Piazza's Seafood World, LLC v. Odom

Filing 95

RULING & ORDER granting in part and denying in part 72 Motion to Compel; granting in part and denying in part 72 Motion for Attorney Fees. Signed by Magistrate Judge Christine Noland on 8/18/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

PIAZZA’S SEAFOOD WORLD, L.L.C.

CIVIL ACTION

VERSUS
BOB ODOM, COMMISSIONER OF
AGRICULTURE FOR THE STATE
OF LOUISIANA, IN HIS OFFICIAL
CAPACITY AND INDIVIDUAL
CAPACITY

NO. 07-413-BAJ-CN

RULING & ORDER
This matter is before the Court on the “Consolidated Motion to Compel Production
of Documents from Defendant Bob Odom, Pursuant to Rules 34 and 37, and from the
Louisiana Department of Agriculture and Forestry, Pursuant to Rules 37 and 45, with
Request for Attorneys’ Fees” (R. Doc. 72) filed by plaintiff, Piazza’s Seafood World, LLC
(“Piazza”). Defendant, Bob Odom (“Odom”), former Commissioner of the Louisiana
Department of Agriculture and Forestry (“the Department”), in his individual capacity, has
filed an opposition (R. Doc. 83) to Piazza’s motion, in response to which Piazza has filed
a reply memorandum. (R. Doc. 86). The Department has not filed an opposition to the
motion.
FACTS & PROCEDURAL BACKGROUND
This suit, which was filed pursuant to 42 U.S.C. §1983 on June 12, 2007, concerns
the alleged attempts by Odom to protect Louisiana’s domestic seafood industry from
foreign competition by what Piazza contends are unconstitutional means. Specifically, this
suit was prompted by the seizure, without a warrant, of 400,000 pounds of Piazza’s
1

seafood in May 2007, by the Department, acting at the alleged direction and pursuant to
regulations promulgated by Odom. Piazza contends that its property remained under
seizure for months, pursuant to the discriminatory regulations, until a state district court
(acting pursuant to an Order of this Court) declared Odom’s regulation and the
Department’s conduct illegal and ordered the release of Piazza’s property.
At the conclusion of the state court litigation, the case returned to this Court for
resolution of the remaining federal claims, which relate to Piazza’s damage claims against
Odom. Piazza propounded requests for production of documents to Odom on March 1,
2011. Piazza also served the Department with a subpoena duces tecum, seeking certain
documents.1 Piazza contends that its goal in propounding such discovery requests was
to “obtain all the documents related to the Department’s seizure of its property, to be used
in depositions of Department employees, depositions which were ultimately scheduled to
begin on May 16, 2011.” See, R. Doc. 72-1, p. 2.
The Department and Odom, both represented by the same counsel at the time,
requested and received two (2) extensions of time within which to respond to Piazza’s
discovery, with the ultimate deadline being set for April 25, 2011. In requesting those
extensions, defense counsel informed plaintiff’s counsel, via email, that Todd Thompson,
the Department’s Director of Weights & Measures and the official responsible for the
Department’s response was “with the help of his assistants at [the Department] . . .
conscientiously accumulating all requested in the [subpoena duces tecum].” Two days

1

Although the specific documents that the requests for production and the subpoena seek are
discussed in more detail below, as a general proposition, Piazza sought all Department documents,
including all emails and other electronic documents, within the Department’s possession, custody, or
control, that concern the Department’s dealings with Piazza. See, R. Doc. 72-1, p. 4-5.

2

after the April 25th deadline, the defendants served Piazza with their discovery responses.
Odom objected to all of Piazza’s requests for production and did not produce any
documents.

He responded that, because Piazza subpoenaed documents from the

Department, he had no obligation to respond further in his individual capacity. As to the
subpoena, the Department objected to and declined to produce any documents responsive
to nine (9) of the ten (10) categories of documents listed therein. In total, the Department
produced sixty (60) pages of documents responsive to Category No. 7 of the subpoena.
On April 30, 2011, Piazza’s counsel sent, via email, a letter to defendants’ counsel,2
advising of insufficiencies in the defendants’ discovery responses and informing defense
counsel that a motion to compel would be filed if a full production in response to such
requests was not made by May 6, 2011. Following that May 6th deadline, on May 10, 2011,
plaintiffs’ and defense counsel held a telephone conference, during which conference
defense counsel reiterated the defendants’ objections and their decision not to produce any
further documents.
Despite that representation by defense counsel, on May 18, 2011, plaintiff’s counsel
received a “supplement” to defendants’ discovery responses, which included a disk
received from the Department that allegedly contained additional responsive documents.
When plaintiff’s counsel inspected that disk, however, he found that the Department’s
“supplement” was “nothing more than a copy of some (but not all) of the electronic

2

On April 27, 2011 and pursuant to discussions among counsel, Piazza also noticed the
depositions of five (5) employees of the Department, who were allegedly involved in the seizure of
Piazza’s seafood in 2007. Those depositions were scheduled for May 16-18, 2011. Piazza contends that,
as a result of the defendants’ failure to produce any meaningful documents that could be reviewed in
preparation for those depositions, Piazza was forced to put the depositions on hold pending the resolution
of the present motion to compel.

