Aubin et al v. Columbia Casualty Company et al

Filing 108

RULING AND ORDER: The 40 Motion to Compel filed by William and April Aubin is GRANTED in part. Deputy Durkin and Sheriff Ard shall provide complete responses to the outstanding discovery requests in Plaintiffs' Interrogatories and Requests fo r Production of Documents and Things to Defendants Durkin and Ard, namely Interrogatory Nos. 3, 4, 6, 8, and 9 and Request for Production Nos. 1-11, 14-17, 23, and 25-28, without objections consistent with this Ruling and Order (with the exception of any objections pertaining to any applicable privileges and/or immunities, except qualified immunity), no later than 14 days from the date of this Ruling and Order. Plaintiffs are awarded their reasonable expenses incurred in filing the Motion to Com pel, including attorneys fees, in the total amount of $500. Upon further review, the Court finds that a telephone conference on the Motion to Compel is no longer necessary. The telephone conference set for April 26, 2017 at 10:00 a.m. before the undersigned Magistrate Judge is CANCELLED. Signed by Magistrate Judge Erin Wilder-Doomes on 4/25/2017. (BLR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

WILLIAM J. AUBIN, ET AL

CIVIL ACTION

VERSUS

NO. 16-290-BAJ-EWD

COLUMBIA CASUALTY
COMPANY, ETAL.

RULING AND ORDER ON PLAINTIFFS’ MOTION TO COMPEL
Before the Court is a Motion to Compel, filed by William J. Aubin, Jr. and April Aubin
(collectively, “Plaintiffs”).1 The Motion is opposed2 and Plaintiffs have filed a Reply.3 For the
reasons that follow, the Motion is GRANTED4 in part5 and Plaintiffs’ request for reasonable
expenses and attorney’s fees under Fed. R. Civ. P. 37(a)(5)(A) is GRANTED.
I.

Background
On March 28, 2016, Plaintiffs filed a Complaint in this Court against Columbia Casualty

Company, Deputy William Durkin, and Sheriff Jason Ard, individually and in his official capacity
as Livingston Parish Sheriff, seeking damages as a result of alleged police brutality committed by

1

R. Doc. 40.
R. Docs. 53, 61.
3
R. Doc. 64.
4
Magistrate judges may “hear and determine” non-dispositive pre-trial motions pursuant to 28 U.S.C. § 636(b)(1)(A).
“A motion to compel is a nondispositive, pretrial discovery motion.” State Farm Mut. Auto. Ins. Co. v. Friedman,
2002 WL 649417, at *1 (N.D. Tex. Jan. 14, 2002) (citing Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995)). See,
Turner v. Hayden, 2016 WL 6993864, at *1 (W.D. La. Nov. 29, 2016) (“The decision by Magistrate Hornsby to deny
Turner’s Motion to Compel Discovery is a non-dispositive matter.”); United States v. Toney, 2012 WL 2952768, at
*1 (W.D. La. July 19, 2012) (“The Court must apply a ‘clearly erroneous’ or ‘contrary to law’ standard of review to
a magistrate judge’s ruling on a nondispositive pre-trial motion, such as a motion to compel.”) (citations omitted); In
re Tex. Bumper Exchange, Inc., 333 B.R. 135, 138 (Bankr. W.D. Tex. 2005) (holding bankruptcy court’s order
granting motion to compel discovery was an interlocutory order as the order concerned a nondispositive discovery
issue and did not dispose of the merits of litigation).
5
The Motion is granted in its entirety as to the only remaining claims at issue after the Court ordered an additional
conference between the parties under Fed. R. Civ. P. 37.
2

Deputy Durkin and challenging the constitutionality of La. R.S. 14:122, Louisiana’s Public
Intimidation and Retaliation statute.6 In the Complaint, Plaintiffs allege that Deputy Durkin is
liable for the false arrest, battery, and malicious prosecution of William Aubin based on the events
that occurred near the Plaintiffs’ home on April 30, 2015.7 Plaintiffs allege that as a result of those
events, William Aubin was charged with resisting an officer in violation of La. R.S. 14:108,
interfering with a law enforcement investigation in violation of La. R.S. 14:329, and public
intimidation and retaliation in violation of La. R.S. 14:122, but that all of the charges were
subsequently dismissed and/or refused by the district attorney.8 Plaintiffs also allege that Deputy
Durkin is liable for his assault upon April Aubin on April 30, 2015, and for her loss of consortium.9
Plaintiffs allege that Sheriff Ard is vicariously liable to Plaintiffs for the acts, omissions, torts,
and/or other misconduct of Deputy Durkin and for his failure to adequately train and supervise
Deputy Durkin.10

Plaintiffs further allege that La. R.S. 14:122 is an unconstitutional content-

based restriction of speech protected by the First Amendment and that it is vague and overbroad,
both on its face and as applied to William Aubin in this case.11
On June 13, 2016, Sheriff Ard filed a Motion to Dismiss Pursuant to Rule 12(b)(6),12
seeking dismissal of all federal law claims asserted against him, as well as claims of independent
liability under Louisiana law. On July 5, 2016, Plaintiffs filed an Amended Complaint to add a
claim of supervisory liability against Sheriff Ard.13 On September 23, 2016, Sheriff Ard filed a
Motion to Dismiss Amended Complaint Pursuant to Rule 12(b)(6),14 seeking an order dismissing

