Scott v. E.I. duPont deNemours and Company

Filing 62

RULING denying 44 Motion to Compel Discovery. Pursuant to Rule 37(a)(5)(B), the plaintiff shall pay to the defendant, within 14 days, reasonable expenses in the amount of $350.00. Signed by Magistrate Judge Stephen C. Riedlinger on 9/4/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LEO SCOTT, JR.
CIVIL ACTION
VERSUS
NUMBER 13-741-SDD-SCR
E.I. DU PONT DE NEMOURS AND
COMPANY
RULING ON MOTION TO COMPEL DISCOVERY
Before
Discovery.

the

court

is

the

Plaintiff’s

Record document number 44.

Motion

to

Compel

The motion is opposed by

defendant E.I. du Pont de Nemours and Company.1
Plaintiff filed a Complaint alleging retaliation under the
False Claims Act (“FCA”), 31 U.S.C. § 3730(h).

Plaintiff alleged

that on May 20, 2012, while working as an operator at Du Pont’s
Burnside plant, he was exposed to sulfur dioxide (SO2) and sulfur
trioxide (SO3) gases which were leaking from equipment.

At the

time of his alleged exposure, a separate qui tam action had been
filed against the defendant for failing to report the gas leaks as
allegedly

required

under

the

Toxic

Substances

Control

Act

(“TSCA”).2

Plaintiff alleged that he provided factual information

and deposition testimony for the qui tam action concerning his

1

Record document number 47.
Plaintiff filed a reply
memorandum. Record document number 50. Defendant filed a surreply. Record document number 55.
2

CV 12-219-SDD-SCR, United State of America et al, Jeffery M.
Simoneaux, Relator v. E.I. du Pont de Nemours and Company.

exposure at the Burnside facility.

Plaintiff alleged that as a

result of his actions, the defendant retaliated against him through
various forms of harassment and disciplinary actions.

Plaintiff

alleged that he was wrongfully placed on probation on November 1,
2012

for

improperly

wearing

personal

protective

equipment

on

October 23, 2012, and was terminated on April 1, 2013.
In

his

motion

to

compel,

the

plaintiff

moved

for

supplementation to Request for Production Number 9, which sought
documents provided to or received from OSHA by DuPont concerning
gas leaks and/or employee exposure to SO2 and SO3 at the DuPont
Burnside facility from May 19, 2012 to the present.

Specifically,

the plaintiff argued that responsive documents provided to OSHA
during an investigation conducted in 2014 and resulting a Citation3
were

not

produced

in

discovery.

Plaintiff

argued

that

the

existence of these documents were discovered on April 2, 2015
during the deposition of Tom Miller, the Burnside plant manager.
Plaintiff argued that the 2014 Citation and the documents
exchanged with OSHA show that the plaintiff’s decision to wear
personal protective equipment was reasonable and therefore his
probation was unjustified.
will

assist

him

in

Thus, plaintiff argued, the documents

establishing

that

the

probation

was

a

retaliatory action taken because of his participation in the

3

The Citation is docketed in the related qui tam case, CV 12219-SDD-SCR, record document number 238-4.
2

underlying qui tam case.

Plaintiff argued that the documents

support his credibility and corroborate his claims.
Plaintiff

also

sought

to

compel

additional

deposition

testimony from Miller and Elizabeth Cromwell, the plaintiff’s
immediate supervisor, to address documents which were not provided
sufficiently

in

advance

of

their

depositions

and

respond

to

questions which they were instructed not to answer.
Defendant argued that the supplemental documents requested are
not relevant to the plaintiff’s FCA retaliation claims because the
the

OSHA

investigation

occurred

well

after

the

plaintiff’s

employment at the Burnside plant ended and thus could not be
related

to

any

alleged

retaliation

prohibited

by

the

FCA.

Defendant asserted that the relevant time frame for determining
whether the defendant acted with retaliatory intent would be prior
to time the alleged discriminatory acts occurred. Defendant argued
that

the

plaintiff

cannot

demonstrate

how

the

2014

OSHA

investigation, which occurred almost two years after he was placed
on probation, could be relevant to his retaliation claim.
With

respect

depositions,

the

to

the

defendant

plaintiff’s
agreed

to

request
produce

for

additional

Miller

for

a

deposition restricted to questions about the documents produced at
Miller’s April 2, 2015 deposition.

Defendant argued that an order

compelling any additional testimony from Miller or Cromwell is not
warranted because all other documents relevant to the plaintiff’s

3

retaliation claim were produced sufficiently in advance of their
depositions.
Rule 26(b)(1), Fed.R.Civ.P., provides that a party may obtain
discovery “regarding any nonprivileged matter that is relevant to
any party’s claim or defense,” and “[f]or good cause, the court may
order discovery of any matter relevant to the subject matter
involved

in

the

action.”

The

rule

further

provides

that

“[r]elevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to discovery of
admissible evidence,” and “[a]ll discovery is subject to the
limitations imposed by Rule 26(b)(2)(C).”
In a retaliation claim under the FCA, a plaintiff must
establish: (1) he was engaging in conduct protected under the FCA;
(2) the employer knew that the employee was engaging in such
conduct; and (3) the employer discriminated against the employee
because of his protected conduct. Scott v. E.I. Du Pont De Nemours
& Co., 2014 WL 1689601, at 2 (M.D.La. 4/29/14).
Plaintiff failed to demonstrate that the requested documents
are

relevant

to

his

FCA

retaliation

claim

or

are

reasonably calculated to lead to admissible evidence.

at

least

Plaintiff

has not shown that the documents sought are relevant to showing
that he engaged in protected activity before he was placed on
probation in 2012 or terminated in 2013, or to showing that the
defendant knew he engaged in protected activity, or to showing that

4

he was placed on probation because of any protected activity.

The

Citation itself does not suggest that the requested documents would
be relevant to any element of the plaintiff’s FCA retaliation
claim.4
Plaintiff’s

argument

that

the

credibility is also unpersuasive.

evidence

will

support

his

At most the documents might

support the plaintiff’s belief that he had a good reason to wear
personal

protective

equipment

on

October

23,

2012.

But

the

reasonableness of the plaintiff’s belief in the existence of gas
leaks and the need to wear personal protective equipment are not
elements of his FCA retaliation claim.

And while it can be said

that generally witness credibility is an issue in all cases, the
OSHA documents sought are not likely to be admitted for that
purpose; their prejudicial effect and potential for jury confusion
outweighs their probative value on the limited issue of the
plaintiff’s credibility regarding events that occurred some two
years earlier.

This conclusion is consistent with requirement of

Rule 26(b)(2)(C)(iii).
Because no supplemental production is warranted, there is no

4

The Citation related to: (1) inaccurate and out-of-date
piping and instrumentation diagrams; (2) deficient documentation of
inspections and tests; (3) failure to assure that maintenance parts
and materials were suitable for the application for which they were
used; (4) deficient written procedures for managing changes to
process chemicals, technology, equipment and procedures; and (5)
failure to suitably maintain facilities for employees to flush
their eyes after exposure to corrosive materials.
5

basis for requiring Miller or Cromwell to provide additional
deposition testimony.
Under Rule 37(a)(5)(B), if a motion to compel discovery is
denied, the court must require the moving party or its attorney or
both to pay the party who opposed the motion its reasonable
expenses incurred in opposing the motion unless the motion was
substantially justified or other circumstances make an award of
expenses unjust.
Plaintiff’s motion was not substantially justified.
discovery

request

at

issue

was

overbroad

and

The

unreasonable.

Defendant did not submit anything to establish a specific amount of
expenses incurred in opposing motion.

A review of the motion

papers supports finding that an award of $350.00 is reasonable.
Accordingly, Plaintiff’s Motion to Compel Discovery is denied.
Pursuant to Rule 37(a)(5)(B), the plaintiff shall pay to the
defendant, within 14 days, reasonable expenses in the amount of
$350.00.
Baton Rouge, Louisiana, September 4, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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