Culpepper v. Consolidated Container Company LP
Filing
29
ORDER granting in part and denying in part 19 Motion to Compel Production of Internal E-Mails. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 5/5/2016. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RONNIE E. CULPEPPER
CIVIL ACTION
VERSUS
NO. 15-125-BAJ-RLB
CONSOLIDATED CONTAINER
COMPANY LP
ORDER
Before the court is Plaintiff’s Motion to Compel Production of Internal E-Mails (R. Doc.
19) filed on March 4, 2016. The motion is opposed. (R. Doc. 22). Plaintiff has filed a Reply. (R.
Doc. 24).
I.
Background
Ronnie E. Culpepper (“Plaintiff”) filed this discrimination and retaliation lawsuit on
March 5, 2015 against his former employer Consolidated Container Company LP (“Consolidated
Container”). (R. Doc. 1, “Compl.”). Plaintiff alleges that he was an employee of Consolidated
Container for 18 years at its Kentwood, Louisiana location. (Compl. ¶ 3). Plaintiff alleges that in
2013, David Holroyd was hired as a new Plant Manager at the Kentwood location, who then
hired Charlie Farrar as Second Shift Operator. (Compl. ¶¶ 5-7). Plaintiff alleges that Mr. Farrar
“engaged in escalating incidents of sexual harassment,” including sharing inappropriate images
and videos of sexual acts. (Compl. ¶¶ 9-12). Plaintiff alleges that he reported these incidents to
Mr. Holroyd who said that “he would take care of it.” (Compl. ¶¶ 9-11). Plaintiff also alleges
that Mr. Holroyd made a racial statement and targeted African-American employees. (Compl. ¶
15).
Plaintiff alleges that in late 2013, he made a formal complaint to Consolidated
Container’s Human Resources Department, and made telephone calls complaining of sexual
harassment, race discrimination, and a cover-up of safety issues. (Compl. ¶ 16). Plaintiff alleges
that Mr. Holroyd retaliated against him by giving him his first negative performance appraisal in
18 years. (Compl. ¶ 17). Plaintiff alleges that his employment with Consolidated Container was
terminated on March 12, 2014 based on a “fabricated and pretextual” reason. (Compl. ¶ 18).
On May 5, 2015, the Court issued a Scheduling Order setting the deadline to complete
non-expert discovery and to file related motions on March 4, 2016. (R. Doc. 14).
On August 19, 2015, Defendant identified and described certain withheld emails on a
privilege log. (R. Doc. 19-2). Plaintiff does not provide the actual discovery request(s) at issue
in response to which Defendant provided the privilege log.1
On September 2, 2015, Plaintiff’s counsel inquired about certain emails withheld on the
basis of the work product doctrine. (R. Doc. 19-3). The next day, defense counsel provided
explanations for why the emails were withheld and placed on a privilege log, requesting
Plaintiff’s counsel to give a call to “address this matter further” if needed. (R. Doc. 19-3). There
is no additional response by Plaintiff’s counsel in the record.2
On March 4, 2016, Plaintiff filed the instant motion to compel. The first set of emails
sought are March 17, 2014 communications described on the privilege log as follows: “E-mails
between Laurie Walker (Regional Human Resources Manager) and Kathy Cashion (Director,
Human Resources & Talent Management) re: severance agreement offered to Plaintiff.” (R. Doc.
Accordingly, the instant motion violates Local Rule 37 (“Motions addressed to issues concerning
discovery propounded under Fed. R. Civ. P. 33, 34, 36 and 37 must quote verbatim each interrogatory,
request for production, or request for admission to which the motion is addressed, followed immediately
by the verbatim response or objection which provided thereto.”).
2
The Motion includes a certification that Plaintiff’s counsel “conferred in good faith with Defendant’s
counsel in an effort to obtain the discovery at issue without court action.” (R. Doc. 19 at 2). Defendant
requests that the Motion be denied on the ground that Plaintiff’s counsel failed to meet-and-confer as
required by Rule 37(a)(1). (R. Doc. 22 at 5). In reply, Plaintiff argues that the email communications
between counsel satisfied the meet-and-confer requirement. (R. Doc. 27).
1
2
19-2). In response to Plaintiff’s motion to compel, Defendant agreed to voluntarily produce
these emails. (R. Doc. 22-1; R. Doc. 22 at 4).
The second set of emails sought are April 7, 2014 communications described on the
privilege log as follows: “E-mails between David Holroyd (Former Kentwood Plant Manager),
Laurie Walker, Luis Lopez (Senior Regional Human Resources Manager), and Paul Koziatek
(Director, Risk Management) re: Plaintiff’s unemployment claim.” (R. Doc. 19-2).
