Ariza v. Loomis Armored US, LLC

Filing 31

RULING granting in part and denying in part 15 Motion to Compel Production of Documents. Signed by Magistrate Judge Stephen C. Riedlinger on 07/09/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LIZA C. ARIZA
CIVIL ACTION
VERSUS
NUMBER 13-419-SDD-SCR
LOOMIS ARMORED US, LLC
RULING ON MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Before the court is a Motion to Compel Production of Documents
filed by plaintiff Liza C. Ariza.

Record document number 15.

The

motion is opposed.1
Plaintiff Liza C. Ariza filed this action against her former
employer, defendant Loomis Armored US, LLC, for violations of the
Americans with Disabilities Act, the Family and Medical Leave Act
and Title VII.

Plaintiff also alleged supplemental state law

claims under the Louisiana Employment Discrimination Law.2
The subject of this motion are three requests for production
of

documents:

Requests

for

Production

Nos.

2

and

21

in

the

Plaintiff’s First Set of Discovery Requests to Defendant served on
October

16,

2013,

and

Request

for

Production

No.

24

in

the

1

Record document number 27.
Plaintiff also filed
supplemental memoranda. Record document numbers 26 and 30.
2

Record document number 1, Complaint, ¶ 1, Nature of the
Case. Plaintiff alleged that Patrick LaFollette was her direct
supervisor and that he engaged in sexual harassment toward her in
violation of Title VII. Although the record does not reflect a
dismissal of this claim, the plaintiff stated in her motion that
she has withdrawn her sexual harassment claim against LaFollette.
Record document number 15, ¶ 10.

Plaintiff’s Second Set of Discovery Requests to Defendant served on
February 28, 2014.
Request

for

Plaintiff’s motion is resolved as follows.
Production

Number

2:

Plaintiff

requested

production all non-privileged emails and correspondence that relate
to

her

during

the

period

of

February

2008

to

the

present.

Plaintiff asked the defendant to search for all emails on all
computers in all offices, including the computers of supervisors
Lauren Baronet, Stacie Robinson, Patrick LaFollette, district
manager Marty Gray, HR corporate manager Teri Turet, Elizabeth
Calloway, and Rebekah Jackson.
Plaintiff asserted that the defendant’s response was deficient
for two reasons - one related to relevant emails between its
employees and the other related to LaFollette’s text messages.
Plaintiff complained that the defendant’s November 26, 2013
response had only six emails from the Baton Rouge office dated from
early in 2012, and when told that too few emails were produced, the
defendant provided only three more emails dating from May 2008.3
Plaintiff claimed that more emails exist because: (1) after she was
promoted to evening vault supervisor she would be included in daily
closing emails, yet none of these emails were produced; (2)
district manager Gray oversees the Baton Rouge branch but works
from Memphis, Tennessee using email, mail and phone, yet the
defendant only provided one email from Gray; (3) the emails do not

3

Record document number 15-2, Plaintiff Exhibit 4.
2

reflect

her

years

of

employment,

and

it

appears

that

unfavorable emails were selected for production; and (4)

only

when the

plaintiff was on leave before her termination, the Baton Rouge
office would have communicated with the corporate office during
this period of time.
In its opposition memorandum, the defendant maintained that it
has produced all relevant, non-privileged emails and documents in
response

to

the

plaintiff’s

document

requests,

including

all

emails/correspondence between its personnel and the plaintiff.
Defendant stated, however, that it has relevant emails between its
personnel that it will not produce because they are protected, work
product documents. Defendant particularly asserted this protection
for any emails between its personnel that are related to the
plaintiff’s claim and dated after plaintiff’s counsel’s June 13,
2012

letter.

Defendant

maintained

these

are

protected

as

communications in anticipation of litigation.
In supplemental memoranda, the plaintiff stated that: (1) the
recent deposition of defendant’s human resources manager, Elizabeth
Calloway, and other documents demonstrate that the defendant has
relevant emails it has not produced;4 and (2) the defendant has
waived

work-product

protection

for

4

the

relevant

emails

and

Plaintiff stated that a more specific request seeking these
same documents was served on the defendant May 21, 2014. This is
plaintiff’s Request for Production No. 42. Record document number
26, p. 2. According to the plaintiff, the defendant responded that
it had no emails that it had not already provided.
3

documents it refused to produce because it failed to timely invoke
and support its assertion that the documents are protected trialpreparation material.5
Plaintiff’s arguments are persuasive.
Fed.R.Civ.P.

a

party

who

withholds

Under Rule 26(b)(5),

relevant,

discoverable

information may not rest on blanket assertions that the information
is privileged or protected as trial preparation material.

As

explained in the rule, a claim that information/documents are
protected work product must be expressly made and a description of
the withheld documents (which is commonly provided in the form of
a privilege log) must be provided.

