Matthews v. J & J Service Solutions, LLC

Filing 24

RULING granting in part and denying in part 12 Motion to Compel Discovery and Initial Disclosures. Defendant's request for reasonable expenses and attorney's fees under Fed. R. Civ. P. 37 is GRANTED. Plaintiff is ORDERED to pay Defendant $500.00 for the costs and attorney's fees it incurred in filing the Motion to Compel. Signed by Magistrate Judge Erin Wilder-Doomes on 5/23/2017. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DANA A. MATTHEWS

CIVIL ACTION NO.

VERSUS

16-621-BAJ-EWD

J & J SERVICE SOLUTIONS, LLC
RULING ON DEFENDANT’S MOTION TO COMPEL DISCOVERY AND INITIAL
DISCLOSURES
Before the court is a Motion to Compel Discovery and Initial Disclosures (the “Motion to
Compel”)1 filed by defendant, J&J Service Solutions, LLC (“Defendant”). Although no formal
opposition to the Motion to Compel has been filed, on March 3, 2017 counsel for both parties
participated in a telephone status conference with the court to discuss the Motion to Compel. 2
Following that conference, the parties were instructed to meet and confer regarding the Motion to
Compel, and Defendant filed two Supplemental Certifications regarding the parties’ efforts to
resolve the issues raised in the Motion to Compel without court intervention.3 For the reasons set
forth herein, Defendant’s Motion to Compel is GRANTED IN PART and DENIED IN PART.
I.

Background
On September 19, 2016, Plaintiff, Dana A. Matthews (“Plaintiff”) filed a Complaint against

Defendant alleging employment discrimination and retaliatory discharge.4 Plaintiff alleges that
she “is a Caucasian female who was formerly employed by [Defendant] in the capacity of team
lead for the purpose of performing retail remodeling contracts for various retail outlets, and in

1

R. Doc. 12.

2

R. Doc. 19.

3

R. Docs. 21 & 23. Defendant also filed a Supplemental Memorandum in Support of the Motion to Compel setting
forth an updated status regarding the Motion to Compel. R. Doc. 18.
4

R. Doc. 1.

1

particular, Pep Boys.”5 Plaintiff alleges that she reported to Chris Doenges, “who was then project
manager of a job for Pep Boys in Columbus, Ohio…”6 and that during the course of that project,
she was subjected “to constant demeaning, sexist, insulting, and derogatory comments by Mr.
Doenges.”7 Plaintiff further alleges that following her complaints regarding Mr. Doenges and
while working on another project for Defendant, she was “without warning, summarily and
unjustifiably discharged” from Defendant’s employment.8 Plaintiff alleges that “not only was she
a victim of sexist discrimination in the workplace by defendant, but her discharge from
employment with defendant was unlawful and retaliatory in nature due to her attempts to inform
defendant’s administration of the conduct of Chris Doenges….”9
On February 3, 2017, Defendant filed the instant Motion to Compel.10 In the Motion to
Compel, Defendant asserted that it served Defendant’s First Set of Interrogatories and Requests
for Production of Documents (the “Discovery Requests”) on Plaintiff on November 23, 2016 and
that Plaintiff had failed to timely provide initial disclosures and failed to timely respond to the
Discovery Requests. Thereafter, Defendant submitted a Supplemental Memorandum in Support
of the Motion to Compel (the “Supplemental Memorandum”).11

In the Supplemental

Memorandum, Defendant explained that following the filing of the Motion to Compel, Plaintiff
submitted initial disclosures as well as responses to the Discovery Requests; however, Defendant
asserted that Plaintiff’s responses to the Discovery Requests included various objections that had

5

R. Doc. 1, ¶ 4.

6

R. Doc. 1, ¶ 4.

7

R. Doc. 1, ¶ 5.

8

See, R. Doc. 1, ¶¶ 6-12.

9

R. Doc. 1, ¶ 13.

10

R. Doc. 12.

11

R. Doc. 18.

2

been waived due to Plaintiff’s failure to timely respond.12 In addition to asserting that certain
objections to the Discovery Requests were waived, Defendant also asserted that Plaintiff failed to
include a sworn verification and that the document production was not Bates labeled and that
certain documents were illegible or had part of their text cut off.13
On March 3, 2017, counsel for the parties participated in a telephone status conference with
the undersigned to discuss the Motion to Compel.14 During the conference, counsel for Defendant
confirmed that Plaintiff had produced initial disclosures, a signed verification, HIPAA release, and
Request for Transcript of Tax Return. Counsel for Defendant additionally explained that while
Plaintiff had produced some documents, those documents were not Bates labeled and it appeared
that Plaintiff had not provided certain electronically stored information. Counsel for Plaintiff
agreed to Bates label Plaintiff’s production of documents and make an effort to provide more
legible copies of documents previously produced, if available. The court also acknowledged
defense counsel’s concern regarding the production of electronically stored information, and
instructed counsel for Plaintiff to revisit this issue to make a determination regarding the
accessibility of electronically stored information (including emails and archived social media) via
a device other than the device purportedly lost by Plaintiff due to flooding. The undersigned
ordered that, in the event counsel for Plaintiff confirmed that Plaintiff had produced all documents
within her possession and control (including all electronically stored information), Plaintiff was to
submit a supplemental verification attesting to that fact no later than March 20, 2017. Further, the
court required the parties to confer regarding the remaining issues raised in Defendant’s Motion
to Compel, and ordered Defendant to file a Supplemental Certification setting forth, inter alia,

12

R. Doc. 18, p. 2.

13

R. Doc. 18, p. 2.

14

R. Doc. 19.

3

whether the parties were able to resolve any of the remaining issues raised in the Motion to
Compel.15
On March 20, 2017, Defendant filed the required Supplemental Certification for the
Motion to Compel (the “First Supplemental Certification”).16 Therein, Defendant reported that
following a March 17, 2017 telephone conference, Plaintiff had provided the following signed
verification:
I have answered the Interrogatories and Request for Production of
Documents and all of the answers provided therein are true and
correct to the best of my knowledge, information and belief; I have
provided all information within my possession and control,
including electronically store [sic] information and have bate [sic]
stamped all documents provided to counsel for J&J Services
Solutions, LLC.17
Defense counsel further stated that she received a disc containing over 300 documents on the date
the Supplemental Certification was due, but had not had an opportunity to review the production
“to determine whether outstanding issues have been resolved.”18

Additionally, counsel for

Defendant explained that Plaintiff’s counsel’s assistant has indicated that Plaintiff was working to
provide “better answers” to the Discovery Requests, but that “[i]t is not clear when supplemental
responses will be received.”19 Based on the First Supplemental Certification, the court ordered
Plaintiff provide Defendant with supplemental responses to the Discovery Requests by April 4,
2017.20 The court further ordered Defendant to file either a Second Supplemental Certification

R. Doc. 19. The court reserved all remaining issues raised in the Motion to Compel, including Defendant’s request
that Plaintiff be ordered to reimburse J&J for its reasonable attorney’s fees associated with the filing of the Motion to
Compel.
15

16

R. Doc. 21.

17

R. Doc. 21-4.

18

R. Doc. 21, p. 3.

19

R. Doc. 21, p. 4.

20

R. Doc. 22.

4

setting forth the status of the remaining issues raised in the Motion to Compel or a Motion to
Withdraw the Motion to Compel by April 11, 2017.21
On April 11, 2017, Defendant filed its Second Supplemental Certification for the Motion
to Compel Discovery.22 Therein, Defendant asserts that despite this court’s order, Defendant did
not receive any supplemental responses by April 4, 2017 or thereafter,23 and that Plaintiff’s
counsel’s assistant informed Defendant that Plaintiff “does not have any further discovery
responses to provide.”24 Defendant therefore contends that Plaintiff has failed to: (1) submit
written responses to interrogatories and requests for production with the untimely objections
omitted; and (2) supplement her written responses to Interrogatories numbers 2, 3, 4, 5, 7, 10, 11,
12, 18, and 19 as well as Requests for Production numbers 7, 8, 15, 18, 23, 26, 27, and 40.25
As an initial matter, in light of the parties’ representations during the March 3, 2017
telephone

conference

and

Defendants’

subsequent

certifications

and

Supplemental

Memorandum,26 the court DENIES as moot Defendant’s Motion to Compel to the extent the
motion seeks an order compelling Plaintiff to provide Initial Disclosures, a sworn verification,
Bates labeled documents, and/or clear/more legible copies of certain documents.

21

R. Doc. 22.

22

R. Doc. 23.

23

R. Doc. 23, p. 1.

24

R. Doc. 23-1.

R. Doc. 23, p. 2. With respect to Plaintiff’s production of documents, Defendant states that “[w]hile there are still
documents that appear cut off, the undersigned can address those matters in a deposition with Plaintiff as her counsel
has made clear that he has reproduced the documents exactly as he received them.” R. Doc. 23, p. 2.
25

26

R. Docs. 18, 19, 21 & 23.

5

II.

Law and Analysis
A. Legal Standards
“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may

obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).
“Generally, the scope of discovery is very broad, though it is not unlimited.” Heck v.
Buhler, 2015 WL 7432367, at * 2 (M.D. La. Nov. 23, 2015) (citing Crosby v. Louisiana Health
Serv. & Indent. Co., 647 F.3d 258, 264 (5th Cir. 2011)). See also, Southern Filter Media, LLC v.
Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014) (“The general scope of discovery is
broad and permits the discovery of ‘any nonprivileged matter that is relevant to any party’s claim
or defense.’ The rules governing discovery are accorded a broad and liberal treatment to achieve
their purpose of adequately informing litigants in civil trials.”) (internal citations omitted). “It is
well established that the scope of discovery is within the sound discretion of the trial court.”
Southern Filter Media, LLC v. Halter, 2014 WL 4278788, at * 3 (M.D. La. Aug. 29, 2014). “For
purposes of discovery, relevancy is construed broadly to encompass ‘any matter that bears on, or
that reasonably could lead to other matters that could bear on, any issue related to the claim or
defense of any party.’” Fraiche v. Sonitrol of Baton Rouge, 2010 WL 4809328, at *1 (M.D. La.
Nov. 19, 2010) (quoting Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); Fed. R. Civ. P.
26(b)(1)). However, the court must limit the frequency or extent of discovery if it determines that:

6

“(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)). “The party resisting
discovery must show specifically how each discovery request is not relevant or otherwise
objectionable.” Gondola, 2016 WL 3031852 at *2 (citing McLeod, Alexander, Powel & Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). In response to a request for production
under Rule 34, “[f]or each item or category, the response must either state that inspection and
related activities will be permitted as requested or state with specificity the grounds for objecting
to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Further, “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). In response to an interrogatory under Rule 33, “[e]ach interrogatory must, to the
extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ.
P. 33(b)(3). In addition, “[t]he grounds for objecting to an interrogatory must be stated with

7

specificity. 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).
B. Sufficiency of Plaintiff’s Discovery Responses
Per the instant Motion to Compel as supplemented and modified by Defendant’s additional
briefing and certifications, Defendant seeks an order from this court compelling: (1) Plaintiff to
submit written responses to the Discovery Requests, “with the untimely objections omitted”; and
(2) Plaintiff to supplement written responses to certain discovery requests.27
i. Untimely Objections
“‘As a general rule, when a party fails to object timely to interrogatories, production
requests, or other discovery efforts, objections thereto are waived.’” Scott v. United States Postal
Service, 2016 WL 7440468, at * 4 (M.D. La. Dec. 27, 2016) (quoting In re United States, 864 F.2d
1153, 1156 (5th Cir. 1989)). See also, B&S Equip. Co. v. Truckla Servs., Inc., 2011 WL 2637289,
at *6 (E.D. La. July 6, 2011) (finding waiver of all objections to “discovery requests based on
relevance, unduly burdensome, over broad, or any other objection not grounded on the attorney
client or the work product privilege.”). The time period to respond to interrogatories and requests
for the production of documents is thirty (30) days after service under Fed. R. Civ. P. 33(b)(2) and
34(b)(2)(A). See also, Johnson v. PPI Technology Services, L.P., 2013 WL 4508128, at *1 (E.D.
La. Aug. 22, 2013) (finding plaintiffs 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

The undersigned notes that while Defendant’s Second Supplemental Certification seeks an order compelling
Plaintiff to “supplement written responses” to certain interrogatories and requests for production, the court’s review
of Defendant’s February 21, 2017 letter outlining the purported deficiencies in Plaintiff’s responses asks Plaintiff to
provide additional documents in response to the Requests for Production. See, R. Doc. 18-3. Accordingly, the court
understands Defendant’s Motion to Compel, as supplemented and modified by Defendant’s additional briefing and
certifications, to seek an order compelling Plaintiff to produce additional documents in response to certain Requests
for Production.
27

8

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).
Further, 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)).
Defendant propounded the Discovery Requests on November 23, 2016,28 and Plaintiff
provided her responses on February 8, 2017 (i.e., after Defendant filed the instant Motion to
Compel).29 Accordingly, Plaintiff’s responses were submitted well after the thirty-day time period
set forth under Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A).30 Plaintiff has provided no basis for this
court to find an exception to the general rule that untimely objections (other than with respect to
privilege) are waived. Further, a review of Plaintiff’s objections to the Discovery Requests shows
that, to the extent Plaintiff ultimately objected to the discovery requests, her objections tended to

28

R. Doc. 12-2.

29

R. Doc. 18-1.

In the Motion to Compel, Defendant explains that “[a]though no request for an extension was made, on December
20, 2016, counsel for Defendant sent correspondence to Plaintiff’s counsel via electronic mail offering to extend the
deadline for Plaintiff to submit her discovery responses until January 6, 2017. No response was ever received.” R.
Doc. 12, p. 1. Defendant further asserts that “[a]s of January 10, 2017, Plaintiff had still not provided her Initial
Disclosures or responses to discovery, and no request for extension was made. The undersigned sent a letter to
Plaintiff’s counsel via electronic and U.S. mail providing an additional extension of time through January 13, 2017.”
R. Doc. 12, p. 2. Defendant asserted that as of the filing of the Motion to Compel on February 3, 2017, no responses
to the Discovery Requests had been provided. Accordingly, Plaintiff not only failed to provide responses to the
Discovery Requests within the thirty day period otherwise provided by Fed. R. Civ. P. 33(b)(2) and 34(b)(2)(A), but
also apparently failed to seek any extension of time within which to provide her responses, and failed to provide
responses within the time provided by Defendant’s unilateral extensions.
30

9

be boilerplate objections related to over breadth of the requests and relevancy.31 The undersigned
finds that Plaintiff has waived such untimely and non-specific objections (other than those related
to privilege). However, despite these objections, and with the exception of Request for Production
number 23 (discussed below), Plaintiff also provided a substantive response to each objected-to
Interrogatory or Request for Production. Moreover, it appears that where Plaintiff had documents
responsive to a particular request, Plaintiff produced those documents subject to her objections.32
Accordingly, while Plaintiff’s untimely responses have resulted in a waiver of her objections, in
the interest of efficiency, the court will not require Plaintiff to resubmit her responses to
Interrogatory numbers 2, 3, 6, 7, 9, and 16 or Requests for Production numbers 1, 2, 4, 11, 32, 33,
37, 39, or 41 with such waived objections omitted. Additionally, without further information from
Defendant regarding particular documents that were purportedly withheld based on Plaintiff’s
objections, the court cannot find that an order compelling Plaintiff to produce additional
documents should issue. Accordingly, the court DENIES Defendant’s Motion to Compel to the
extent it seeks to compel Plaintiff to provide responses to Interrogatory numbers 2, 3, 6, 7, 9, and
16 or Requests for Production numbers 1, 2, 4, 11, 32, 33, 37, 39, or 41 with the untimely
objections omitted.

31

See, R. Doc. 18-1. Plaintiff objected to Interrogatories number 2 and 3 on the basis of over breath, relevancy, and
potential privacy issues. Plaintiff objected to Interrogatory number 6 as premature and vague, and also asserted that
the request sought counsel’s mental impressions. Plaintiff objected to Interrogatory number 7 on the basis of attorney
work product, and to Interrogatory number 9 on the basis of over breadth, vagueness, and relevancy. Plaintiff objected
to Interrogatory number 16 as seeking irrelevant information. Plaintiff objected to Request for Production number 1
on the basis of the request was “overly broad and vague and insusceptible of a response.” Plaintiff objected to Request
for Production number 2 as vague and seeking documents that are in Defendant’s possession. Plaintiff objected to
Request for Production number 4 as vague and objected to Request for Production number 11 because the requested
documents “are in the public domain and equally available to defendant.” Plaintiff objected to Requests for Production
numbers 32, 33, 37, and 39 based on her assertion that the documents requested “are in the possession of the defendant
in the form of payroll, time and flight schedule records on the plaintiff and other male co-employees.” Plaintiff
objected to Request for Production number 41 by asserting that the request “seeks documents that violative [sic] the
plaintiff [sic] rights to privacy and that are irrelevant.”
32

See, R. Doc. 18-1, Plaintiff’s responses to Requests for Production numbers 2, 4, 32, and 41.

10

With respect to Request for Production number 23, Plaintiff objected on the basis that the
request “seeks documentation of an irrelevant nature that is also violative [sic] of plaintiff’s rights
to privacy.”33 Request for Production number 23 requests that Plaintiff:
Produce any and all documents related to your attempts to
correspond or communicate with current or former employees of
J&J by electronic means, including, but not limited to, Facebook,
Myspace, Twitter, LinkedIn, Snapchat, text message, and email
from October 28, 2014 through the present.
The undersigned finds that Plaintiff has waived her objections to Request for Production number
23 and therefore GRANTS Defendant’s Motion to Compel a written response to Request for
Production number 23. The court ORDERS Plaintiff to submit a response to Request for
Production number 23, without objections (with the exception of any objections pertaining to any
applicable privileges and/or immunities), no later than fourteen (14) days from the date of this
Ruling and Order.
ii. Supplemental Responses
Defendant also seeks an order compelling Plaintiff to supplement written responses to
certain specific Discovery Requests.34

When considering Defendant’s Motion to Compel

additional responses to these requests, the undersigned keeps in mind Plaintiff’s March 17, 2017
sworn verification, in which she stated that she “answered the Interrogatories and Request for

33

R. Doc. 18-1.

Defendant also asserts that Plaintiff’s responses to Requests for Production numbers 18 and 26 are deficient. In its
February 21, 2017 letter setting out Defendant’s position regarding the deficiencies in Plaintiff’s responses, Defendant
asked Plaintiff to execute and return a HIPAA release and an IRS Form 4506-T to address issues related to these two
Requests for Production. R. Doc. 18-3. During the March 3, 2017 telephone conference, counsel for Defendant
informed the court that Plaintiff had provided, inter alia, a signed HIPAA release and a Request for Transcript of Tax
Return immediately prior to the conference. See, R. Doc. 19. Accordingly, the undersigned considers the Motion to
Compel with respect to Requests for Production numbers 18 and 26 to be moot and DENIES the Motion to Compel
with respect to those requests. To the extent Defendant’s Second Supplemental Certification includes these requests
as presenting issues that “still remain today,” the court expresses some concern regarding the level of specificity set
forth in the Second Supplemental Certification and Defendant’s failure to withdraw its Motion to Compel regarding
these requests.
34

11

Production of Documents and all of the answers provided therein are true and correct to the best
of my knowledge, information and belief; I have provided all information within my possession
and control, including electronically store [sic] information…”35 Despite this sworn verification,
Defendant asserts that an order compelling Plaintiff to supplement her responses to the following
Discovery Requests should be issued:
INTERROGATORY NO. 2: State whether you personally have
ever communicated with any past or present employees of J & J
concerning the allegations raised in your Complaint since your
separation from employment with J & J. If so, explain in detail each
such communication (including those by phone, Internet, and in
person); state the date of the communication; with whom you
communicated; the substance of the communication; identify any
witnesses to the conversation; and identify all documents
concerning or exchanged during the communication.
ANSWER TO INTERROGATORY NO. 2: Objection.
Interrogatory Number Two seeks information which is overly and
unduly burdensome and irrelevant to the instant litigation and
violative of the privacy of plaintiff. Plaintiff further objects to said
interrogatory in that same seeks information which was prepared in
anticipation of litigation. Subject to said objection, and without
waiving same, plaintiff has communicated at various times before
and since her discharge by defendant with the following former
co-employees: Mike Daw, Keith Jones, John Stennis, Tammy
Latimer, Araina Deslonie, Jerry Rools, Rhomsa Lee, Mike Vance,
Kelly Costanza and others that plaintiff cannot remember at present.
Plaintiff cannot recall the dates or modes of communication or the
exact substance of the communications, but does recall that said
communications involved the discriminatory, sexist, unlawful
and humiliating nature of the comments and treatment of women in
general by Chris Doenges, and plaintiff particularly, while
employed by defendant and management’s refusal to do anything
about it.

35

R. Doc. 21-4.

12

With respect to Interrogatory number 2, Defendant asserts that Plaintiff’s response is deficient in
that it does not state whether there were any witnesses to the conversations and does not identify
any documents associated with or exchanged during the conversations.36
INTERROGATORY NO. 3: Identify all persons whom you
believe have any information or knowledge, or claim to have the
same, with respect to any facts or matters relating to each and every
allegation contained in your Complaint, and with respect to each
such person, state the following: a) the subject matter of each such
person’s knowledge; b) the date, place and circumstances of the
obtaining of such knowledge or information; c) whether such person
has been interviewed by you or by your representative or counsel
either prior to or subsequent to the commencement of the present
action; d) whether you or your representative has obtained
statements, reports, memoranda or recordings from any individuals
identified; and e) the current address and telephone number for the
witness.
ANSWER TO INTERROGATORY NO. 3: See response to
Interrogatory Number Two above, as well as my husband. My
attorney has not yet obtained any recorded statements.
Defendant contends Plaintiff’s response to Interrogatory number 3 is deficient because it fails to:
“(1) identify the subject matter of any information known by Plaintiff’s husband or describe how
he obtained such information; (2) state whether Plaintiff’s husband or any of her former coworkers have been interviewed in connection with this litigation; or (3) provide current contact
information for any of the individuals identified.”37
INTERROGATORY NO. 4: Describe in detail each and every
written and oral evaluation, criticism, counseling, warning or
discipline you received during your employment with J & J
including, the date(s); action(s) taken; the substance of the
communications; the supervisor(s) involved; and any witness
thereto.

See, R. Doc. 18-3, February 21, 2017 letter from Defense counsel outlining purported deficiencies in Plaintiff’s
responses to the Discovery Requests.
36

37

R. Doc. 18-3.

13

ANSWER TO INTERROGATORY NO. 4: Other than below, to
the best of my recollection, I received no oral or written warnings or
criticisms during my employment with defendant other than my
unjustified discharge from employment. I was unjustifiably sent
home and suspended for two weeks once from a Pep Boys job in
Baltimore, MD for “failing to return a rental car” that I could not
return. Mike Daw was a witness. Chris Doenges was the supervisor.
Defendant asserts that Plaintiff’s response to Interrogatory number 4 is deficient because it “does
not provide any information regarding the date of her alleged suspension.”38
INTERROGATORY NO. 5: If you contend there were individuals
similarly situated to you who were treated differently or more
favorably, explain in detail and identify; the individual(s), including
their job title(s) and duties; the dates on which the incidents of
different or favorable treatment occurred; who supervised the
individual(s); and describe the treatment you assert was different,
including the basis upon which you contend Defendant treated you
differently; to whom you at J & J reported this alleged treatment;
date(s) on which you made the report(s); and identify any documents
that support your answer.
ANSWER TO INTERROGATORY NO. 5: Tammy Latimer and
Kelly Costanza-Constantly harassed by Chris Doenges. He wanted
me to find ways to get rid of them. They were called "useless",
"nigger lovers" and other denigrating remarks. Rhonda Lee-Was
constantly harassed by Chris Doenges and I was instructed by
John Whipple to tell her that the company had received complaints
about her from Floor & Decor corporate offices, which was not true.
Ariana Deslonie-Was harassed by Chris Doenges on the job and
unjustifiably sent home under the allegation that she could not lift
tires. Contrasted with how he treated Richard Boulden, Oscar
Sanchez who were allowed to work extra hours, overlooked
mistakes, showing up late at work, falsifying work hour records.
Female employees were constantly being sent home early, while
male employees were allowed to work over.

38

R. Doc. 18-3.

14

Defendant contends Plaintiff’s response to Interrogatory number 5 is deficient because it does not
specify dates of the alleged incidents of disparate treatment, whether Plaintiff ever reported the
alleged incidents, and fails to identify any documents that support her response.39
INTERROGATORY NO. 7: Describe in detail each and every
item of damages (Including for purposes of this Interrogatory, your
claim for attorneys' fees), for which you are making a claim in this
action, specify the amount for each item, specify the basis of liability
as to J & J, and provide an explanation as to how each such amount
was calculated, including a listing and description of each of the
factors used.
ANSWER TO INTERROGATORY NO. 7: Objection.
Interrogatory Number Seven seeks information that constitutes
attorney work product. Subject to said objection, and without
waiving same, plaintiff herein provides the following: (A) Back pay
from August 12, 2015 to date of verdict; (B)$150,000.00 in
compensatory damages for emotional distress, mental anguish,
humiliation and damaged reputation; (C) $100,000.00 in
punitive damages; (D)$50,000.00 in attorney's fees; (E) Legal
interest on all sums from date of judicial demand, until paid; (F) All
costs of court.
Defendant asserts this response “is incomplete because it neither specifies the basis for J&J’s
alleged liability, nor describes how the corresponding monetary figure was calculated for each
item of damages listed.”40
INTERROGATORY NO. 10: Please describe in detail all efforts
you have made to find employment (including self-employment)
from the date you were discharged by J & J to the present, including
the name and address of every prospective employer, employment
agency, placement office, or search firm with which you have had
any contact whatsoever, the date and purpose of such contact, and
the results of your efforts.
ANSWER TO INTERROGATORY NO. 10: Plaintiff applied
online to the following employers in the referenced timeframe:
Office Depot; Pet Smart; Kelly Services; Turner Industries, Drive
Line, Academy Sports, Lowe's; Target, Bass Pro Shop, CVS Health;
39

R. Doc. 18-3.

40

R. Doc. 18-3.

15

BREC; Martin Brower; CB Servicing; Associated Grocery;
Enterprise Rent-A-Car; others that plaintiff does not recall.
Defendant contends Plaintiff’s response to Interrogatory number 10 is incomplete because Plaintiff
has not describe the outcome of her efforts to seek employment with any of the listed companies.41
INTERROGATORY NO. 11: Describe in detail all employment
(including part time, temporary and permanent self-employment)
held by you since leaving J & J through the date of trial in this
matter, and for each such employer, please state the following: the
name of the employer; the address where you work(ed); your dates
of employment your position(s) or title(s); the name of your
immediate supervisor; the pay and benefits you received; and the
reason for any termination, layoff or resignation.
ANSWER TO INTERROGATORY NO. 11: None until March 1,
2017. Plaintiff hired by NAPA Auto Parts, Atlanta, GA at
$20.00/hour.
Defendant contends Plaintiff’s response to Interrogatory number 11 is incomplete, “in that it fails
to provide any of the following information with respect to her employment with NAPA Auto
Parts: (1) the address of the store or facility where Plaintiff worked; (2) her job title or position;
(3) the name of Plaintiff’s immediate supervisor; (4) the benefits she received, if any; and (5) the
date and reason Plaintiff’s employment was terminated (if applicable). Additionally, Plaintiff lists
a date in March 2017 as the commencement of her employment. If this should be March 2016,
please supplement the response.”42
INTERROGATORY NO. 12: To the extend not provided in
response to any other interrogatory, explain in detail every source of
income you have had since your last day of work with J & J, through
the date of trial in this matter, setting forth the amount of income
from each source and the dates received, including, but not limited
to earnings, gifts, compensation, and benefits (including wages,
unemployment compensation, welfare/TANF payments, food
stamps, social security benefits, vacation benefits, health insurance,
overtime pay, disability pay, workers' compensation, sick leave
41

R. Doc. 18-3.

42

R. Doc. 18-3.

16

pay, holiday pay, income from any pension, profit-sharing or
annuity plan or any other income or benefit).
ANSWER TO INTERROGATORY NO. 12: See response to
Interrogatory Number Eleven above. Additionally, plaintiff did
receive unemployment compensation benefits for a short time.
Defendant asserts Plaintiff’s response to Interrogatory number 12 is deficient because it does not
specify the amount of income Plaintiff received in connection with her employment with NAPA
Auto Parts or her claim for unemployment compensation benefits.43
INTERROGATORY NO. 18: Identify for the period from October
28, 2014, through the present, whether you or other household
members owned or possessed a personal data assistant, iPhone, iPad,
laptop, desktop computer or other electronic system, whether
located at your primary residence or elsewhere, and for such item of
equipment: specify the type of equipment and whether you used
such equipment or stored material thereon, at any time and in any
manner, that is related to J & J and/or the facts giving rise to the
claims asserted in this lawsuit.
ANSWER TO INTERROGATORY NO. 18: Yes. I had a laptop
and my husband had a PC.
Defendant contends Plaintiff’s response to Interrogatory number 18 is incomplete because it “does
not state whether the computers in question were ever used to store information related to
Plaintiff’s employment with J&J or the events at issue in this lawsuit.”44
INTERROGATORY NO. 19: Identify all social networking sites
(i.e. Facebook, Linkedln, Friendster, Pinterest, Google+, lnstagram,
etc.) on which you currently maintain a profile or previously
maintained a profile during your employment with J & J to present,
including the profile name used and web address for your profile.
ANSWER TO INTERROGATORY NO. 19: Facebook, Dana
Matthews.

43

R. Doc. 18-3.

44

R. Doc. 18-3.

17

Defendant asserts Plaintiff’s response to Interrogatory number 19 is “incomplete insofar as it fails
to include the URL address for Plaintiff’s Facebook profile.”45
The undersigned finds that Plaintiff has sufficiently responded to Interrogatories 2, 3, 4, 5,
7, 10, 11, 12, 18, and 19. To the extent Defendant seeks to elicit additional information from
Plaintiff, the court finds that such information would more appropriately be sought via Plaintiff’s
deposition. Moreover, to the extent Defendant complains that Plaintiff has failed to identify certain
documents, the court notes that Plaintiff has submitted a sworn verification attesting that she has
provided all information within her possession and control. Accordingly, the court DENIES
Defendant’s Motion to Compel Plaintiff to supplement her responses to Interrogatories 2, 3, 4, 5,
7, 10, 11, 12, 18, and 19.
REQUEST FOR PRODUCTION NO. 7: Produce all documents
that evidence or refer to communications, whether oral or written,
between you and any current or former employee or agent of J & J
related to the subject matter of your claims in this suit, including,
but not limited to, email communications, notes memoranda, text
messages, instant messages, and any tape or digital recordings
(whether audio or visual) and transcriptions thereof.
ANSWER TO REQUEST NO. 7: In addition to the documents
supplied above. See attached.
REQUEST FOR PRODUCTION NO. 8: Produce all documents
that evidence or refer to communications, whether oral or written,
between you and any person other than a current or former employee
or agent of J & J (excluding your legal counsel) related to the subject
matter of your claims, including, but not limited to email
communications, notes memoranda, text
messages, instant
messages, and any tape or digital recordings (whether audio or
visual) and transcriptions thereof.
ANSWER TO REQUEST NO. 8: Plaintiff's copies of these
documents were lost and/or destroyed in the August, 2016 flood of
her home.

45

R. Doc. 18-3.

18

REQUEST FOR PRODUCTION NO. 15: Produce any
documents which refer or relate to, or evidence, your attempt to
obtain or expand your employment both during and after your
separation from employment with J & J; including but not limited
to, copies of employment applications, resumes, correspondence,
notes, emails, memoranda and other documents to and from
potential employers or employment agencies.
ANSWER TO REQUEST NO. 15: Plaintiff made all such
applications and documents online and does not possess any copies
presently.
Defendant asserts Plaintiff’s responses to Requests for Production numbers 7, 8, and 15 are
deficient because “[t]he August 2016 flood would not prevent Plaintiff from producing any
electronically stored information that is responsive to this request (e.g., email communications,
text messages, etc…).”46 With respect to Plaintiff’s response to Request for Production number
15, Defendant further contends that Plaintiff has the legal right and practical ability to obtain copies
of any job applications that were submitted to potential employers and therefore such documents
are within her custody and control.47 The court agrees that generally, it would seem that a natural
disaster such as a flood would not prohibit a party from accessing electronically stored information
via another source, and that Fed. R. Civ. P. 34(a)(1) requires a party to produce documents “in the
responding party’s possession custody, or control.” Here, however, the issue of accessibility of
electronically stored information (including emails and archived social media) was explicitly
discussed during the March 3, 2017 telephone conference with the parties, and counsel for Plaintiff
was instructed to revisit this issue and consider accessibility of such information via a device other
than the device purportedly lost by Plaintiff due to flooding.48 The court ordered that “in the event
counsel for Plaintiff confirms that Plaintiff has produced all documents within her possession and

46

R. Doc. 18-3.

47

R. Doc. 18-3.

48

R. Doc. 19.

19

control (including all electronically stored information), Plaintiff shall submit a supplemental
verification attesting to that fact to Defendant….”49 In response to the court’s order, Plaintiff
submitted a sworn verification attesting that she had produced all electronically stored information
within her possession and control.50 In light of this sworn verification, the court cannot compel
additional responses to Requests for Production numbers 7, 8, or 15. Accordingly, the court
DENIES Defendant’s Motion to Compel to the extent it seeks to compel Plaintiff to supplement
written responses to Requests for Production numbers 7, 8, or 15.
REQUEST FOR PRODUCTION NO. 23: Produce any and all
documents related to your attempts to correspond or communicate
with current or former employees of J & J by electronic means,
including, but not limited to, Facebook, Myspace, Twitter, Linkedln,
Snapchat, text message, and email from October 28, 2014 through
the present.
ANSWER TO REQUEST NO. 23: Objection. Said request for
production seeks documentation of an irrelevant nature that is also
violative of plaintiff's rights to privacy.
Defendant asserts that Plaintiff’s response to Request for Production number 23 is deficient
because Plaintiff’s objections have been waived and because Plaintiff’s position regarding the
private nature of these electronic communications is contrary to law.51 Accordingly, Defendant
requests that Plaintiff “produce any responsive documents that relate to Plaintiff’s employment
with J&J or her claims in this lawsuit at your earliest possible convenience.”52 As this court has
recently noted, “social media is generally discoverable.” Scott v. United States Postal Service,
2016 WL 7440468, at * 4 (M.D. La. Dec. 27, 2016) (citing Farley v. Callais & Sons, LLC, 2015
WL 4730729 (E.D. La. Aug. 10, 2015) (ordering plaintiff to provide social media postings to his

49

R. Doc. 19.
R. Doc. 21-4.
51
R. Doc. 18-3.
50

52

R. Doc. 18-3.

20

counsel for determination of whether the postings are relevant and responsive to discovery
requests); Johnson v. PPI Tech. Servs., L.P., 2013 WL 4508128, at *1 (E.D. La. Aug. 22, 2013)
(“Courts have recognized that social networking site (‘SNS') content may be subject to discovery
under Federal Rule of Civil Procedure 34.”) (citations omitted); Davenport v. State Farm Mut.
Auto. Ins. Co., 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012) (“Generally, SNS content is
neither privileged nor protected by any right of privacy.” (citation omitted)).
Despite Plaintiff’s sworn verification, it appears that Plaintiff has only objected to Request
for Production number 23 (i.e., she did not, in contrast to her other responses, provide documents
subject to her objections). As set forth above, this court has already granted Defendant’s Motion
to Compel a written response to this request with the untimely objections omitted. Accordingly,
the court also GRANTS Defendant’s Motion to Compel to the extent it seeks an order compelling
Plaintiff to supplement her written response to Request for Production number 23 with responsive
documents.
REQUEST FOR PRODUCTION NO. 27: Please produce
detailed records for any and all cell/portable phones or
communication devices issued to or operated by Plaintiff from
October 28, 2014 thru August 31, 2015.
ANSWER TO REQUEST NO. 27: The requested documents are
not in the possession of the plaintiff.
Defendant contends that Plaintiff has the legal right and practical ability to obtain copies of any
job applications that were submitted to potential employers and therefore such documents are
within her custody and control.53 For the reasons set forth above with respect to Requests for
Production numbers 7, 8, and 15, the court also DENIES Defendant’s Motion to Compel to the

53

R. Doc. 18-3.

21

extent it seeks an order compelling Plaintiff to supplement her written response to Request for
Production number 27.
REQUEST FOR PRODUCTION NO. 40: Please produce copies
of all postings that you made on any social media website,
including but not limited to, Facebook, Twitter, Linkedln, Google
Plus, Snapchat and Tagged from October 1, 2014, through the date
of response to the Request relating in any way to your employment
and/or separation from J & J, or the allegations in your Complaint.
Specifically with respect to Facebook, J & J is seeking a copy of
Plaintiff's Facebook “archive” from January 1, 2014, through the
date of response to the Request.
Please use the following instructions to create the Facebook
“archive”:
1. Log into your Facebook account
2. Click on the “down arrow” icon, to the right of the “Home” icon
(upper right- hand corner).
3. Select “Settings”.
4. Click on “Download a copy of your Facebook Data” (below
“Language”).
5. Click “Start My Archive.”
6. Re-enter your password.
7. Click the “Start My Archive” again.
8. You will receive an email with a file attachment.
If you have a Twitter account, please obtain an archive of your
tweets for production. To do this, follow these instructions.
1.
2.
3.
4.
5.

Log in to your twitter account.
Click the “gear” icon.
Click on settings
Toward the bottom of the page, click “Request Your Archive”.
You will receive an email with a file attachment of your Twitter
account.

ANSWER TO REQUEST NO. 40: None

22

Despite Plaintiff’s answer to Request for Production number 40, Defendant asserts that “Plaintiff
has neither objected nor produced any documents in response to Request for Production No. 40.
Please produce the requested documents at your earliest possible convenience.”54
As the court reads Defendant’s Request for Production number 40 and Plaintiff’s response
thereto in light of her sworn verification, it appears that Plaintiff contends that she has no postings
within her possession or control that she “made on any social media website, including but not
limited to, Facebook, Twitter, Linkedln, Google Plus, Snapchat and Tagged from October 1,
2014, through the date of response to the Request relating in any way to [Plaintiff’s] employment
and/or separation from J & J, or the allegations in [Plaintiff’s] Complaint.” The court finds this
to be a sufficient response to the first portion of Request for Production number 40. However,
Plaintiff’s response does not appear to address the second portion of Request for Production
number 40 – Defendant’s request that Plaintiff provide archived versions of her Facebook and
Twitter accounts. Based on Plaintiff’s response to Interrogatory number 19, it appears that
Plaintiff maintained a Facebook profile during the relevant time period. Accordingly, the court
GRANTS Defendant’s Motion to Compel to the extent it seeks to compel Plaintiff to supplement
her response to Request for Production number 40. The court ORDERS Plaintiff to provide the
archived version of her Facebook account from January 1, 2014 through present within fourteen
(14) days of this Ruling and Order.
C. Defendant’s Request for Attorney Fees
As noted above, the court previously reserved the issue of Defendant’s request for an order
awarding Defendant its reasonable attorney’s fees associated with the filing of the Motion to

54

R. Doc. 18-3.

23

Compel.55 Under Rule 37(a)(5)(A), if a motion to compel discovery is granted, or disclosure or
discovery is provided after the motion is filed, “the court must, after giving an opportunity to be
heard, require the party or deponent 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.” See also, Nguyen v. Louisiana State Board of Cosmetology,
2016 WL 67253, at * 3 (M.D. La. Jan. 5. 2016) (“Because the Court has granted Defendant’s
Motion to Compel and no exceptions apply, Defendant is entitled to an award of reasonable
expenses, including attorney’s fees.”). The rule provides an exception to an award of expenses
where “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an award of expenses unjust.”
Here, Plaintiff provided her discovery responses after the filing of Defendant’s Motion to
Compel. Although Defendant clearly sought an award of fees in its original motion, thereafter
stated in its Supplemental Memorandum that it intended “to pursue its request for attorney’s fees
and costs incurred in connection with its motion to compel,”56 and this court explicitly reserved
the issue of Defendant’s request for fees and costs during the March 3, 2017 telephone conference,
Plaintiff has provided no response to Defendant’s request for an award of fees and costs, despite
being given an opportunity to respond to the request.
Nonetheless, “the fee applicant bears the burden of establishing entitlement to an award
and documenting the appropriate hours expended and hourly rates.” Nguyen v. Louisiana State
Board of Cosmetology, 2016 WL 67253, at * 3 (M.D. La. Jan. 5. 2016). Defendant has not asserted
a specific amount of expenses it contends would be reasonable, nor has it submitted evidence of

55
56

R. Doc. 19.
R. Doc. 15-2, p. 2.

24

the amount of expenses incurred. In such a circumstance, this court finds an award of $500.00 is
reasonable. See, Doucet v. Dormont Manufacturing Co., 2014 WL 2434472, at * 4 (M.D. La. May
29, 2014) (“Defendant did not claim a specific amount of expenses incurred in filing its motion.
However, a review of the motion and memoranda supports the conclusion that an award of $450.00
is reasonable.”); Rivera v. Martin J. Donnelly Antique Tools, 2015 WL 6872506, at * 3 (M.D. La.
Nov. 9, 2015) (“Plaintiff has not demonstrated any circumstances which would make an award of
expenses to the defendant unjust. Defendant did not submit anything to establish a specific amount
of expenses incurred in filing this motion. A review of the motion papers supports finding that an
award of $500.00 is reasonable.”).
III.

Conclusion
For the reasons set forth herein, the court GRANTS IN PART and DENIES IN PART

Defendant’s Motion to Compel Discovery and Initial Disclosures.57 Specifically,
The court DENIES Defendant’s Motion to Compel to the extent Defendant seeks an order
compelling Plaintiff to provide Initial Disclosures, a sworn verification, Bates labeled documents,
and/or clear/more legible copies of certain documents as moot.
The court DENIES Defendant’s Motion to Compel to the extent Defendant seeks to
compel Plaintiff to resubmit her responses to Interrogatory numbers 2, 3, 6, 7, 9, and 16 or Requests
for Production numbers 1, 2, 4, 11, 32, 33, 37, 39, or 41 with the untimely objections omitted.
The court GRANTS Defendant’s Motion to Compel a written response to Request for
Production number 23 with untimely objections omitted. The court also GRANTS Defendant’s
Motion to Compel to the extent Defendant seeks an order compelling Plaintiff to supplement her
written response to Request for Production number 23 with responsive documents. The court

57

R. Doc. 12.

25

ORDERS Plaintiff to provide a complete response to Request for Production number 23, without
objections (with the exception of any objections pertaining to any applicable privileges and/or
immunities), no later than fourteen (14) days from the date of this Ruling and Order.
The court DENIES Defendant’s Motion to Compel with respect to Requests for Production
numbers 18 and 26 as moot.
The court DENIES Defendant’s Motion to Compel to the extent Defendant seeks to
compel Plaintiff to supplement written responses to Requests for Production numbers 7, 8, 15, and
27.
The court GRANTS Defendant’s Motion to Compel to the extent Defendant seeks to
compel Plaintiff to supplement her response to Request for Production number 40. The court
ORDERS Plaintiff to provide the archived version of her Facebook account from January 1, 2014
through present within fourteen (14) days of this Ruling and Order.
IT IS FURTHER ORDERED that Defendant’s request for reasonable expenses and
attorney’s fees under Fed. R. Civ. P. 37 is GRANTED. Plaintiff is ORDERED to pay Defendant
$500.00 for the costs and attorney’s fees it incurred in filing the Motion to Compel.
Failure of Plaintiff to comply with the terms of this Order may result in additional
sanctions.
Signed in Baton Rouge, Louisiana, on May 23, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

26