Dumas v. O'Reilly Automotive Stores, Inc.

Filing 21

RULING AND ORDER DENYING Defendant's 9 Motion to Compel. Plaintiff's 11 Motion to Compel is GRANTED IN PART. Both Plaintiff's and Defendant's request for fees associated with the Motions to Compel are DENIED. Signed by Magistrate Judge Erin Wilder-Doomes on 6/13/2017. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LAKRISHIA DUMAS

CIVIL ACTION NO.

VERSUS

16-262-BAJ-EWD

O’REILLY AUTOMOTIVE STORES, INC.
RULING AND ORDER ON DEFENDANT’S MOTION TO COMPEL COMPLETE
RESPONSES TO DISCOVERY AND PLAINTIFF’S MOTION TO COMPEL
Before the court is a Motion to Compel Complete Responses to Discovery (the
“Defendant’s MTC”)1 filed by defendant, O’Reilly Automotive Stores, Inc. (“O’Reilly”) and
Plaintiff’s Motion to Compel (“Plaintiff’s MTC”).2 An opposition memorandum was filed with
regard to each motion.3 On March 9, 2017 counsel for both parties participated in a telephone
status conference with the undersigned to discuss the motions.4 Following that conference, the
parties were instructed to meet and confer regarding the motions in an effort to resolve the issues
raised. Each party filed the supplemental certification as ordered.5 While many of the issues were
resolved by agreement according to the supplemental certifications, the remaining issues will be
addressed by this ruling. For the reasons set forth herein, Defendant’s MTC is DENIED.
Plaintiff’s MTC is GRANTED in part.
I.

Background
On April 22, 2016, Plaintiff, LaKrishia Dumas (“Plaintiff”) filed a Complaint against

Defendant alleging claims under Title VII of the Civil Rights Act of 1964, as amended, and the

1

R. Doc. 9

2

R. Doc. 11.

3

R. Docs. 12 and 17.

4

R. Doc. 14.

5

R. Docs. 15 and 16.

1

Louisiana Employment Discrimination Law.

Specifically, Plaintiff claims O’Reilly

“discriminated against her on the basis of her gender and retaliated against her by subjecting her
to a hostile work environment, sexual harassment, and retaliation, and ultimately terminating
Plaintiff’s employment.”6 Plaintiff requests that she be awarded “all available relief including, but
not limited to, a declaratory judgment that the acts and practices of the Defendant complained of
herein are in violations [sic] of the laws of Louisiana, injunctive relief, an award of lost wages,
including lost fringe benefits, which resulted from the unlawful retaliation complained of herein,
reinstatement or front pay in lieu thereof, compensatory and punitive damages, attorneys fees,
expenses, and costs, and all other and further relief as to this Court appears necessary and proper.”7
A. O’Reilly’s Motion to Compel Complete Responses to Discovery
On February 15, 2017, O’Reilly filed its Motion to Compel Complete Responses to
Discovery.8 In the Motion to Compel, O’Reilly asserts that it served its First Set of Interrogatories
and Requests for Production (the “Discovery Requests”) on Plaintiff on September 15, 2016 and
that Plaintiff responded to the Discovery Requests on November 23, 2016. On November 28,
2016, counsel for O’Reilly sent a letter to Plaintiff’s counsel detailing deficiencies in the responses
provided and requesting a telephone conference. On December 1, 2016, counsel had a telephone
conference and, according to O’Reilly, Plaintiff’s counsel agreed to supplement certain responses,
which Plaintiff’s counsel failed to do.
While there were several requests originally identified by O’Reilly as requiring a
supplemental response, following the conference with the undersigned, counsel for O’Reilly and
Plaintiff conferred again and were able to resolve all the disputes with the exception of whether

6

R. Doc. 1, ¶1.

7

R. Doc. 1, ¶27.

8

R. Doc. 9.

2

Plaintiff should be required to provide information other than her income tax returns to establish
the source of any funds Plaintiff received from January 2015 to present.9
B. Plaintiff’s Motion to Compel
On March 1, 2017, Plaintiff filed her Motion to Compel.10 In Plaintiff’s Motion to Compel,
Plaintiff asserts that she is entitled to information about complaints of gender discrimination,
harassment, or retaliation against O’Reilly in the region/divisions where Plaintiff’s former store is
located between August 2011 and present. O’Reilly responded only that it did not receive any
complaints with respect to Reginald Beachum (Plaintiff’s alleged harasser). Plaintiff offered to
limit the scope of her requests to only those complaints investigated by Mr. Farlon Williams and
complaints in Defendant’s store locations in Louisiana. O’Reilly’s counsel rejected this offer.
O’Reilly also refused to provide communications pertaining to an investigation of Plaintiff’s
internal complaints on the basis of the work product doctrine. Counsel were also unable to resolve
the issues related to O’Reilly’s objection to production of an email from its Regional Loss
Prevention Auditor on the basis of the work product doctrine.
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

