Brown v. Praxair, Inc. et al

Filing 46

ORDER denying 33 Motion to Compel Depositions of Vanjia Thomas, James Willis, Brian Burt and Todd Dunn; granting 35 Motion to Compel; granting 37 Motion to Terminate Depositions Pursuant to FRCP 30(d)(3). Plaintiff must supplement his respo nses to Interrogatory No. 4, and Requests for Production Nos. 13, 15, 19, 34, 36 as order at the hearing 45 . Further, Plaintiff's counsel shall pay the costs of the court reporter and videographer with respect to the remainder of the depositions and shall pay $500 to Praxair by 10/29/2018. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 10/19/2018. (SWE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JONATHAN BROWN

CIVIL ACTION

VERSUS
NO. 17-384-BAJ-RLB
PRAXAIR, INC., ET AL.
ORDER
Before the Court is Plaintiff’s Motion to Compel Depositions of Vanjia Thomas, James
Willis, Brian Burt and Todd Dunn (R. Doc. 33). The motion is opposed. (R. Doc. 39; see R.
Doc. 37).
Also before the Court is Defendant’s Motion to Terminate Depositions Pursuant to FRCP
30(d)(3) (R. Doc. 37) and Defendant’s Motion to Compel (R. Doc. 35). The motions are
opposed. (R. Doc. 42; R. Doc. 44).
The Court held oral argument on the foregoing motions on October 16, 2018. (R. Doc.
45).
I.

Background
On June 17, 2017, Johnathan Brown (“Plaintiff”) commenced this race discrimination

action, naming his employer Praxair, Inc. (“Praxair”) and his co-workers James Willis, Brian
Burt, Todd Dunn, and Vanjia Thomas as defendants. (R. Doc. 1, “Compl.”). Plaintiff asserts that
he was wrongfully terminated from his employment as a Maintenance Superintendent with
Praxair on July 13, 2016. (Compl. ¶ 4). Among other things, Plaintiff alleges that in April of
2016, he participated in a performance improvement plan (“PIP”) meeting in which he was
offered a severance package in lieu of participating in a PIP. (Compl. ¶ 10). Plaintiff further
alleges that he declined the severance package, attended additional PIP meetings, and, when he