Plaintiff argues that this second set of email communications occurred in the normal
course of business by non-attorneys regarding Plaintiff’s unemployment claim and are not
protected under the work product doctrine. (R. Doc. 19-1 at 4). Plaintiff suggests that these
emails are relevant because Mr. Holroyd testified at his deposition that he was familiar with the
process of responding to unemployment claims from experience at prior employment, and
although he was not involved in the process at Consolidated Container, he further testified that
when someone is terminated, the HR department will inquire into the reasons and circumstances.
(R. Doc. 19-1 at 4).
In response, Defendant argues that the emails remaining at issue were between
employees who were “directly involved in the development of strategy and/or the defense of
[Defendant] in litigation of Plaintiff’s unemployment claim” and “contain legal analysis of [the]
unemployment claim.” (R. Doc. 22 at 4). In addition, Defendant asserts that the “documents
themselves reference unemployment litigation with Plaintiff and directly reference the
engagement and involvement of legal counsel (Matt Patterson).” (R. Doc. 22 at 4-5). Defendant
offered to present these emails to the court for in camera inspection if necessary. (R. Doc. 22 at
5).
3
On April 20, 2016, the Court ordered Defendant to submit the April 7, 2014, email
communications that remain at issue for in camera inspection. The following day, Defendant
submitted those documents to the undersigned’s chambers for review.
II.
Law and Analysis
The work product doctrine is a matter of federal procedural law in diversity cases. See N.
Am. Specialty Ins. Co. v. Iberville Coatings, Inc., No. 99-859, 2002 WL 34423316, at *3 (M.D.
La. Mar. 22, 2002). The work-product doctrine is codified in Rule 26(b)(3) of the Federal Rules
of Civil Procedure. “Ordinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its representative
(including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R.
Civ. P. 26(b)(3)(A). The moving party may discover relevant information, however, if the “party
shows that it has substantial need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
The party asserting protection under the work product doctrine has the burden of proving
that the documents were prepared in anticipation of litigation. Lasalle Bank N.A. v. Mobile Hotel
Props., LLC, No. 03-2225, 2004 WL 1238024, at *2 (E.D. La. June 3, 2004). In the Fifth
Circuit, while litigation need not necessarily be imminent, the primary motivating purpose
behind the creation of the document must be to aid in possible future litigation. United States v.
Davis, 636 F.3d 1028, 1040 (5th Cir. 1981). The “[f]actors that courts rely on to determine the
primary motivation for the creation of a document include the retention of counsel and his
involvement in the generation of the document and whether it was a routine practice to prepare
that type of document or whether the document was instead prepared in response to a particular
circumstance.” Gator Marshbuggy Excavator L.L. C. v. M/V Rambler, No. 03–3220, 2004 WL
4
1822843, at *3 (E.D. La. Aug. 12, 2004). Although the involvement of an attorney is not
dispositive, it is a “highly relevant factor . . . making materials more likely to have been prepared
in anticipation of litigation.” Carroll v. Praxair, Inc., No. 05–307, 2006 WL 1793656, at *2
(W.D. La. Jun. 28, 2006). Materials assembled in the “ordinary course of business” are not
protected under the work product doctrine. See United States v. El Paso, Co., 682 F.2d 530, 542
(5th Cir. 1982) (citations omitted).
Having conducted an in camera inspection of the April 7, 2014 email communications,
the Court concludes that those communications are protected pursuant to the work product
doctrine. See Fed. R. Civ. P. 26(b)(3)(A). Consistent with the representations of Defendant, the
emails concern Plaintiff’s unemployment claims and contain discussions relating to the legal
analysis of potential litigation related to those claims. While there are no attorneys involved in
the actual communications—a factor that weighs in favor of Plaintiff—that is not dispositive. As
represented by Defendant, the email communications directly reference potential litigation and
the potential engagement and involvement of legal counsel, Matt Patterson. The Court
concludes that the primary motivating purpose of these email communications was to aid in
possible future litigation regarding Plaintiff’s unemployment claim. The Court further concludes
that Plaintiff does not have a “substantial need” for these communications pursuant to Rule
26(b)(3)(A)(ii).3
Finally, because Defendant voluntarily provided the March 17, 2014 emails only after the
filing of the instant Motion, and waived any claim to work product protections, the Court will
grant the Motion to the extent it seeks to compel production of those documents.
3
The email communications submitted for in camera review appear to have no direct bearing on the
issues in this litigation.
5
III.
Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion to Compel (R. Doc. 19) is GRANTED IN
PART and DENIED IN PART. The parties shall bear their own costs.
Signed in Baton Rouge, Louisiana, on May 5, 2016.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?