Impson et al v. Dixie Electric Membership Corporation et al
Filing
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ORDER granting 18 Motion to Compel Responses to Requests for Production of Documents. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/22/2015. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
AMY IMPSON, ET AL.
CIVIL ACTION
VERSUS
NO. 14-632-JWD-RLB
DIXIE ELECTRIC MEMBERSHIP
CORPORATION, ET AL.
ORDER
Before the court is Defendant Associated Electric and Gas Insurance Services, Limited’s
(“AEGIS”) Motion to Compel Responses to Requests for Production of Documents Pursuant to
Federal Rule of Procedure 37 (R. Doc. 18) filed on November 19, 2015. The Motion seeks an
order compelling plaintiff Amy Impson (“Ms. Impson”) to provide responses to requests for
production propounded on June 15, 2015.
Any opposition to this motion was required to be filed within 21 days after service of the
motion. LR 7(f). Ms. Impson has not filed an opposition as of the date of this Order. The
motion is therefore unopposed.
I.
Background
This action involves an automobile accident on June 22, 2012. Ms. Impson, a passenger
in one of the vehicles, alleges that she suffered the following injuries as a result of the accident:
lower back injury; neck injury; mid-back injury; headaches; brain injury; anxiety; and
depression. (R. Doc. 2-1 at 4). Ms. Impson seeks recovery for past, present, and future physical
pain and suffering; mental and emotional pain, anguish, and distress; medical expenses; loss of
income and impairment of earning capacity; and loss of enjoyment of life. (R. Doc. 2-1 at 4).
AEGIS is the insurer of the underlying tortfeasor defendants. (R. Doc. 2-1 at 8).
Ms. Impson’s deposition was taken on April 22, 2015. (R. Doc. 18-5). At her deposition,
Ms. Impson, who is self-employed, stated that her clients do not provide Form 1099s. (R. Doc.
18-5 at 8). Ms. Impson testified that, for tax record purposes, she keeps certain bank receipts
reflecting the deposited payments from her clients. (R. Doc. 18-5 at 8-9). Ms. Impson further
testified that she keeps a diary, log, or calendar of the work she missed because of her physical
condition after the accident. (R. Doc. 18-5 at 7). Finally, Ms. Impson stated that she
communicates daily on Facebook and that she has sent at least one email to a former professor
regarding the accident. (R. Doc. 18-5 at 3, 5).
On June 15, 2015, AEGIS propounded its First Set of Requests for Production of
Documents to Ms. Impson. (R. Doc. 18-3). These discovery requests seek bank records
evidencing Ms. Impson’s income; diaries and/or logs reflecting Ms. Impson’s cancellation of
work due to her physical injuries; and social media postings and emails concerning the accident
and Ms. Impson’s damages and injuries.
On August 26, 2015, Ms. Impson responded to the discovery requests, objecting to most
of them on the basis of relevance and overbreadth. (R. Doc. 18-4). Ms. Impson did not produce
any responsive documents.
Defense counsel certifies that he has in good faith conferred with Plaintiff’s counsel in an
effort to obtain the requested documents without court action. (R. Doc. 18-2). Defense counsel
represents that during telephone discussions with Plaintiff’s counsel on August 27-28, 2015,
Plaintiff’s counsel “agreed to produce documents responsive to Requests for Production 3
through 8 upon receipt from plaintiff.” (R. Doc. 18-1 at 5). Defense counsel further represents
that in these conversations Plaintiff’s counsel reiterated his objections regarding sending all bank
statements responsive to Requests for Production Nos. 1 and 2. (R. Doc. 18-1 at 5). On October
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12, 2015 (as confirmed by a letter dated November 4, 2015), defense counsel informed
Plaintiff’s counsel that the “requests for the bank records of Ms. Impson are based on her
deposition testimony that the record of her deposits into her Chase Bank account would be the
best contemporaneous records of her earnings as well as when and how much she was working,”
and that those requests “are only intended to include records of deposits made and are not
intended to include any information about withdrawals, checks written by Ms. Impson, or any
debit card charges connected to a checking account.” (R. Doc. 18-6).
On November 19, 2015, AEGIS filed the instant motion, representing that Ms. Impson
has still not produced any responsive documents.
II.
Law and Analysis
A.
Legal Standards
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P.
26(b)(1).
Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents
and tangible items. A party seeking discovery must serve a request for production on the party
believed to be in possession, custody, or control of the documents or other evidence. Fed. R. Civ.
P. 34(a). The request is to be in writing and must set forth, among other things, the desired items
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with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1)(A). 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).
B.
Specific Requests for Production
1.