9

R. Doc. 16.

10

R. Doc. 11.

3

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).
A determination of relevancy is tied to applicable substantive law and then weighed against
the six proportionality factors. Any information sought that is not relevant to a party’s claim or
defense is not discoverable, regardless of proportionality. The court must limit the frequency or
extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less burdensome,
or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or (iii) the proposed discovery is outside the scope
permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
Motions to compel discovery responses are governed by Rule 37(a) of the Federal Rules
of Civil Procedure. “Rule 37(a)(3)(B) provides that a party seeking discovery may move for an
order compelling production or answers against another party when the latter has failed to produce
documents requested under Federal Rule of Civil Procedure 34 or to answer interrogatories under
Federal Rule of Civil Procedure 33.” Gondola v. USMD PPM, LLC, 2016 WL 3031852, at *2
(N.D. Tex. May 27, 2016) (citing Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv)).
B. Sufficiency of Plaintiff’s Discovery Responses
Per Defendant’s Motion to Compel, as supplemented and modified by O’Reilly’s
Supplemental Rule 37(a)(1) Certificate, O’Reilly seeks an order from this court compelling a more
complete response to each of the following requests:
INTERROGATORY NO. 6
While you were employed by O’Reilly, please identify Your other
sources of Income in addition or any Income received from
O’Reilly, including but not limited to the identity of any of Your
employers since that date and your Income or earnings paid or
received from any other such employer.

4

RESPONSE TO INTERROGATORY NO. 6
Plaintiff does not recall being employed since her termination from
O’Reilly, but will supplement this response to the extent there is any
additional responsive information.
INTERROGATORY NO. 7:
Please identify all of Your sources of Income subsequent to the date
on which Defendant terminated your employment, including but not
limited to the identity of any of Your employers since that date and
your Income or earnings paid or received from any other such
employer.
RESPONSE TO INTERROGATORY NO. 7:
Plaintiff does not recall being employed since her termination from
O’Reilly, but will supplement this response to the extent there is any
additional responsive information.
REQUEST FOR PRODUCTION NO. 3:
Please produce any documents that describe or evidence Your
sources of Income while You were employed by Defendant. [sic]
after Defendant terminated Your employment.
RESPONSE TO REQUEST FOR PRODUCTION NO. 3:
Plaintiff does not recall being employed since her termination from
O’Reilly, but will supplement this response to the extent there is any
additional responsive information. In addition, please see the
documents produced herewith Bates number Dumas 1 through 54.
REQUEST FOR PRODUCTION NO. 4:
Please produce any documents that describe or evidence Your
sources of Income after Defendant terminated Your employment.
RESPONSE TO REQUEST FOR PRODUCTION NO. 4:
Plaintiff does not recall being employed since her termination from
O’Reilly, but will supplement this response to the extent there is any
additional responsive information. In addition, please see the
documents produced herewith Bates number Dumas 1 through 54.
REQUEST FOR PRODUCTION NO. 5:
Please produce any documents that describe or evidence Your
Benefits after Defendant terminated Your employment.
RESPONSE TO REQUEST FOR PRODUCTION NO. 5:
Plaintiff does not recall being employed since her termination from
O’Reilly, but will supplement this response to the extent there is any

5

additional responsive information. In addition, please see the
documents produced herewith Bates number Dumas 1 through 54.
REQUEST FOR PRODUCTION NO. 6:
Please produce any documents that describe or evidence any
unemployment compensation benefits or other similar benefits that
You received after the date on which Defendant terminated Your
employment.
RESPONSE TO REQUEST FOR PRODUCTION NO. 6:
Plaintiff does not recall being employed since her termination from
O’Reilly, but will supplement this response to the extent there is any
additional responsive information. In addition, please see the
documents produced herewith Bates number Dumas 1 through 54.
O’Reilly argues that these requests are relevant because Plaintiff seeks to recover lost wages in
this case. The Supplemental Certificate submitted by O’Reilly indicates that Plaintiff’s counsel
has taken the position that Plaintiff’s tax returns will contain sufficient information to determine
this information. In rejecting Plaintiff’s tax returns as resolution of this issue, O’Reilly states that
it is “entitled to discovery regarding any sources of any funds received by Plaintiff during this time
period, whether or not reflected in her tax returns.”11 In its Opposition memorandum, Plaintiff
further states that while she has received financial support from her father, she has not earned any
income as that term is defined in O’Reilly’s discovery requests 12 until she obtained employment
on February 28, 2017 with Hope Therapy Services in Baton Rouge. Plaintiff states she has
supplemented her discovery responses to reflect this information.13