ultimately provided two weeks’ notice, his employment was immediately terminated. (Compl. ¶¶
10-14). Plaintiff seeks relief under federal and state law. (Compl. ¶¶ 15-18).
On September 25, 2017, the Court issued a Scheduling Order setting, among other things,
the deadline to complete non-expert discovery on August 1, 2018, the deadline to complete
expert discovery on December 31, 2018, the deadline to file dispositive motions on March 1,
2019, and for trial to commence on September 9, 2019. (R. Doc. 11).
On May 4, 2018, Plaintiff responded to interrogatories and requests for production served
by Praxair. (R. Doc. 35-3). The discovery requests and responses at issue in Praxair’s motion to
compel are Interrogatory No. 4, and Requests for Production Nos. 13, 15, 19, 34, 36:
INTERROGATORY NO. 4:
Identify all persons from whom you have received statements, either orally,
recorded or in writing, sworn or unsworn, regarding any of the allegations made
by you in your Petition.
RESPONSE:
The Plaintiff objects to this interrogatory as discovery is ongoing and as such this
interrogatory is premature. Without waiving said objection, the Plaintiff is in the
process of verifying any and all recordings that may have been acquired in
connection with this transaction forming the basis of this litigation. Further
answering, the Plaintiff has interacted with and had several meetings and
discussions with all persons that were identified in the Complaint and therefore
those names are to be incorporated herein by reference.
REQUEST FOR PRODUCTION NO. 13:
Documents written or prepared by Plaintiff or at Plaintiff’s direction during his
employment with Praxair reflecting Plaintiff’s daily activities, factual
observations pertaining to his employment, communications with Praxair or its
agents, Plaintiff’s physical condition, Plaintiff’s mental condition, and/or any
emotional distress Plaintiff may have experienced, from January 1, 2014 to the
time of trial. This request includes, but is not limited to, Plaintiff’s personal
calendars, e-mail transmissions, appointment books, notes, notebooks, journals
or diaries, whether in hard copy or electronic format, originals or copies.
RESPONSE:
The Plaintiff objects that these items may constitute work product and once
reviewed with counsel a work product and/or privilege log will be provided and
thereafter the court may assist in the disclosure of said items. Further
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responding, most of the communications with Praxair should be in their
possession.
REQUEST FOR PRODUCTION NO. 15:
Communications (including, but not limited to, electronic communications)
between any current or former employees of Praxair, including Plaintiff, from
January 1, 2014 to the date of trial, that evidence any of the allegations Plaintiff
asserts in the Petition.
RESPONSE:
The Plaintiff objects that these items may constitute work product and once
reviewed with counsel a work product and/or privilege log will be provided and
thereafter the court may assist in the disclosure of said items. Further
responding, most of the communications with Praxair should be in their
possession.
REQUEST FOR PRODUCTION NO. 19:
Documents relating to any meetings or discussions between Plaintiff and Praxair
or Praxair’s employees regarding the Performance Improvement Notification
and severance package offered to Plaintiff by Praxair, as referenced in
Paragraphs 10-13 of the Petition.
RESPONSE:
The Plaintiff objects that these items may constitute work product and once
reviewed with counsel a work product and/or privilege log will be provided and
thereafter the court may assist in the disclosure of said items. Further
responding, most of the communications with Praxair should be in their
possession. Further responding, the Plaintiff also awaits any expert reports of
David Schein, Plaintiff’s employment expert.
REQUEST FOR PRODUCTION NO. 34:
Produce all audio, video, digital, or electronic recordings which are relevant to
Plaintiff’s allegations in this Lawsuit.
RESPONSE:
The Plaintiff objects that these items may constitute work product and once
reviewed with counsel a work product and/or privilege log will be provided and
thereafter the court may assist in the disclosure of said items. Further
responding, most of the communications with Praxair should be in their
possession. Further responding, the Plaintiff also awaits any expert reports of
David Schien, Plaintiff’s employment expert.
REQUEST FOR PRODUCTION NO. 36:
Produce any statements which Plaintiff claims are an admission by a party
opponent or against the interests of Praxair, and any documents that record,
memorialize, describe, or otherwise refer to any such statements.
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RESPONSE:
The Plaintiff objects that these items may constitute work produce and once
reviewed with counsel a work product and/or privilege log will be provided and
thereafter the court may assist in the disclosure of said items. Further
responding, most of the communications with Praxair should be in their
possession. Further responding, the Plaintiff also awaits any expert reports of
David Schein, Plaintiff’s employment expert.
(R. Doc. 35-3 at 5-6, 18-19, 21, 26-27).
On May 10, 2018, defense counsel sent a letter to Plaintiff’s counsel identifying
deficiencies with regard to the foregoing responses. (R. Doc. 35-4). In particular, Praxair stated
it was unable to determine from Plaintiff’s response to Interrogatory No. 4 “whether Plaintiff has
responsive recordings in his possession or not,” further requesting Plaintiff to supplement his
“response to specifically identify all persons from whom Plaintiff has received recordings
regarding any of Plaintiff’s allegations in his Petition.” (R. Doc. 35-4 at 3). With regard to the
Requests for Production Nos. 13, 15, 19, 34, and 36, Praxair requested that Plaintiff withdraw his
objections, and produce any non-privileged responsive documents and an accompanying
privilege log. (R. Doc. 35-4 at 4).
On June 13, 2018, Plaintiff’s counsel responded to defense counsel’s letter. (R. Doc. 355). In pertinent part, Plaintiff stated that he could not “verify any recordings that may or may
have been acquired in connection with this transaction forming the basis of this litigation,” that
Plaintiff had not located responsive documents and that they would be produced when located,
and that a privilege log “cannot be produced” because responsive documents had not been
located. (R. Doc. 35-5 at 3). Praxair’s counsel submits a declaration stating that at the
conference “Plaintiff’s Counsel repeatedly assured Defendant’s counsel that he had produced
everything in Plaintiff’s possession.” (R. Doc. 35-6 at 2).

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On July 23, 2018, the Court extended the non-expert discovery deadline to November 1,
2018, for the sole purpose of re-noticing and completing the depositions of James Willis, Brian
Burt, Todd Dunn, Vanjia Thomas, Jonathan Brown, Denise Brown, and Courtni Booker, and any
other depositions agreed upon by the parties. (R. Doc. 30). The Court did not, however, extend
the non-expert discovery deadline with respect to written discovery. (R. Doc. 30 at 2).
On September 13, 2018, the Court dismissed with prejudice all claims brought against
James Willis, Brian Burt, Todd Dunn, and Vanjia Thomas. (R. Doc. 31).
On September 18, 2018, counsel convened in Houston, Texas for the purpose of taking
the depositions of Plaintiff and Vanjia Thomas, and the depositions of James Willis, Brian Burt,
and Todd Dunn on the following day. During his deposition, however, Plaintiff testified that he
was in possession of certain audio recordings made during his PIP meetings that had not been
produced in discovery, as well as “an external hard drive” containing various documents
collected by Plaintiff while employed. (R. Doc. 35-2). The remainder of Plaintiff’s deposition
was suspended, and defense counsel cancelled the depositions of Vanjia Thomas, James Willis,
Brian Burt and Todd Dunn so that the parties could resolve their dispute regarding whether the
audio tapes and documents withheld by Plaintiff must be produced prior to the depositions. (r.
Doc. 35-1 at 1-2).
Plaintiff immediately filed his motion to compel the depositions of Vanjia Thomas,
James Willis, Brian Burt and Todd Dunn. (R. Doc. 33). Plaintiff argues the withheld audio
recordings and documents are protected under the work product doctrine and, to the extent they
are not protected, need not be produced until after the depositions of Praxair’s employees
because they would be used for impeachment purposes. (R. Doc. 33-1 at 2-3; R. Doc. 42 at 1-5;
R. Doc. 44 at 1-5).

