A.N. et al v. Landry et al

Filing 93

ORDER granting in part and denying in part 89 Motion to Extend Discovery Deadline. The non-expert discovery deadline is extended to 10/7/2022 for the sole purpose of modifying the date to comply with the subpoenas at issue. No additional non-expert discovery is allowed. Plaintiff`s Expert Reports due by 11/4/2022. Defendant`s Expert Reports due by 12/5/2023. Plaintiffs' Rebuttal due by 1/6/2023. AG Landry must provide a copy of this Order to all recipients of the subpoenas at is sue. The 88 Motion for Protective Order or, Alternatively, Motion to Quash Subpoenas is GRANTED IN PART and DENIED IN PART. AG Landry must file any opposition to the remaining issues raised in Plaintiffs Motion for Protective Order on or before 9/21/2022. Plaintiffs may file a reply without leave of court, on or before 9/26/2022. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/16/2022. (SGO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
AARON NELSON, ET AL

CIVIL ACTION

VERSUS
NO. 20-837-JWD-RLB
JEFFREY LANDRY, ET AL.
ORDER
Before the Court is Plaintiffs’ Motion for Protective Order or, Alternatively, Motion to
Quash Subpoenas filed on September 9, 2022. (R. Doc. 88). The deadlines for filing an
opposition has not expired. LR 7(f).
Also before the Court is the Louisiana Attorney General Jeffrey Landry’s Motion to
Extend Discovery Deadline filed on September 15, 2022. (R. Doc. 89). This motion is opposed.
(R. Doc. 92).
I.

Background
Plaintiffs (seven individuals adjudicated delinquent of sex offenses by Louisiana juvenile

courts) commenced this action seeking injunctive and declaratory relief against the application of
the Louisiana sex offender registration and notification law, La. R.S. 15:540 et seq, to them. (R.
Doc. 1). One Plaintiff, Benjamin Sheridan, voluntarily dismissed his claims without prejudice.
(R. Doc 81; R. Doc. 86).
Plaintiffs have filed two unopposed motions seeking extension of deadlines in this action.
First, Plaintiffs sought 60-day extensions of the deadlines to complete non-expert discovery, to
complete expert discovery, and to file all dispositive motions and Daubert motions. (R. Doc. 70).
In Court granting this motion, the Court issued a modified Scheduling Order providing that nonexpert discovery be completed by August 15, 2022, expert discovery be completed by March 17,

2023, and dispositive motions and Daubert motions be filed by April 14, 2023. (R. Doc. 71).
Plaintiffs then sought an extension of the non-expert discovery deadline to September 15, 2022
for the purpose of completing the Rule 30(b)(6) deposition of the Louisiana for the Department
of Public Safety and Corrections. (R. Doc. 80). The Court extended the deadline to complete all
discovery except experts, in its entirety, to September 15, 2022. (R. Doc. 87).
On September 9, 2022, the Louisiana Attorney General Jeff Landry issued twelve
subpoenas to the following: the Sheriff of Madison Parish, the Sheriff of Jefferson Parish, the
Sheriff of Avoyelles Parish, the Sheriff of St. Tammany Parish, the Sheriff of Lafourche Parish,
the Superintendent of the New Orleans Police Department, the Madison Parish District Attorney,
the Avoyelles Parish District Attorney, the Jefferson Parish District Attorney, St. Tammany
Parish District Attorney, the Lafourche Parish District Attorney, and the Orleans Parish District
Attorney. (R. Docs. 88-2, 88-3). Each of the subpoenas seeks compliance on September 19, 2022
in Baton Rouge, Louisiana.
In seeking a Rule 26(c) protective order quashing the subpoenas, Plaintiffs argue that (1)
Defendants’ subpoenas are untimely because the return date is after the discovery deadline; (2)
the subpoenas are overly broad; (3) the subpoenas are disproportionate to the needs of the case
and are meant to harass and embarrass the Plaintiffs; and (4) a number of the requested
documents violate the Louisiana Children’s Code Article 412.
On September 15, 2022, the deadline to complete non-expert discovery, AG Landry filed
a Motion to Extend Discovery Deadline. (R. Doc. 89). Through this motion, AG Landry seeks a
30-day extension of the deadline to complete non-expert discovery to October 15, 2022, with no
change in the remaining deadlines.

Finally, Plaintiffs have requested a telephone conference with the undersigned to address
the timing issues raised by the discovery deadlines and the subpoenas at issue. Given this ruling,
the Court finds a telephone conference to be unnecessary.
II.

