Berenson v. Administrators of the Tulane University Educational Fund

Filing 38

ORDER AND REASONS GRANTING IN PART, DENYING IN PART AND DISMISSING WITHOUT PREJUDICE IN PART #26 Motion to Compel as set forth in document. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 7/28/2017. (my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GERALD S. BERENSON

CIVIL ACTION

VERSUS

NO. 17-329

THE ADMINISTRATORS OF THE

SECTION "R" (2)

TULANE EDUCATIONAL FUND
ORDER AND REASONS ON MOTION
This is a breach of contract action1 in which plaintiff seeks damages and a
declaratory judgment concerning the parties’ rights to ownership and access to certain
research data and materials following plaintiff’s termination from defendant’s employment
on June 30, 2016. Plaintiff’s motion to compel production in response to 20 requests for
production served upon defendant is pending before me. Record Doc. No. 26. Defendant
filed a timely opposition memorandum. Record Doc. No. 31. Plaintiff received leave to
file a reply memorandum. Record Doc. Nos. 33, 35, 36. Having considered the written
submissions of the parties, the record and the applicable law, IT IS ORDERED that the
motion is GRANTED IN PART, DENIED IN PART AND DISMISSED WITHOUT
PREJUDICE IN PART as follows.
After the substantial amendments to the Federal Rules of Civil Procedure that
became effective on December 1, 2015, the scope of permissible discovery is now limited
to “nonprivileged matter that is [both] relevant to any party’s claim or defense and

1

Plaintiff’s age discrimination, tortious interference with employment and defamation claims
have been dismissed. Record Doc. No. 24.

proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added).
Determining whether discovery is permissible because it is proportional to the needs of the
case requires consideration of “the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit.” Id.
As an initial matter, the court will ignore the “General Objections” asserted in
defendant’s responses. If defendant has a specific objection to a particular request, it must
state the objection “with specificity.” Fed. R. Civ. P. 33(b)(4), 34(b)(2)(B); accord
McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.
1990). Defendant’s “General Objections” fail to comply with the specificity requirements
of the applicable rules and only obfuscate and confuse both plaintiff and the court
concerning what objections defendant is actually making, what information it has actually
produced and whether a complete response has been made. “In every respect these
objections are text-book examples of what federal courts have routinely deemed to be
improper objections.” St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198
F.R.D. 508, 512 (N.D. Iowa 2000) (citing Burns v. Imagine Films Entm’t, Inc., 164 F.R.D.
589, 592-93 (W.D.N.Y. 1996) (general objections not sufficiently specific to allow court
to ascertain objectionable character of discovery request); Chubb Integrated Sys. Ltd. v.
Nat’l Bank of Wash., 103 F.R.D. 52, 58 (D.D.C. 1984) (“General objections are not useful

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to the court ruling on a discovery motion. Nor does a general objection fulfill [a party’s]
burden to explain its objections.”)); accord Sream, Inc. v. Hassan Hakim & Sarwar, Inc.,
No. 16-CV-81600, 2017 WL 878704, at *2 (S.D. Fla. Mar. 6, 2017); Fischer v. Forrest,
No. 14 CIV 1304, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017); see also McLeod, 894
F.2d at 1485 (The “party resisting discovery must show specifically how . . . each
interrogatory is not relevant or how each question is overly broad, burdensome or
oppressive.”) (citation omitted); Liguria Foods, Inc. v. Griffith Labs., Inc., No. 14-3041MWB, 2017 WL 976626, at *9 (N.D. Iowa Mar. 13, 2017) (citing St. Paul Reinsurance
Co., 198 F.R.D. 512) (The same judge who wrote St. Paul Reinsurance Co. states that the
law is unchanged in this regard, “[t]he key requirement in both Rules 33 and 34 is that
objections require ‘specificity’” and “there is precedent too ample to cite . . . demonstrating
the insufficiency of” boilerplate objections). All of defendant’s general objections, except
on the grounds of privilege, work product doctrine or Fed. R. Civ. P. 26(b)(3), are
overruled. Plaintiff’s discovery requests are subject to the limitations and protections of
the Federal Rules of Civil Procedure–it is unnecessary for defendant to object generally on
this basis.

Defendant must provide a supplemental written response to plaintiff’s

interrogatories and requests for production of documents that deletes its “General
Objections.”
Defendant’s particular objections to the 20 subject requests for production assert
five (5) kinds of objections that can be addressed in a manner applicable to all requests as

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to which these objections are made. First, defendant’s prematurity objections (Requests
Nos. 1, 2 and 3) are overruled. Defendant must respond to these requests by the deadline
set herein as to all responsive materials it currently has in its possession, custody or control.
As to responsive materials that might later come into its possession, custody or control,
defendant must timely supplement as required by Fed. R. Civ. P. 26(e).
Second and third, all objections based on privilege or work product (Requests Nos.
17, 18 and 19) and proportionality (Requests Nos. 4, 8, 9, 10, 11, 12, 16 and 17) are
specifically preserved and may be reasserted by defendant in the new written responses
ordered herein. In addition, preservation of these objections at this time is subject to the
following condition: (1) defendant must provide the privilege log required by Fed. R. Civ.
P. 26(b)(5) by the deadline set herein; and (2) counsel for both parties must engage in the
good faith in-person conference concerning proportionality ordered herein. This second
condition is imposed because the parties have failed to provide the court with information
needed to make the proportionality analysis, particularly as to the importance of some of
the requested materials, the amount in controversy, the parties’ relative access to the
materials, and the burden, expense and likely benefit of the requests.
Fourth, defendant’s objections that the requests are overly broad because they are
not limited to a relevant time frame (Requests Nos. 4, 7 through 12, 16 and 20) are
sustained. New responses to all requests as to which this objection has been asserted must
be provided, but all such requests are hereby limited to the time period 2013 to the present,