11

R. Doc. 16, ¶ 3.

The discovery requests define “income” to mean “any money or other consideration paid to or received by You,
whether directly or indirectly, in connection with: (a) any consultation, employment, labor, services or work of any
kind or type that you furnish, perform, provide or render; (b) any business, capital, extension of credit, intellectual
property, investment, loan, property or right involving any manner; and/or, (c) any benefit involving any local, federal,
state or other governmental agency for aid, disability, unemployment, welfare or other similar governmental benefits.”
R. Doc. 9-4, p. 4.
12

13

R. Doc. 12, pp. 4-5.

6

Plaintiff is seeking lost wages in this matter, including loss of fringe benefits.14 O’Reilly
has raised as its Twenty-Second Defense that “Plaintiff’s recovery (if any) must be reduced by any
earnings, income and benefits that Plaintiff received subsequent to the cessation of her
employment with O’Reilly.”15 Accordingly, information about earnings and benefits is relevant
to the claims and defenses asserted in this matter. Based on the information provided by the
parties, however, Plaintiff has provided sufficient responses to O’Reilly’s requests. Specifically,
Plaintiff has submitted supplemental interrogatory responses indicating that she is now employed,
the name and address of her current employer, and that she will supplement with earnings
information when she receives it.16 This is in addition to Plaintiff’s agreement to provide income
tax returns from 2010 to present.17
Accordingly, Defendant’s MTC is DENIED. Because Defendant’s MTC is denied,
Defendant’s request for attorney’s fees and costs associated with filing the motion is also
DENIED.
C. Sufficiency of O’Reilly’s Discovery Responses
1. Plaintiff’s Requests for Other Complaints of Discrimination
Per Plaintiff’s Motion to Compel, as supplemented and modified by Plaintiff’s
Supplemental Rule 37(a)(1) Certification, Plaintiff seeks an order from the court compelling more
complete responses to the following interrogatory and request for production of documents:
INTERROGATORY NO. 5
Please identify all persons between August 2011 and the present
who have made complaints of gender discrimination, harassment, or
retaliation against Defendant in the region/division in which
14

R. Doc. 1, ¶27.

15

R. Doc. 5, p. 5.

16

R. Doc. 12-2.

17

R. Doc. 15, ¶ 5.

7

Plaintiff’s former store is located. For each complaint, set forth the
allegations of the complaint in detail; describe any action taken by
Defendant in response to the complaint. For each complaining
employee, identify their job title, the date the complaint was made,
and who received the complaint.
RESPONSE TO INTERROGATORY NO. 5
O’Reilly objects to Interrogatory No. 5 on the grounds that it is
vague and ambiguous with respect to the meaning of “complaint” as
well as the meaning of “region/division”; it is overbroad and not
reasonably calculated to lead to the discovery of admissible
evidence; it is overbroad to the extent it constitutes multiple, distinct
requests; it seeks confidential information protected by state and/or
federal law; and the requested discovery is not proportional to the
needs of the case, considering the amount in controversy and the
importance of the requested discovery in resolving the issues and
the burden thereof outweighs any likely benefit. The Region in
which Plaintiff worked contains approximately 87 stores, and the
Division in which Plaintiff worked contains approximately 508
stores. Subject to and without waiving the foregoing objections,
O’Reilly responds that it did not receive any complaints with respect
to the conduct of Reginald Beachum at any time prior to its receipt
of Plaintiff’s complaint following her termination in April 2014.
REQUEST FOR PRODUCTION NO. 8:
All documents constituting any complaints, concerns, or other
comments expressed to Defendant concerning gender
discrimination, harassment, and retaliation between August 2011
and the present; and all documents concerning any responses
thereto.
RESPONSE TO REQUEST FOR PRODUCTION NO. 8:
In addition to the General Objections, O’Reilly objects to this
request on the grounds that it: is vague and ambiguous with respect
to the meaning of “complaint” as well as to what documents
“concern” such complaints or responses thereto; it is overbroad and
not reasonably calculated to lead to the discovery of admissible
evidence; is not probative of or relevant to any fact or issue in
dispute; seeks confidential information protected by state and/or
federal law; and the requested discovery is not proportional to the
needs of the case, considering the amount in controversy and the
importance of the requested discovery in resolving the issues and
the burden thereof outweighs any likely benefit. Notably, the
gargantuan, enormously costly and plainly unreasonable and labor
intensive undertaking that would be involved with responding to

8

Plaintiff’s Request is demonstrated by the simple fact that O’Reilly
operates more than 4,500 stores in over 40 states.
Subject to and without waiver of the foregoing objections, O’Reilly
responds that it did not receive any complaints with respect to
Reginald Beachum at any time before or during Plaintiff’s
employment with O’Reilly.
In the Supplemental Certification, Plaintiff indicates that she is willing to limit these
request to complaints investigated by Mr. Farlon Williams and complaints in Defendant’s store
locations in Louisiana.18 O’Reilly continues to object to the requests, even as limited, as overly
broad and unduly burdensome. O’Reilly states that it has over 100 stores just in Louisiana with
multiple levels of managers and employees and reiterates its assertion from its Opposition
Memorandum that unrelated complaints investigated by Farlon Williams have no relevance to this
litigation.19
In E.E.O.C. v. Packard Electric Div., General Motors Corp., 569 F.2d 315, 318 (5th Cir.
1978), the Fifth Circuit discussed the fact that when an individual complaint of discrimination is
at issue it would be “most natural” to focus on that employing unit or work unit from which came
the employment decision the complainant asserts was discriminatory. Here, Plaintiff only worked
at O’Reilly store number 442 for a period of less than three months (January 15, 2015 to April 3,
2015).20 While Plaintiff’s request for complaints in any store throughout the region, division, or
State of Louisiana, is not proportional to the needs of this case, O’Reilly’s limitation to only
complaints about Reginald Beachum is too limited. Information about complaints of gender
discrimination, harassment and/or retaliation at O’Reilly store number 442 (where Plaintiff was
employed) for the time period from January 15, 2014 through April 3, 2016 (a year before

18

R. Doc. 15, ¶3.

19

R. Doc. 16, ¶8.

20

R. Doc. 11-4.

9

Plaintiff’s employment began and a year after her employment was terminated) may provide
information relevant to Plaintiff’s claims of individual discrimination, harassment and retaliation,
but is narrowly tailored to meet the proportionality requirements of Rule 26. 21
Accordingly, Plaintiff’s MTC with regard to Interrogatory No. 5 and Request for
Production No. 8 is GRANTED in Part. Within fourteen (14) days of this Ruling and Order,
O’Reilly shall provide supplemental responses to Interrogatory No. 5 and Request for Production
No. 8 for any complaints of gender discrimination, harassment and/or retaliation at O’Reilly store
number 442 from January 15, 2014 through April 3, 2016.
2. Plaintiff’s Requests for Documents Related to Internal Investigation
O’Reilly submitted a privilege log in connection with its discovery responses. The only
document listed is described as an email, dated June 19, 2015, regarding investigation of Plaintiff’s
wrongful termination complaint from Robert Harwood, Regional Loss Prevention Auditor, to
Farlon Williams.22 O’Reilly withheld the document under Fed. R. Civ. P. 26(a)(3)(A) as having
been prepared in anticipation of litigation.
Pursuant to Fed. R. Civ. P. 26(b)(3)(A), “[o]rdinarily, 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.)” (emphasis added). However, such materials may be discovered if “(i) they are
otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need
for the materials to prepare its case and cannot, without undue hardship, obtain their substantial

21

In light of uncontroverted evidence that Farlon Williams was not involved in any alleged act of discrimination
against Defendant (see, R. Docs. 11-2, pp. 13-14 and 11-4), information regarding other complaints Farlon Williams
investigated is not relevant to Plaintiff’s claims unless those complaints otherwise fall within the scope of the
limitations on Interrogatory No. 5 and Request for Production No. 8 as established in this Ruling and Order.
22
R. Doc. 11-5.

10

equivalent by other means.” Id. “The party who is seeking the protection of the work-product
doctrine has the burden of proving that the documents were prepared in anticipation of litigation.”
Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013).
“It is not dispositive that some documents were not prepared by attorneys. Rule 26(b)(3)
protects from discovery documents prepared by a party’s agent, as long as they are prepared in
anticipation of litigation.” Naquin v. UNOCAL Corp., 2002 WL 1837838, at *7 (E.D. La. Aug.
12, 2002). See also, Southern Scrap Metal Co. v. Fleming, 2003 WL 21474516, at * 6 (E.D. La.
June 18, 2003) (“The [work product] doctrine protects not only materials prepared by a party, but
also materials prepared by a co-party, or representative of a party, including attorneys, consultants,
agents, or investigators.”); Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2
(M.D. La. April 1, 2013). “In general, investigative reports prepared by agents of the party or the
party’s attorney are protected by the work product doctrine.” Kansas City Southern Ry. Co. v.
Nichols Const. Co., LLC, 2007 WL 2461014, at *3 (E.D. La. Aug. 27, 2007).
“The work-product doctrine does not protect materials assembled in the ordinary course of
business, pursuant to regulatory requirements, or for other non-litigation purposes.” Colony Ins.
Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013). “To determine
whether a document is protected from disclosure by the work-product doctrine, the threshold
question is whether the document was prepared in anticipation of litigation.” In re Vioxx Products
Liability Litigation, 2007 WL 854251, at *3 (E.D. La. March 6, 2007). In the Fifth Circuit, “the
privilege can apply where litigation is not imminent, ‘as long as the primary motivating purpose
behind the creation of the document was to aid in possible future litigation.’” In re Kaiser
Aluminum and Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) citing U.S. v. El Paso Co., 682 F.2d
530, 542 (5th Cir. 1982). “To determine the primary motivation for the creation of a document,

11

courts look to a variety of factors, including, ‘the retention of counsel and his involvement in the
generation of the document and whether it was routine practice to prepare that type of document
or whether the document was instead prepared in response to a particular circumstance.’” Colony
Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013) citing Elec.
Data Sys. Corp. v. Steingraber, 2003 WL 21653414 at *5 (E.D. Tex. July 9, 2003). “If the
document would have been created regardless of whether litigation was expect to ensue, the
document is deemed to have been created in the ordinary course of business and not in anticipation
of litigation.” Elec. Data Sys. Corp. v. Steingraber, 2003 WL 21653414 at *5 (E.D. Tex. July 9,
2003). “[T]he existence of litigation is not a prerequisite; materials qualify for work-product
protection if the ‘primary purpose’ for their creation was related to potential litigation.” In re
Vioxx Products Liability Litigation, 2007 WL 854251, at *3 (E.D. La. March 6, 2007) citing In re
Kaiser Aluminum and Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) and United States v. Davis,
636 F.2d 1028, 1040 (5th Cir. 1981) (“[L]itigation need not necessarily be imminent…as long as
the primary motivating purpose behind the creation of the document was to aid in possible future
litigation.”).
O’Reilly has not met its burden of showing the email at issue was prepared in anticipation
of litigation. In support of its contention, O’Reilly simply states that the fact the document was
prepared primarily in anticipation of litigation is “evident by the fact that it was created well after
Plaintiff’s termination, and after the completion of O’Reilly’s investigation thereof.” 23 O’Reilly
has not addressed any of the factors relevant to a determination of whether the document was
prepared in anticipation of litigation, such as whether counsel had been retained, whether counsel
was involved in the creation of the document, or whether it was routine practice for Mr. Harwood

23

R. Doc. 17, p. 10.

12

in his role as Regional Loss Prevention Auditor to prepare such a document in connection with an
investigation. Notably, O’Reilly also did not submit any affidavit testimony regarding these
issues.
Accordingly, Plaintiff’s MTC with regard to the production of the June 19, 2015 email,
regarding investigation of Plaintiff’s wrongful termination complaint from Robert Harwood,
Regional Loss Prevention Auditor, to Farlon Williams, is GRANTED. Within fourteen (14) days
of this Ruling and Order, O’Reilly shall provide the email to Plaintiff. Because Plaintiff’s MTC
is only granted in part, an award of costs is not appropriate.
IT IS HEREBY ORDERED that Defendant’s Motion to Compel is DENIED.24
IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel25 is GRANTED in part.
Within fourteen (14) days of the date of this Ruling and Order, defendant, O’Reilly Automotive
Stores, Inc., shall provide to Plaintiff supplemental responses to Interrogatory No. 5 and Request
for Production No. 8 for any complaints of gender discrimination, harassment and/or retaliation at
O’Reilly store number 442 from January 15, 2014 through April 3, 2016; and the June 19, 2015
email, regarding investigation of Plaintiff’s wrongful termination complaint from Robert
Harwood, Regional Loss Prevention Auditor, to Farlon Williams.
Both Plaintiff’s and Defendant’s request for fees associated with the Motions to Compel are
DENIED.
Signed in Baton Rouge, Louisiana, on June 13, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
24
25

R. Doc. 9.
R. Doc. 11.

13