Request for Production No. 1
AEGIS’s Request for Production No. 1, and Ms. Impson’s response, are as follows:
REQUEST FOR PRODUCTION NO. 1
Copies of any and all statements for any bank accounts in which Amy Impson
deposited any income or wages for the years 2008 to present, including, but not
limited to, the Chase Bank account referenced in your deposition (see pp. 66-7
and p. 121).
RESPONSE TO REQUEST FOR PRODUCTION NO. 1
Objection. This request seeks information that is irrelevant, inadmissible and is
not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff
reserves the right to amend and/or supplement this response as more information
becomes available.
As discussed above, AEGIS has clarified that this request is limited to “records of
deposits made” evidencing Ms. Impson’s income and wages. Ms. Impson’s deposition
testimony makes it clear that her bank account deposit records are the best source of information
regarding her income from the years 2008 to the present. The information sought is relevant to
Ms. Impson’s claim of loss income and impairment of earning capacity.
Based on the foregoing, Ms. Impson’s objection to this request is overruled. Ms. Impson
must produce any bank statements in her “possession, custody, or control” evidencing her
income or wages for the years 2008 to present.
Ms. Impson shall fully respond to this discovery request within 14 days of the date of
this Order.
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2.
Request for Production No. 2
AEGIS’s Request for Production No. 2, and Ms. Impson’s response, are as follows:
REQUEST FOR PRODUCTION NO. 2
Copies of any and all emails, calendar entries, or other documents, whether in
digital or paper form, that reflect cancellation of work by Amy Impson due to
medical conditions since June 22, 2012.
RESPONSE TO REQUEST FOR PRODUCTION NO. 2
Copies of such documents have been requested and plaintiff is currently in the
process of gathering and redacting any such documents. Plaintiff reserves the
right to amend and/or supplement this response as more information becomes
available.
Ms. Impson did not object to this discovery request. It is, therefore, unclear why she did
not provide copies of documents responsive to this request within the time allowed by Rule 34.
The document request seeks information relevant to Ms. Impson’s claim of loss of income and
impairment of earning capacity. Accordingly, Ms. Impson must produce any documents in her
“possession, custody, or control” to the extent that they reflect her cancellation of work due to
medical conditions since June 22, 2012.
Ms. Impson shall produce all documents responsive to this discovery request within 14
days of the date of this Order.
3.
Request for Production Nos. 3-5
AEGIS’s Request for Production Nos. 3-5, and Ms. Impson’s responses, are as follows:
REQUEST FOR PRODUCTION NO. 3
Copies of all Facebook or other social media postings from June 22, 2012 to the
present for Amy Impson that refer to or discuss the Accident.1
RESPONSE TO REQUEST FOR PRODUCTION NO. 3
Objection. This request overly broad and is not reasonably calculated to lead to
the discovery of admissible evidence, under La. Code Civ. Proc. 1422 and/or a
protective order is required to protect plaintiff from “annoyance, embarrassment,
oppression, or undue burden or expense” under La. Code Civ. Proc. 1426 and/or
the request violates Plaintiff’s constitutionally protected privacy interests. See
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“Accident” is defined as the “accident of June 22, 2012 . . . that is the subject of these proceedings.”
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Orfanello v. Laurente, 626 So. 2d 417, 418-19 (La. App. 4 Cir. 1993). Plaintiff
reserves the right to amend and/or supplement this response as more information
becomes available.
REQUEST FOR PRODUCTION NO. 4
Copies of all Facebook or other social media postings from June 22, 2012 to the
present for Amy Impson that refer to or discuss the Injuries.2
RESPONSE TO REQUEST FOR PRODUCTION NO. 4
See Objection to Request No. 3. Plaintiff reserves the right to amend and/or
supplement this response as more information becomes available.
REQUEST FOR PRODUCTION NO. 5
Copies of all Facebook or other social media postings from June 22, 2012 to the
present for Amy Impson that refer to or discuss the Damages.3
RESPONSE TO REQUEST FOR PRODUCTION NO. 5
See Objections to Requests Nos. 3 and 4. Plaintiff reserves the right to amend
and/or supplement this response as more information becomes available.
Collectively, the foregoing requests seeks the production of all emails in Ms. Impson’s
“possession, custody, and control” from June 22, 2012 to the present that refer to or discuss the
accident at issue, Ms. Impson’s alleged injuries, and/or Ms. Impson’s alleged damages. As the
document requests are time and subject-matter limited, the court overrules Ms. Impson’s
objection that they are overly broad. The court concludes that these requests seek relevant
information regarding the accident, Ms. Impson’s alleged injuries, and/or Ms. Impson’s alleged
damages.