Law and Analysis
Rule 45 governs discovery from non-parties through the issuance of subpoenas. As “the

court for the district where compliance is required,” this Court has the authority to quash or
modify the subpoena at issue. Fed. R. Civ. P. 45(d)(3). The Court also has the authority to issue a
protective order to protect a party or person “from annoyance, embarrassment, oppression, or
undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
Rule 16(b)(4) of the Federal Rules of Civil Procedure allows for the modification of a
scheduling order deadline upon a showing of good cause and with the judge’s consent. The Fifth
Circuit has explained that a party is required “to show that the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.” Marathon Fin. Ins. Inc., RRG v.
Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (quoting S&W Enters., LLC v. Southtrust
Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)). In determining whether the movant has
established “good cause” for an extension of deadlines, the Court considers four factors: (1) the
party’s explanation for the requested extension; (2) the importance of the requested extension;
(3) the potential prejudice in granting the extension; and (4) the availability of a continuance to
cure such prejudice. See Leza v. City of Laredo, 496 Fed. App’x 375, 377 (5th Cir. 2012) (citing
Reliance Ins. Co. v. Louisiana Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997)).
There is no dispute that the subpoenas at issue seek compliance after the non-expert
deadline currently set by the Court. This Court’s Local Rules provides that “[w]ritten discovery
is not timely unless the response to that discovery would be due before the discovery deadline”

and “[t]he responding party has no obligation to respond and object to written discovery if the
response and objection would not be due until after the discovery deadline.” LR 26(d)(2). This
Court has expressly held that a subpoena served before the discovery deadline is nevertheless
untimely if the date of compliance is beyond the discovery deadline. See, e.g., Sandifer v. Hoyt
Archery, Inc., No. 12-322, 2015 WL 3465923, at *2 (M.D. La. June 1, 2015) (“Although it was
served 4 days before the expert discovery deadline, the subpoena was untimely as it required
compliance outside of the March 31, 2015 deadline.”); Dixon v. Greyhound Lines, Inc., No. 13179, 2014 WL 6474355, at *3 (M.D. La. Nov. 19, 2014) (“Although it was served 6 days before
the expert discovery deadline, the subpoena was untimely as it required compliance outside of
the September 2, 2014 deadline.”); see also Hall v. State of Louisiana, No. 12-657, 2014 WL at
2560715, at *1 (M.D. La. June 6, 2014) (discovery requests served on party 14 days before
discovery deadline were untimely as the party had 30 days to respond to such discovery
requests). Accordingly, AG Landry should have sought and obtained an extension of the Court’s
non-expert discovery deadline prior to issuing and serving subpoenas at issue, or otherwise set a
date of compliance within the discovery deadline.
That said, AG Landry timely filed a motion seeking an extension of the discovery
deadlines for the purpose of allowing compliance with the subpoenas. (R. Doc. 89). Having
considered the record and plaintiff’s opposition, and in the interest of managing its docket, the
Court finds good cause to extend the non-expert deadline to October 7, 2022, for the sole
purpose of setting a new deadline for compliance with the subpoenas at issue. AG Landry has
demonstrated that that the information sought is potentially important to the defense in this
action, and may even benefit certain Plaintiffs. Plaintiffs, who have sought and obtained two
extensions of the discovery deadlines, will not be unduly prejudiced by this extension. To avoid

any potential prejudice, the Court will extend the deadlines for the parties to provide expert
reports, a concern raised by Plaintiffs in support of their own motion. The remaining deadlines
will not need modification.
Given this narrow extension of the non-expert deadline, the subpoenas at issue are
deemed timely. No additional discovery is allowed.
Given the record, the Court finds good cause under Local Rule 7(f) to require AG Landry
to file an opposition to Plaintiffs’ Motion for Protective Order (R. Doc. 88) on or before
September 21, 2022. This opposition shall address the balance of arguments raised by Plaintiffs
in seeking to quash the subpoenas, which include overbreadth, disproportionality, and violations
of the Louisiana Children’s Code Article 412.
III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Louisiana Attorney General Jeffrey Landry’s Motion to Extend

Discovery Deadline (R. Doc. 89) is GRANTED IN PART and DENIED IN PART. The nonexpert discovery deadline is extended to October 7, 2022 for the sole purpose of modifying the
date to comply with the subpoenas at issue. No additional non-expert discovery is allowed. The
deadlines to submit expert reports to opposing parties are extended as follows:
Plaintiff(s):

November 4, 2022.

Defendant(s):

December 5, 2022.

Plaintiffs’ Rebuttal: January 6, 2023.
All other deadlines remain unchanged. (See R. Doc. 71).
IT IS FURTHER ORDERED that AG Landry must immediately provide a copy of this
Order to all recipients of the subpoenas at issue. The recipients of the subpoenas must not

produce any additional documents responsive to the subpoenas served by AG Landry until
resolution of Plaintiffs’ Motion for Protective Order (R. Doc. 88) and upon further order of the
Court.1
IT IS FURTHER ORDERED that Plaintiff’s Motion for Protective Order (R. Doc. 88)
is DENIED IN PART to the extent it seeks a finding that the subpoenas at issue are untimely
because the return date is after the discovery deadline. AG Landry must file any opposition to the
remaining issues raised in Plaintiff’s Motion for Protective Order on or before September 21,
2022. Plaintiffs may file a reply memorandum, without seeking further leave of court, on or
before September 26, 2022.
Signed in Baton Rouge, Louisiana, on September 16, 2022.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

1

The non-party recipients of the subpoena may seek to quash or modify their respective subpoenas pursuant to Rule
45(d)(3).