Callais v. United Rentals North America, Inc.

Filing 38

ORDER granting in part and denying in part 23 Motion for an Order Compelling Discovery. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 12/11/2018. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PHILIP A. “BERT” CALLAIS

CIVIL ACTION

VERSUS
NO. 17-312-BAJ-RLB
UNITED RENTALS NORTH
AMERICA, INC.
ORDER
Before the Court is Plaintiff’s Motion for an Order Compelling Discovery (R. Doc. 23)
filed on July 31, 2018. Defendant filed its Opposition (R. Doc. 25) on August 21, 2018. Plaintiff
filed a Reply (R. Doc. 29) on August 27, 2018. Oral argument was held on November 27, 2018.
(R. Doc. 35). A follow-up telephone status conference was held on December 4, 2018. (R. Doc.
36). Defendant filed a Supplemental Memorandum (R. Doc. 37) on December 7, 2018 at the
direction of the Court.
I.

Background
Plaintiff initiated this action with the filing of his Complaint (R. Doc. 1) on May 16,

2017. Plaintiff filed his Amended Complaint (R. Doc. 12) on September 17, 2017. As set forth in
the pleadings, Plaintiff alleges that he began his employment with Defendant in September of
2013. (R. Doc. 12 at 1). He suffers from PTSD with sleep deprivation when overstressed, and
arterial blockage in his legs, and Defendant subjected him to illegal discrimination, harassment,
and retaliation as a result of his disability. (R. Doc. 12 at 1-2). Plaintiff’s Amended Complaint
chronicles various incidents of allegedly discriminatory treatment suffered by Plaintiff,
culminating in claims brought under the Americans with Disabilities Act, the Louisiana
Employment Discrimination Law, the Civil Rights Act for Handicapped Persons, and Louisiana’s
Whistleblower Act. (R. Doc. 12 at 17-18).

Defendant filed a Motion to Dismiss for Failure to State a Claim (R. Doc. 4) on July 19,
2017. On October 19, 2017, the district court issued its Ruling and Order (R. Doc. 18), granting in
part and denying in part Defendant’s Motion. As a result of the district court’s Ruling and Order
(R. Doc. 18), Plaintiff’s claim for disability discrimination under the ADA and LEDL, his claim
for failure to provide reasonable accommodations under the ADA and LEDL, and his claim for
veteran discrimination under La. R.S. 23:331 remain.
Plaintiff propounded his First Interrogatories and Requests for Production of Documents
(R. Doc. 23-4) to Defendant on November 30, 2017, containing 104 requests for production of
documents. On June 14, 2018 and June 18, 2018, Plaintiff propounded his second and third sets of
Interrogatories and Requests for Production of Documents (R. Doc. 25-1 and 25-2), collectively
containing an additional 20 requests for production of documents. Defendant responded and
supplemented its responses on various dates, but Plaintiff contests the sufficiency of those
responses.
II.

Law and Analysis
A.

Legal Standard

“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

2

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).
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).
B.

Analysis

Plaintiff appears to be seeking to compel responses to Requests for Production of
Documents Nos. 6, 11, 14, 15, 24, 25, 26, 31, 33, 34, 37, 38, 39, 40, 41, 48, 55, 58, 59, 60, 61,
63, 64, 69, 94, 95, 96, 97, 98, 105, 108, 109, 110, 113, 116, 117, 118, 120, and 124, amounting to
40 of his 124 requests. After reviewing the substance of these requests, the briefing of the
parties, and the arguments advanced at the November 27, 2018 hearing, the Court finds it
appropriate to address Plaintiff’s Motion by categories of information sought, as opposed to
parsing the breadth and relevance of each individual request Plaintiff seeks to compel. To the
extent the Court is ordering Defendant to produce additional responsive documentation in its
possession, custody, or control, it shall do so in accordance with this Order.

3

i.

Personnel Files of Comparators (Safety Violations, Vacation Requests
and Authorizations)

