United States of America v. State of Louisiana et al

Filing 145

RULING regarding 128 , 130 and 131 Appeals from Magistrate Judge Dalby's order 127 ruling on discovery motions. The order by Magistrate Judge Dalby dated 8/27/2012 is AFFIRMED. The Court further orders that the parties certify to the court in advance of any further discovery motions that they have held such a conference. The certification shall include the issues discussed, the participants, and the outcome of such discussions. Signed by Judge James J. Brady on 10/25/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
CIVIL ACTION
VERSUS
NO. 11-00470-JJB
STATE OF LOUISIANA, ET AL.
RULING ON OBJECTIONS TO MAGISTRATE JUDGE’S ORDER
Defendants J. Thomas Schedler (“Schedler”) (Doc. 128), Louisiana
Department of Children and Family Services and Ruth Johnson (collectively
“DCFS”) (Doc. 131), and Louisiana Department of Health and Hospitals and
Bruce D. Greenstein (collectively “DHH”) (Doc. 130) have taken appeals from
Magistrate Dalby’s order (Doc. 127) In her order, Magistrate Judge Dalby ruled
that discovery motions (Docs. 96, 98, 99, 107, 109, and 110) are moot. Plaintiff
United States of America has filed oppositions. (Docs. 133 and 136). Oral
argument is not necessary. Jurisdiction exists under 28 U.S.C. § 1331.
I.
This is a civil enforcement action brought by the United States against the
State of Louisiana and certain agencies and officers thereof to remedy alleged
violations of Section 7 of the National Voter Registration Act of 1993 (“NVRA”),
42 U.S.C. § 1937gg-5. NVRA requires all offices providing public assistance or
state-funded disability programs to also provide voter registration opportunities.
The following timeline of relevant events and dates follow.
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 December 20, 2011 (Docs. 61 and 63): Magistrate Judge Dalby granted
Plaintiff’s motion for a protective order listing what constitutes confidential
information and outlined steps to protect confidential information.
Magistrate Judge Dalby also dismissed Schedler’s discovery plan as moot.
Defendants appealed to this Court.
 March 7, 2012 (Doc. 73): Magistrate Judge Dalby signed an order
regarding the procedures and format governing the production of
documents and electronically stored information (“ESI”). Defendants
appealed to this Court.
 March 9, 2012 (Doc. 74): This Court affirmed Magistrate Judge Dalby’s
discovery rulings (Docs. 61 and 63) as not being clearly erroneous or
contrary to federal law.
 June 29, 2012 (Doc. 96): DHH filed a motion for a protective order
regarding Plaintiff’s Third Request for Production of Documents.
 July 2, 2012 (Docs. 98 and 99): Schedler filed a motion for a protective
order and an evidentiary hearing regarding Plaintiff’s Third Request for
Production of Documents.
 July 13, 2012 (Doc. 102): This Court modified the protective order (Docs
61 & 73) and recommitted the matter to the Magistrate Judge to entry of
modified orders.

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 July 23, 2012 (Doc. 107): Plaintiff filed a cross-motion to compel responses
by DHH and Greenstein to the Third Request for Production of Documents.
 July 26, 2012 (Doc. 109): Plaintiff filed a motion to compel responses by
DCFS and Ruth Johnson to the Third Request for Production of
Documents.
 July 26, 2012 (Doc. 110): Plaintiff filed a cross-motion to compel responses
by Schedler to the Third Request for Production of Documents.
 August 27, 2012 (Doc. 124): Magistrate Judge Dalby signed an order
denying DHH’s motion for a protection order, granting in part and denying
in part plaintiff’s motion to compel requests for production as to Requests
Nos. 1 and 2, and ordering that a revised protective order and a revised
discovery plan would be issued.
 August 27, 2012 (Docs. 125 and 126): Magistrate Judge Dalby issued a
revised protective order and a revised discovery plan.
 August 27, 2012 (Doc. 127): Magistrate Judge Dalby determined that the
discovery motions (Docs. 96, 98, 99, 107, and 110) were moot in light of
her August 27, 2012 orders.
II.
All of the Defendants have filed an appeal arguing that the Magistrate
erred in dismissing their motions for protective orders with respect to the
Plaintiff’s Third Request for Production of Documents as moot in her Revised
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Protective Order and Revised Discovery Plan (“RDP”). (Docs. 128, 130, 131).
The Defendants’ collective arguments are (1) Plaintiff’s request is overbroad,
unduly burdensome, unduly costly and irrelevant; (2) production of documents
would require revealing confidential data protected under state and federal law;
and (3) production of documents could compromise the integrity of internal
systems. Additionally, the Defendants point to the language in the Revised
Order, which provides that “[n]othing contained in this Order and no action taken
pursuant to it shall prejudice the right of any party to object to any act or action
based on any grounds that may have existed prior to the entry of this Order, to
object to any discovery or to contest the alleged relevance or admissibility of the
materials or information produced subject to the terms of this Order.” (Doc. 125,
p. 3).
As a threshold matter, this Court agrees with the Magistrate’s order mooting
the motions with respect to any confidentiality arguments pursuant to state and
federal law. The Revised Order provides:
Confidential Information, including information ordinarily
exempted from public disclosure pursuant to La. Rev.
Stat. §§ 46:56, 18:154, and 18:116(F), and any other
applicable state or federal confidentiality statute, may be
produced within the context of this litigation and as
described in this Consent Protective Order,
notwithstanding any other provision of law to the
contrary.

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(Doc. 125, p. 2). Thus, any arguments about the production of data violating
state and federal laws are mooted by the Revised Order. Additionally, this Court
also agrees that any arguments concerning the potential for dissemination of
confidential information beyond the scope of this litigation and compromising the
integrity of any internal systems are mooted by the Revised Order. First, the
Magistrate’s protective order provides that confidential information shall not be
made available to any other person outside the parties to this litigation and their
staffs without “prior written consent of the individual or entity producing the
information.” (Doc. 125, p. 3). Additionally, the order provides that any
confidential information shall be destroyed within 30 days “after the expiration of
all appeal rights relating to the final judgment.” (Doc. 125, p. 4). This is also
provided in the RDP, ordering that all “non-public documents and information
[except as otherwise required by federal law under the Records Disposal Act]
shall be destroyed and/or permanently deleted from the receiving Party’s
electronic storage within thirty (30) days after the expiration of all appeal rights
relating to the final judgment entered in this case.” (Doc. 126, p. 9).
Defendants also argue that the magistrate judge committed error when she
mooted DCFS and Schedler’s objections that plaintiff’s requests were overbroad,
unduly burdensome, costly, and irrelevant based on implementation of the RDP.
(Doc. 126). The Court disagrees with defendants' arguments and affirms the
Magistrate’s ruling.
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First, insofar as the scope and relevancy of the requests are challenged,
the RDP (Doc. 126) actually defined "potentially relevant information" to shortcut
just such challenges and hopefully avoid discovery disputes. Paragraph B of the
RDP clearly encompasses the information requested by plaintiff, which is well
within the confines of relevance and scope, and thus the requests are neither
overbroad nor irrelevant.
Second, insofar as defendants contend that the requests are nevertheless
burdensome and costly, defendants are reminded that they are required to
produce only that information they have, and as it is kept in the ordinary course
of business (native format, which may be the database itself (raw data), or the
output from the database (spreadsheets, reports, etc.)). Plaintiff is not
responsible for any shortcomings, if any, in defendants' record keeping, and
defendants have failed to show that the records are not reasonably accessible as
kept in the ordinary course of business. Insofar as cost is concerned, the RDP
included a cost-shifting provision to address just such issues. If plaintiff needs
the information in a format other than the native file format, such as, for example,
a specialized report that includes data from several sources, then the plaintiff
was to bear those costs. In short, the defendants were required to produce only
that which they have, as it is kept in the ordinary course of business, and any
additional expenses to convert the data to another format are to be borne by the
requesting party.
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Third, in reviewing the RDP for purposes of this appeal, it became obvious
that the defendants did not comply with other provisions (paragraphs C.1, C.4,
and C.5) which required that the parties meet and confer before seeking court
intervention in discovery disputes. As a practical matter, and one which is
obvious in the briefing on these appeals, many of the disputes involve technical
issues that go beyond legal expertise; hence the RDP requirement that the
parties meet, along with their respective I.T. personnel, to determine the most
efficient and cost-effective means of exchanging information before seeking court
intervention. That was not done.
Accordingly, the order (Doc. 127) by Magistrate Judge Dalby dated August
27, 2012 is hereby AFFIRMED. The Court further orders that the parties certify to
the court in advance of any further discovery motions that they have held such a
conference. The certification shall include the issues discussed, the participants,
and the outcome of such discussions.

Signed in Baton Rouge, Louisiana on October 25th, 2012.





JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

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