3

documents, which had been produced timely (and without objection) by the Department of
Health and Hospitals (“DHH”) on April 25, 2011.3
As a result, Piazza filed the present motion, wherein it contends that the “responses”
of Odom and the Department do not constitute a good faith effort to comply with its
discovery requests. Piazza’s motion seeks an order compelling “an immediate, full and
complete response to document requests 1-7 issued to Odom, and to categories 1-6 and
8-10, set forth in the subpoena duces tecum served on the Department.” As to category
7 set forth in the subpoena, the motion further seeks “an order requiring the responsible
official with the Department to make a written certification regarding the search undertaken,
and whether responsive documents have been lost or destroyed since the commencement
of the litigation.”4 Finally, Piazza seeks an award of the reasonable attorney’s fees and
expenses that it has incurred in bringing this motion.
Soon after the filing of Piazza’s motion to compel, Odom enrolled new counsel on
June 7, 2011. He then timely requested and received an extension of time within which to

3

Piazza served DHH with a subpoena comparable to that served upon the Department on March
1, 2011. DHH received the same extensions of time within which to respond as did the Department; yet,
DHH timely responded to Piazza’s subpoena on April 25, 2011, without asserting any objections.
According to Piazza’s present motion, DHH made “a full and organized production of hundreds of pages of
documents, and also provided a disk containing numerous responsive e-mail communications and
electronic files captured from the local hard drive of one of its employees.” Piazza complains, in its
motion, that there has been “to date no explanation concerning why [the DHH] was able to discover such a
significant repository of documents concerning an operation undertaken by the Department, when the
Department itself was able to produce only 60 pages, all of it apparently recovered from outside sources.”
See, R. Doc. 72-1, p. 7.
4

In short, Piazza’s complaint in its motion is that “the Department was unable (or unwilling) to
produce a single internal communication, memorandum, or other document concerning an operation in
which multiple Department employees effected seizures of roughly 400,000 pounds of Piazza’s seafood at
multiple locations, detained that seafood over the course of several months, and during that time
administered laboratory tests to that seafood, ostensibly while in contact with other federal and state
agencies. Rather, the only documents produced were a selection of those previously disseminated to
outside counsel, filed with this Court, or generated by another agency.” See, R. Doc. 72-1, p. 7.

4

respond to Piazza’s motion and timely filed his opposition within that extension on July 11,
2011. The Department, which is presently represented by separate counsel, however, did
not request an extension of time to respond to Piazza’s motion, nor has it filed any
opposition to the motion as of this date.
LAW & ANALYSIS
I.

Scope of Discovery:
Under the Federal Rules of Civil Procedure, unless the scope of discovery is

otherwise limited by an order of a court, parties may obtain discovery regarding any matter,
not privileged, that is relevant to the claim or defense of any party. Fed. R. Civ. P. 26(b)(1).
Relevant information need not be admissible at trial, if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence. Id. Thus, a party may discover
information that is not admissible at trial, if such information will have some probable effect
on the organization and presentation of the party’s case or will otherwise aid in his or her
preparation for trial. 23 Am.Jur.2d Depositions and Discovery §22 9 (citing various cases).
Discovery should therefore ordinarily be allowed, under the concept of relevancy, unless
it is clear that the information sought can have no possible bearing upon the subject matter
of the action. Id. However, when discovery requests approach the outer bounds of
relevance and the information sought may only marginally enhance the objectives of
providing information to the parties or narrowing the issues, the court must then weigh the
request with the hardship to the party from whom the discovery is sought. Id.

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II.

Requests for Production directed to Odom:5
In his opposition, Odom explains that, since this suit was filed in June 2007, his

counsel has changed three (3) times, with his present counsel enrolling on June 7, 2011.
Odom further explains that his prior counsel was not able to meet with him prior to
responding to Piazza’s discovery requests on April 27, 2011 because Odom was
unavailable to meet and that his prior counsel answered the discovery requests to the best
of their ability without Odom’s assistance.