Many of the Requests for Production seek information regarding alleged comparators or
similarly situated employees. 1 This Court has generally found the production of entire personnel
files unwarranted. See, e.g., Roberts v. Lessard, 2018 WL 1547342, at *4 (M.D. La. Mar. 29,
2018) (entire personnel file irrelevant because it “would contain materials outside of the scope of
discovery.”); Braud v. Geo Heat Exchangers, L.L.C., 314 F.R.D. 386, 389-90 (M.D. La. Mar. 31,
2016) (finding “portions of the personnel file (minus confidential information)” relevant). This
is, in part, because personnel files of non-party employees may contain sensitive information that
has no relevance to the claims or defenses in the litigation, such as Social Security numbers and
medical records or information, to name a few. Having said that, where a plaintiff alleges that he
was treated differently that other employees, there may be some relevant information within the
personnel files of comparators or similarly situated employees that would prove or disprove such
an allegation.
At oral argument, counsel for Plaintiff identified the following four employees as
potentially similarly situated: Brian Vaughn, Jeff Fields, Rosie Jackson, and Robert Stone. 2 As to
those purported comparators, Plaintiff has alleged that he was treated differently in several ways.
First, Plaintiff alleges that Defendant treated the vehicle repair requests and exercise of stop
work authority of Vaughn, Fields, Jackson, and Stone more favorably than the vehicle repair
requests and exercise of stop work authority of Plaintiff. (R. Doc. 12 at ¶¶ 19, 20). To the extent

1

See, e.g., Request for Production Nos.15 (vehicle repair requests), 24 (vehicle repair requests), 25 (vehicle repair
requests), 26 (vehicle repair requests), 39 (driver scheduling), 40 (leave requests), 48 (stop work authority), 55
(leave requests), 58 (stop work authority), 59 (stop work authority), 60 (stop work authority), 69 (leave requests),
and 96 (personnel files).
2
Plaintiff’s Motion also seeks personnel files for Everette Hatch and Justin Callagan (R. Doc. 23-8 at 21), but
Plaintiff represented at the November 27, 2018 hearing that he no longer believed those employees were similarly
situated and withdrew any request for their information.

4

the personnel files of Vaughn, Fields, Jackson, and Stone contain any information regarding
vehicle repair requests or the exercise of stop work authority, that information is relevant and
shall either be produced or Defendant shall provide a verification that no such information exists
in the personnel files of the aforementioned persons.
Plaintiff also alleges that vacation or leave requests of similarly situated employees were
treated more favorably than his vacation or leave requests, including time off for medical
appointments, vacation, or other personal reasons. (R. Doc. 12 at ¶ 28, 29, 31). If there is
evidence that would show that Plaintiff received unfavorable treatment regarding vacation and/or
leave requests because of his disabled, non-veteran status, that information would be relevant. To
the extent the personnel files of Vaughn, Fields, Jackson, and Stone contain any information
about requests and/or authorization for vacation and/or leave, that information is relevant, and
shall either be produced, or Defendant shall provide a verification that no such information exists
in the personnel files of the aforementioned persons.
Plaintiff alleges that other similarly situated drivers, specifically Vaughn and Fields, were
given proper training, but that Plaintiff was not. (R. Doc. 12 at ¶ 16). To the extent the personnel
files of Vaughn and Fields contain information regarding driver training received by those
employees, that information is relevant and discoverable. Defendant shall produce any and all
information contained in the personnel files of Vaughn and Fields pertaining to the driver
training received by each of them, or provide a verification that no such information exists in the
personnel files of the aforementioned persons.
Lastly, with specific reference to Request for Production Nos. 97 and 98, Plaintiff seeks
complaints made by Plaintiff, Fields, and Vaughn, and complaints made about Plaintiff, Fields,
and Vaughn. (R. Doc. 23-4 at 27-28). The term “complaints” is not defined such that it is overly

5

broad because it could contain complaints pertaining to anything from performance to personal
matters not relevant to this litigation, including complaints ultimately found to be unwarranted or
unsupported and not resulting in any disciplinary action. However, to the extent the personnel
files of Fields and Vaughn contain complaints made by or about Plaintiff or those identified
comparators relating to on-the-job performance or safety violations that resulted in disciplinary
actions, including write-ups maintained in those files, that information is relevant. Such
information would show whether similarly situated employees were subject to favorable
treatment in the form of dissimilar adverse employment actions. To the extent the personnel files
of Vaughn, Fields, Jackson, and Stone contain any information about disciplinary actions taken
by Defendant pertaining to job performance or safety violations, that information is relevant, and
shall either be produced or Defendant shall provide a verification that no such information exists
in the personnel files of the aforementioned persons.
It is to be noted that there are specific constraints to the production of personnel files of
non-parties ordered herein. First, there remains a Protective Order in place (R. Doc. 21), which
outlines procedures by which parties can designate certain documents or portions of documents
confidential. Second, notwithstanding the Protective Order, the Court hereby advises the parties
of specific types of information likely contained in personnel files that is to be either redacted or
not produced at all, including personal identifying information (i.e., Social Security number,
telephone number, address), medical information or histories, salary and benefits information.
Lastly, at the November 27, 2018 hearing, counsel for Defendant requested that any third-party
personnel information be permitted to be deemed “Attorney’s Eyes Only.” Considering the
above referenced redactions and with the Protective Order limiting public dissemination of

6

sensitive materials, the Court finds this request to be unwarranted. Plaintiff should have the
benefit of reviewing and discussing these documents with his attorney in preparing his case.
ii.

