United States of America v. State of Louisiana et al

Filing 328

ORDER granting in part and denying in part 301 Motion to Compel. The Motion is DENIED in part, because Interrogatory Nos. 4, 5 and 6 are overly broad and unduly burdensome, as they seek every fact and every application of law to fact supporting t he identified allegations. The Motion is GRANTED in part, as set forth above, as the Court finds that the United States has a duty to supplement its previous responses. Such responses shall be provided on or before January 5, 2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/16/2015. (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

Before the Court is a Motion to Compel filed against the United States by Defendant, J.
Thomas Schedler (Schedler). (R. Doc. 301). The United States filed an Opposition (R. Doc.
307), to which Schedler filed a Reply Memorandum. (R. Doc. 323). Schedler seeks an order
compelling the United States to fully respond to Interrogatory Nos. 4, 5 and 6 of Schedler’s
Second Set of Interrogatories, or otherwise supplement its responses to Interrogatory Nos. 2, 3
and 4 of Schedler’s First Set of Interrogatories. (R. Doc. 301 at 1). Having considered the
arguments and reviewed the record, the Motion to Compel is GRANTED in part and DENIED
in part.
On September 19, 2011, Schedler propounded his First Set of Interrogatories to the
United States (R. Doc. 201-2). Relevant here, Interrogatory Nos. 2, 3 and 4 requested the
following information:
Interrogatory No. 2
Please describe each and every act by the Secretary of State that you contend
either violated or constituted a failure to act under the NVRA, and provide the
following information with reference thereto:

a.
b.
c.
d.

When each act occurred;
Where each act occurred;
Who was involved in the commission each such act(s); [and]
How each such act affected the requirements of the NVRA.

Interrogatory No. 3
Please describe each and every omission by the Secretary of State that you
contend either violated or constituted a failure to act under the NVRA.
Interrogatory No. 4
Please describe precisely and in detail in what way the Secretary of State failed in
its responsibilities under the NVRA.
(Def.’s First Set of Interrogs., R. Doc. 201-2 at 1-2).
The United States initially responded to Schedler’s Interrogatories on October 24, 2011.
(R. Doc. 201-3). After Schedler lodged complaints over the Responses to Interrogatory Nos. 2,
3, and 4, the United States supplemented its Responses1 on January 2, 2015:
. . . . Through his and his predecessor’s official acts and omissions both prior to
and after the commencement of this litigation and the private-party litigation in
the Eastern District of Louisiana (Scott v. Schedler, No. 2:11-cv-926), the
Secretary of State has generally violated the NVRA by, among other things:
1.

2.

Failing to adequately train and instruct public assistance and disability
services offices to offer voter registration opportunities to their clients as
required by Section 7 of the NVRA.

3.

Failing to maintain an accurate and current list of all Voter Registration
Agencies that are or should be designated pursuant to Section 7 of the
NVRA.

4.

1

Failing to adequately monitor NVRA compliance in public assistance and
disability services offices in Louisiana.

Failing to designate as Voter Registration Agencies all offices in the state
that provide public assistance or state-funded disability services, including
but not limited to the Office of Aging and Adult Services.

This amended and supplemental response formally responds to Interrogatory No. 2. In its initial responses, the
United States’ responses to Interrogatory Nos. 3 and 4 reference and incorporate the initial response to Interrogatory
No. 2. (R. Doc. 201-3 at 7). Accordingly, this amended and supplemental response to Interrogatory No. 2 also
serves as the amended and supplemental response to Interrogatory Nos. 3 and 4.

5.

Failing to adequately coordinate state responsibilities in the role as chief
state election official designated under the NVRA.

Many of the facts which evidence Defendant Schedler’s and his predecessors’
noncompliance with the NVRA prior to the judgment in Scott are within
Defendants’ possession, custody, and control and/or have been produced during
the course of discovery in this litigation and the Scott litigation. . . . .
. . . . After the Scott trial court adjudged Defendant Schedler liable under Section
7 . . . Defendant Schedler promulgated new regulations . . . .Thus far, despite the
United States’ specific written requests for him to do so, Secretary Schedler has
not supplemented his discovery responses to provide . . . information regarding
his office’s and the other Defendants’ current compliance with the NVRA. . . .
Thus, based on the evidence currently in its possession, the United States believes
that, beyond the acts and omissions described above, Defendant Schedler’s
present acts and omissions continue to violate Section 7 of the NVRA by, among
other things:
1.

Continuing to disavow his coordination responsibilities under Section
10 of the NVRA to include an obligation to ensure that voter registration
opportunities are provided with all qualifying public assistance and
disability services transactions, including remote transactions;

2.

Failing to provide adequate guidance to mandatory voter registration
agencies with respect to marking the completed Louisiana mail voter
registration application typically distributed to agency clients and
applicants (Form LR-1M) as agency-processed applications, rather than
mail-in applications, prior to sending them to the appropriate registrar of
voters;

3.

Failing to provide adequate guidance regarding the responsibility of
mandatory voter registration agencies to offer in-person voter registration
services to any individual adult citizen present in the office, upon request,
regardless of whether that person engages in a qualifying transaction with
the agency. See 52 U.S.C. §§ 20503(a)(3)(B), 20506(a)(4);

4.