Odom also notes that, at the time the

“supplement” was produced on May 18, 2011, his former counsel did not know whether
Odom was knowledgeable about, or familiar with, the contends of the CD produced, or
whether the CD was ever in Odom’s possession.
According to Odom’s opposition, his newly enrolled counsel has “worked diligently
to review four years worth of pleadings and correspondence between the parties to get up
to speed on the case” and has had the opportunity to actually meet with Odom, during
which meeting Odom stated that he “does not have any documentation relating to any of
the requests for production made by plaintiff.” See, R. Doc. 83, p. 4. In an effort at
satisfying the motion to compel, Odom’s new counsel therefore propounded a “Second Set
of Supplemental Answers to Plaintiff’s First Set of Requests for Admissions, Interrogatories,
5

The requests for production at issue seek the following categories of documents from Odom: (1)
all documents that mention Piazza; (2) all documents that mention seafood imported from outside of the
United States; (3) all documents concerning any declaration issued by Odom that mentions or refers to
seafood imported into the United States, including without limitation the “Declaration of Emergency;” (4) all
documents concerning the Regulations; (5) all documents that reflect communications authored by, or
involving, legal counsel, to which Odom is a party, either as author or recipient (including merely a copy
recipient), and which address the regulation of seafood imported into Louisiana for any foreign nation,
including without limitation any such documents that reflect such communications regarding the
“Declaration of Emergency” and Regulations; (6) all documents that reflect or concern the seizure of
seafood owned or claimed by Piazza by any agent of, or upon instructions issued by, Odom; and (7) all
documents that concern or reference the Eastern District Lawsuit, the Eastern District Ruling, or the Fifth
Circuit Opinion.

6

and Request for Production” on July 7, 2011, wherein Odom expressly represents that he
does not possess any of the documentation requested by Piazza and that any documents
Odom may have possessed while in office responsive to Piazza’s requests are held by the
Department. See, Exhibit A to Odom’s opposition. Considering that representation by
Odom, there simply are no responsive documents within Odom’s possession for which the
Court can compel production from him in his individual capacity, and Piazza’s motion as
it relates to Odom, individually, should therefore be denied.6 Such documents should be
obtained directly from the Department itself.
III.

Subpoena directed to the Department:
It should first be noted that, with respect to the Department, Piazza’s present motion

is unopposed. Local Rule 7.5M of the Middle District of Louisiana requires that memoranda
in opposition to a motion be filed within twenty-one (21) days after service of the motion.
The present motion was filed on May 19, 2011, and the Certificate of Service attached to
the motion indicates that a copy of the motion was sent via e-mail to counsel for the
Department on that same date. Thus, well over twenty-one (21) days have elapsed since
the service of the motion, and the Department has failed to file any opposition thereto or

6

Pursuant to Fed. R. Civ. P. 34, Odom is required to produce only those non-privileged, relevant
documents that are “within his possession, custody or control.” Fed. R. Civ. P. 34. Federal courts have
consistently held that documents are deemed to be within the “possession, custody or control” of a party
for purposes of Rule 34 if the party has “actual possession, custody or control, or has the legal right to
obtain the documents on demand or has the practical ability to obtain the documents from a non-party to
the action.” Monroe’s Estate v. Bottle Rock Power Corp., 2004 WL 737463 (E.D.La. 2004). The burden is
on the party seeking the discovery to make a showing that the other party has control over the material
sought. Id., at *10.
Odom has certified, through his second supplemental discovery responses, that he is not in
possession of the responsive documents. Furthermore, he indicates that, since he is no longer the
Commissioner for the Department, he does not have custody or control of the documents in question in an
official capacity. Piazza has the burden of showing that Odom has control over the documents in
question, and it has failed to make that showing.

7

obtain any extension for filing an opposition thereto.
In addition to being unopposed, the undersigned finds that Piazza’s motion could be
granted as to the Department on the basis that the Department waived the objections
asserted in its responses to the subpoena because the Department failed to raise those
objections within fourteen (14) days of being served with the subpoena.7 See, Fed. R. Civ.
P. 45(c)(2)(B)(Nonparty served with a subpoena duces tecum must make objections to it
within 14 days after service). Failure of a nonparty to serve timely objections to a Rule 45
subpoena generally results in a waiver of all grounds for objection, including privilege.
Moon v. SCP Pool Corp., 232 F.R.D. 633 (C.D.Cal. 2005), citing In re DG Acquisition Corp.,
151 F.3d 75, 81 (2d Cir. 1998). However, in certain circumstances and for good cause, the
failure of a nonparty to act timely will not bar consideration of objections to a Rule 45
subpoena. Id., at 636 (citing various cases). For example, if aspects of a subpoena are
overbroad on their face and exceed the bounds of fair discovery and the subpoenaed
witness is a non-party acting in good faith, waiver of the non-party’s untimely objections is
not automatic, and the objections may be considered. Id. In light of the overbroad nature
of aspects of Piazza’s subpoena in the present case, the undersigned does not consider
all of the Department’s untimely objections to be waived and therefore considers them
below.