Vehicle Repair Documents

Plaintiff alleges that his vehicle repair requests were treated differently than the repair
requests of other non-disabled, non-veteran employees. (R. Doc. 12 at ¶¶ 19, 20). And, Plaintiff
propounded document production requests regarding vehicle repair requests, in an effort to
obtain evidence that would support his allegations. 3 The Court has already determined the
relevance of the vehicle repair requests in the preceding section, to the extent that information is
contained in the personnel files of Plaintiff or his comparator employees. Outside of the
personnel files, however, it is unclear from the briefing and representations made at the
November 27 hearing how the vehicle repair requests were kept in the ordinary course of
business, the potential volume of vehicle repair requests, and the complexity or burden of
production of the relevant vehicle repair requests. Accordingly, the Court ordered counsel for
Defendant to provide a report regarding vehicle repair records for the period beginning June 1,
2014 through July 31, 2016. (R. Doc. 35).
Counsel for Defendant provided detailed information regarding Defendant’s general
practice as to vehicle repair requests and records, which the Court then requested be
memorialized in a supplemental brief, filed by Defendant on December 7, 2018. (R. Doc. 37).
Therein, Defendant represents that, from December 2015 forward, vehicles are inspected daily
by their driver on a handheld electronic device, and those inspection checklists are maintained
for three (3) months before being automatically deleted. (R. Doc. 37 at 2). Insofar as drivers
requested repairs to vehicles, Defendant represents that electronic work orders are entered and

3

See, e.g., Request for Production Nos. 15, 24, 25, and 26.

7

maintained on their RentalMan system for vehicles currently located at the Plaquemine branch.
(R. Doc. 37 at 3). Maintenance history for vehicles owned by Defendant are kept electronically
with a third-party vendor until eighteen (18) months after disposal of the vehicle. (R. Doc. 37 at
3). Maintenance history for vehicles leased by Defendant are kept by the leasing provider until
two (2) years after the lease period. (R. Doc. 37 at 3). Defendant also represents that the only
record it maintains regarding which driver is assigned to which vehicle is “contemporaneous
information regarding the drivers assigned to the vehicles currently in operation at a particular
branch.” (R. Doc. 37 at 3). Lastly, Defendant represents both that it has no information regarding
which vehicle(s) were operated by Plaintiff from August 2014 through July 2016 because it
maintains only contemporaneous information regarding which drivers are assigned to which
vehicles, and that it cannot determine whether the vehicles operated by Plaintiff from August
2014 through July 2016 are still being used at the Plaquemine branch. (R. Doc. 37 at 3-4).
The purpose for which Plaintiff seeks documentation regarding vehicle repair requests is
to support his contention that his vehicle repair requests were treated differently from the vehicle
repair requests of other non-disabled, non-veteran employees. In order to prove this, Defendant
would have to provide Plaintiff with information regarding which vehicles were at the
Plaquemine branch during the period in question, who operated those vehicles, what repair
requests were made, and which driver submitted each request, and the resolution of the repair
request, including the timing thereof. Defendant represents under signature of counsel that it
maintains no information that would allow it to identify which vehicles were operated by
Plaintiff from August 2014 through July 2016, and that it cannot determine whether the vehicles
Plaintiff operated are still being used at the Plaquemine branch. (R. Doc. 37 at 3-4). By
extension, Defendant also cannot identify which vehicles other non-disabled, non-veteran

8

employees operated nor whether the vehicles operated by other non-disabled, non-veteran
employees are still at the Plaquemine branch.
Based on the representations made by Defendant, the question as it pertains to vehicle
repair requests is not one of proportionality, but rather possibility. Given the information
available from Defendant as represented in its Supplemental Memorandum (R. Doc. 37),
Defendant maintains no information responsive to Plaintiff’s request for vehicle repair records. If
Defendant does not maintain records in its usual course of business that would reflect vehicle
repair requests made by Plaintiff, on the one hand, and those made by other non-disabled, nonveteran employees, on the other, which is what Defendant has represented to the Court, there is
simply nothing for the Court to compel. 4
iii.

Stop Work Authority Documents

Plaintiff also alleges that his exercise of stop work authority was treated differently from
that of other non-disabled, non-veteran employees. (R. Doc. 12 at ¶¶ 35, 40, 41). Plaintiff also
propounded document production requests regarding the exercise of stop work authority. 5 The
Court has already determined the relevance of the exercise of stop work authority in the first
section, to the extent that information is contained in the personnel files of Plaintiff or his
comparator employees. To the extent Defendant has in its possession documentary information
regarding the exercise of stop work authority by Plaintiff or his comparators previously
identified, that information is relevant and discoverable.

