Moses v. Shriya Hospitality, LLC

Filing 21

ORDER granting in part and denying in part 19 Motion to Compel. Plaintiff shall supplement her responses, as written, within 7 days of the date of this Order. Parties shall bear their own costs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/12/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BETTY LOU MOSES

CIVIL ACTION

VERSUS
NO. 16-578-SDD-RLB
SHRIYA HOSPITALITY, LLC

ORDER
Before the Court is Defendant Shriya Hospitality LLC’s (“Shriya”) Motion to Compel
Plaintiff’s Responses to First Supplemental Discovery Requests & Withheld Authorizations (R.
Doc. 19) filed on August 15, 2017. Plaintiff has not filed a response within the time allowed by
Local Rule 7(f). Accordingly, the Motion is unopposed.
I.

Background
Betty Lou Moses (“Plaintiff”) commenced this slip-and-fall action on August 31, 2016,

naming Shriya as the sole defendant. (R. Doc. 1). Plaintiff subsequently filed a First Amended
Complaint adding Liberty Mutual Insurance Europe Limited as an additional defendant. (R. Doc.
14).
Plaintiff alleges that she and her husband, Bruce Moses, both professional musicians in
their seventies, stayed at a hotel owned and operated by Shriya on August 5, 2016 while they
were on their way to a performance. (R. Doc. 14 at 3). Plaintiff alleges that after settling in their
room, she and her husband were walking down a concrete walkway toward the front desk when
Plaintiff “slipped in a puddle of moisture and accumulated slime” and “fell hard to the ground.”
(R. Doc. 14 at 3-4). Plaintiff alleges that as a result of the fall she suffered, among other things,
“a severe hip injury” and “required immediate hip replacement surgery, as well as numerous

follow up doctor’s and physical therapy visits, and home health care.” (R. Doc. 14 at 4). Plaintiff
alleges that she has suffered past, present and future debilitating physical and mental pain and
mental anguish due to her injuries”; she “has incurred significant past medical expenses, and
these expenses will continue into the future”; and she “has suffered a loss of earnings and
earning capacity and will continue to suffer such loss in the future.” (R. Doc. 14 at 5). Plaintiff
seeks to recover $1 million. (R. Doc. 14 at 7).
On April 24, 2017, Shriya propounded Supplemental Interrogatories and Requests for
Production of Documents. (R. Doc. 19-4).
On June 2, 2017, Shriya set a discovery conference to take place on June 9, 2017 because
it had not received responses to the supplemental discovery requests. (R. Doc. 19-5). At the
conference, Shriya agreed to extend the deadline to respond to the supplemental discovery
requests to June 12, 2017. (R. Doc. 19-6).
On June 16, 2017, Plaintiff provided responses to the supplemental discovery requests.
(R. Doc. 19-9). Later that day, Shriya asserted in an e-mail that Plaintiff’s responses were
deficient to the extent that Plaintiff would not authorize disclosure of her health information with
regard to psychological treatment, sexually transmitted diseases, behavioral or mental health
services, and treatment for alcohol and drug abuse. (R. Doc. 19-10).1
On June 21, 2017, Shriya asserted in a letter that Plaintiff’s responses to Supplemental
Interrogatory No. 1 and Supplemental Request for Production Nos. 1, 2, 3, 4, 7, and 8 were
deficient. (R. Doc. 19-11). Shriya requested that these deficiencies be addressed by June 27,
2017. (R. Doc. 19-11 at 3).

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Shriya requested the underlying authorization forms to be executed in its Supplemental Request for Production No.
1. (R. Doc. 19-4 at 4-5). The instant motion does not seek any relief with regard to Request for Production No. 1.
2

On June 26, 2017, Plaintiff provided supplemental responses to those discovery requests.
(R. Doc. 19-12).
On July 25, 2017, Shriya took the depositions of Plaintiff and her husband. (R. Doc. 19-2
at 2; see R. Doc. 19-7 at 2). Shriya represents that at her deposition, Plaintiff executed “an
MMSEA (Medicare, Medicaid and SCHIP Extension Act of 2007) verification form, a Medicare
Records Authorization, an authorization to obtain her prior Federal tax returns, and an
authorization to obtain her Social Security records.” (R. Doc. 19-2 at 2-3). Shriya further asserts,
however, that Plaintiff’s counsel did not provide a copy of the tax and social security
authorization forms executed by Plaintiff. (R. Doc. 19-2 at 3). Shriya also represents that
Plaintiff’s counsel did not provide certain forms executed by Plaintiff’s husband, a non-party to
this action who is represented by Plaintiff’s counsel for the limited purpose of the execution of
authorization forms. (R. Doc. 19-2 at 3).
On July 31, 2017, Shriya requested Plaintiff to produce copies of the withheld, but
executed, authorization forms by August 3, 2017. (R. Doc. 19-13).
Through the instant motion, Shriya seeks “an order compelling plaintiff to fully respond
to the supplemental discovery requests at issue . . ., and compelling plaintiff’s counsel to
immediately produce all fully executed authorizations presently being withheld in the abovecaptioned matter.” (R. Doc. 19-2 at 9).
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

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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). 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).
“The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
Rule 26(c)’s “good cause” requirement indicates that the party seeking a protective order has the
burden “to show the necessity of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra
Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323,
1326 n.3 (5th Cir. 1978)).
Rules 33 and 34 provide a party with 30 days after service of the discovery to respond or
object. See Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A). If a party fails to respond fully to discovery
requests made pursuant as to Rules 33 and 34 in the time allowed by the Federal Rules of Civil
Procedure, the party seeking discovery may move to compel disclosure and for appropriate
sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4).

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B.

Absence of a Rule 37(a)(1) Certification

Rule 37(a)(1) of the Federal Rules of Civil Procedure provides that any motion to compel
“must include a certification that the movant has in good faith conferred or attempted to confer
with the person or party failing to make disclosure or discovery in an effort to obtain it without
court action.” Failure to comply with the meet and confer requirement may constitute sufficient
reason to deny a motion to compel. Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL
4373197, at *3 (M.D. La. Sept. 3, 2014); see also Forever Green Athletic Fields, Inc. v. Babcock
Law Firm, LLC, No. 11-633, ECF No. 75 (M.D. La. July 3, 2014) (denying motion to compel
where defense counsel made a single attempt by email to meet and confer and did not do so in a
good faith effort to resolve the dispute without court intervention).
Shriya has not provided a Rule 37(a)(1) certification with the instant Motion.
Nevertheless, given the correspondence between the parties, the discovery conferences sought
and held,2 and Plaintiff’s failure to respond to the instant motion, the Court will consider the
motion on its merits.
C.

The Discovery Requests
1.

Interrogatory No. 1

Shriya’s Interrogatory No. 1 requests Plaintiff to “identify the location, date(s), and
name/nature of any and all engagements, performances, presentations, recitals, or other events at
which [Plaintiff was] scheduled to and/or did perform, participate, assist and/or attend in
connection with [Plaintiff’s] employment, from May 7, 2016 until November 3, 2016.” (R. Doc.
19-4 at 2). In her initial response, Plaintiff objected to the interrogatory on the ground that it

In its correspondence, Shriya refers to the discovery conferences set and held as “Rule 10.1” discovery
conferences. (R. Doc. 19-5). There is no “Rule 10.1” in the Federal Rules of Civil Procedure or the Local Rules of
this Court.
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seeks irrelevant information and “is overly expansive, vague, and/or ambiguous.” (R. Doc. 19-9
at 2). Plaintiff nevertheless produced a copy of Plaintiff’s calendar, stating that it “sets forth
their itinerary for the time period requested,” as well as “screen shots of social media posts”
documenting some of the performances and appearances during the requested time frame. (R.
Doc. 19-9 at 3). In her supplemental response, Plaintiff asserts that the requested information is
irrelevant because she has waived her claim to past economic loss. (R. Doc. 19-12 at 5).
Contrary to Plaintiff’s objections, the interrogatory is narrowly tailored to a six-month
period surrounding the alleged slip-and-fall on August 5, 2016. It is neither vague nor
ambiguous. Furthermore, notwithstanding Plaintiff’s waiver of her claim for past economic loss,
which is not reflected in the current pleadings, the information sought is relevant to Plaintiff’s
claims of physical and mental injuries, as it could reflect Plaintiff’s physical and mental
condition prior to, and subsequent to, the alleged incident. Furthermore, the information sought
is relevant to Plaintiff’s claim for lost earning capacity. Finally, it appears that Plaintiff’s
calendar and screenshots do not meet the requirements of Rule 33(d), as Shriya has identified
several dates missing from these documents. (R. Doc. 19-11 at 1).
Based on the foregoing, Shriya’s Motion is GRANTED with respect to Interrogatory
No. 1. Plaintiff must provide the information requested in Interrogatory No. 1 in a written
response within 7 days of the date of this Order.
2.

Request for Production No. 2

Shriya’s Request for Production No. 2 requests executed versions of enclosed federal and
Louisiana state income tax return request forms. (R. Doc. 19-4 at 5). In her initial response,
Plaintiff objected the request for production on the ground that it seeks irrelevant information
and “is overly expansive, vague, and/or ambiguous,” further stating that the tax forms were not

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attached to the request and that she has never filed taxes in Louisiana, further requesting that
Plaintiff identify a time frame for the tax authorization requested. (R. Doc. 19-9 at 5-6). In her
supplemental response, Plaintiff asserts that the requested information is irrelevant because she
has waived her claim to past economic loss. (R. Doc. 19-12 at 6-7).
Tax returns are highly sensitive documents and the court will only compel their
production where the requesting party “demonstrates both: (1) that the tax information is
‘relevant’ to the subject matter of the action;3 and (2) that there is a ‘compelling need’ for the
information because the information contained in the tax returns is not ‘otherwise readily
obtainable’ through alternative forms of discovery, such as depositions or sworn interrogatory
answers.” Bulter v. Exxon Mobile Ref. & Supply Co., 2008 WL 4059867, at *2 (M.D. La. Aug.
28, 2008) (citing National Gas Pipeline Co. of America, 2 F.3d 1397, 1411 (5th Cir. 1993)).
With regard to Plaintiff’s federal tax records, the request seeks information relevant to
Plaintiff’s claim for lost earning capacity. Butler, 2008 WL 4059867, at *2 (numerous courts
have recognized “that tax return information is relevant where a plaintiff has placed the subject
of his income/earning capacity at issue in litigation.”). Moreover, given Plaintiff’s failure to
respond to the instant motion, as well as Plaintiff’s refusal to provide responses to other
discovery requests seeking information related to Plaintiff’s income (i.e., Request for Production
No. 3), the Court concludes that Shriya has demonstrated a compelling need for these tax returns.
That said, the request for authorization to obtain Plaintiff’s federal tax records is overly broad
because Shriya has not placed any time restrictions on the request. Furthermore, in light
Plaintiff’s representation that she has never filed taxes in Louisiana, the request for authorization
to obtain Louisiana tax forms seeks irrelevant information.

The scope of discovery is now limited to “any non-privileged matter that is relevant to any party’s claims or
defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
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Based on the foregoing, Shriya’s Motion is GRANTED IN PART with respect to
Request for Production No. 2. Plaintiff shall execute an authorization for the release of her
federal tax forms for the years 2012, 2013, 2014, 2015, and 2016. Plaintiff must provide
authorization for the release of these tax forms within 7 days of the date of this Order.
3.

Request for Production No. 3

Shriya’s Request for Production No. 3 seeks the production of any “records of income,
payment, and/or reimbursement” for Plaintiff’s “employment-related engagements,
performances, presentations, recitals, or events from May 7, 2016 until November 3, 2016.” (R.
Doc. 19-4 at 5). In her initial response, Plaintiff objected to the request for production on the
ground that it seeks irrelevant information and “is overly expansive, vague, and/or ambiguous,”
further stating, however, that she has requested the information form her Bank and will forward
the information upon its receipt. (R. Doc. 19-9 at 6). Plaintiff also asserted that her calendar
produced in response to Interrogatory No. 1 contains “records of payments received for some of
[the] performances during the time period requested.” (R. Doc. 19-9 at 6). In her supplemental
response, Plaintiff asserts that the requested information is irrelevant because she has waived her
claim to past economic loss. (R. Doc. 19-12 at 7).
Contrary to Plaintiff’s objections, the request for production is narrowly tailored to a sixmonth period surrounding the alleged slip-and-fall on August 5, 2016. It is neither vague nor
ambiguous. Furthermore, notwithstanding Plaintiff’s waiver of her claim for past economic loss,
which is not reflected in the current pleadings, the information sought is relevant to Plaintiff’s
claim for lost earning capacity.

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Based on the foregoing, Shriya’s Motion is GRANTED with respect to Request for
Production No. 3. Plaintiff shall produce the information requested in Request for Production
No. 3 within 7 days of the date of this Order.
4.

Request for Production No. 4

Shriya’s Request for Production No. 4 seeks the production of motor vehicle registration
documents for any vehicles and other movable property owned, rented, or leased by Plaintiff
since August 5, 2011. (R. Doc. 19-4 at 5). Plaintiff objected to this request for production on
various grounds, including lack of relevance. (R. Doc. 19-9 at 7). Plaintiff did not provide a
formal supplemental response, though her counsel requested clarification on the relevance of the
information sought in the cover letter providing the supplemental responses. (R. Doc. 19-12 at
2). There is nothing before the Court to indicate that Shriya responded in any way to Plaintiff’s
reasonable request for clarification. This type of discussion is precisely what the required Rule
37 conference is intended to address. In addition, the Motion to Compel does not address the
discoverability of this specific request so that the Court can engage in any meaningful review.
The Court will not require Plaintiff to respond further to this request for production.
Shriya has made no showing regarding the relevance of this information to any parties’ claims or
defenses. To the extent Shriya is attempting to demonstrate that Plaintiff was involved in a
motor vehicle accident that caused or contributed to her injuries, Shriya has made no showing
that the production of motor vehicle registration documents will lead to admissible evidence.
Moreover, Shriya has not demonstrated that the medical records or Plaintiff’s deposition
testimony indicate that Plaintiff was involved in a motor vehicle accident since August 5, 2011.
Based on the foregoing, Shriya’s Motion is DENIED with respect to Request for
Production No. 4.

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5.

Request for Production No. 6

Shriya’s Request for Production No. 6 seeks the production of “advertisements or other
promotional materials” for all of Plaintiff’s “employment-related engagements, performances,
presentations, recitals, or events from May 7, 2016 until November 3, 2016.” (R. Doc. 19-4 at 6).
Plaintiff objected to this interrogatory on various grounds, including lack of relevance, but
produced some copies of advertisements and promotional materials. (R. Doc. 19-9 at 8). In her
supplemental response, Plaintiff stated that because she waived her claim for “past economic
loss,” the request for production seeks irrelevant information. (R. Doc. 19-12 at 8-9).
The Court will not require Plaintiff to respond further to this request for production.
Shriya has made no showing regarding the relevance of this information to any parties’ claims or
defenses. Furthermore, no deficiencies with regard to this request for production were raised by
Shriya in its June 21, 2017 communication (R. Doc. 19-11) or July 31, 2017 communication (R.
Doc. 19-13). To the extent there are relevant and discoverable documents associated with actual
performances, that information and documentation will be covered by this Order under
Interrogatory No. 1 and Request for Production No. 8.
Based on the foregoing, Shriya’s Motion is DENIED with respect to Request for
Production No. 6.
6.

Request for Production No. 8

Shriya’s Request for Production No. 8 seeks the production of all documents related to
Plaintiff’s employment-related engagements and performances identifies in response to
Interrogatory No. 1, providing an “illustrative-only list” containing at over twenty examples of
responsive categories and/or types of documents. (R. Doc. 19-4 at 6-7). In her initial response,
Plaintiff objected to the request for production on the ground that it seeks irrelevant information

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and “is overly expansive, vague, and/or ambiguous,” but nevertheless directed Shriya to copies
of Plaintiff’s schedule, promotional materials, and certain social media posts, some of which
appears to have been produced in response to Interrogatory No. 1. (R. Doc. 19-9 at 3, 10). In her
supplemental response, Plaintiff asserts that the requested information is irrelevant because she
has waived her claim to past economic loss. (R. Doc. 19-12 at 10).
Contrary to Plaintiff’s objections, this request for production is narrowly tailored to a sixmonth period surrounding the alleged slip-and-fall on August 5, 2016, i.e., the same time frame
for which information is sought with regard to Interrogatory No. 1. It is neither vague nor
ambiguous. Furthermore, notwithstanding Plaintiff’s waiver of her claim for past economic loss,
which is not reflected in the current pleadings, the information sought is relevant to Plaintiff’s
claims of physical and mental injuries, as it could reflect Plaintiff’s physical and mental
condition prior to, and subsequent to, the alleged incident. Furthermore, the information sought
is relevant to Plaintiff’s claim for lost earning capacity.
Based on the foregoing, Shriya’s Motion is GRANTED with respect to Request for
Production No. 8. Plaintiff shall produce the information requested in Request for Production
No. 8 within 7 days of the date of this Order.
7.

The Withheld Authorization Forms

Finally, Shriya also seeks an order compelling Plaintiff’s counsel to produce certain
authorization forms signed by Plaintiff and the non-party Bruce Moses.
It appears that Shriya is seeking an order compelling Plaintiff to produce, in addition to
the federal income tax return request form discussed above, an executed form to obtain her
Social Security records. As Shriya has not directed the Court to any formal discovery request
seeking such authorization, any relief sought regarding the form is DENIED.

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Similarly, Shriya seeks an order compelling Plaintiff’s counsel to produce certain forms
executed by the non-party Bruce Moses. Regardless of whether Plaintiff’s counsel represents
Plaintiff’s husband, the Court will not compel a non-party to produce any documents absent a
valid subpoena issued and served pursuant to Rule 45 of the Federal Rules of Civil Procedure.
Accordingly, any relief sought in the instant motion with regard to discovery directed to Bruce
Moses is DENIED.
III.

Conclusion
For the foregoing reasons,
IT IS ORDERED that Shriya’s Motion to Compel (R. Doc. 19) is GRANTED IN

PART and DENIED IN PART. Plaintiff shall supplement her responses to Interrogatory No. 1
and Request for Production Nos. 2, 3, and 8 as detailed above within 7 days of the date of this
Order. The parties shall bear their own costs.
Signed in Baton Rouge, Louisiana, on September 12, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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