7

As noted above, the subpoena was served upon the Department on March 1, 2011; however,
the Department did not produce any objections to that subpoena until April 27, 2011.

8

As mentioned above, the subpoena directed to the Department set out ten (10)
categories of documents to be produced. Each category is discussed in detail below.
“1.

All documents which reference or concern Piazza.”

The Department objected to this category of documents on the ground that it is
“overbroad” because it includes documents involving the prior federal litigation in the
Eastern District of Louisiana, Piazza v. Odom, 448 F.3d 774 (5th Cir. 2006).

The

Department refused to produce any documents responsive to this category because
producing documents related to the Eastern District litigation “would be a waste of paper,
time and human resources” and because the Department “considers the [Eastern District]
federal litigation irrelevant to the litigation of the case sub judice.”
The undersigned finds that the Department’s relevancy objection lacks merit as the
Eastern District litigation has direct relevance to this matter.

As discussed in the

undersigned’s prior Ruling & Order dated May 13, 2010, Piazza specifically alleges in the
present suit that, despite the Fifth Circuit’s judgment in the 2006 case of Piazza v. Odom,
448 F.3d 744 (5th Cir. 2006) (i.e., the Eastern District litigation), which enjoined Odom’s
attempts to enforce a state statute that unconstitutionally discriminated against seafood
imported from the Far East, Odom nevertheless promulgated, in 2007, without any
authorization from the Louisiana Legislature, the agency regulations at issue in this suit that
allegedly, facially discriminated against the very same commerce; interpreted those
regulations to directly regulate not only the foreign seafood sold within Louisiana but
seafood sold in other states as well; and exercised unfettered discretion to seize and
search Piazza’s property without a warrant, a hearing, or reasonable cause in enforcing
those regulations. See, R. Doc. 55, p. 2, n. 1. In that prior Ruling, the undersigned also
9

determined that Piazza sufficiently alleged that Odom was on notice that the regulations
he promulgated were unconstitutional in the sense that they violated the Foreign
Commerce Clause based upon his knowledge of the Fifth Circuit’s ruling in the Eastern
District litigation – a matter involving the exact same parties and similar unconstitutional
conduct. Id. Thus, the Eastern District litigation is relevant to this matter because that
litigation is alleged to have put Odom on notice that his conduct at issue in this case was
unconstitutional.8
As to the Department’s overbreadth and burden objection, however, the undersigned
finds that such objection has merit. Piazza’s counsel indicates that, if the Department had
contacted him and requested that Piazza remove from the scope of the production
commanded by the subpoena any documents previously produced in discovery in the
Eastern District litigation and any documents filed into the record in the Eastern District
litigation, he would have been “happy to agree” to that revision of the subpoena. However,
because the Department’s counsel did not call Piazza’s counsel and make that request,
Piazza contends that the Department should be required to produce all documents relating
to the Eastern District litigation since the only representation the Department made to
Piazza, prior to service of its overbreadth/burden objection, was that the Department was
“conscientiously accumulating all requested in the [subpoena duces tecum].”

The

undersigned finds that requiring the Department to produce to Piazza documents that were
previously produced to it in the context of the Eastern District litigation and documents that
are part of the public record in the Eastern District litigation is overly burdensome and

8

The Eastern District litigation is therefore particularly relevant to Piazza’s present claims of
retaliation and punitive damages.

10

wasteful. Thus, to the extent the first category of the subpoena seeks production of those
documents, the Department is not required to produce them. Otherwise, the Department
is to produce all other non-privileged documents relating to the Eastern District litigation
and to Piazza generally that are within the Department’s possession, custody, or control.
To the extent the Department contends any responsive documents are privileged, it shall
produce a privilege log describing those documents as required by Fed. R. Civ. P.
26(b)(5).9
“2.

All documents which reference or concern seafood imported from
outside of the United States, including without limitation the nations of
Vietnam and China.”

“3.

All documents concerning any “Declaration of Emergency” that
mentions or refers to seafood imported into the United States, including
without limitation that “Declaration of Emergency” issued on or about
May 4, 2007 concerning seafood imported from the People’s Republic
of China.”

