Griffith v. O'Reilly Automotive Stores, Inc.

Filing 22

ORDER granting 17 Motion to Compel. Defendant shall respond to Plaintiff's Second Set of Requests for Production of Documents to Defendant within 7 days of the date of this Order. Any objections to Plaintiff's Second Set of Requests for Production of Documents to Defendant shall be limited to any applicable privileges, immunities, or other protections from disclosure. Parties shall bear their own costs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/9/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

GREGORY L. GRIFFITH

CIVIL ACTION

VERSUS

NO. 14-470-RLB

O’REILLY AUTOMOTIVE STORES, INC.

CONSENT CASE

ORDER
This matter is before the court on Plaintiff’s Motion to Compel Discovery Responses and
for Sanctions (R. Doc. 17) filed on November 24, 2015. The motion is opposed. (R. Doc. 19).
I.

Background
This is an employment discrimination action. On September 15, 2015, Plaintiff

propounded his Second Set of Requests for Production of Documents to Defendant. (R. Doc. 172). The sole request for production seeks the “personnel files and/or work-related files” for six
current and/or former employees of Defendant.
On October 19, 2015, the parties held a discovery conference in which Plaintiff granted
Defendant an extension to October 29, 2015, to respond to his discovery request. (R. Doc. 17-3).
Defendant did not provide any written responses or otherwise produce any documents by this
deadline. (R. Doc. 17 at 1).
On November 18, 2015, defense counsel contacted Plaintiff’s counsel and provided a
draft proposed Joint Motion for Protective Order. (R. Doc. 17-4 at 3). Defense counsel
informed Plaintiff’s counsel that after they reached an agreement on the form of the motion, he
would provide it to his client and, thereafter, provide a response to the discovery request “with
the personnel files and accompanying Privilege Log.” (R. Doc. 17-4 at 3). Plaintiff’s counsel
approved of the draft protective order, but requested that it be submitted as an unopposed motion

as opposed to a joint motion. (R. Doc. 17-4 at 2). Plaintiff’s counsel further stated that defense
counsel had the opportunity to propose a protective order governing the responsive documents
prior to the deadline to respond to discovery and requested a specific date on which the
documents would be produced. (R. Doc. 17-4 at 2).
On November 19, 2015, defense counsel provide a “revised” version of the motion and
protective order and stated he would “seek a definitive answer on a target date for the document
production subject to our agreement and will advise accordingly.” (R. Doc. 17-4 at 1).
Plaintiff’s counsel agreed to the revisions to Defendant’s Consent Motion for Protective Order
that same day. (R. Doc. 17-4 at 1).
On November 24, 2015, Plaintiff filed the instant motion, which seeks an order
compelling responses to the propounded discovery requests and an award of reasonable expenses
incurred in bringing the motion. (R. Doc. 17-1). The motion represents that the parties’ October
19, 2015 discovery conference constituted the Rule 37(a)(1) conference required prior to the
filing of a motion to compel.
On December 2, 2015, Defendant filed its Consent Motion for Protective Order. (R. Doc.
19).
On December 4, 2015, Defendant filed its Opposition to the instant motion. (R. Doc. 20).
Defendant argues that the motion to compel is “premature” as the parties have been “working
together to prepare and submit” Defendant’s Consent Motion for Protective Order. (R. Doc. 20).
II.

Law and Analysis
If a party fails to respond fully to requests for the production of documents in the time

allowed by Rule 34(b)(2)(A), the party seeking discovery may move to compel responses
pursuant to Rule 37(a)(3)(B). A motion to compel “must include a certification that the movant

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has in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1).
The discovery requests at issue were propounded on September 15, 2015. Plaintiff
granted an extension to respond to this discovery request no later than October 29, 2015. There
is no indication in the record that Plaintiff’s counsel subsequently provided defense counsel with
an explicit extension beyond the October 29, 2015 deadline. The record does indicate, however,
that defense counsel sought approval for submission of Defendant’s motion for protective order
on November 18, 2015. While Plaintiff’s counsel correctly informed defense counsel that a
protective order concerning confidential information should have been discussed at an earlier
point, Plaintiff’s counsel appeared to implicitly agree to a reasonable extension of time for
Defendant to seek entry of a protective order prior to providing any responses to the discovery
requests.
That said, it is unclear why Defendant did not timely respond to Plaintiff’s discovery
requests propounded on September 15, 2015. Defendant should have sought a timely protective
order or confidentiality agreement prior to the deadline to responding to Plaintiff’s discovery
requests and/or timely responded to Plaintiff’s discovery requests subject to withholding any
“confidential” information pending the entry of such an order. It is further unclear why, after
obtaining Plaintiff’s consent to seek entry of a protective order on November 18, 2015,
Defendant waited until December 2, 2015 (and after the filing of Plaintiff’s Motion to Compel)
to seek entry of the agreed-upon protective order.
Based on the foregoing, the court will grant Plaintiff’s Motion to Compel. As Defendant
did not make any timely objections to Plaintiff’s discovery requests outside of the concerns that
are addressed by the agreed upon protective order, the court finds that it has waived its

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objections to Plaintiff’s Second Requests for Production of Documents, with the exception of
any applicable privileges, immunities, or other protections from disclosure. See In re United
States, 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object
timely to interrogatories, production requests, or other discovery efforts, objections thereto are
waived.”); B&S Equip. Co. v. Truckla Servs., Inc., No. 09-3862, 2011 WL 2637289, at *6 (E.D.
La. July 6, 2011) (finding waiver of all objections to “discovery requests based on relevance,
unduly burdensome, over broad, or any other objection not grounded on the attorney client or the
work product privilege.”).
If a motion to compel “is granted—or if the disclosure or requested discovery is provided
after the motion is filed—the court must, after giving an opportunity to be heard, require the
party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or
both to pay the movant’s reasonable expenses incurred in making the motion, including
attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). The court must not order this payment, however, if
“(i) the movant filed the motion before attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection
was substantially justified; or (iii) other circumstances make the award of expenses unjust.” Id.
Considering the communications between counsel for the party, it appears that defense counsel
was placed under the impression that he was granted an extension to provide responses until after
the court entered an appropriate protective order. Accordingly, the court finds circumstances
making an award of expenses unjust.
III.

Conclusion
IT IS ORDERED that Plaintiff’s Motion to Compel is GRANTED. Defendant shall

respond to Plaintiff’s Second Set of Requests for Production of Documents to Defendant within

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7 days of the date of this Order.1 Any objections to Plaintiff’s Second Set of Requests for
Production of Documents to Defendant shall be limited to any applicable privileges, immunities,
or other protections from disclosure.
IT IS FURTHER ORDERED that the parties shall bear their own costs.
Signed in Baton Rouge, Louisiana, on December 9, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

By separate order, the court is granting Defendant’s Consent Motion for Protective Order (R. Doc. 19)
and entering into the record the proposed Protective Order (R. Doc. 19-1), with certain modifications.
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