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In opposition to Plaintiff’s motion, and in support of its own motions, Praxair argues that
Plaintiff’s withheld audio recordings and documents are not protected under the work product
doctrine, and they should have been produced in response to Praxair’s written discovery
requests, and certainly prior to the depositions of Praxair’s employees. (R. Doc. 37-1 at 3-9; R.
Doc. 35-1 at 10-13). Praxair further argues that Plaintiff has waived any objections to producing
the withheld audio recordings and documents by failing to produce a timely privilege log. (R.
Doc. 35-1 at 9-10).
At oral argument, Plaintiff’s counsel stated that he was aware of the existence of the
withheld audio recordings prior to providing the May 4, 2018 responses to Praxair’s discovery
requests, and that he has been in the process of verifying methods for transferring and retaining
the recordings. Plaintiff’s counsel further represented that as of the date of oral argument, he had
not produced a privilege log or reviewed the audio recordings or documents identified by
Plaintiff at his deposition.
II.

Law and Analysis
This written ruling addresses three issues raised by the parties’ motions, namely whether

Plaintiff waived any claims of privilege or work product immunity regarding the withheld audio
recordings and documents, whether the audio recordings must be produced prior to the recommencement of Plaintiff’s deposition and the depositions of Praxair’s employees, and whether
and to what extent an award of fees is appropriate.
As a preliminary issue, the Court notes that the non-expert discovery deadline with
respect to written discovery expired on August 1, 2018. Defense counsel first became aware that
Plaintiff had withheld audio recordings and documents at Plaintiff’s deposition on September 18,
2018. Plaintiff, who is under a continuing duty to supplement his disclosures and responses

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pursuant to Rule 26(e)(1), does not argue that Praxair’s motion to compel is untimely. Given the
record, the Court concludes that Praxair diligently filed its motion to compel pertaining to
written discovery requests despite the expiration of the deadline to do so. Furthermore, the
extent that Praxair seeks relief pursuant to Rule 30(b)(3) with respect to depositions that had not
yet commenced, the Court construes its motion as seeking relief pursuant to Rule 26(c)(1).1
There is no dispute that the audio recording or documents fall within the scope of
discovery as provided in Rule 26(b)(1) and are responsive to Praxair’s document requests.
Plaintiff argues, however, that the withheld audio recordings and documents are protected
pursuant to the work product doctrine.2 While Plaintiff’s written discovery responses raised the
prospect that the work product doctrine might apply to certain responsive documents, Plaintiff
never timely identified the withheld audio recording and documents in a privilege log pursuant to
Rule 26(b)(5). Indeed, Plaintiff’s counsel admitted at oral argument that not only had a privilege
log not been produced, but that counsel still had not reviewed the audio recordings or documents
withheld by Plaintiff as of the date of oral argument, over five months after Plaintiff provided his
written discovery responses and over two months after the close of written discovery. Under

1

Rule 30(d)(3) applies to motions to terminate or limit depositions that are taking place. See Fed. R. Civ.
P. 30(d)(3)(A) (“At any time during a deposition, the deponent or a party may move to terminate or limit
it on the ground that it being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party.”). In contrast, Rule 26(c)(1) allows a party to seek
prospective relief with regard to deposition testimony. See Fed. R. Civ. P. 26(c)(1) (“A party or person
from whom discovery is sought may move for a protective order where the action is pending – or as an
alternative on matters relating to a deposition, in the court for the district where the deposition will be
taken. . . The court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense. . . .”).
2
At the depositions, Plaintiff’s counsel raised the argument that the withheld audio recordings and
documents may be protected under the attorney-client privilege. (R. Doc. 42-1 at 5-6). Plaintiff has
abandoned that argument in support of its motion to compel and in opposition to Praxair’s motions. At
any rate, Plaintiff’s counsel admitted at oral argument that he did not direct Plaintiff to make the withheld
recordings. The record further indicates that the withheld recordings and documents do not involve
communications with counsel, who represents he has never heard the recordings or reviewed the withheld
documents. Furthermore, Plaintiff raises no arguments in support of its other objections to Praxair’s
discovery requests, and the Court finds no basis for sustaining those objections.