The Department objected to the above requests on the ground that they are “overlybroad and irrelevant inasmuch as these documents have nothing whatsoever to do with
whether Piazza was in violation of 21 CFR §530.41, and whether defendant, Mr. Bob
Odom, believed he had the legal authority to enforce LAC 7:XXXV 501, 503, and 511, the
pertinent legal issues in this litigation.” The undersigned agrees with Piazza, however, that
the Department’s objection is an attempt to limit the issues in this litigation to those that it

9

Rule 26(b)(5) requires that, if an objection is asserted on the basis of privilege, the responding
party must: (1) expressly make that claim; and (2) describe (in a privilege log) the nature of the
documents, communications, tangible things not produced or disclosed in a manner that, without revealing
information alleged to be privileged or protected, will enable the other parties to assess the claim of
privilege or protection.

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believes are relevant and thereby restrict discovery.10 As Piazza argues in its motion, in
a case regarding violations of the Foreign Commerce Clause arising from the alleged
improper regulation by the Department of seafood imported from China and Vietnam,
requests for the production of documents discussing such seafood and discussing such
regulations are at least “reasonably calculated to lead to the discovery of admissible
evidence.”

Thus, the Department’s relevancy objection should be denied.

The

undersigned does, however, find that Categories 2 and 3 are overbroad in the sense that
they contain no time limitation. The Court therefore limits the time period for which the
Department must produce information responsive to Categories 2 and 3 to the five (5) year
period immediately preceding the promulgation of the regulations at issue in this suit.
“4.

All documents concerning the drafting, promulgation, and enforcement
of the regulations codified as LAC 7:XXXV.501, 503, 505 and 511.”

The Department objects to this request on the ground of “relevance” and refers
Piazza to the affidavit of the Department’s general counsel, Marvin Montgomery
(“Montgomery”), previously filed into the record of this matter as an exhibit to Odom’s
motion for summary judgment on June 15, 2010, which motion was subsequently denied.

10

For example, one of the issues that the Department contends is central to this case concerns an
alleged violation by Piazza of 21 CFR §530.41, a statute that Piazza contends is completely inapplicable
to it and irrelevant to this litigation. Piazza contends that such federal regulation, which prohibits the extralabel use of certain antibiotics in food-producing animals, does not apply to it as an importer of foreign
seafood (as opposed to a domestic producer of seafood), and that, in any event, the Department has no
authority to enforce that federal regulation, which is administered and enforced by the FDA. Piazza further
contends that, while Odom’s subjective belief as to whether he had the authority to issue the regulations at
issue, may be an issue relevant to Piazza’s claim for punitive damages in that it may go to the issue of
whether Odom had “malice” in enacting the regulations, that “subjective belief” issue is not the only
pertinent issue in this litigation. Whether or not Odom’s conduct was objectively reasonable in light of
existing law is the relevant inquiry in determining whether Odom is entitled to qualified immunity for his
actions. See, Harper v. Harris County, 21 F.3d 597 (5th Cir. 1994)(Qualified immunity shields a state
actor’s conduct as long as the conduct: (1) does not violate a clearly established right, and (2) was
objectively reasonable under existing law).

12

The regulations listed in Category 4 are the very regulations that are at issue in this
litigation; as such, documents concerning their drafting, promulgation, and enforcement are
relevant to this litigation. Furthermore, the Department’s reference to the affidavit of its
general counsel is an insufficient response, as it does not involve the production of any
actual documents relating to the drafting, promulgation, and enforcement of the regulations
in question but instead simply contains a summary of that counsel’s involvement in such
activities. See, R. Doc. 57-7. Accordingly, the Department will be required to produce all
non-privileged documents responsive to Category 4 of the subpoena. To the extent any
responsive documents are claimed by the Department to be privileged, the Department
shall produce a privilege log describing those documents in accordance with Fed. R. Civ.
P. 26(b)(5).
“5.

All documents which concern or reference the partial summary
judgment granted to Piazza on December 22, 2004 in the matter entitled
Piazza’s Seafood World, LLC v. Bob Odom, Civil Action No. 04-690,
Section “A” (1) in the United States District Court for the Eastern
District of Louisiana; and the subsequent affirmance of that partial
summary judgment by the United States Court of Appeal for the Fifth
Circuit, in an opinion issued on May 4, 2006, and reported at 448 F.3d
744 (5th Cir. 2006).”

In response to this request, the Department repeats its objection to Category No. 1,
i.e., that documents relating to the Eastern District litigation are irrelevant to this case. As
discussed above, however, the undersigned finds that the Eastern District litigation is
relevant to Piazza’s allegations in this lawsuit. Thus, the Department will be required to
produce all non-privileged documents responsive to Category 5 of the subpoena that have
not been previously produced to Piazza and that were not part of the record in the Eastern
District litigation. To the extent there are responsive documents alleged by the Department
13

to be privileged, such documents should be described in a privilege log.
“6.

All documents which reflect communications authored by, or involving,
legal counsel, to which Odom is a party, either as author or recipient
(including merely a copy recipient), or which in any case were reviewed
at some point by Odom, and which address the Department’s regulation
of seafood imported into Louisiana from any foreign nation, including
without limitation any such documents which reflect such
communications regarding the declarations of emergency, regulations,
and judicial decisions described in requests (3) through (5), preceding.”

The Department objected to Category No. 6 of the subpoena on the basis of
relevance, discoverability, and the attorney-client privilege. Piazza contends that the
Department has affirmatively waived the attorney-client privilege with respect to any legal
advice he received concerning the regulations in question because he produced into the
record of this matter and the record of the ancillary state court proceeding the affidavit by
the Department’s legal counsel, Montgomery, referenced above, which indicates that
Montgomery performed legal research for Odom and gave Odom legal advice relative to
the regulations at issue in this lawsuit. The Department has referred to that affidavit in this
litigation in an effort at demonstrating Odom’s subjective belief that he had authority to
promulgate the regulations in question.
As a general matter, “[c]ourts have found waiver [of the attorney-client privilege] by
implication when a client testifies concerning portions of [an] attorney-client communication,
. . . when a client places the attorney-client relationship directly at issue, . . . and when a
client asserts reliance on an attorney’s advice as an element of a claim or defense . . .”
Morande Automotive Group, Inc. v. Metropolitan Group, Inc., 2009 WL 650444, *3 (D.Conn.
2009), quoting Sedco Int’l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982). For example,
a client’s reliance upon an attorney’s advice as an element of a claim or defense (as is the
14

case herein with Odom’s reliance upon his counsel’s advice that his actions were in
compliance with law as a defense to Piazza’s claims of unconstitutional conduct) places
otherwise privileged attorney-client communications at issue and implicitly waives the
privilege. Id.11 Because a fact-finder would be unable to evaluate the merits of Odom’s
defense that his counsel told him his conduct was in compliance with law without evidence
as to what legal advice Odom actually relied upon (i.e., the jury could not evaluate the
defense without the protected information), the privilege must give way. Id. Accordingly,
to the extent that the documents requested in Category 6 of the subpoena relate to legal
advice provided by the Department’s counsel, Montgomery, to Odom, they should be
produced by the Department since such advice has been placed at issue in this litigation
and any attorney-client privilege protection relating to those documents has been waived.
Any responsive documents involving Odom and counsel other than Montgomery, however,
should be described by the Department in a privilege log.

11

See also, Willy v. Administrative Review Bd., 423 F.3d 483, 497 (5th Cir. 2005)(When a party
entitled to claim the attorney-client privilege uses confidential information against his adversary (i.e., the
sword), he implicitly waives its use protectively (i.e., the shield) under that privilege); Nguyen v. Excel
Corp., 197 F.3d 200, 207 n. 18 (5th Cir. 1999); Henry v. Quicken Loans, Inc., 263 F.R.D. 458 (E.D.Mich.
2008)(holding that an employer’s motion for summary judgment on the issue of good faith in an
employee’s FLSA overtime action affirmatively asserted advice of counsel as its basis for good faith and
thereby waived the attorney-client privilege with respect to communications between the employer’s vicepresident and attorneys on the issue of the employee’s exempt classification, where the employer
accompanied the motion with the vice-president’s affidavit that stated that the decision to classify
employees as exempt was made in ongoing consultation with counsel and argued in the motion that the
attorneys confirmed the vice-president’s understanding of the regulations).
Similar to Henry, Odom relies upon the affidavit of general counsel for the Department,
Montgomery, in support of his argument in his motion for summary judgment that he was in good faith and
subjectively believed he had the authority to issue the regulations in question. As such, the attorney-client
privilege has been waived with respect to communications between Odom and Montgomery on issues
relating to the promulgation and enforcement of the regulations.

15

“7.

All documents which reflect or concern the seizure of seafood owned
or claimed by Piazza by any agent of, or upon instructions issued by,
the Department.”

As mentioned above, this is the only category of documents in response to which
the Department produced any documents. Piazza, however, contends that such production
appears deficient considering that it included only sixty (60) pages of documents and no
“internal communication[s], memorand[a], or other document[s] concerning an operation
in which multiple Department employees effected seizures of roughly 400,000 pounds of
Piazza’s seafood at multiple locations, detained that seafood over the course of several
months, and during that time[,] administered laboratory tests to that seafood, ostensibly
while in contact with other federal and state agencies.” See, R. Doc. 72-1, p. 7. Piazza
notes that, beginning at least in June 2007 when this suit was filed, Odom, and the
Department over which he exercised control, were under a legal duty to take appropriate
measures to preserve evidence relevant to this case.

Piazza contends that the

Department’s “ephemeral production” suggests that Odom did not implement any policy to
preserve evidence concerning this lawsuit and that, as a result, Piazza has remedies it may
pursue. At this point, however, Piazza requests, with respect to Category 7 of the
subpoena, that the Court order Todd Thomson, who, according to the email of the
Department’s counsel dated April 14, 2011, was the Department official who oversaw the
production, to “certify, under oath and in writing, within ten (10) days of this Order, that the
Department has conducted a diligent search for any responsive documents, including a
search of any hard drives or servers as to which it has access and/or control.” Piazza
seeks to have such certification include “a description of the search parameters used to

16

discover any responsive electronic documents on the Department’s hard drives and
servers” and to have Mr. Thompson “further certify that the 60 pages produced is the sum
of all documents within the Department’s possession, custody, or control which ‘reflect or
concern the seizure of seafood owned or claimed by Piazza by any agent of, or upon
instructions issued by, the Department.” Finally, Piazza requests that the “certification
should categorically describe all possibly responsive documents that may have been lost
or destroyed since this lawsuit was filed.” See, R. Doc. 72-1, p. 20.
Considering that the Department has not filed an opposition to the order proposed
by Piazza and that the undersigned finds such order to be an appropriate means for
determining (1) whether the Department has conducted a thorough search for the
documents requested and has produced all responsive documents in its possession,
custody, or control, (2) whether Odom and the Department fulfilled their duties to preserve
relevant evidence once this lawsuit was filed,12 and (3) whether relevant evidence has been
lost or destroyed as a result of a failure to implement procedures to preserve that evidence,
Piazza’s requested order will be issued, and the Department will be directed to comply
within twenty (20) days.13

12

Considering that this lawsuit was filed just one (1) month after Odom issued an “emergency
declaration” promulgating regulations that resulted in the seizure of Piazza’s seafood, that the seizure
continued for months after this lawsuit was filed, and that this lawsuit was filed during the pendency of
another suit involving Piazza and Odom in the Eastern District of Louisiana, Odom and the Department
were certainly under a duty during that time period to preserve evidence relating to Piazza and to the
seizure of its seafood. The order proposed by Piazza is therefore warranted. See, Ashton v. Knight
Transp., Inc., 2011 WL 734282, *26 (N.D.Tex. 2011)(noting that a duty to preserve arises “when a party
knows or should know that certain evidence is relevant to pending or future litigation.” A potential party to
litigation must not destroy “unique, relevant evidence that might be useful to an adversary” once litigation
becomes “reasonably anticipated.” The duty to preserve covers not only parties but also potential parties’
employees who are likely to have relevant information, i.e., to “key players”).
13

Although Piazza requested that the Department be ordered to comply within ten (10) days, the
Court will allow the Department a longer period of twenty (20) days within which to comply.

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“8.

All documents which reflect or concern any meeting attended by any
domestic (Louisiana) producer of seafood, which was also attended by
Odom, or any of the Specific Agents of the Department.”

“9.

All records concerning the usage of telephones, cellular phones,
pagers, or other communication devices issued to Odom, and each of
the Specific Agents of the Department.”

“10.

Any calendar, day planner, phone log, reimbursement form, travel form,
overtime log, vehicle usage log, or other document which sets forth the
actual, planned, or intended actions of Odom, and each of the Specific
Agents of the Department.”

The undersigned agrees with the Department’s objection that the above categories
are overly broad in that they contain no time limitations and request a number of
documents that are likely irrelevant to this litigation. Although Piazza contends that the
above requests are the only way to track the movements of the Department employees
involved in the alleged violation of its rights, which will, in turn, permit Piazza to “establish
the practical chain-of-command within the Department at the time of the seizures” and to
establish whether Odom was “‘personally involved’ not only in the promulgation of the
Regulations, but also in their enforcement, which presents a separate ground for Section
1983 liability,” the undersigned disagrees that such burdensome discovery is necessary to
ascertain that information. The chain-of-command within the Department as it relates to
this case and Odom’s personal involvement in the promulgation and enforcement of the
regulations at issue can be more easily and efficiently obtained through narrowly-tailored
oral deposition discovery, as opposed to the unlimited means requested by Piazza in
Categories 8-10.14 Accordingly, no further response to those categories is required by the

14

As mentioned above, Piazza certainly plans on taking the depositions of at least five (5)
Department employees since those depositions were previously scheduled for May 16-18, 2011 and are
presently on hold pending a ruling on this motion.