Failing to adopt policies ensuring that voter registration declaration forms
(including those transmitted in connection with remote transactions) are
completed, returned and maintained by mandatory voter registration
agencies;

5.

Failing generally to ensure that mandatory voter registration agencies in
the State of Louisiana are fully and consistently adhering to their
responsibilities under Section 7 of the NVRA.

The above-described acts and omissions have resulted and may continue to result
in the denial of certain voter registration opportunities that the NVRA mandates
Louisiana provide to its public assistance and disability services clients. The
above acts and omissions have ‘affected the requirements of the NVRA’ insofar
as they have resulted in the failure of many designated Voter Registration
Agencies to comply with the requirements of Section 7 of the NVRA.
(R. Doc. 201-7 at 3-7). Unsatisfied with the level of specificity provided by the United States’
Supplemental Responses, Schedler filed a Motion to Compel (R. Doc. 201) complete responses
to Interrogatory Nos. 2, 3 and 4, on February 6, 2015. In its Opposition, the United States
claimed that its answers were sufficient. In terms of alleged pre-Scott violations, the United
States provided examples and argued that it complied with Rule 33(d) by citing to specific
documents containing the details requested. (R. Doc. 206 at 9-11). With respect to any alleged
violations occurring after the Scott litigation, the United States explained that it provided
examples “to the best of its ability at [that] time” based on the information currently available.
(R. Doc. 206 at 12). The United States qualified this portion of its response as “necessarily
incomplete” because it was awaiting certain discovery responses from Defendants and certain
depositions had not been taken. (R. Doc. 206 at 12).
The Court denied Schedler’s Motion to Compel and found the United States’ responses
were sufficient. The Court noted the United States’ representation that its responses were
complete based on the information currently available. The Court further noted that the United
States “augment[ed]” its narrative responses by referencing certain documents containing the
“dates, locations, and circumstances” with respect to alleged pre-Scott violations. (R. Doc. 213 at
11-12). The Court further reminded the parties’ of their obligation to supplement any discovery
responses with newly received information under Rule 26(e).

On March 5, 2015, Schedler served the United States with his Second Set of
Interrogatories. (R. Doc. 301-1 at 1-5). At issue here, are Interrogatory Nos. 4, 5 and 6, which
request the following information:
Interrogatory No. 4
For the time period beginning October 15, 2012, please describe each and every
act by the Secretary of State that you contend either violated or constituted a
failure to act under the NVRA, and provide the following information with
reference thereto:
a.
b.
c.
d.

When each act occurred;
Where each act occurred;
Who was involved in the commission each such act(s); [and]
How each such act affected the requirements of the NVRA.

Interrogatory No. 5
For the time period beginning October 15, 2012, please describe each and every
omission by the Secretary of State that you contend either violated or constituted
a failure to act under the NVRA.
Interrogatory No. 6
For the time period beginning October 15, 2012, please describe precisely and in
detail in what way the Secretary of State failed in its responsibilities under the
NVRA.
(R. Doc. 301-1 at 3-4). The United States provided responses on April 7, 2015 (R. Doc. 301-1 at
6-18), raising the following objections:
Response to Interrogatory No. 4
The United States objects to this interrogatory on the grounds that it is needlessly
repetitious, duplicative, and harassing, inasmuch as it seeks information
previously disclosed to Defendant Schedler in connection with his First Set of
Interrogatories. Despite the United States’ repeated assurances that it had
answered Defendant Schedler’s First Interrogatories fully, Defendant Schedler
moved to compel more complete responses on February 6, 2015. On March 2,
2015, this Court denied Defendant Schedler’s motion to compel, finding that ‘the
United States’ supplemental and amended response is sufficient to answer
Defendant Schedler’s [First] Interrogatory Nos. 2, 3, and 4.’ Should the United
States obtain additional information responsive to Defendant Schedler’s First
Interrogatories, which seek the same information as this Interrogatory, that is not
otherwise disclosed in discovery, it will supplement its responses to the extent
required by Rule 26(e) of the Federal Rules of Civil Procedure.

Response to Interrogatory No. 5
Subject to and without waiving the foregoing objections and the general
objections, the United States incorporates its response to Interrogatory No. 4 as if
fully restated herein.
Response to Interrogatory No. 6
Subject to and without waiving the foregoing objections and the general
objections, the United States incorporates its response to Interrogatory No. 4 as if
fully restated herein.
(R. Doc. 301-1 at 16-17). Unsatisfied with the United States’ discovery responses, Defendant
filed the instant Motion to Compel on October 21, 2015. (R. Doc. 301). In Defendant’s opinion,
the United States “took repose in the Magistrate’s ruling of March 2, 2015 and essentially said
that it did not have to answer” Interrogatory Nos. 4, 5 and 6. (R. Doc. 301-3 at 1). Defendant
suggests that its Interrogatories seek “straightforward” information about alleged violations of
the NVRA occurring after October of 2012. He therefore argues that if the United States “has a
case against Schedler, it should be able to provide the answers to these questions.” (R. Doc. 3013 at 2).
In its Opposition, the United States responds that it has “no supplemental response to
make to [the new] interrogatories,” given they are “the exact same three interrogatories” found
sufficiently answered by the Court. (R. Doc. 307 at 1-3). According to the United States, since
the Court’s March 2, 2015 Order, “Defendants and several non-parties have produced documents
. . . in response the United States’ discovery requests, and the United States has taken several
depositions . . . .” (R. Doc. 307 at 3). All of this evidence was either produced by or provided to
Defendant. The United States has likewise “conducted no further investigation into Defendants’
liability under Section 7 of the NVRA outside of the discovery context.” (R. Doc. 307 at 3).
Defendant is therefore “in full possession” and “aware of” the documents and testimony accruing
after the Court’s Order. (R. Doc. 307 at 6). “[T]o the extent any of that evidence augments or

negates the United States’ previous discovery responses,” the United States suggests it has “no
further supplementation obligation under Rule 26(e)” as the additional information has otherwise
been made known to Defendant. (R. Doc. 307 at 6). The United States further objects to the
“contention interrogatories” as overly broad, because they ask for each and every act or omission
that the United States claims violated the NVRA.
To begin, while Rule 33 itself allows for the use of contention interrogatories, a
contention interrogatory may be overly broad where it seeks “each and every” single fact upon
which a party bases its case. An interrogatory may reasonably ask for the material or principal
facts which support a contention. Rule 33 contemplates that a responding party may not object
merely because a contention interrogatory requires the application of opinion to fact. See
Krawczyk v. City of Dallas, 2004 WL 614842, at *5-6 (N.D. Tex. Feb. 27, 2004). To require
“each and every” fact or application of law to fact, however, “would too often require a
laborious, time-consuming analysis. . . . The burden to answer then outweighs the benefit to be
gained.” IBP, Inc. v. Mercantile Bank of Topeka, 179 F.R.D. 316, 321 (D. Kan. 1998).
The Court agrees with the United States that Interrogatory Nos. 4, 5 and 6 are overly
broad and unduly burdensome as written, notwithstanding the fact that they are contention
interrogatories. For the Court to compel the responses sought by Schedler would require the
Plaintiff to lay out their entire case, including every evidentiary fact and detail. Schedler does
not make any particular or specific request, but merely relies on the “each and every” fact
language that his opposition contends supports its case. This goes beyond the scope of
reasonable discovery.
That said, the Court does not agree that its March 2, 2015 Order (R. Doc. 213) obviates
any need for the United States to provide supplemental responses to Interrogatory Nos. 2, 3 and 4

or sufficient responses to Interrogatory Nos. 4, 5 and 6. The Court agrees with the United States
that the substantive information requested in each set is identical. The United States is also
correct that the Court found its responses to Interrogatory Nos. 2, 3 and 4 to be sufficient as of
March 2, 2015 (R. Doc. 213), in connection with Defendant’s earlier Motion to Compel (R. Doc.
201). However, that finding was based in part on the United States’ representation that, at that
time, it could not provide more detail regarding any alleged post-Scott violations because of
outstanding discovery requests and upcoming depositions. Indeed, the United States specifically
referred to the “phased nature of the discovery plan” and the inability “to take depositions to test
the Defendants’ assertions.” (R. Doc. 206 at 12). The United States further characterized its
earlier Interrogatory Responses as “necessarily incomplete” with respect to any alleged
violations occurring after the Scott litigation. (R. Doc. 206 at 12). It is now some ten months
later and the United States has had the opportunity to receive discovery and take depositions.
As set forth above, the United States’ previous responses and supplemental responses
referred to several categories of acts and omissions that it contends violates Section 7 of the
NVRA. In connection with the previous Motion (R. Doc. 201), the United States represented to
the Court that “[t]o the extent that the United States obtains additional relevant information
through discovery and investigation that would be responsive to the Defendants’ discovery
requests, the United States will continue to supplement its discovery responses to Defendants to
the extent required by Rule 26(e).” (R. Doc. 206 at 12). It is time to make good on that
representation. To the extent any of the obtained discovery might change those previous
responses, or to the extent that the United States now has any specific examples of such acts or
omissions, the United States must supplement its responses. The United States shall also
identify, to the extent possible, whether any act or omission occurred on or after October 15,

2012. It will not be sufficient to simply rely on the Court’s March 2, 2015 Order or to rely on
the fact that Defendant Schedler may have been present for those same depositions or received
the same documents. If the United States has no new information to provide to support the
various acts or omissions specified in its earlier responses, it shall specifically indicate such to
Schedler.
Therefore,
IT IS ORDERED that the Motion is DENIED in part, because Interrogatory Nos. 4, 5
and 6 are overly broad and unduly burdensome, as they seek every fact and every application of
law to fact supporting the identified allegations.
Nonetheless, IT IS ORDERED that the Motion is GRANTED in part, as set forth
above, as the Court finds that the United States has a duty to supplement its previous responses.
Such responses shall be provided on or before January 5, 2016.
Signed in Baton Rouge, Louisiana, on December 16, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE