Bell v Hercules Liftboat, LLC

Filing 53

RULING granting in part and denying in part 31 Motion to Compel.. Signed by Magistrate Judge Stephen C. Riedlinger on 12/8/2011. (LSM) Modified on 12/9/2011 to change document type (LSM).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SUE BELL
CIVIL ACTION
VERSUS
NUMBER 11-332-JJB-SCR
HERCULES LIFTBOAT COMPANY,
L.L.C.
RULING ON MOTION TO COMPEL
Before the court is a Motion to Compel filed by the plaintiff
Sue Bell.

Record document number 31.

The motion is opposed.1

The subject of this discovery dispute is the Plaintiff’s First
Interrogatories and Request for Production served on July 11,
2011.2

The discovery requests at issue are Interrogatory Numbers

1, 2, 4-6, and 8, and Requests for Production Numbers 12, 14, 15,
17 and 18.
dispute

In addition to these discovery requests the parties

the

need

for

a

protective

order

with

regard

to

Interrogatory Number 2, and Request for Production Numbers 14, 15,
17 and 18.

The issues raised by the plaintiff’s motion are

resolved as follows:
Interrogatory Number 1
In

this

interrogatory

the

plaintiff

requested

certain

information about all the individuals named in the plaintiff’s
petition.

Plaintiff complained that the petition listed Tim Reed

1

Record document number 33.
Plaintiff and defendant also
filed reply memoranda. Record document numbers 44-1 and 50.
2

Record document number 31-2.

as a person with knowledge, but his address and telephone number
were not provided in the answer to the interrogatory.
responded that Tim Reed was not listed in the petition.

Defendant
A review

of the petition shows that Tim Reed was named in paragraph 49.
Thus, the defendant is required to supplement its answer with the
contact information for Tim Reed.3
Interrogatory Number 4
Defendant objected that this question was vague, unclear,
confusing and unintelligible.

Review of this interrogatory shows

that the defendant’s argument has merit.4
and confusing.

This question is unclear

In her motion the plaintiff attempted to clarify

the information she is seeking, but her attempt is unsuccessful.5
The interrogatory is too confusing to require the defendants to
answer it.
Interrogatory Numbers 5 and 6
In these interrogatories the plaintiff asked the defendant to
provide

any

and

all

information

relating

to

allegations

or

3

In the plaintiff’s letter summarizing the deficiencies in
the defendant’s discovery responses the plaintiff did not object
that the defendant failed to provide all of the information listed
in the interrogatory. Plaintiff only stated that Reed’s address
and telephone number were not provided in the answer. Therefore,
the defendant is only required to supplement with contact
information and not all of the information listed in the
interrogatory.
4

Record document number 33-1, p. 8; record document number
33-3, p. 1.
5

Record document number 31-4, p. 3.
2

complaints of discrimination or harassment which may have been in
whole or in part attributable to the defendant before or after the
allegations that are the subject of this lawsuit.

Plaintiff also

asked the defendant to identify and describe in detail all lawsuits
now pending or previously settled/adjudicated in the past 10 years
in which the defendant or Hercules Offshore Inc. was a party and
involved harassment, discrimination and retaliation.

Defendant

responded to both interrogatories by objecting that they were
unduly burdensome, overly broad and not calculated to lead to the
discovery of admissible evidence.

Subject to this objection the

defendant answered both interrogatories by stating “to the extent
the interrogatory seeks information relating to complaints of
discrimination similar to those asserted by plaintiff in this
matter for the past three years, none.”
The interrogatories as written are plainly overly broad.
Interrogatory

number

5

is

not

limited

to

the

types

of

discrimination alleged by the plaintiff and has no time limitation
at all.

Interrogatory number 6 is limited to a 10 year time frame,

but is not limited to the type of discrimination alleged in this
suit.

Defendant’s answer covered a period of three years and

complaints of discrimination similar to those asserted by the
plaintiff.

With these limitations the defendant stated that there

were no complaints or suits.

Defendant’s response covered a

reasonable time period and it will not be required to supplement

3

its answers to these two interrogatories.
Interrogatory Number 8
This

interrogatory

investigation

and

requested

findings

of

the
any

defendant

describe

investigation

into

the
the

discrimination/harassment claims of the plaintiff. Subject to some
objections the defendant responded by stating that the plaintiff
did not complain about discrimination or harassment at any point
prior to her termination.

Plaintiff claimed that this answer was

“incorrect” and supported this by attaching a July 21, 2010
memorandum in which the plaintiff complained to Mary Coffelt about
her evaluation by Byron Allemand.

Defendant maintained that this

document was not a complaint about discrimination/harassment.
The July 21 document supplied by the plaintiff does not
support her argument that the defendant incorrectly answered this
interrogatory.