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Department at this time.
IV.

Piazza’s Request for Attorneys’ Fees:
Despite the fact that Piazza’s motion is being denied with respect to Odom

individually and being denied in part with respect to the Department, the undersigned
nevertheless finds that the reasonable costs and fees incurred by Piazza in connection with
this motion should be apportioned between Odom and the Department. It was only after
this motion was filed (and after the filing of objections by Odom and the representation by
Odom’s former counsel that a diligent search for responsive documents was being
undertaken) that Odom finally produced supplemental discovery responses definitively
indicating that no responsive documents are in his possession, custody, or control. Fed.
R. Civ. P. 37(a)(5)(A) provides that, if a disclosure or requested discovery is provided after
a motion to compel is filed, the court must, after giving an opportunity to be heard, require
the party whose conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees, unless (1) the motion to compel was filed without first attempting
in good faith to obtain the disclosure or discovery without court action; (2) the nondisclosure
was substantially justified; or (3) other circumstances make an aware of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A). Odom has not explained, in any way, why he was allegedly
“unavailable” to meet with his prior counsel and to assist in preparing timely and accurate
responses to Piazza’s discovery requests. As a result, his failure to produce accurate
responses until after the present motion was filed is not substantially justified. Moreover,
Piazza allowed both Odom and the Department two (2) extensions of time within which to
respond to the discovery requests/subpoena; yet, neither of them provided complete and
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accurate responses within the extensions granted. Finally, the Department has not
responded to Piazza’s present motion in any way and therefore has not opposed Piazza’s
request for attorney’s fees and costs. Under the circumstances, an award of reasonable
expenses and attorneys’ fees to Piazza relating to this motion is not unjust.15
Accordingly;
IT IS ORDERED that the “Consolidated Motion to Compel Production of Documents
from Defendant Bob Odom, Pursuant to Rules 34 and 37, and from the Louisiana
Department of Agriculture and Forestry, Pursuant to Rules 37 and 45, with Request for
Attorneys’ Fees” (R. Doc. 72) filed by plaintiff, Piazza’s Seafood World, LLC, is hereby
GRANTED IN PART and DENIED IN PART as set forth in the above Ruling.
IT IS FURTHER ORDERED that, to the extent this Ruling directs the Louisiana
Department of Agriculture and Forestry to provide supplemental responses to the subpoena
duces tecum propounded upon it by the plaintiff, such supplemental responses shall be
produced to the plaintiff within twenty (20) days of this Order.
IT IS FURTHER ORDERED that Piazza Seafood World, LLC is entitled to an award
of the reasonable attorneys’ fees and costs that it incurred in bringing this motion to
compel; that respondents, Bob Odom and the Louisiana Department of Agriculture and
Forestry, are each to pay one-half (½) of those fees and costs; and that, in connection with

15

Since Odom’s currently enrolled counsel only recently enrolled in this matter and, immediately
upon doing so, met with Odom and filed supplemental responses and an opposition to the present motion,
the undersigned finds that his present counsel shall not be responsible for paying any portion of the award
of costs and fees. In the event Odom believes that this motion was necessitated by the conduct of any of
his former counsel, he, of course, can seek recourse against them for the fees and costs that he must pay
in accordance with this Order. Similarly, to the extent the Department finds that conduct of its counsel
resulted in this motion, it also can seek reimbursement from counsel for the portion of fees and costs it
pays in compliance with this Order.

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that award, the plaintiff and respondents are to do the following:
(1)

If the amount of attorneys’ fees and costs owed is agreed upon by the plaintiff

and the respondents, the respondents shall each pay one-half (½) that amount;
(2)

If the amount is not agreed upon by the plaintiff and the respondents, the

plaintiff shall, within fifteen (15) days of the date this Order is signed, submit to the Court
a report setting forth the amount of costs and attorneys’ fees (including evidentiary support)
incurred in obtaining this Order; and
(3)

The respondents shall have ten (10) days after the filing of plaintiff’s report

to file any oppositions.
Signed in chambers in Baton Rouge, Louisiana, August 18, 2011.

MAGISTRATE JUDGE CHRISTINE NOLAND

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