The producing party must

describes the nature of the documents and other information in such
a way that, without revealing the protected information itself,
enables the other party to assess the privilege claim.6

Neither in

its discovery responses nor in its response to this motion did the
defendant properly support a claim of work product protection as
required

by

Rule

26(b)(5)(A).

Consequently,

unsupported objection cannot be upheld.

the

defendant’s

Having asserted the

protection, been put on notice that the claim is unsupported, a

5

Plaintiff noted that emails between the defendant’s
employees and the defendant’s attorney are not being sought.
6

With regard to an assertion of work product protection, the
identification/description of the documents is necessary so the
requesting party can test whether the documents were prepared in
anticipation of litigation, or in fact produced in the ordinary
course of business, and therefore, not protected.
4

finding that the defendant has waived its work product claim is
justified.
all

Therefore, the defendant will be required to produce

relevant

withheld

emails

and

correspondence,

without

objections, within 14 days.
Plaintiff also argued that the defendant should have, but did
not, produce LaFollette’s cell phone, and/or the text messages from
his cell phone that he sent to and received from the plaintiff, and
text messages sent to and received from the plaintiff’s other
supervisors.7

Plaintiff argued that these documents are relevant

because LaFollette was her direct supervisor.

According to the

plaintiff, they will help show the essential functions of her job,
whether she met those functions, and why the defendant kept her on
leave and would not allow her to return to work.
Defendant’s

opposition

to

the

motion

indicates

that

the

defendant has produced any remaining LaFollette text messages.8
Therefore, there is no basis to order any further production of
text messages.
Request

for

Production

Number

21:

Plaintiff

requested

production of LaFollette’s the complete personnel and disciplinary

7

Plaintiff noted that she provided the defendant with the
text messages she sent to LaFollette and even sent her phones to
the defendant.
However, the plaintiff stated since one of her
phones was damaged and those text messages cannot be retrieved, the
lost messages can only be obtained from LaFollette’s cell phone
8

Record document number 27-1, Exhibit B.
5

files.9 Plaintiff asserted that the documents remain relevant even
though she has withdrawn her sexual harassment claim.

Plaintiff

argued the files are relevant because they may show whether
LaFollette was only following orders in asking her to accept leave,
and if LaFollette was reprimanded for any misconduct that would
indicate her harassment claims against him were valid and not
frivolous as the defendant alleges.

Defendant asserted that the

files have no references to this litigation or the plaintiff.
Given the plaintiff’s statement that she is not pursuing her
sexual

harassment

claim

against

LaFollette,

the

plaintiff’s

argument that his personnel files are relevant to her ADA/FMLA
claims is tenuous at best and not reasonably calculated to lead to
the discovery of admissible evidence.

Plaintiff’s request to

compel production of LaFollette’s personnel and disciplinary files
is denied.
Request

for

Production

Number

24:

Plaintiff

requested

production the video recording of her having a seizure at work on
June 5, 2012.

Plaintiff stated that it is relevant because the

defendant disputes that the seizure occurred.

Defendant responded

that a video of the alleged event does not exist because it retains
only

the

last

90

days

of

surveillance

video.

However,

the

plaintiff submitted a statement that she was informed by LaFollette

9

Plaintiff’s request for production refers to “files,”
whereas the defendant referred to a “file.”
This ruling is
intended to apply to LaFollette’s personnel or disciplinary
information, whether maintained in a single file or multiple files.
6

and others that surveillance video would be kept for years.
Therefore, she asserted, the defendant still has the video from
that date and should be ordered to produce it.10
In response to the plaintiff’s document request and this
motion,

the

defendant

stated

that

it

has

determined

surveillance video from June 5, 2012 does not exist.

that

a

According to

the defendant, it has confirmed that the recordings last for 90
days and then are recorded over.11
Plaintiff’s statement is not an affidavit or declaration under
penalty or perjury, and rests entirely on hearsay statements, some
coming

from

unidentified

individuals.

The

statement

is

insufficient to support ordering the defendant to produce evidence
it confirmed does not exist.
Accordingly, the Motion to Compel Production of Documents
filed by plaintiff Liza C. Ariza is granted in part.

Defendant

shall produce all documents responsive to the Plaintiff’s Request
for Production Numbers 2 and 21 that it withheld on the ground they
are protected work product,12 without objections, within 14 days.
The remaining aspects of the plaintiff’s motion are denied.
Under Rule 37(a)(5), the parties shall bear the respective

10

Record document number 15-2, Plaintiff exhibit 3.

11

Record document number 27, Defendant exhibit C.

12

As explained above, Request for Production No. 42 was a more
specific document request that fell within the scope of Request for
Production No. 2.
Plaintiff propounded the request after the
deposition of Calloway was taken on May 8, 2014.
7

costs incurred in connection with this motion.
Baton Rouge, Louisiana, July 9, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

8