There is nothing in the document from which one

could reasonably conclude that the plaintiff was complaining to
Coffelt about discrimination or harassment.

There is no basis to

order the defendant to supplement its answer to Interrogatory
Number 8.
Request for Production Number 12
Plaintiff requested the defendant produce the personnel files
of the individuals identified in Interrogatory Number 1. Plaintiff
contended that the defendant did not support its objection that the
request was unreasonably cumulative or duplicative, or that the
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burden/expense of the production outweighed its likely benefit.6
In its response to the motion, the defendant argued that the
plaintiff is seeking the personnel records of eight present and
former employees who are not parties to this case without any
showing that they are similarly situated to her, or were treated
more favorably than her on the basis of any alleged disability.
Thus, the records sought are irrelevant and do not have to be
provided to the plaintiff.7
Defendant’s relevancy objection is well-founded.

In her

motion the plaintiff failed to explain how information in the
personnel

records

of

the

identified

employees

could

possibly

contain information relevant to proving any claims or defenses.
Plaintiff did not assert or argue that these individuals were
similarly situated to her and/or received more favorable treatment
on the basis of disability.

Nor did the plaintiff articulate any

basis to find that the personnel files of these employees would
likely contain information about any retaliation or failure to
accommodate her disability.8

Therefore, there is no basis for the

court to require the production of these personnel records.

6

Defendant objected on grounds that the request was overly
broad, irrelevant and a violation of privacy interests.
7

Record
document
Memorandum, pp. 5-6.
8

number

33,

Record document number 31-3, p.3
5

Defendant’s

Opposition

Request for Production Numbers 14, 15, 17 and 18
With regard to these requests for production of documents, the
defendant essentially maintained that it would not produce any
responsive documents until a protective order was issued to ensure
the confidentiality of the documents. Plaintiff would not agree to
the protective order proposed by the defendant, claiming that the
proposed order was too restrictive given the ongoing investigation
of Hercules Liftboat Company.9

The documents that the defendant

states it will only produce upon execution of a protective order
are a September 2010 internal report (R&M Review of GOM Liftboats),
a list of employees terminated in the reduction in force, copies of
the

defendant’s

transfers,

employment

light

duty

policies

related

assignments

and

to

evaluations,

promotions,

and

discrimination and harassment policies related to the plaintiff’s
claims.10
Defendant did not dispute that the requested documents are
relevant, but rather refused to provide them to the plaintiff
before

the

entry

of

a

protective

order.

Under

Rule

26,

Fed.R.Civ.P. the burden is on the party seeking the protective
order, here the defendant, to establish that there is good cause to
issues the requested order.

Yet, the defendant has never filed a

motion for a protective order, and did not file one even when it

9

Record document number 31-4.

10

See, defendant’s response to plaintiff’s Request for
Production Numbers 6, 14, 15, 17 and 18, record document number 313, pp. 12, 14 and 15; record document number 33-3, p. 2.
6

was clear that the plaintiff would not agree to the protective
order proposed by the defendant on September 14, 2011.

Rule 26

does not permit the defendant to shift the burden of showing cause
for entry of the protective order to the plaintiff.

Moreover, it

would be anomalous to do so in the circumstances of this case since
clearly

the

plaintiff

does

not

agree

protection sought by the defendant.

with

the

scope

of

the

Consequently, the defendant

has failed to satisfy its burden under Rule 26.

Therefore, the

defendant is required to produce the withheld documents without a
protective order.
Award of Expenses
Under Rule 37(a)(5) if a motion for discovery is granted in
part and denied in part, the court may apportion the reasonable
expenses for the motion.

Since the plaintiff only prevailed on

approximately one-half of the relief sought in this motion, each
side should bear its own costs.11
Accordingly, the Motion to Compel filed by the plaintiff Sue
Bell is granted in part and denied in part.

Within 7 days the

defendant shall provide to the plaintiff, without objections, a
supplemental answer to Interrogatory Number 1, and produce for
inspection and copying the responsive documents it has withheld on

11

Defendant’s argument that the plaintiff did not make a good
faith attempt to resolve the discovery dispute before filing her
motion is unpersuasive. It was apparent that after the defendant
sent an email response to the plaintiff on October 21, 2011 the
parties has reached an impasse in the dispute over the need for and
/or content of a protective order. Record document number 33-3.
7

the basis that they are confidential and/or proprietary, including
the list of terminated employees, the September 2010 internal
report, and the defendant’s employment, discrimination/harassment
policies.
Each party shall bear its own costs incurred in connection
with this motion.
Baton Rouge, Louisiana, December 8, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

8