4

To be clear, the Court’s opinion regarding vehicle repair requests is rooted in Defendant’s representations that the
information sought by Plaintiff is not maintained by Defendant and, therefore, there is nothing to be produced
responsive to Plaintiff’s request for vehicle repair requests. The parties have agreed at the November 27, 2018
hearing that approximately four (4) vehicles were maintained at the Plaquemine branch during the time of Plaintiff’s
employment. If Defendant were able to identify which drivers submitted which vehicle repair requests (i.e., work
orders) for the vehicles in operation at the Plaquemine branch between August 2014 and July 2016, that information
would be discoverable, and production would be proportional to the needs of the case.
5
See, e.g., Request for Production No. 48, 58, 59, 60, 118.

9

Defendant represented in briefing that it produced its internal company policy regarding
the use of stop work authority by its employees, and that it previously informed Plaintiff that it
did not have in its possession any “transcripts” reflecting stop work authority orders by drivers.
(R. Doc. 25 at 6). At oral argument, the Court inquired as to whether Defendant’s search for
documents pertaining to the exercise of stop work authority was limited to “transcripts,” or
whether Defendant searched all possible types of documents. Counsel for Plaintiff drew attention
to an excerpt of the deposition of Mr. Durand included in Plaintiff’s Memorandum in Support.
(R. Doc. 23-1 at 7). Therein, in response to a question posed regarding where the “documents
related to the Stop Work Authority” are kept, Mr. Durand responds that said documents are kept
in Defendant’s “URSS system.” (R. Doc. 23-1 at 7). Counsel for Defendant represented in
briefing as well as at oral argument that Mr. Durand misunderstood the question and that there
are no documents regarding the exercise of stop work authority kept by Defendant in the usual
course of business.
Given the conflict between Defendant’s representations to the Court and the excerpted
testimony of Mr. Durand’s deposition, the Court finds it appropriate to require Defendant to
certify that it has no documents, whether in the form of transcripts or otherwise, and whether
kept in the URSS System or otherwise, that reflect the exercise of stop work authority by
Plaintiff, Vaughn, Fields, Jackson, or Stone. Should Defendant determine after appropriate
inquiry that there are, in fact, documents pertaining to the exercise of stop work authority by
Plaintiff, Vaughn, Fields, Jackson, or Stone, Defendant shall produce any and all said documents
within fourteen (14) days of the date of this Order.

10

iv.

Assets/Liabilities

Plaintiff seeks to compel responses to document production requests pertaining to
Defendant’s assets and liabilities, arguing the information is relevant to his claim for punitive
damages. (R. Doc. 23-1 at 13-14). 6 Defendant objects on the grounds of confidentiality and
relevance, and requests that, in the event production is ordered, the production is limited to the
time period that is the subject matter of this litigation. (R. Doc. 25 at 8-9). Defendant also
suggested at oral argument that the information sought by Plaintiff was publicly available by way
of filings with the SEC. Generally speaking, 42 U.S.C. § 1981a contemplates the possibility of a
punitive damages award where a “complaining party demonstrates that the respondent engaged
in a discriminatory practice or discriminatory practices with malice or with reckless indifference
to the federally protected rights of an aggrieved individual.” Plaintiff’s Second Amended
Complaint seeks an award of punitive damages. (R. Doc. 12 at 18).
“Under federal law, evidence of a defendant’s financial worth and ability to pay may be
admissible for the purpose of evaluating the amount of punitive damages that should be
awarded.” U.S. E.E.O.C. v. Denham Springs Pub. Co., 2012 WL 262268, at *2-3 (M.D. La. Jan.
27, 2012) (citing cases). The Court agrees with Plaintiff that information regarding Defendant’s
financial position is relevant to his claim for punitive damages and, therefore, discoverable.
Furthermore, the Court has independently confirmed that certain financial information regarding
Defendant is publicly available, which calls into doubt Defendant’s argument regarding
confidentiality, especially given the existence of the Protective Order in this litigation.

6

See, e.g., Request for Production Nos. 94 and 95. At the November 27, 2018 hearing on the motions, counsel for
Plaintiff certified that the purpose of his request for Defendant’s financial information was limited in relevance to
Plaintiff’s punitive damages claim.

11

Having determined the relevance and discoverability of Defendant’s financial status, the
analysis turns to the relevant time period for same. Plaintiff alleges that he was employed with
Defendant from September of 2013 through July of 2016, and seeks financial information
regarding net profits and losses for 2013 through 2017. (R. Doc. 23-4 at 27). The purpose of
punitive damages is not to compensate a plaintiff for past wrongs, but rather to punish the
defendant for having committed a wrong and to deter future wrongful actions. See Schroeder v.
Greater New Orleans Federal Credit Union, 2012 WL 6020228, at *5 (E.D. La. Dec. 3, 2012)
(citing Cooper Indus. v. Leatherman Tool, 532 U.S. 424, 432 (2001)). To that end, a defendant’s
financial status has some bearing on the amount of punitive damages that may deter future
wrongful actions.
Courts do not seem to have established a universally-applicable relevant timeframe for
financial documents of a defendant in the context of punitive damages. Compare, e.g., Roberts v.
C.R. England, Inc., 2018 WL 1305058, at *2 (D. Utah Mar. 12, 2018) (limiting relevant financial
documents to only the “most recent”), with, U.S. E.E.O.C. v. Denham Springs Pub. Co., 2012
WL 262268, at *2-3 (M.D. La. Jan. 27, 2012) (compelling production of financial documents
from 2007-2010, the three years prior to the institution of litigation). 7 This Court finds that both
approaches have some merit, and that production of the Defendant’s financial documents for the
most recent three-year period of time is appropriate for several reasons. First, the most recent
documents are the most relevant due to the deterrent purpose of punitive damages. As punitive
damages are not meant to compensate a plaintiff for a wrong committed against him, the time
period of the wrong has little relevance to the question of punitive damages. Second, a three-year

7

Upon review of the docket in the Denham Sprints Pub. matter, Plaintiff alleged that she was terminated in January
of 2007, such that the financial documents compelled were from the three years after the date of termination, which
also happened to be the three years prior to filing suit.

12

period of financial documents will provide the fact finder with a more accurate picture of a
defendant’s overall financial position, especially in a situation where a defendant may have had a
single good—or bad—financial year. The most recent financial documents for a three-year
period of time adequately contemplates the purpose of punitive damages for which those
documents are sought, balanced with proportionality and relevancy considerations as outlined
herein.
As it pertains to the actual types of documents, Plaintiff seeks “any and all documents
that support, contradict, or related to defendant’s net profit/loss.” (R. Doc. 23-4 at 27). This is
overly broad as written, potentially including substantial amounts of irrelevant documents. The
purpose of punitive damages is to deter a defendant from future wrongs by imposing a
punishment that corresponds with the financial position of that defendant. In the Denham Springs
Pub. Co. case, the Court compelled production of the defendant’s “annual reports, financial
statements and federal income tax returns.” 2012 WL 262268 at *3. The Court agrees with this
scope of financial documents. 8 Accordingly, within fourteen (14) days of the date of this Order,
Defendant shall produce its annual reports, financial statements, and federal income tax returns
for 2015, 2016, and 2017.
v.

Video Recordings

Plaintiff seeks to compel Defendant to produce any “video recordings of the plaintiff at
the defendant’s Plaquemine branch for July 6, 2016.” (R. Doc. 23-1 at 12). Defendant responded
that it was “not currently aware of any existing responsive information. (R. Doc. 23-9 at 4).
Defendant then represented in briefing that responses have already been produced, or there is no
responsive information. (R. Doc. 25 at 4). At the November 27, 2018 hearing, Defendant

8

The Court notes that Defendant’s SEC filings are publicly available, as advised by counsel for Defendant at the
November 27, 2018 hearing.

13

represented that there were no video recordings responsive to Plaintiff’s requests, but Plaintiff
insisted that video recordings must exist. In support of his assertion, Plaintiff suggested that
cameras were placed throughout the facility and, therefore, there must be video recordings
responsive to this request.
Based on the representations of Defendant, there is nothing for the Court to compel.
Defendant does not object to the production of video recordings, but rather represents that there
is no such responsive information. Should there be any video recordings, they could be relevant
and discoverable, but the Court cannot order the production of something the producing party
suggests does not exist. To satisfy Plaintiff and provide a foundation should any responsive
video recordings later be found to exist, the Court will order a qualified representative of United
Rentals to provide a sworn certification within fourteen (14) days of the date of this Order that
no responsive video recordings exist.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion for an Order Compelling Discovery (R. Doc.

23) is GRANTED IN PART and DENIED IN PART in accordance with the body of this
Order.
IT IS FURTHER ORDERED that Defendant shall make its supplemental production
and provide its signed certification in accordance with the foregoing within fourteen (14) days of
the date of this Order.
Signed in Baton Rouge, Louisiana, on December 11, 2018.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
14