United States of America v. State of Louisiana et al

Filing 287

ORDER granting 275 Motion to Compel. Pursuant to Rule 26(e), the Secretary must supplement its responses to the United States' Request for Production Nos. 1, 3, 4, 5, 6, 12, 14 and 18 with any documents in its possession, custody or control that were not previously provided and are responsive to those discovery requests. The Secretary is specifically ordered to consider documents related to the creation, development and issuance of Executive Order BJ-15-10. Any such supplemental respons es shall be provided on or before October 2, 2015. The Secretary is hereby on notice of its continuing duty to supplement any outstanding discovery responses as set forth above. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/21/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

UNITED STATES
OF AMERICA

CIVIL ACTION

VERSUS

NO. 11-470-JWD-RLB

STATE OF LOUISIANA, et al.

ORDER GRANTING THE UNITED STATES’ MOTION TO COMPEL

Before the Court is the United States’ Motion to Compel (R. Doc. 275) the Secretary of
State to comply with its ongoing duty to supplement its discovery responses under Rule 26(e).
Specifically, the United States’ claims that “documents related to the creation, development or
issuance” of the Governor’s July 8, 2015 Executive Order No. BJ-15-10 are “clearly relevant to
the core issue of this case” and are directly responsive to the United States’ April 30, 2012
Request for Production Nos. 1, 3, 4, 5, 6, 12, 14 and 18. (R. Doc. 275-9 at 2, 3 n.1). And
because Rule 26(e) of the Federal Rules of Civil Procedure imposes an ongoing duty to
supplement any discovery responses, the Secretary of State must produce these documents,
regardless of the deadline for conducting phase 1 discovery.
In response, the Secretary of State raises several arguments, each of which will be
addressed by the Court.
First, the Secretary argues that this Court lacks subject matter jurisdiction over the instant
case. (R. Doc. 285 at 2-10). According to the Secretary, the “Scott decision and the agencies’
response in conforming their policies and practices ended the dispute surrounding the pre-2011
practices and mooted the United States’ case[,] [which] challenge[s] the same practices during

the same time period.” (R. Doc. 285 at 7). This is not a motion to dismiss under Rule 12(b)(1)
for lack of subject matter jurisdiction, but a Motion to Compel filed under Rule 37. The
Secretary’s arguments should be raised before the district court in a motion brought under Rule
12 or Rule 56.
Second, the Secretary suggests that the United States Motion to Compel pertaining to
Requests for Production issued on April 30, 2012, during phase 1 discovery, is untimely because
phase 1 discovery motions were due by May 15, 2015. However, the Secretary ignores the fact
that the United States asks the Court to order compliance with the Secretary’s ongoing obligation
to supplement discovery responses under Rule 26(e), as opposed to a traditional motion to
compel concerning a party’s initial responses to discovery. Under Rule 26(e), parties have an
ongoing obligation to continuously supplement their discovery responses. That obligation is in
no way limited by the discovery deadlines imposed by the Court’s Scheduling Order pursuant to
Rule 16.
Although motions related to phase 1 discovery were due by May 15, 2015, the Executive
Order in question did not exist until July 8, 2015, and was not made known to the United States
until July 15, 2015. The United States then diligently pursued supplementation without the
Court’s involvement. When those efforts proved fruitless, the United States filed the instant
Motion. This is not a case where the United States is attempting to circumvent the Court’s
deadlines pertaining to phase 1 discovery under the guise of a motion pertaining to an opposing
party’s Rule 26 duty to supplement. To the contrary, the United States’ motion is specifically
limited to the Executive Order at issue, and does not pertain to any discovery responses that
could have been the subject of any motion filed in May of 2015. For these reasons, the Court
finds the Motion to Compel was timely filed.

Third, the Secretary suggests that the Motion should be dismissed because the United
States failed to comply with Local Rule 37, requiring that Rule 37 motions “quote verbatim each
[discovery request] to which it is addressed, followed by the verbatim response or objection.” It
is true that the United States failed to “quote verbatim” Request for Production Nos. 1, 3, 4, 5, 6,
12, 14 and 18 or any responses in its Motion. However, the Secretary ignores the fact that it
refused to address whether there are any responsive documents to these requests that might fall
within its duty to supplement. This refusal by the Secretary prevents the Court from determining
the sufficiency of any relevant responses, as none exist. Moreover, all of the parties agree that
any documents at issue that might fall within the Secretary’s duty to supplement would not have
existed at the time the Secretary served its responses to these 2012 discovery requests.
Therefore, those responses would have no value to the Court in deciding whether subsequent
documents are responsive and must be produced under Rule 26(e). The United States is still
advised of its need to comply with this Court’s Local Rules in the future, as are all parties.
Nonetheless, its current error does not warrant denial of its Motion.
Next, the Secretary claims that the Executive Order issued on July 8, 2015 cannot be
responsive to the United States’ April 30, 2012 discovery requests because those requests were
“self-limiting.” (R. Doc. 285 at 13). The requests are “self-limiting,” according to the Secretary,
because they specify that “‘all document requests concern the period of time from January 1,
2007 to the present,’ the present being April 30, 2012, the date the requests were propounded.”
(R. Doc. 285 at 13). The Secretary ignores, however, the paragraph above the one cited, which
clearly indicates: “There requests are continuing in nature. . . . Defendant’s attorneys are under a
continuing duty to supplement their responses and production with documents obtained after the
service of a response to these requests.” (R. Doc. 275-1 at 4). Moreover, parties often use the

term “to the present” when requesting documents in discovery and, at least in this context, the
Court does not read the term as temporally limiting the United States’ requests to documents
only existing before April 30, 2012. See Hall v. Missouri Highway & Transportation
Commission, 2001 WL 861739, at *1 (E.D. Mo. April 5, 2001) (“Pursuant to Federal Rule of
Civil Procedure 26(e), a party has a duty to supplement prior responses to interrogatories or
requests for production to include information thereafter acquired. Many interrogatories or
requests for production include the language ‘to the present.’ However, it is assumed that the
information will be supplemented up to the time of trial as is required by federal law.”).
Therefore, the Court rejects the position that the United States’ requests are “self-limiting” such
that no duty to supplement exists.
Finally, the Secretary argues that the sought after documents are irrelevant for two
reasons. Repeating its previous argument, the Secretary first suggests that “supplementation is
[not] required for events and documents that came into being after April 30, 2012, when the
discovery was propounded.” (R. Doc. 285 at 14). The Court has rejected this argument. Second,
the Secretary suggests that documents relating to Executive Order BJ-15-10 are irrelevant
because “the conduct and practices of the Defendants in the years preceding 2011 are
undisputedly the sole and only basis for the Complaint. Current conduct and practices are
undisputedly not.” (R. Doc. 285 at 2) (emphasis added). Therefore, in the Secretary’s mind, any
documents relating to an Executive Order issued on July 8, 2015, “more than four years after suit
was filed . . . are hardly relevant for purposes of determining conduct that occurred in 2011.” (R.
Doc. 285 at 15).
The Secretary offers an argument identical to one that has already been rejected by the
Court in connection with a Motion to Dismiss filed by the other agency-Defendants. (R. Doc.

53). In his Order, the district judge found the Complaint was not limited to past conduct
occurring before 2011. (R. Doc. 53 at 4). Instead, the “key allegations of the Complaint indicate
continuous violation by the State. The State’s argument that the allegations only concern past
conduct is therefore meritless.” (R. Doc. 253 at 4). That finding is likewise consistent with the
United States’ request for prospective, as opposed to retrospective, relief. (R. Doc. 1). The Court
finds that because the Complaint alleges continuous violations, the fact that the Executive Order
was issued in 2015 does not render the “documents related to [its] creation, development or
issuance” irrelevant. The Secretary offers no other arguments with respect to relevancy.
The United States asserts that the documents are “relevant to the core issue of this case —
whether Defendants are complying with the requirements of Section 7 of the NVRA.” (R. Doc.
275-9 at 3). Moreover, the United States points out that the Secretary “relies on the existence of
the Executive Order to argue that the SOS is in full compliance with Section 7.” (R. Doc. 275-9
at 4). And because the Secretary “has specifically invoked the Executive Order as a defense
against [this] suit,” the United States argues, the Secretary “cannot credibly claim that documents
pertaining to the Executive Order are not relevant to a claim or defense in this matter.” (R. Doc.
275-9 at 4). The Court agrees.
Finally, the Secretary does not argue that no responsive documents exist. Based on the
outstanding discovery requests and contents of the Executive Order, as well as the Secretary’s
apparent intent to rely on that Order in its defense, the United States is proper in seeking some
assurance that the defendants comply with any obligations under Rule 26(e).
For the reasons given above, IT IS ORDERED that the United States’ Motion to
Compel is GRANTED. Pursuant to Rule 26(e), the Secretary must supplement its responses to
the United States’ Request for Production Nos. 1, 3, 4, 5, 6, 12, 14 and 18 with any documents in

its possession, custody or control that were not previously provided and are responsive to those
discovery requests. The Secretary is specifically ordered to consider documents related to the
creation, development and issuance of Executive Order BJ-15-10. Any such supplemental
responses shall be provided on or before October 2, 2015. The Secretary is hereby on notice of
its continuing duty to supplement any outstanding discovery responses as set forth above.
Signed in Baton Rouge, Louisiana, on September 21, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE