Mealy v. Gautreaux et al

Filing 116

ORDER: Plaintiff's 86 MOTION to Compel Production of Documents is GRANTED. The City-Parish must supplement its response to Mr. Mealy's Request for Production No.s 3, 6, 13, and 14, within 14 days of the date of this Order, or as o therwise agreed upon by the parties, as detailed in the body of this Order. Plaintiff's 85 MOTION for Sanctions Pursuant to F.R.C.P. 30(d)(2) is GRANTED. Plaintiff is entitled to an award of the reasonable attorney's fees and costs incurred in bringing his Motion to Compel and Motion for Sanctions, and that Defendant shall be responsible for such payment. In connection with this award, the parties are to do the following herein. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 7/15/2019. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHERMAN MEALY

CIVIL ACTION

VERSUS
NO. 16-716-JWD-RLB
SHERIFF SID J. GAUTREAUX, III, as the
political entity responsible for the East Baton
Rouge Parish Prison, ET AL.

ORDER
Before the Court is Plaintiff’s Motion for Sanctions Pursuant to F.R.C.P. 30(d)(2). (R.
Doc. 85). The motion is opposed. (R. Doc. 100). Plaintiff filed a Reply. (R. Doc. 103).
Also before the Court is Plaintiffs’ Motion to Compel Production of Documents. (R. Doc.
86). The City of Baton Rouge/Parish of East Baton Rouge (“City-Parish”) did not file a timely
opposition. LR 7(f). The City-Parish did, however, raise certain arguments with respect to this
motion in the context of opposing Plaintiff’s Motion for Sanctions. (R. Doc. 100 at 8-10).
Plaintiff filed a Reply. (R. Doc. 104).
I.

Background
On October 25, 2016, Sherman Mealy (“Plaintiff”) commenced this action seeking relief

under Title II of the Americans with Disability Act (“ADA”), the Rehabilitation Act of 1973
(“RA”), and 42 U.S.C § 1983. (R. Doc. 1). Plaintiff filed this action after his release from the
East Baton Rouge Parish Prison. Plaintiff, who is a paraplegic and confined to a wheelchair,
alleges that he was denied access to wheelchair-accessible showers and instead forced to ask
other inmates to help him use the general population showers. Plaintiff also alleges that he was
denied various medical supplies. Defendant Sheriff Sid Gautreaux and Defendant the City-

Parish of East Baton Rouge each filed motions to dismiss Mr. Mealy’s claims. (R. Doc. 10, 12).
On July 21, 2017 those opposed motions were denied with respect to Mr. Mealy’s constitutional
claims under Section 1983, and freestanding ADA and RA claims. (R. Doc. 41).
On March 9, 2018, the City-Parish responded to Plaintiff’s First Set of Requests for
Admissions, Interrogatories, and Requests for Production of Documents. (R. Doc. 79-2).
On April 26, 2018, Plaintiff’s counsel sent a letter claiming various deficiencies in the
discovery responses. (R. Doc. 86-3). The parties held a discovery conference on May 14, 2018,
as documented in a letter from Plaintiff’s counsel dated May 21, 2018. (R. Doc. 86-4). Among
other things, Plaintiff raised issues regarding the City-Parish’s responses to Plaintiff’s Request
for Production Nos. 3, 6, 13 and 14.
Plaintiff’s counsel represents that “[o]n Thursday, June 21, 2018, defense counsel shared
a dropbox folder ‘Mealy v. Gautreaux, et al – City’s Combined Supplemental Responses and
Responses to Plaintiff’s First and Second Set of ROGs and RFPs’ with Plaintiff’s counsel that
contained several thousand pages of unorganized documents.” (R. Doc. 86-5 at 1). Plaintiff’s
counsel further states that “[i]n a conversation with [the City-Parish’s attorney] Mr. Howell
Andrews leading up to the Rule 30(b)(6) deposition, Mr. Andrews informed [Plaintiff’s counsel]
that he had ‘produced everything in his file’ and that he wasn’t holding anything back.” (R. Doc.
86-5 at 2). Plaintiff represents that his counsel believed that all responsive documents had been
located and produced in light of the folder’s contents and conversations with defense counsel. (R.
Doc. 86-1 at 5).
On November 6, 2018, the City-Parish objected to Plaintiff’s Rule 30(b)(6) Notice of
Deposition of the City-Parish. (R. Doc. 100-1). The deposition commenced on November 7,
2018 with Rintha Simpson as the Rule 30(b)(6) representative. (R. Doc. 100-2). During the

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continuation of the deposition on November 16, 2018, Mr. Andrews handed Ms. Simpson a note
stating the following “Do not give information not asked. DO NOT TELL THERE IS MORE
THAN ONE HMA – Report.” (R. Doc. 108; see R. Doc. 100-3 at 2).
After the deposition, Plaintiff requested the production of a “PMS 2015 Internal PO’s
sheet” equivalent to Exhibit 10 of the deposition, a “back pain protocol” document referenced at
the deposition, and an “updated Prison Medical Services report presented at Wednesday’s Metro
Council meeting” as discussed at the deposition. (R. Doc. 86-8 at 1).
Through her Motion to Compel, Plaintiff seeks an order compelling the production of the
foregoing documents. (R. Doc. 86 at 1). Plaintiff asserts that these documents are responsive to
Plaintiff’s Requests for Production Nos. 3, 6, 13 and/or 14. (R. Doc. 86-1 at 5-7). Defendant
represents “[t]he City-Parish has produced all known medical records of the [P]laintiff, all
applicable finance and budgetary records, personnel records, policies and protocols of
EMS/PMS, training records, and the like within its known possession[,]” and that the process of
searching the storage location would be unduly burdensome and disproportionate to the needs of
this case. (R. Doc. 100 at 10).
Through her Motion for Sanctions, Plaintiff argues that defense counsel “impeded,
delayed, and otherwise frustrated” Plaintiff’s ability to take a fair Rule 30(b)(6) examination of
the City-Parish “by (1) attempting to surreptitiously pass a note to the witness during Plaintiff’s
questioning of the witness, (2) making non-form objections, and (3) making numerous lengthy
talking statements.” (R. Doc. 85 at 1; See R. Doc. 89-1). Plaintiff seeks an order requiring,
among other things, that all future depositions be videotaped at the expense of the City-Parish,
production of defense counsel’s note passed to the Rule 30(b)(6) representative, and an award of

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attorney’s fees for filing the motion and the costs of the Rule 30(b)(6) deposition transcript. (R.
Doc. 85 at 1-2).
Ms. Simpson has submitted an affidavit representing that to her knowledge “that while
there is only one health management report prepared by Health Management Associates
(‘HMA’) pertaining to the East Baton Rouge Parish Prison, and the report is in the form of a
power point presentation,” she is “also aware of another health management report prepared by a
group [she understands] to be called Loop Capital, which is in the form of a paragraph-style
essay.” (R. Doc. 100-3 at 2).
II.

Law and Analysis
A.

Plaintiff’s Motion to Compel
1.

Legal Standards

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties
may obtain discovery regarding any non-privileged 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). 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)

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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)).
A party must respond or object to a request for production within 30 days after service of
the discovery. See Fed. R. Civ. P. 34(b)(2)(A). This default date may be modified by stipulation
between the parties. Fed. R. Civ. P. 29(b). If a party fails to respond fully to discovery requests
made pursuant to Rule 34 in the time allowed by the Federal Rules of Civil Procedure, the party
seeking discovery may move to compel responses 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).
2.

The PMS 2015 Internal POs

The City-Parish has produced a document titled “PMS 2016 Internal PO’s” consisting of
a list of various purchase orders made for the year 2016. (R. Doc. 86-6). Plaintiff now seeks the
production of a similar document for the year 2015. Plaintiff speculates that this document may
be destroyed or nonexistent because the City-Parish’s representative could not attest to its
existence, instead positing that it may be found in a warehouse of documents related to Prison
Medical Services. (R. Doc. 86-1 at 6; see R. Doc. 89-2 at 1). Defendant asserts that “counsel for

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the City-Parish has extended an invitation to the [P]laintiff’s counsel to go to the storage location
(warehouse) for his review of any and all items that are or otherwise may be relevant. . . .” (R.
Doc. 100 at 8). It appears that Plaintiff has not reviewed the contents of the storage location or
warehouse.1
Plaintiff’s Request for Production Nos. 13 and 14, and the City-Parish’s responses, are as
follows:
Request for Production No. 13:
Produce any documentation and related communication associated with
equipment, including the name, manufacturer, and any descriptive information,
purchased or requested by the Defendant for Plaintiff Sherman Mealy through his
incarceration in August 2015 through October 2016, including but not limited to
any shower chairs or wheelchairs; evidence reflecting the date on which
underlying orders were submitted by the defendant; evidence reflecting the date
on which underlying materials were received by the defendant; and evidence
reflecting the date on which the underlying materials were installed for Mr.
Mealey’s use or otherwise made available to him.
Response to Request for Production No. 13:
The City/Parish objects to the extent that request calls for an assumption of fact
that the City-Parish is in possession or otherwise has access to the documentation
requested. Subject to and without waiving same, please see attached.
Request for Production No. 14:
Produce any documentation regarding the relative handicap accessibility features
of the shower facilities at the East Baton Rouge Parish Prison by respective ward
and/or tier, including its date of installation.
Response to Request for Production No. 14:
The City/Parish objects to this request to the extent it is premature as discovery is
ongoing and such information is not known at this time and/or may not become
available until more information is collected through the course of this litigation.
Respondent will timely supplement its response in accordance with the Court’s
Case Management Schedule.
(R. Doc. 79-2 at 26).
1

This storage location or warehouse may be at the Airline Highway Branch Office of the East Baton Rouge Clerk of
Court as the one referenced by defense counsel in another action, wherein the undersigned ordered the room
inspected by an attorney for both sides. See Adrienne Lewis v. East Baton Rouge Parish, Et al., Civ. No. 16-352,
ECF No. 191. That room was later inspected as ordered and found not to contain responsive information in that
case. ECF 195.

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To the extent a 2015 version of the “PMS 2016 Internal PO’s” document exists, it falls
within the scope of the information sought by Request for Production Nos. 13 and 14. The CityParish did not object to these discovery requests on the basis of relevancy or proportionality.
The City-Parish has not provided any evidence that a reasonable search for this information has
been conducted. Attorney Andrews is advised that production of “his file” is not the applicable
standard under the Federal Rules of Civil Procedure and is an abdication of his responsibilities as
an attorney practicing in this district. The City-Parish has not explained where the “PMS 2016
Internal PO’s” document was located. It is unclear why a similar document for the year 2015 has
not been produced. The City-Parish appears to admit that a similar document for 2015 is located
in its warehouse, and that the document is in the City-Parish’s possession, custody, or control.
Accordingly, the Court will require the City-Parish to produce the document or otherwise state
that the document could not be located after a diligent search.
3.

Back Pain Protocol

Plaintiff represents that a “back pain protocol” document was identified during the Rule
30(b)(6) deposition but never produced. (R. Doc. 86-1 at 7; see R. Doc. 82-9 at 1).
Plaintiff’s Request for Production No. 3, and the City-Parish’s response, is as follows:
Request for Production No. 3: Produce all policies and procedures the
Defendant maintains for providing medical care to incarcerated persons in their
custody and/or respond to requests for medical services or assistance, including
but not limited to relevant policies and procedures for providing catheters,
lubricant for catheters, and suppositories for aiding with defecation.
Response to Request for Production No. 3: The City/Parish objects to the
extent that request is vague as to time. Subject to and without waiving same,
please see attached policies and procedures.

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(R. Doc. 79-2 at 22-23). Among other things, the City-Parish produced a document titled
“Provision for Treatment” stating that “Protocols are electronically stored as forms in the
Electronic Medical Record (CorEMR).” (See R. Doc. 86-7).
The City-Parish raises no argument with respect to the “back pain protocol” document
sought by Plaintiff. The document appears to fall within the scope of Request for Production No.
3. The City-Parish did not object to this discovery request on the basis of relevancy or
proportionality. Accordingly, the Court will require the City-Parish to produce the document or
otherwise state that the document could not be located after a reasonable search.
4.

“Updated Prison Medical Services Report”

Finally, Plaintiff seeks the production of an “Updated Prison Medical Services Report”
referenced in an Advocate article dated February 25, 2016. (R. Doc. 86-1 at 7). The referenced
article states that “[m]edical services at the East Baton Rouge Parish Prison are improving, but
the nurses who work there are sill in need of more coworkers and more supplies, according [to]
an updated Prison Medical Services report presented at Wednesday’s Metro Council meeting.”
(R. Doc. 86-1 at 7 n. 21).
Plaintiff asserts that at the Rule 30(b)(6) deposition, the City-Parish was unable to
identify whether the foregoing report was written or oral, and, when Plaintiff’s counsel inquired
about the contents of the report, defense counsel instructed the Rule 30(b)(6) representative not
to answer. (R. Doc. 86-1 at 7).
Plaintiff’s Request for Production No. 6, and the City-Parish’s response, is as follows:
Request for Production No. 6: Produce all documents reflecting the defendant’s
staffing of the East Baton Rouge Parish Prison and Prison Medical Services.
Response to Request for Production No. 6: The City/Parish objects to the
extent that request is vague as to time. Further objecting, the City/Parish does not
staff the Parish Prison, which is performed by the EBRSO. Further objecting, to
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whatever extent a period of time can be determined, the information of PMS
staffing is protected under La. R.S. 44:3 for confidentiality of the public
employees’ right to privacy. Subject to and without waiving same, please see
attached.
(R. Doc. 79-2 at 23). The City-Parish did not object to these discovery requests on the basis of
relevancy or proportionality. The existence of any updated PMS report, whether written or
recorded, on the Wednesday prior to the publication to the foregoing Advocate report should be
easily verifiable. Accordingly, the Court will require the City-Parish to produce the document or
otherwise state that the document could not be located after a reasonable search. The City-Parish
must also produce the health management report by Loop Capital if that report is in the CityParish’s possession, custody, or control, or otherwise state that the document could not be
located after a reasonable search.
5.

Costs and Fees in Bringing the Motion to Compel

The Court will grant Plaintiff’s Motion to Compel to the extent it seeks an order requiring
the City-Parish to supplement its responses. If a motion to compel discovery 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
reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). The court must not order such payment, however, if “(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.” Id.
Having considered the record, the Court finds a sanction of reasonable expenses incurred
in making the motion, including attorney’s fees, to appropriate.

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B.

Plaintiff’s Motion for Sanctions

Plaintiff also seeks sanctions based on certain conduct by the attorney for the City-Parish
during the course of a deposition. “The court may impose an appropriate sanction—including
the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes,
delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2); see Fed. R.
Civ. P. 30(d) Advisory Committee’s Note, 1993 amendments (“The rule also explicitly
authorizes the court to impose the cost resulting from obstructive tactics that unreasonably
prolong a deposition on the person engaged in such obstruction. This sanction may be imposed
on a non-party witness as well as a party or attorney, but is otherwise congruent with Rule
26(g).”). Furthermore, an objection at a deposition “must be stated concisely in a
nonargumentative and nonsuggestive manner.” Rule 30(c)(2); see Thomas v. Rockin D Marine
Servs., LLC, No. 12-1315, 2013 WL 2459217, at *6 (E.D. La. June 6, 2013). “Depositions
frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and
colloquy, often suggesting how the deponent should respond.” Fed. R. Civ. P. 30(d) Advisory
Committee Note, 1993.
Here, the Court finds it appropriate to impose sanctions based on the conduct of the CityParish. During the course of the Rule 30(b)(6) deposition, the City-Parish’s attorney, Mr.
Andrews passed a note to the witness telling her not to provide factual information with respect
to the existence of a second HMA report. Regardless of whether Mr. Andrew’s note provides a
correct factual statement, there is no basis for an attorney defending a deposition to feed the
deponent factual answers. See Hall v. Clifton Precision, a Div. of Litton Sys., Inc., 150 F.R.D.
525, 528 (E.D. Pa. 1993) (“There is no proper need for the witness’s own lawyer to act as an
intermediary, interpreting questions, deciding which questions the witness should answer, and

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helping the witness to formulate answers.”). By passing this note to the Rule 30(b)(6) designee,
as well as by making various speaking objections and statements, Mr. Andrews unduly interfered
with the deposition, unreasonably prolonged the deposition, and prejudiced Plaintiff by
frustrating the fair examination of the deponent.
As an appropriate sanction, the Court will require the City-Parish to pay the reasonable
expenses incurred in making the Motion for Sanctions, including attorney’s fees. As discussed
above, the City-Parish will also be responsible for expenses incurred in bringing the Motion to
Compel. No further sanctions are appropriate. Plaintiff must bear her own costs for videotaping
depositions and obtaining deposition transcripts.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiffs’ Motion to Compel Production of Documents (R. Doc.

86) is GRANTED. The City-Parish must supplement its response to Mr. Mealy’s Request for
Production No.’s 3, 6, 13, and 14, within 14 days of the date of this Order, or as otherwise
agreed upon by the parties, as detailed in the body of this Order.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Sanctions Pursuant to F.R.C.P.
30(d)(2). (R. Doc. 85) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is entitled to an award of the reasonable
attorney’s fees and costs incurred in bringing his Motion to Compel and Motion for Sanctions,
and that Defendant shall be responsible for such payment. In connection with this award, the
parties are to do the following:

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(1) If the parties are able to resolve this among themselves or otherwise agree to a
reasonable amount of attorney’s fees and costs,2 Defendant shall pay that amount;
(2) If the parties do not agree to a resolution, Plaintiff shall, within 14 days of the
docketing of this Order, file a Motion for Fees and Costs pursuant to Rule 37, setting
forth the reasonable amount of costs and attorney’s fees (including evidentiary
support) incurred in obtaining this Order; and
(3) Defendant shall, within 7 days of the filing of Plaintiff’s Motion, file any opposition
pertaining to the imposition of the amounts requested by Plaintiff.
Signed in Baton Rouge, Louisiana, on July 15, 2019.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

2

The Court recognizes that a reasonable award under Rule 37 may be less than the actual fees incurred.

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