6

R. Doc. 1.
See generally, R. Doc. 1 at 3-6.
8
R. Doc. 1 at 5.
9
R. Doc. 1 at 3-5.
10
R. Doc. 6.
11
R. Doc. 1 at 8.
12
R. Doc. 13.
13
R. Doc. 16.
14
R. Doc. 34.
7

2

all federal law claims asserted against him, as well as all claims of independent liability under
Louisiana law, asserted against him in the Complaint15 and in the Amended Complaint.16 The
second motion to dismiss provides that, “In support of this Motion, Sheriff Ard adopts and
incorporates the memoranda in support of his original Motion to Dismiss.”17
On October 31, 2016, Plaintiffs filed the instant Motion to Compel, asking this Court to
compel Deputy Durkin and Sheriff Ard (collectively, “Defendants”) to immediately provide full
and complete responses to Plaintiffs’ Interrogatories and Requests for Production of Documents
and Things to Defendants Durkin and Ard,18 which were propounded upon Defendants on July 14,
2016.19 In the Motion, Plaintiffs assert that Defendants failed to respond to the discovery requests
within 30 days of service, as required by Federal Rules of Civil Procedure 33 and 34. Plaintiffs
allege that counsel for the parties conferred by telephone on September 30, 2016, during which
counsel for the Plaintiffs agreed to defense counsel’s request for an extension of an additional 21
days, or until October 21, 2016, in which to provide discovery responses.20 Plaintiffs further allege
that on October 21, 2016, defense counsel informed counsel for the Plaintiffs that discovery
responses would be provided the following week. Plaintiffs, however, assert that no discovery
responses had been received as of the date of filing the Motion to Compel. Thus, Plaintiffs assert
Defendants should be compelled to respond fully, and without objection, to the Interrogatories and
Requests for Production of Documents and Things propounded upon them. Plaintiffs also seek an
order requiring Defendants to pay the reasonable expenses, including attorney’s fees, incurred in
filing the Motion to Compel.21

15

R. Doc. 1.
R. Doc. 16.
17
R. Doc. 34 at 1 (citing R. Doc. 13).
18
R. Doc. 40-1.
19
R. Doc. 40 at 1.
20
R. Doc. 40-2 at 1.
21
R. Doc. 40-2 at 2.
16

3

In opposition, Sheriff Ard asserts that the Motion to Compel should be denied because
Defendants provided responses to Plaintiffs’ discovery requests on December 5, 2016, thereby
mooting the Motion.22 Sheriff Ard further asserts that Plaintiffs are not entitled to their expenses
and attorney’s fees because Defendants’ failure to respond was substantially justified under Fed.
R. Civ. P. 37(a)(5)(A). Specifically, Sheriff Ard asserts that his counsel was unable to make
contact with Deputy Durkin until mid-November because Deputy Durkin is no longer employed
by the Livingston Parish Sheriff’s Office and has been deployed overseas.23 Sheriff Ard also
claims that his counsel conferred with Plaintiffs’ counsel regarding Deputy Durkin’s deployment
and that Plaintiffs’ counsel agreed to continue Defendants’ opposition deadline to the Motion to
Compel.24 Sheriff Ard further asserts that many of the discovery requests seek information
regarding Plaintiffs’ claims against him, which claims are subject to Sheriff Ard’s two pending
motions to dismiss.25 Sheriff Ard argues that the discovery requests seeking information regarding
the claims asserted against him are premature until the Court issues a ruling on the motions to
dismiss. Sheriff Ard asserts that because Defendants’ failure to provide discovery responses was
substantially justified, Plaintiffs are not entitled to an award of expenses and the Motion to Compel
should be denied.26
On December 8, 2016, the undersigned issued a Notice and Order regarding the Motion to
Compel, requiring the parties to meet and confer as required by Fed. R. Civ. P. 37(a)(1) and
requiring Plaintiffs to file a supplemental certification for the Motion to Compel detailing the
parties’ efforts to reach a resolution regarding these discovery disputes.27 Plaintiffs filed a

22

R. Doc. 53 at 1; See, R. Doc. 53-1 at 19.
R. Doc. 53 at 1.
24
R. Doc. 53 at 2 (citing R. Doc. 47).
25
R. Doc. 53 at 2; See R. Docs. 13, 34.
26
On December 28, 2016, Deputy Durkin filed a Memorandum in Opposition to Motion to Compel, adopting and
incorporating the reasons and arguments set forth in Sheriff Ard’s Opposition. (R. Doc. 61).
27
R. Doc. 55.
23

4

Supplemental Rule 37(a)(1) Certificate on December 16, 2016, explaining that the parties had
resolved some, but not all, of the discovery issues.28 In the Supplemental Certification, Plaintiffs
assert that while Defendants provided discovery responses on December 5, 2016, the responses
include untimely objections to all 11 interrogatories and all but one of the 28 requests for
production.29 Plaintiffs further assert that the parties disagree as to whether Defendants’ untimely
objections were waived, as Plaintiffs argue that the untimely objections were waived as a matter
of well-settled law in this Circuit.30 Thus, Plaintiffs assert that the Motion to Compel must be
granted because Defendants effectively waived any objections they may have had to Plaintiffs’
discovery requests by filing untimely objections.
Plaintiffs further assert that nothing in Fed. R. Civ. P. 12, which governs motions to
dismiss, triggers an automatic stay of discovery before the disposition of a motion to dismiss.31
Plaintiffs point out that the Court has not ordered a stay of discovery with respect to Sheriff Ard,
nor has Sheriff Ard even moved for a stay of discovery pending the resolution of his motions to
dismiss. Plaintiffs further assert that Defendants’ discovery responses include asserted privileges
and protections from discovery, but Defendants have not identified any documents or information
withheld and have not provided a privilege log for any documents withheld pursuant to their claims
of privilege.32 Plaintiffs allege that during the discovery conference held on December 12, 2016,
counsel for Defendants refused to provide a privilege log or a list of responsive documents that
Defendants refused to disclose in response to Plaintiffs’ discovery requests. As such, Plaintiffs

28

R. Doc. 57 at 1.
R. Doc. 57 at 2 (citing R. Doc. 53-1).
30
R. Doc. 57 at 2; See, The Shaw Group, Inc. v. Zurich American Ins. Co., 2014 WL 1891543, at *1, n.1 (M.D. La.
May 12, 2014) (“As a general rule, discovery objections are waived if a party fails to timely object to interrogatories,
production requests or other discovery efforts.”) (citing In re United States, 864 F.2d 1153, 1156 (5th Cir. 1989)).
31
R. Doc. 57 at 3 (citing Gideon Mark, FEDERAL DISCOVERY STAYS, 45 U. Mich. J.L. Reform 2 (2012), p. 406).
32
R. Doc. 57 at 6. Specifically, Plaintiffs claim that Defendants have asserted a privilege in response to Interrogatory
Nos. 8 and 11 and Request for Production Nos. 9, 10, 11, 12, 15, and 27. (Id.) (citing R. Doc. 53-1).
29

5

assert that the following issues remain in dispute: (1) Defendants’ objections to Interrogatory Nos.
3, 4, 6, 8, 9; (2) Defendants’ objections to Request for Production Nos. 1-11, 14-17, 23, 25-28; (3)
the waiver of Defendants’ untimely objections; (4) the waiver of Defendants’ objections in light
of their refusal to provide privilege logs or lists of withheld documents; and (5) the validity of
Sheriff Ard’s refusal to engage in discovery without a stay order and without having sought a stay
order.33
On December 21, 2016, Defendants filed a Response to Plaintiffs’ Supplemental Rule
37(a)(1) Certificate,34 asserting that Plaintiffs’ Supplemental Certificate addresses issues that are
beyond the scope of the Motion to Compel. Defendants assert that Plaintiffs filed the Motion to
Compel due to Defendants’ failure to provide discovery responses. Defendants argue that because
they have since provided discovery responses, the Motion to Compel should be denied because
Defendants have satisfied the only issue raised therein. Defendants assert that in the Supplemental
Certificate, Plaintiffs set forth specific objections to each of Defendants’ discovery responses, even
though these issues were not raised by way of a motion. Defendants argue that Plaintiffs have
effectively filed a new motion to compel, styled as a Supplemental Certificate, and that Defendants
do not have the protection of LR7(f), which would normally give them 21 days to respond to a
motion to compel. As such, Defendants assert that the Motion to Compel should be denied or,
alternatively, that they should be allowed to respond to the issues raised in Plaintiffs’ Supplemental
Certificate.
On December 30, 2016, Plaintiffs filed a Reply Memorandum in Support of Motion to
Compel,35 clarifying that the Motion to Compel seeks full and complete discovery responses

33

R. Doc. 57 at 19-20.
R. Doc. 59.
35
R. Doc. 64.
34

6

without objection from Defendants. Plaintiffs contend that Defendants could have asserted timely
objections any time between when the discovery was propounded on July 14, 2016 and when the
Motion to Compel was filed on October 31, 2016, and that Defendants could have provided full
and complete responses on December 5, 2016. Defendants, however, chose not to do so. Although
Defendants claim that their untimely objections are justified because defense counsel could not get
in touch with Deputy Durkin, Plaintiffs assert that the discovery requests did not require any input
from Deputy Durkin. With respect to Sheriff Ard’s refusal to engage in discovery due to his
assertion of qualified immunity, Plaintiffs assert that Sheriff Ard can only claim qualified
immunity in his individual capacity, not his official capacity. Plaintiffs assert that the discovery
requests sent to Sheriff Ard in his official capacity are effectively requests made upon the
Livingston Parish Sheriff’s Office, Deputy Durkin’s employer. Plaintiffs further allege that Sheriff
Ard has no objection to engaging in discovery, only to responding to discovery, noting that Sheriff
Ard recently noticed and took the depositions of the Plaintiffs on December 20, 2016.36 Plaintiffs
argue that a party who seeks discovery should be willing to respond to discovery or, at the very
least, make timely and well-founded objections to doing so. Plaintiffs maintain that the Motion to
Compel should be granted because the issues surrounding the Motion to Compel have been fully
considered by the parties and fully briefed to the Court.
Also on December 30, 2016, Defendants filed a Supplemental Response to Plaintiff’s [sic]
Rule 37(a)(1) Certificate, re-urging their arguments that Plaintiffs’ Supplemental Certificate37 is
effectively a new motion to compel and that Defendants’ failure to timely respond to the discovery
requests was due to defense counsel’s inability to get in touch with Deputy Durkin, who was

36
37

R. Doc. 64 at 2 (citing R. Doc. 64-1).
R. Doc. 57.
7

deployed overseas.38 Defendants assert that their objections to Plaintiffs’ discovery requests
should not be deemed waived because such a harsh remedy is not warranted in this case.
Defendants claim that they have not been evasive during the discovery process and have remained
in contact with counsel for the Plaintiffs regarding the outstanding discovery requests while
attempting to contact Deputy Durkin.39

Defendants contend that they provided discovery

responses as soon as their counsel was able to speak with Deputy Durkin, thereby satisfying the
only issue raised in the Motion to Compel. Defendants also claim that their counsel participated
in a discovery conference with counsel for the Plaintiffs on December 12, 2016 and agreed to
supplement certain discovery responses, which were promptly provided.40
Defendants further assert that the timing of their discovery responses was discussed with
Plaintiffs’ counsel after the Motion to Compel was filed. According to Defendants, Plaintiffs’
counsel agreed to an extension of Defendants’ deadline to oppose the Motion to Compel for the
purpose of allowing Defendants time to finalize their discovery responses, since defense counsel
had recently made contact with Deputy Durkin.41 Defendants argue that because Plaintiffs had no
objection to Defendants’ request for an extension of the deadline to oppose the Motion to Compel
(and, therefore, the extension of time to provide discovery responses), and the Court granted the
Defendants’ request,42 Defendants were effectively given additional time to provide their
discovery responses.43 Defendants also assert, without explanation, that most of the discovery
requests seek information that is outside the scope of discovery, as set forth in Federal Rule of
Civil Procedure 26.44 As such, Defendants argue good cause exists under Federal Rule of Civil

38

R. Doc. 65 at 1-2.
R. Doc. 65 at 1-2.
40
R. Doc. 65 at 2.
41
R. Doc. 65 at 2 (citing R. Doc. 47).
42
R. Doc. 48.
43
R. Doc. 65 at 2.
44
R. Doc. 65 at 2-3.
39

8

Procedure 33(b)(4) to deny Plaintiffs’ request to sanction Defendants by deeming all of their
objections to Plaintiffs’ discovery requests waived.45
Additionally, Defendants argue that Sheriff Ard has objected to specific discovery requests
seeking information that would only be relevant if the claims against him survive his motions to
dismiss.46 Defendants claim that the motions to dismiss assert that Plaintiffs have failed to state a
claim against Sheriff Ard for his independent liability and that Plaintiffs have failed to plead facts
that would overcome Sheriff Ard’s invocation of qualified immunity. 47 Defendants argue that if
the motions to dismiss are granted, Plaintiffs’ claims against Sheriff Ard will be dismissed and
Plaintiffs will not be entitled to conduct any discovery regarding those claims. Thus, Defendants
assert that Plaintiffs are not entitled to open the door to discovery while Sheriff Ard’s motions to
dismiss are pending. Defendants further assert that Sheriff Ard is not asserting that discovery is
automatically stayed pending the disposition of a motion to dismiss, nor has Sheriff Ard sought a
complete stay of discovery.48 Defendants contend that Sheriff Ard has responded to the discovery
requests concerning claims that are not subject to his motions to dismiss, but that some of the
discovery requests clearly seek information that is only relevant to the claims attempted to be
asserted against him. Thus, Defendants assert that Sheriff Ard’s objection to the relevancy of those
requests, as well as his prematurity objection, are well founded.
Defendants further assert that no privilege log is required because Defendants have not
identified any responsive documents that are being withheld based on a claim of privilege.49
Instead, Defendants assert that many of the discovery requests are so broad in scope that a literal

45

R. Doc. 65 at 3.
R. Docs. 13, 34.
47
R. Doc. 65 at 3.
48
R. Doc. 65 at 5.
49
R. Doc. 65 at 5-6.
46

9

reading of the requests would require production of inherently privileged materials. Defendants
argue that this is not the type of scenario that requires a privilege log, as set forth in Federal Rule
of Civil Procedure 26(b)(5)(a). Defendants address the objections raised in response to each
discovery request that remains in dispute between the parties, asserting that the information sought
by Plaintiffs is either irrelevant to their claims or is only relevant to the claims that are subject to
Sheriff Ard’s pending motions to dismiss.50 Although Defendants were delayed in responding to
Plaintiffs’ discovery requests due to the unavailability of Deputy Durkin, Defendants assert that
the Motion to Compel should be denied because Defendants have now fully responded to
Plaintiffs’ discovery requests.
While the Motion to Compel was pending, Chief Judge Brian A. Jackson issued a Ruling
and Order on March 24, 2017,51 denying Sheriff Ard’s Motion to Dismiss the Amended
Complaint52 and denying as moot Sheriff Ard’s original Motion to Dismiss.53 In the Ruling and
Order, Chief Judge Jackson concluded that Plaintiffs’ allegations of independent supervisor
liability contain sufficient facts to overcome Sheriff Ard’s motion to dismiss the individual
capacity claims asserted against him.54 Chief Judge Jackson also concluded that Plaintiffs have
asserted sufficient factual allegations to state a viable claim against Sheriff Ard in his official
capacity.55 On April 21, 2017, Sheriff Ard filed a Notice of Appeal, 56 notifying the Court of his
intent to appeal Chief Judge Jackson’s March 24, 2017 Ruling and Order to the United States Fifth
Circuit Court of Appeals.57

50

R. Doc. 65 at 20; See, R. Doc. 65 at 6-20.
R. Doc. 88.
52
R. Doc. 34.
53
R. Doc. 13.
54
R. Doc. 88 at 8-9.
55
R. Doc. 88 at 7, 9.
56
R. Doc. 104.
57
R. Doc. 88.
51

10

II.

Law and Analysis
“A party upon whom interrogatories and requests for production of documents have been

served shall serve a copy of the answers, and objections if any, to such discovery requests within
thirty (30) days after the service of the requests.” Matherne v. Schramm, 2013 WL 5961096, at
*1 (M.D. La. Nov. 7, 2013) (citing Fed. R. Civ. P. 33 and 34). A shorter or longer time may be
directed by court order or agreed to in writing by the parties. Fed. R. Civ. P. 33(b)(2) and
34(b)(2)(A).

A party seeking discovery may move for an order compelling answers to

interrogatories and production of requested documents if a party fails to provide answers or
responses. Fed. R. Civ. P. 37(a)(3)(B). If a motion to compel production is granted, “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).
“[A]s a general rule, when a party fails to object timely to interrogatories, production
requests, or other discovery efforts, objections thereto are waived.” In re United States, 864 F.2d
1153, 1156 (5th Cir. 1989); See, Shaw Group Inc. v. Zurich American Ins. Co., 2014 WL 1891543,
at *1, n.1 (M.D. La. May 12, 2014) (same); Godsey v. United States, 133 F.R.D. 111, 113 (S.D.
Miss. 1990) (“[T]here is authority within this circuit that does recognize the general rule that
discovery objections are waived if a party fails to object timely to interrogatories, production
requests, or other discovery efforts.”) (citations omitted). “Where parties have failed to respond
timely to written discovery requests, this court has required those parties to answer interrogatories
and produce documents without objections.” Shaw Group, Inc., 2014 WL 1891543, at *1, n.1
(noting that the Court had previously ordered the defendant to submit complete responses, without
objections, to plaintiff’s discovery requests to which defendant had not responded, within seven

11

days); See, Matherne v. Schramm, 2013 WL 5961096 (M.D. La. Nov. 7, 2013) (ordering plaintiffs
to submit complete responses, without objections, to defendants’ discovery requests to which
plaintiffs had not responded); Johnson v. City of Baton Rouge, 2011 WL 709186, at *1 (M.D. La.
Nov. 7, 2013) (ordering defendants to respond to plaintiff’s discovery requests and provide all
responsive documents, without objection, within ten days).
1. Defendants waived their objections to Plaintiffs’ discovery requests by failing to
timely respond, in accordance with Fed. R. Civ. P. 33 and 34.
In the Motion to Compel, Plaintiffs assert that they propounded Interrogatories and
Requests for Production of Documents and Things upon Defendants on July 14, 2016.58 The
documents submitted with the Motion to Compel show that the discovery requests were “served
upon all counsel of record via U.S. Mail, postage prepaid and properly addressed, by hand, by email, by electronic transmission through the Court’s CM/ECF system, or by facsimile
transmission, this 14th day of July 2016.”59 Defendants do not dispute that they were served with
Plaintiffs’ discovery requests on July 14, 2016.60 Plaintiffs further assert that Defendants failed to
provide written responses and responsive documents within 30 days of service, as required by
Federal Rules of Civil Procedure 33 and 34.61 Plaintiffs claim that counsel for the parties conferred
by telephone on September 30, 2016 (when responses were already overdue), at which time
Plaintiffs’ counsel agreed to defense counsel’s request for a 21-day extension, or until October 21,
2016, to provide responses to Plaintiff’s discovery requests.62 Plaintiffs assert that on October 21,
2016, defense counsel informed Plaintiffs’ counsel that the responses would be made the following
week. Plaintiffs contend that no discovery responses had been received as of the date they filed

58

R. Doc. 40 at 1.
R. Doc. 40-1 at 10.
60
See, R. Docs. 53, 59, 65.
61
R. Doc. 40-2 at 1.
62
R. Doc. 40-2 at 1.
59

12

the Motion to Compel, which was on October 31, 2016.63

Defendants have submitted

documentation showing that their discovery responses were served upon all counsel of record “by
placing same in the United States Mail, postage prepaid and properly addressed” on December 5,
2016.64
As discussed above, “As a general rule, when a party fails to object timely to
interrogatories, production requests, or other discovery efforts, objections thereto are waived.” In
re United States, 864 F.2d 1153, 1156 (5th Cir. 1989).

The time period to respond to

interrogatories and requests for the production of documents is thirty (30) days after service under
Federal Rules of Civil Procedure 33(b)(2) and 34(b)(2)(A). Rule 33 provides that the grounds for
objecting to an interrogatory must be stated with specificity and any ground not stated in a timely
objection is waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 33(b)(4).
Rule 34 similarly provides that the grounds for objecting to a request for production must be stated
with specificity. Fed. R. Civ. P. 34(b)(2)(B). Rule 34 further provides that, “An objection must
state whether any responsive materials are being withheld on the basis of that objection. An
objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ.
P. 34(b)(2)(C). Here, Defendants did not submit written responses or objections to Plaintiffs’
discovery requests within 30 days after they were served or within the extension of time granted
by Plaintiffs. Further, the Court finds Defendants have not established good cause to excuse their
failure to timely respond. While Defendants seem to rely on the fact that Deputy Durkin was
deployed and, therefore, unable to provide counsel with information to respond to the discovery
requests, that explanation fails to explain why Defendants did nothing to preserve this issue. After
Plaintiffs granted the extension for Defendants to respond (already over two-and-a-half months

63
64

Id.
R. Doc. 53-1 at 19.
13

after the discovery was propounded) it was incumbent upon Defendants to secure an additional
extension either from Plaintiffs or the Court. The Court further finds that Plaintiffs’ agreement to
permit Defendants additional time to respond to the Motion to Compel is not the same as extending
the time for Defendants to respond to discovery. As such, the Court finds that any objections to
Plaintiffs’ discovery requests were waived.
2. Defendants’ boilerplate objections to the discovery requests at issue do not suffice
to assert valid objections to the discovery requested.
Notwithstanding that the objections were waived by Defendants’ failure to timely respond,
the Court further finds that Defendants failed to assert valid objections to Plaintiffs’ discovery
requests. Based on the Supplemental Rule 37(a)(1) Certificate filed by Plaintiffs, Plaintiffs seek
to compel Defendants to respond to the following interrogatories:
INTERROGATORY NO. 3:
With respect to any complaints, suits, claims, or allegations that
William Durkin used excessive or unreasonable force while acting
as a Livingston Parish Sheriff’s Deputy (either before or after April
30, 2015), please set forth the name, address, telephone number, and
current or last known employer of each such complainant, the
specific nature of each complaint, the date of each complaint, and
the final disposition of each complaint.
INTERROGATORY NO. 4:
With respect to any complaints, suits, claims, or allegations that
William Durkin committed a false arrest while acting as a
Livingston Parish Sheriff’s Deputy (either before or after April 30,
2015), please set forth the name, address, telephone number, and
current or last known employer or each such complainant, the
specific nature of each complaint, the date of each complaint, and
the final disposition of each complaint.
INTERROGATORY NO. 6:
With respect to any lawsuit or claim for workers’ compensation or
disability benefits made by William Durkin at any time in the
preceding ten years, please identify the name of the person or entity
against whom the claim was made, the date of the claim, the case or
claim number of each suit or claim, the court or adjudicative body

14

with whom the claim was filed, the general nature of the claim, and
the final disposition of the claim.

INTERROGATORY NO. 8:
If you contend that William Durkin was acting pursuant to, or in
conformity with, any policy, procedure, protocol, or rule, of the
Livingston Parish Sheriff during the events made subject of this suit,
please identify with specificity all such policies, procedures,
protocols, and rules.
INTERROGATORY NO. 9:
Identify all training received by William Durkin in the application
and enforcement of Louisiana Revised Statute 14:122, entitled
Public Intimidation and Retaliation, including the location and
date(s) of all such training, the title and author of all writings used
in such training, and the name, address, telephone number, and
current or last known employer, of any and all persons who
conducted or supervised such training. 65
Defendants asserted the same objection in response to each of these interrogatories, objecting to
the requests as:
[O]verly broad, vague, unduly burdensome, and as seeking
irrelevant information that is not reasonably calculated to lead to the
discovery of admissible evidence. Sheriff Ard further states that he
has filed a Motion to Dismiss asserting that plaintiffs have failed to
state a cause of action against him, which is currently pending before
the Court, and that this request is premature until the Court has ruled
upon the same.66
Defendants further objected to Interrogatory No. 8 by asserting that it “seeks privileged mental
impressions, theories, and conclusions of counsel for defendants. Defendants further object in that
they do not bear the burden of proof in this case.”67
The Supplemental Rule 37(a)(1) Certificate also provides that Plaintiffs seek to compel
Defendants to respond to Request for Production Nos. 1-11, 15-17, 23, and 25-28.68 Defendants

65

R. Doc. 57 at 19; See, R. Doc. 53-1 at 2-5.
R. Doc. 53-1 at 2-5.
67
R. Doc. 53-1 at 4.
68
R. Doc. 57 at 19.
66

15

similarly objected to Request for Production Nos. 9, 10, 11, and 27 as “ vague, overly broad, and
as seeking privileged work product prepared in anticipation of litigation, privileged mental
impressions, theories, and conclusions of counsel for defendants, and/or privileged attorney-client
communications” and by further asserting that Sheriff Ard “has filed a Motion to Dismiss asserting
that plaintiffs have failed to state a cause of action against him, which is currently pending before
the Court, and that this request is premature until the Court has ruled upon the same.”69
The Fifth Circuit has held that conclusory objections that the requested discovery is “overly
broad, burdensome, oppressive and irrelevant” are insufficient to voice a successful objection to
an interrogatory or request for production. McLeod, Alexander, Powel and Apffel, P.C. v. Quarles,
894 F.2d 1482, 1485 (5th Cir. 1990) (quoting Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir.
1982)). Here, when Defendants finally responded to the discovery requests, Defendants objected
to the discovery requests at issue, namely Interrogatory Nos. 3, 4, 6, 8, and 9 and Request for
Production Nos. 1-11, 14-17, 23, and 25-28, by asserting boilerplate objections of vagueness and
overbreadth. The Court finds such boilerplate language does not suffice to assert a valid objection
to Plaintiffs’ outstanding discovery requests under McLeod. Thus, the Court finds that the general
rule applies here and Defendants have waived their objections to Interrogatory Nos. 3, 4, 6, 8, and
9 and Request for Production Nos. 1-11, 14-17, 23, and 25-28 based upon relevance, over breadth,
unduly burdensomeness, or any other objection unrelated to privilege. See, Tadlock v. Arctic Cat
Sales, Inc., 2017 WL 1032516 at *8 (M.D. La. Mar. 17, 2017) (finding plaintiff waived some of
his objections to defendant’s discovery requests by not objecting to the requests until over a month
after the requests were propounded and lodging boilerplate objections); Johnson v. PPI
Technology Services, L.P., 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013) (finding plaintiffs

69

R. Doc. 53-1 at 10-11 and 17.
16

and third-party defendant waived their objections to defendant’s discovery requests by not
objecting to the requests until more than two and a half months after the requests were
propounded); B&S Equipment Co., Inc. v. Truckla Services, Inc., 2011 WL 2637289, at *4 (E.D.
La. July 6, 2011) (finding that defendants had waived all objections to plaintiff’s discovery
requests based on relevance, over breadth, unduly burdensomeness, or any other objection
unrelated to privilege by failing to timely respond to plaintiff’s discovery requests).
The Court further finds that Defendants’ objections of prematurity based upon the pending
motions to dismiss filed by Sheriff Ard70 have been rendered moot by the March 24, 2017 Ruling
and Order, in which Chief Judge Jackson denied Sheriff Ard’s motions to dismiss.71 Defendants
objected to each of the outstanding discovery requests, with the exception of Interrogatory No. 6
and Request for Production Nos. 9 and 23,72 by asserting that, “this request is premature until the
Court has ruled upon [Sheriff Ard’s motions to dismiss].”73 Because the Court has ruled upon
Sheriff Ard’s motions to dismiss, the Court finds that Defendants’ objection of prematurity is now
moot.
Having found that Defendants have failed to establish good cause for their failure to timely
respond to the discovery requests and that the objections raised by Defendants are without merit
notwithstanding the timeliness issue, the Court will order Defendants to submit complete discovery
responses, without objections, to the outstanding discovery requests, namely Interrogatory Nos. 3,
4, 6, 8, and 9 and Request for Production Nos. 1-11, 14-17, 23, and 25 in Plaintiffs’ Interrogatories

70

R. Docs. 13, 34.
R. Doc. 88. Even if the Defendants’ objections based on the fact Sheriff Ard had filed a motion to dismiss raising
the issue of qualified immunity had not been resolved, the objections would still not be valid. Essentially, those
objections seek a stay of discovery pending resolution of the qualified immunity issue. Plaintiffs are correct that such
a stay is not automatic, however, and Defendants did not seek a stay of discovery in this case.
72
R. Doc. 53-1 at 4, 10, 16.
73
R. Doc. 53-1 at 2-5, 7-10, 13-14, 16-18.
71

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and Requests for Production of Documents and Things to Defendants Durkin and Ard, 74 within
fourteen (14) days of the date of this Ruling and Order. See, Shaw Group Inc. v. Zurich American
Ins. Co., No. 12-cv-257-JJB-RLB (R. Doc. 165 at 2).
3. Defendants’ failure to timely object to Plaintiffs’ discovery requests is not
substantially justified to avoid sanctions under Fed. R. Civ. P. 37(a)(5)(A)(ii)
In opposition to the Motion to Compel, Defendants assert that they should not be required
to pay the costs incurred by Plaintiffs in bringing the Motion to Compel because their failure to
timely object to the discovery requests was substantially justified due to Deputy Durkin’s
deployment overseas.75 The Court disagrees. The Court finds that although Deputy Durkin may
have been deployed overseas when Plaintiffs propounded their discovery requests, Defendants
could have sought a further extension from the Plaintiffs of the deadline to provide discovery
responses based upon Deputy Durkin’s deployment. If the Plaintiffs had denied that request,
Defendants could have sought relief from the Court by filing a motion for an extension of the
deadline to respond based upon Deputy Durkin’s deployment. Alternatively, Defendants could
have timely-filed objections to Plaintiffs’ discovery requests based upon the pending motions to
dismiss and Sheriff Ard’s assertion of qualified immunity. Defendants also could have filed a
motion to stay discovery pending disposition of the motions to dismiss. Despite these options,
Defendants chose to do nothing for nearly five months after the discovery requests were
propounded by Plaintiffs. While Defendants sought an extension of the discovery deadline until
October 21, 2016, which the Plaintiffs granted, Defendants still failed to provide discovery
responses until December 5, 2016, several weeks after the extended deadline. As such, the Court

74
75

R. Doc. 40-1.
R. Doc. 53 at 1-2.
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finds that Defendants’ delay in responding to Plaintiffs’ discovery requests is not substantially
justified based upon Deputy Durkin’s deployment.
The Court further finds Defendants’ argument that they were granted additional time to
provide discovery responses based upon their unopposed motion for an extension of the deadline
to oppose the Motion to Compel disingenuous, at best. As an initial matter, Defendants filed an
Unopposed Motion to Extend Deadline for Defendants to File Opposition to Plaintiffs’ Motion to
Compel,76 which is not the same thing as a motion for an extension of the deadline to respond to
discovery. As evidenced by the caption of Defendants’ motion, Defendants sought only an
extension of the deadline imposed by LR 7(f) in which to file their opposition to the Motion to
Compel. Further, the motion itself provides that, “[U]ndersigned counsel has conferred with
counsel for Plaintiffs, who has agreed to continue the deadline for defendants to oppose Plaintiffs’
Motion to Compel (R. Doc. 40) for 14 days, or until December 5, 2016, so that the issues raised in
the motion can be resolved.”77 Importantly, Defendants did not assert that counsel for the Plaintiffs
had consented to an extension of the deadline to respond to discovery. Instead, Defendants alleged
that Plaintiffs’ counsel had consented to an extension of the deadline for opposing the Motion to
Compel, as provided by LR 7(f).
The Court acknowledges that the Defendants’ motion for an extension further states that,
“Accordingly, to provide time for defendants to serve responses to Plaintiffs’ discovery requests
and respond to the pending Motion to Compel, defendants respectfully request that the Court
extend the time for them to file an opposition to Plaintiffs’ Motion to Compel (R. Doc. 40) for an
additional 14 day [sic], or until December 5, 2016.”78 However, the Order granting Defendants’

76

R. Doc. 47.
R. Doc. 47 at ¶ 6 (emphasis added).
78
R. Doc. 47 at ¶ 7.
77

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Motion for Extension provides the following: “ORDER granting (R. Doc. 47) Motion for
Extension of Time to File Opposition to (R. Doc. 40) Motion to Compel. Any opposition to
Plaintiffs [sic] Motion to Compel may be filed on or before December 5, 2016.”79 Thus, contrary
to Defendants’ assertion, the Court did not grant Defendants additional time in which to provide
their discovery responses. Instead, the Court merely granted an extension of the deadline imposed
by LR 7(f) for filing an opposition to Plaintiffs’ Motion to Compel. As such, the Court finds
Defendants have not shown that their failure to timely object to Plaintiffs’ discovery requests was
substantially justified to avoid sanctions under Federal Rule of Civil Procedure 37(a)(5)(A)(ii).
Since the Court finds that the Motion to Compel should be granted as to the remaining
issues and since Defendants’ failure to timely respond to the discovery requests was not
substantially justified, Plaintiffs’ request for the reasonable expenses incurred in filing the Motion,
including attorney’s fees, should be granted pursuant to Fed. R. Civ. P. 37(a)(5)(A).
III.

Conclusion
For the reasons set forth herein, IT IS HEREBY ORDERED that the Motion to Compel80

filed by William and April Aubin is GRANTED in part. Deputy Durkin and Sheriff Ard shall
provide complete responses to the outstanding discovery requests in Plaintiffs’ Interrogatories and
Requests for Production of Documents and Things to Defendants Durkin and Ard, 81 namely
Interrogatory Nos. 3, 4, 6, 8, and 9 and Request for Production Nos. 1-11, 14-17, 23, and 25-28,82
without objections consistent with this Ruling and Order (with the exception of any objections
pertaining to any applicable privileges and/or immunities, except qualified immunity),83 no later

79

R. Doc. 48.
R. Doc. 40.
81
R. Doc. 40-1.
82
R. Doc. 57 at 19.
83
See, B&S Equipment Co., Inc. v. Truckla Services, Inc., 2011 WL 2637289, at *5 (E.D. La. July 6, 2011) (“[C]ourts
have found that, pursuant to Rule 26(b)(5) which concerns withholding information on the basis of privilege, the
failure to timely object on the basis of privilege does not result in an automatic waiver.” (citations omitted)).
80

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than fourteen (14) days from the date of this Ruling and Order. For any response that asserts a
privilege, Defendants are required to provide a privilege log pursuant to Fed. R. Civ. P. 26(b)(5).
IT IS FURTHER ORDERED that Plaintiffs are awarded their reasonable expenses
incurred in filing the Motion to Compel, including attorney’s fees, in the total amount of $500.
Upon further review, the Court finds that a telephone conference on the Motion to Compel
is no longer necessary. As such, IT IS FURTHER ORDERED that the telephone conference set
for April 26, 2017 at 10:00 a.m. before the undersigned Magistrate Judge is CANCELLED.
Signed in Baton Rouge, Louisiana, on April 25, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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