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these circumstances, the Court concludes that Plaintiff has waived any objections, including the
work product doctrine, with respect to the withheld audio recordings and documents, as well as
any other recordings or documents responsive to Requests for Production Nos. 13, 15, 19, 34,
and 36. See Motion Indus., Inc. v. Superior Derrick Servs., LLC, No. 15-1958, 2016 WL 760776,
at *3 (E.D. La. Feb. 26, 2016) (“When a party invoking a privilege fails to comply with the Rule
26(b)(5) requirement to provide a privilege log, courts have routinely found that all assertions of
privilege or other protections against the requested discovery have been waived.”) (citing cases).
In the alternative to work product protection, Plaintiff argues that the withheld audio
recordings need not be produced until after the depositions of Praxair’s employees because they
would be used for impeachment purposes. In support of this position, Plaintiff relies on a
Louisiana Supreme Court decision holding held that certain audio recordings of conversations
between a non-party student of the Our Lady of the Lake Nurse Anesthesia Program (“OLOPNAP”) and the director of OLO-NAP made after the termination of the plaintiffs from the
nursing program consisted of “surveillance audio tapes that were made for the purpose of
impeachment of defendants’ witness rather than as direct evidence and, therefore, the production
of such impeachment materials should be delayed until after the defendants’ witness’ deposition .
. . .“ O'Dwyer v. Our Lady of the Lake Nurse Anesthesia Program ex rel. Our Lady of the Lake
Coll., 117 So. 3d 1252, 1254 (La. 2013) (per curiam).
Whatever the precedential value of O’Dwyer regarding Louisiana civil procedure, the
decision is inapplicable to this case. There is no dispute that the audio recordings in this action
were clandestine recordings made by Plaintiff at his place of employment prior to his termination
of employment. Such recordings do not qualify for work product protection, and must be
produced before the depositions of the pertinent witnesses. See Williams v. Gunderson Rail

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Servs., LLC, No. 07-0887, 2008 WL 145251 (W.D. La. Jan. 14, 2008) (holding that the
plaintiff’s clandestine recordings of co-workers did not qualify for work product protection and
must be disclosed prior to the depositions of the recorded individuals); Griffin v. Javeler Marine
Servs., LLC., No. 15-106, 2016 WL 1559170, at *1 (W.D. La. Apr. 18, 2016) (same); Mayfield v.
DeSoto Par. Police Jury, No. 15-2374, 2017 WL 4019437, at *1 (W.D. La. Sept. 12, 2017)
(same); see also Johnson v. East Baton Rouge School System, No. 16-422, ECF No. 112, at *12
(M.D. La. Jan. 19, 2018) (plaintiff did not meet burden of establishing that withheld audio
recordings made in the course of investigating her employment discrimination claims were
protected by the work product doctrine). Consistent with this written ruling, the Court has
already ordered Plaintiff’s counsel to produce the audio recordings and documents withheld by
Plaintiff, the suspended/postponed depositions to be held after that production, and that various
deadlines be extended to accommodate the foregoing discovery. (R. Doc. 45).
The Court has reviewed the record and the parties’ competing requests for awards of
expenses, including attorney’s fees, incurred in making the instant motions. The Court finds an
award of reasonable expenses to Praxair to be appropriate pursuant to Rule 37(a)(5)(A) with
respect to both of its motions. Given that the depositions were appropriately suspended in light
of the issues raised in the instant motions, the Court will require Plaintiff and Plaintiff’s counsel
to bear the complete costs of the court reporter and videographer with respect to the remainder of
the depositions, as well as award $500 to Praxair as a reasonable amount of fees and costs
incurred in bringing the instant motions. Furthermore, pursuant to Rule 30(d)(1), Praxair may
depose Plaintiff for up to 7 hours at the continued deposition to the extent defense counsel elicits
non-redundant testimony.

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III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion to Compel Depositions of Vanjia Thomas,

James Willis, Brian Burt and Todd Dunn (R. Doc. 33) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Terminate Depositions
Pursuant to FRCP 30(d)(3) (R. Doc. 37) and Defendant’s Motion to Compel (R. Doc. 35) are
GRANTED. Without further objection, Plaintiff must supplement his responses to Interrogatory
No. 4, and Requests for Production Nos. 13, 15, 19, 34, 36 as ordered at the hearing. (R. Doc.
45).
IT IS FURTHER ORDERED that Plaintiff’s counsel shall pay the costs of the court
reporter and videographer with respect to the remainder of the depositions and shall pay, within
10 days of the date of this Order, the amount of $500 to Praxair.
Signed in Baton Rouge, Louisiana, on October 19, 2018.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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