed. R. Civ. P. 26(b)(5)(A), or (where applicable)

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stating that all materials not protected by the doctrine have been produced and providing
the required log as to any others.
Requests for Production Nos. 2, 8 and 9 all seek production of personnel or
employment file materials concerning individuals who are not parties to this action.
Discovery of the personnel files of non-party individual employees presents special
concerns about the privacy rights of the individuals involved. Certainly, employment

personnel files can be expected to contain much information that is personal and private,
including medical records and personal data identifiers of the type contemplated by Fed.
R. Civ. P. 5.2(a), and that is irrelevant to a particular lawsuit. This does not mean that a
party is never entitled to discover the personnel files of an opponent's employees or that
everything contained in them is irrelevant. The court must balance the interests of the
parties in obtaining relevant discovery against the privacy interests of individual nonparties. Thus, "a district court has discretion to determine whether discovery of such files
is warranted." Davis v. Precoat Metals, No. 01 C 5689, 2002 WL 1759828 (N.D. Ill. July
29, 2002) (citing Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir. 1994); Knoll v.
American Tel. & Tel. Co., 176 F.3d 359, 365 (6th Cir. 1999); Atkinson v. Denton Publ'g
Co., 84 F.3d 144, 148 (5th Cir. 1996)). As in Atkinson, before production of such
documents might be ordered, it appears that an in camera inspection of the documents
would be appropriate to determine both their relevance and their need for confidentiality,
if any. Id. Accordingly, IT IS ORDERED that defendant must provide the materials

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sought by plaintiff in Requests for Production Nos. 2, 8 and 9 to me for in camera review
no later than August 21, 2015. After receiving and reviewing those materials, I will rule
on this portion of the motion without further briefing or oral argument.
The motion is granted as to Request for Production No. 10. All objections are
overruled. Defendant must provide a new written response, clearly stating without
objection, either that it has no responsive materials in its possession, custody or control or
that all responsive materials have been produced.
All additional written responses, including any Rule 26(b)(5) logs, together with
actual production of all additional responsive materials, if any, must be provided by
defendant to plaintiff no later than August 21, 2015.
The motion is dismissed as moot insofar as it seeks an extension of time for plaintiff
to file his witness and exhibit lists. Those lists have been filed. Record Doc. No. 12. If
plaintiff contends that he has located something new in the delayed discovery responses,
he must file a motion for leave to amend or supplement his lists, after determining whether
defendant has any objection.

The motion is denied insofar as it seeks an award of attorneys fees and costs.
Substantial responsive information was provided by defendant, albeit late, and some of
defendant’s objections, although untimely, are of such an important nature, particularly
insofar as they relate to the privacy interests of non-parties, that they have not been

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deemed waived and may be valid. Under these circumstances, an award of expenses
incurred in connection with this motion is not warranted. Fed. R. Civ. P. 37(a)(5).

14th
New Orleans, Louisiana, this __________ day of August, 2015.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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