Ms. Impson’s response to these requests references Louisiana law that is not applicable to
this discovery dispute.4 To the extent Ms. Impson seeks a protective order pursuant to Rule
“Injuries” is defined as “any physical, mental, medical or cognitive condition” that Ms. Impson claims
was caused by the accident at issue.
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“Damages” is defined as “any expense or claim” that Ms. Impson asserts in these proceedings.
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In support of her objection that these requests for social media postings violate her “constitutionally
protected privacy interests,” Ms. Impson relies upon Orfanello v. Laurente, 626 So.2d 417, 418-19 (La.
App. 4th Cir. 1993). That decision merely held that inquiry into whether a witness to an accident had
“ever been arrested” was not relevant, not reasonably calculated to lead to the discovery of admissible
evidence, and would be an unwarranted invasion of the witness’s privacy. Here, AEGIS is seeking
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26(c) regarding these discovery requests, the court concludes that Ms. Impson has not
established good cause for the issuance of such an order. Regardless of whether Ms. Impson
emplaced privacy settings on her social media postings, these postings were freely shared with
third parties. Ms. Impson must produce copies of any such postings from June 22, 2012 to the
present as sought in the specific discovery requests that are in her “possession, custody, or
control.”
Ms. Impson shall produce all social media postings in her “possession, custody, or
control” responsive to the foregoing discovery requests within 14 days of the date of this Order.
4.
Request for Production Nos. 6-8
AEGIS’s Request for Production Nos. 6-8, and Ms. Impson’s responses, are as follows:
REQUEST FOR PRODUCTION NO. 6
Copies of all emails from June 22, 2012 to the present for Amy Impson that refer
to or discuss the Accident.
RESPONSE TO REQUEST FOR PRODUCTION NO. 6
Objection. This request is overly broad and unduly burdensome. Without waiver
of this objection, plaintiff does not recall any such e-mails other than as described
in response to request no. 2. Plaintiff reserves the right to amend and/or
supplement this response as more information becomes available.
REQUEST FOR PRODUCTION NO. 7
Copies of all emails from June 22, 2012 to the present for Amy Impson that refer
to or discuss the Injuries.
RESPONSE TO REQUEST FOR PRODUCTION NO. 7
See Objection to Request No. 6. Plaintiff reserves the right to amend and/or
supplement this response as more information becomes available.
relevant information posted on social media directly pertaining to Ms. Impson’s claims in the Petition.
Such social media is generally discoverable. See Farley v. Callais & Sons, LLC, No. 14-2550, 2015 WL
4730729 (E.D. La. Aug. 10, 2015) (ordering plaintiff to provide social media postings to his counsel for
determination of whether the postings are relevant and responsive to discovery requests); see also
Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013)
(“Generally, [social networking site] content is neither privileged nor protected by any right of privacy.”)
(citation omitted).
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REQUEST FOR PRODUCTION NO. 8
Copies of all emails from June 22, 2012 to the present for Amy Impson that refer
to or discuss the Damages.
RESPONSE TO REQUEST FOR PRODUCTION NO. 8
See Objection to Requests Nos. 6 and 7. Plaintiff reserves the right to amend
and/or supplement this response as more information becomes available.
Collectively the foregoing requests seek the production of all emails in Ms. Impson’s
“possession, custody, and control” from June 22, 2012 to the present that refer to or discuss the
accident at issue, Ms. Impson’s alleged injuries, and/or Ms. Impson’s alleged damages. As the
document requests are time and subject-matter limited, the court overrules Ms. Impson’s
objection that they are overly broad. The court concludes that these requests seek relevant
information regarding the accident, Ms. Impson’s alleged injuries, and/or Ms. Impson’s alleged
damages.
Ms. Impson shall produce all emails responsive to the foregoing discovery requests
within 14 days of the date of this Order.
C.
Expenses
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.
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The court finds no circumstances that make the award of expenses of unjust. Having
provided Ms. Impson an opportunity to be heard through the filing of an opposition, and given
Ms. Impson’s discovery violations, the court will award expenses to Defendant in the amount of
$250.00.
III.
Conclusion
IT IS ORDERED that the Motion to Compel is GRANTED, and Ms. Impson must
provide complete responses to the discovery requests, without further objection (with the
exception of any objections pertaining to any applicable privileges and/or immunities),5 no later
than 14 days from the date of this Order.
IT IS FURTHER ORDERED that Ms. Impson shall pay AEGIS $250.00 within 21
days of the date of this Order.
Signed in Baton Rouge, Louisiana, on December 22, 2015.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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.”).
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