Lafleur v. EAN Holdings, LLC

Filing 47

ORDER granting 38 Motion to Compel. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 6/10/2013. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LORENZO LAFLEUR

CIVIL ACTION

VERSUS

NUMBER 12-233-SDD-RLB

EAN HOLDINGS, LLC D/B/A
ENTERPRISE RENT-A-CAR, ET AL
ORDER
This matter is before the Court on a referral from the district court of Defendant, Morgan
Corporation’s (“Morgan”), Motion to Compel (rec. doc. 38), filed on April 30, 2013. According
to Local Rule 7.4, any opposition to this Motion to Compel was required to be filed within
twenty-one (21) days after service. Plaintiff’s response to the Motion was due May 21, 2013.
No opposition was filed. For the reasons set forth below, the Motion to Compel is GRANTED.
I.

BACKGROUND
Plaintiff’s lawsuit, as alleged in his Complaint, seeks relief for injuries sustained when

the rear door of a truck “owned and maintained by and rented from Ean Holdings, LLC d/b/a
Enterprise Rent-A-Car . . . fell or otherwise came into contact with the plaintiff.” (rec. doc. 1 at ¶
5). Defendant, Morgan Corporation, was later added as a party. (rec. doc. 16 at ¶ 1d(d)). The
Third Amended Complaint alleged that “Morgan Corporation is the manufacturer and/or installer
of the box and door of the truck leased by [EAN]” and that the “negligence of Morgan
Corporation in the installation and/or design of the box and/or door contributed to the injury . . .”
(rec. doc. 16 at ¶ 10).

II.

MORGAN’S MOTION TO COMPEL
Morgan stated in its Motion that it propounded a Request for Production of Documents to

Plaintiff on November 8, 2012 (rec. doc. 38-4).1 Plaintiff’s response to the Request for
Production of Documents was provided to Morgan on February 19, 2013 (rec. doc. 38-5).
Morgan alleges that Plaintiff’s response is insufficient in that Plaintiff “failed to fully
respond to the Request for Production of Documents” and produced “no other information as
requested.” (rec. doc. 38-1 at 1-2). Morgan specifically objects to the sufficiency of the
responses to Request for Production Nos. 1, 2, 3, 11, 23, 24, 25, 26, 31, 32, 33, 34, 35 and 36.
The allegedly insufficient response is what led to the instant Motion to Compel. As
stated above, Plaintiff failed to oppose Morgan’s Motion to Compel.
III.

ANALYSIS
A.

Request for Production Nos. 1, 2, 3 and 11

In these requests, Morgan seeks any documents “referred to” in the accompanying
Interrogatories, any documents “identified” in the responses to the Interrogatories, “any and all
documents in your possession related to the incident,” and “any and all exhibits, documentation,
or illustrations that will be used by you at any hearing and/or trial of this matter.” (rec. docs. 384 and 38-5).
In response to each of these requests, plaintiff provided some documents and replied that
“all documents in plaintiff’s possession are attached.” Defendant’s Motion to Compel alleges
that only medical records were attached to Plaintiff’s responses and that they are vague and fail

1

It appears that Interrogatories were also served on this same date. The Motion to
Compel, however, only covers the Request for Production of Documents.
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to identify what documents are responsive to what requests. No other detail is provided to the
Court. The Court also does not know what documents were “referred to” or “identified” in the
responses to the Interrogatories and therefore can only speculate as to whether medical records
are sufficient. The Court is also unable to conclude that these responses are vague as alleged by
Defendant.
The Court notes, however, that Plaintiff’s response is limited to documents in Plaintiff’s
possession. However, “Rule 34 is broadly construed and documents within a party’s control are
subject to discovery, even if owned by a non-party. Moreover, Rule 34's definition of
possession, custody or control, includes not only actual possession or control of the materials,
but also the legal right or practical ability to obtain the materials from a non-party to the action.”
White v. State Farm Mut. Auto. Ins. Co. et al, No. 09-991, 2011 WL 3423388, at *2 (M.D. La.
Aug. 4, 2011) (quotations and citations omitted) (emphasis added). The Court will therefore
order that Plaintiff conduct the necessary search of all sources and produce any responsive
documents located as a result of the search. In the event Plaintiff has conducted the necessary
search of all sources but located no additional documents, Plaintiff shall affirmatively and clearly
state the same in a supplemental response to Defendant’s Request for Production.
Plaintiff is also aware of Morgan’s position that responses previously provided are vague
and fail to identify which documents are responsive to which request. In its supplemental
response, Plaintiff is to determine whether clarification is appropriate in order to avoid the
necessity of another Motion to Compel.

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B.

Request for Production Nos. 23, 24, 25 and 26

Request Nos. 23-26 request that Plaintiff return executed releases for medical, Internal
Revenue Service (“IRS”), employment, and Social Security records. With respect to Request 23,
Plaintiff states that the executed authorizations are attached (rec. doc. 38-5 at 6). Morgan states
that “while plaintiff claims that the medical releases are attached, no such releases were
provided.” (rec. doc. 38-1 at 4). Because the failure to attach the executed authorizations
appears to have been in error, the Court will order Plaintiff to provided the medical
authorizations as indicated in its response.
Request Nos. 24, 25, and 26 request authorizations for the release of records regarding
the Internal Revenue Service (Request No. 24), employers identified in Interrogatories (Request
No. 25) and the Social Security Administration (Request No. 26). Plaintiff objected to each of
these requests in his response to Morgan on the grounds that “Plaintiff is not making a claim for
lost wages.”
Rule 26 of the Federal Rules of Civil Procedure provides that parties “may obtain
discovery regarding any non-privileged matter that is relevant to any party’s claim or defense . . .
[and] [r]elevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.”
The Complaint in this matter concerns Plaintiff’s injuries alleged to have resulted from
the rear door of the rental vehicle. Morgan argues in its Motion that Plaintiff’s objection is
insufficient as the records obtainable with these authorizations may contain information relevant
to the claims and defenses asserted or may lead to the discovery of such evidence, such as
previous jobs working on trucks such as this one or other workplace injuries.

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Plaintiff has chosen not to respond to Morgan’s proffered basis for the relevance of this
material. Plaintiff has not provided to the Court any explanation as to why these items could not
be relevant notwithstanding the lack of a claim for lost wages. Plaintiff has likewise chosen not
to address, and the Court is unaware of, any basis for asserting that any of the materials are
privileged or otherwise not subject to disclosure beyond his assertion that he is not making a loss
wage claim.
Morgan has made a showing that its Requests for Production are reasonably calculated to
lead to the discovery of admissible evidence. The materials requested are non-privileged.
Plaintiff has not responded. The Court will order Plaintiff to provided the requested
authorizations that are the subject of Request Nos. 24, 25 and 26.
C.

Request for Production Nos. 31, 32, 33, 34, 35 and 36

In response to each of these requests, Plaintiff objected “to the production of such
documents as this information was prepared in anticipation of litigation and in preparation for
trial and, as such, is protected under the attorney-client privilege and/or work product doctrine
and is not discoverable.” As set forth above, Rule 26 limits discovery to materials that are “nonprivileged.” However, if a “party withholds information otherwise discoverable by claiming that
the information is privileged or subject to protection as trial-preparation material, the part must:
(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed - and do so in a manner that . . . will enable other
parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). The objections provided by Plaintiff
fail to satisfy Rule 26(b)(5)(A). The Court will order Plaintiff to provide a privilege log in
compliance with this Rule.

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Under Rule 37(a)(5)(A), if a motion to compel discovery is granted, the court shall, after
affording an opportunity to be heard, require the party whose conduct necessitated the motion to
pay to the moving party the reasonable expenses incurred in making the motion, unless the court
finds that the motion was filed without the movant first making a good faith effort to obtain the
discovery without court action, the party's nondisclosure, response or objection was substantially
justified, or that other circumstances make an award of expenses unjust.
Plaintiff’s failure to provide any responses or respond to this motion demonstrates that
Defendant is entitled to reasonable expenses under this rule.2 Defendant Morgan did not submit
anything to support an award of a particular amount of expenses and attorney's fees. A review of
the Motion and its accompanying Memorandum supports the conclusion that the amount of
$200.00 is reasonable.
Accordingly, Defendant’s Motion to Compel is GRANTED.
Within 10 days of the date of this Order, Plaintiff shall search all sources and produce
any responsive documents covered under Request for Production Nos. 1-3 and 11. If no
additional responsive documents are located, Plaintiff shall affirmatively and clearly state the
same in a supplemental response to production.
Within 10 days of the date of this Order, Plaintiff shall provide the requested
authorizations as set forth in Request for Production No. 23-26.
Within 10 days of the date of this Order, Plaintiff shall produce a privileged log in
compliance with Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure concerning any

2

These same facts show that Plaintiff’s actions are not substantially justified and that
there are no circumstances which would make an award of expenses unjust.
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document, communication or tangible thing otherwise discoverable but not produced on the
basis of any claim of privilege in response to Request for Production Nos. 31-36.
Pursuant to Rule 37(a)(5)(A), Plaintiff is also ordered to pay to Defendant, within ten
days of this order, reasonable expenses in the amount of $200.00.
Signed in Baton Rouge, Louisiana, on June 10, 2013.

s

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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