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which appears to be the time period relevant to plaintiff’s claims. Record Doc. No. 13
(Second Amended Complaint at ¶¶ 12 through 18).
Fifth, defendant’s objections to the production of responsive materials on grounds
that they are confidential, commercially sensitive or proprietary materials are overruled.
By separate order, Record Doc. No. 32, the court has ordered the parties to submit an
appropriate protective that will adequately protect all such materials. Thus, all materials
as to which defendant has asserted this objection must be produced subject to that
protective order.
The foregoing rulings are hereby incorporated into the following rulings as to each
particular request.
The motion is granted as to Requests for Production Nos. 1 and 2. All objections,
except those addressed above (if applicable), are overruled. Defendant must provide new
written responses to these requests clearly stating that all responsive materials currently in
its possession, custody or control are being produced by the deadline set herein, subject to
defendant’s Rule 26(e) obligation to supplement.
The motion is denied as to Requests for Production Nos. 3 and 20. The objection
that these requests are unreasonably cumulative or duplicative of Requests Nos. 1 and 11,
Fed. R. Civ. P. 26(b)(2)(C)(i), is sustained.
The motion is granted in part and denied in part as to Request No. 4. The current
request is overly broad. The motion is granted in that defendant must produce all requested

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correspondence or communications concerning plaintiff’s employment contract,
termination and the four recent BHS-related grants that are the subject of the lawsuit, and
must provide a new written response, without objection except as to privilege and
proportionality, clearly stating that it has done so. The motion is denied insofar as it seeks
production of a broader range of correspondence or communications.
The motion is granted in part and denied in part as to Requests for Production Nos. 5
and 6. It is granted only insofar as it seeks production of plaintiff’s own personnel file or
its equivalent concerning his employment by defendant and defendant must provide new
written responses to these requests, without objection, as limited by the court, clearly
stating that defendant has produced all materials responsive to these requests. The motion
is denied insofar as these requests may seek production of the personnel files of other
employees, which exceed both the relevance and proportionality components of the scope
of permissible discovery.
The motion is granted as to Requests for Production Nos. 7, 14 and 15, limited to
the time period set out above. All other objections are overruled. Defendant must provide
new written responses to these requests, without objection, clearly stating that it has
produced all materials responsive to these requests.
The motion is granted in part and denied in part as to Requests for Production
Nos. 8, 9 and 10. The proportionality objection is expressly preserved. At this time,
defendant must produce only responsive materials for the relevant time period set out

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above and only insofar as they relate to plaintiff, his work or submissions and/or the four
recent BHS-related grants that are the subject of the lawsuit. Defendant must provide new
written responses, without objection except as to privilege, work product and
proportionality, clearly stating that it has done so. The motion is denied insofar as it seeks
production of a broader range of correspondence, communications and steering committee
materials.
The motion is granted in part as to Requests Nos. 11, 12, 16 and 17, but defendant’s
proportionality and privilege objections are expressly preserved. At this time, defendant
must produce only those materials identified in the second paragraphs of its written
responses (although for the entire time period set out above) and provide new written
responses and a privilege log, without objections except as to proportionality, work product
and privilege, clearly stating that it has done so, pending the further proportionality
discussion between the parties ordered herein.
The motion is granted as to Request for Production No. 13, limited to the time
period set out above. All other objections, except as to privilege or work product, are
overruled. Defendant must provide a new written response to this request, without
objection except as to privilege or work product, clearly stating that it has produced all
materials responsive to this request, and provide the required privilege log.
The motion is granted as to all non-privileged materials responsive to Requests for
Production Nos. 18 and 19. All objections, except as to work product and privilege, are

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overruled. Defendant must provide new written responses to these requests, together with
the required privilege log, clearly stating that it has produced all non-privileged materials
responsive to these requests and make actual production of the requested materials.
Accordingly, IT IS ORDERED that, no later than August 11, 2017,
(1) defendant must provide all new written responses, together with the privilege
log, required herein and make actual production of all responsive materials ordered herein;
and
(2) counsel for both sides must confer in good faith and in person (not by email or
letter) to discuss in detail all aspects of the proportionality evaluation concerning requests
for production as to which proportionality objections have been asserted and attempt to
resolve those objections. Plaintiff’s right to file a new motion to compel, limited to those
requests as to which defendant asserts either the attorney-client privilege or work product
protection and/or as to which proportionality is in dispute, with both parties specifically
addressing, with evidence, if necessary, all proportionality considerations, is expressly
preserved, if their dispute in this regard cannot be resolved. Informed by what they learn
at the conference, the parties should have a better understanding about all proportionality
considerations. The court’s decision concerning any subsequent motion and whether to
permit discovery of additional materials would then also be informed by information
developed at the conference between counsel.

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Accordingly, plaintiff’s motion to compel is DISMISSED WITHOUT PREJUDICE
as to all requests for production as to which the court has preserved defendant’s objections
regarding proportionality, the attorney-client privilege and/or the work product doctrine.
28th
New Orleans, Louisiana, this _________ day of July, 2017.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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