Crutchfield et al v. New Orleans City et al
ORDER AND REASONS denying 29 MOTION to Expedite Discovery. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WADE CRUTCHFIELD, ET AL.
CITY OF NEW ORLEANS, ET AL.
ORDER AND REASONS
Before the Court is Plaintiffs’ “Motion for Expedited Discovery” (rec. doc. 29), along
with Plaintiffs’ “Ex Parte Motion for Status Conference with Magistrate Judge Regarding
Discovery,” (rec. doc. 30), which requests that the “Court set a telephone status conference
regarding discovery before Magistrate Judge North, at the Court’s earliest convenience.”
(Id.). Plaintiffs did not file a motion for expedited hearing. Defendants filed an opposition to
the motion for expedited discovery. (Rec. doc. 35).
The Court granted the Motion for Status Conference and also set the Motion for
Expedited Discovery for submission on November 15, 2017 as a matter of course. Having
received Defendants’ opposition memorandum before the status conference, however, the
Court converted that conference to an expedited hearing on Plaintiffs’ Motion for Expedited
As a threshold matter, the Court notes that, while denominated a “Motion for
Expedited Discovery,” the underlying motion is actually a motion to compel brought under
Rule 37 of the Federal Rules of Civil Procedure, as it seeks to have this Court compel
Defendants to respond to specific requests for production by a date certain. (Rec. doc. 291/
Participating were Roy Rodney, John Etter and Adam Swensek.
2). As such, counsel for the Plaintiffs was required by the very text of the Rule to “include a
certification that the movant has, in good faith, conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort to obtain it without court
action.” Fed. R. Civ. P. 37(a)(1).
No such certification was included with Plaintiffs’ motion. The reason for this became
clear to the Court upon review of the motion papers and the Defendants’ opposition
memorandum and was confirmed to the Court’s satisfaction during the telephonic hearing,
during which counsel for Plaintiffs confirmed that, while he had requested a date for a Rule
26(f) conference from Defendants’ counsel, he did not wait for a response to that request
before firing off his motion to compel. As such, the motion was filed in violation of Rule 37
both because the required certification was missing and because Plaintiffs’ counsel did not
make a meaningful and good-faith effort to resolve the matter “without court action,” as
required by that Rule. For that reason alone the motion should be denied.
Aside from the technical deficiency of the present motion is the fact that it is ill-
founded at this time. Plaintiffs’ motion seeks expedited discovery. Although the Federal
Rules do not provide a standard to be employed by the Court in exercising its authority to
order expedited discovery, it is generally accepted that courts use one of the following two
standards to determine whether a party is entitled to conduct such discovery: (1) the
preliminary-injunction-style analysis set out in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982);
or (2) the “good cause” standard, which has been used interchangeably with the
“reasonableness” standard, as articulated in St. Louis Group, Inc., v. Metals and Additives Corp.,
Inc., et al., 275 F.R.D. 236, 239 (S.D. Tex. 2011). See BKGTH Prods., LLC v. Does 1-20, No. 13CV-5310, 2013 WL 5507297 at *4 (E.D. La. Sept. 30, 2013).
The Fifth Circuit has yet to adopt one of these standards definitively, but several
district courts within the Circuit have expressly employed the “good cause” standard when
addressing the question whether to authorize early discovery. See, e.g., BKGTH Prods., 2013
WL 5507297 at *4 (citing St. Louis Group, 275 F.R.D. at 239-40)(“[w]ithout any binding
authority to the contrary, and in light of the fact that a majority of courts have adopted the
‘good cause’ standard, this Court believes that a showing of good cause should be made to
justify an order authorizing discovery prior to the Rule 26(f) conference”); see also El Pollo
Loco, S.A. de C.V. v. El Pollo Loco, Inc., 344 F.Supp.2d 986, 991 (S.D. Tex. 2004); Paul v. Aviva
Life and Annuity Co., No. 09-CV-1490, 2009 WL 3815949 at *1 (N.D. Tex. Nov. 12, 2009);
Rodale, Inc. v. U.S. Preventive Med., Inc., No. 08-CV-120, 2008 WL 4682043 at *1 (E.D. Tex. Oct.
21, 2008); U.S. Commodity Futures Trading Comm'n v. M25 Inv., Inc., No. 09-CV-1831, 2009
WL 3740627 at *1 (N.D. Tex. Sept. 29, 2009); Philip Morris USA, Inc. v. Tin's, Inc., No. 03-CV306, 2003 WL 22331256 at *1 (M.D. La. Apr. 23, 2003).
“Expedited discovery is not the norm.” St. Louis Group, 275 F.R.D. at 240. The burden
of showing good cause is on the party seeking the discovery, see Qwest Commc'ns Int'l, Inc. v.
WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003), and the proposed discovery
must be narrowly tailored in scope to seek only necessary information. St. Louis Group, 275
F.R.D. at 240; see also Monsanto Co. v. Woods, 250 F.R.D. 411, 413 (E.D. Mo. 2008)(citing Irish
Lesbian & Gay Org. v. Giuliani, 918 F.Supp. 728, 730–31 (S.D.N.Y. 1996))(“[C]ourts generally
deny motions for expedited discovery when the movant's discovery requests are overly
In their motion and during the telephonic hearing, Plaintiffs failed to demonstrate
good cause for accelerating discovery in this case. Notably, there is a motion to dismiss now
pending in the case that attacks the sufficiency of the Plaintiffs’ Complaint – not the facts
underlying that Complaint. (Rec. doc. 27). Plaintiffs have failed to prove (or even explain)
why there is good cause in this case to accelerate the discovery schedule, particularly in light
of the pending motion to dismiss. See BKGTH Prods., 2013 WL 5507297 at *4.
Moreover, the majority of the Plaintiffs’ requests for production are grossly
overbroad. Viewed as a whole, the 52 separate enumerated requests would, at a minimum,
require the Defendants to locate and gather every document pertaining in almost any way to
any matter on the Defendants’ judgment list (some 684 cases spanning over 20 years),
including every email, correspondence and communication concerning the judgments
and/or settlements of those matters. Were these requests not overwhelming enough,
Plaintiffs’ include a “catchall” request for “any other documents, communications or
electronically stored information which is related to the subject matter of this litigation, but
was not specifically referenced in any of the prior requests for production numbers 1 through
51.” (Rec. doc. 29-4 at 14). 2
The Court advised counsel for Plaintiffs during the telephonic hearing (and reiterates
here) that, if and when the case proceeds to a point where formal discovery is permitted, the
52 previously propounded requests for production should be withdrawn and re-drafted and
should be much more narrowly tailored to the issue or issues in the case, pending the
outcome of the motion to dismiss.
It really should go without saying that a request that seeks “Everything we didn’t ask for but should have” is
For the reasons set forth above, the Plaintiffs’ Motion for Expedited Discovery is
denied. The case will proceed as contemplated by the Federal Rules of Civil Procedure.
New Orleans, Louisiana, this 25th day of
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE
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