Vailes v. Rapides Parish School District et al

Filing 38

MEMORANDUM ORDER granting in part and denying in part 21 Motion to Compel. Within 14 days, Defendants shall supplement their discovery responses in accordance with the opinion herein. IT IS FURTHER ORDERED that the proposed protective order, mod ified as ordered herein, is to be filed on or before 2/26/16. IT IS FURTHER ORDERED that 21 Motion for sanctions based on spoliation and Plaintiff's request for direct access to outstanding discovery contained in Defendant's computer or server through a forensic expert are DENIED. IT IS FURTHER ORDERED that Plaintiff's request for costs and/or fees is DENIED. Signed by Magistrate Judge Karen L Hayes on 2/22/16. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
DEBORAH VAILES

CIVIL ACTION NO.: 15-429

VERSUS

JUDGE JAMES T. TRIMBLE, JR.

RAPIDES PARISH
SCHOOL BOARD, ET AL.

MAGISTRATE JUDGE HAYES

MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
Motion to Compel [doc. # 21], filed by Plaintiff Deborah Vailes. Defendants, Rapides Parish
School Board (“RPSB”) and Dr. Dana Nolan oppose the Motion. [doc. # 29]. For reasons stated
below, the Motion is GRANTED IN PART AND DENIED IN PART.1
Background
This discovery dispute arises out of the first set of requests for production of documents
served by Plaintiff on Defendants. On February 25, 2015, Deborah Vailes filed the instant civil
rights complaint pursuant to 42 U.S.C. § 1983 against the Rapides Parish School Board and Dr.
Dana Nolan. [doc. # 1]. Vailes complains that, as a teacher employed by RPSB, she was
inappropriately reprimanded by Dr. Nolan when she made anti-Common Core posts on social
media. Id. at 9-10. According to Vailes, as a result of RPSB’s policy to reprimand her,
Defendants have deprived Vailes of her right to freedom of speech and equal protection of the
law guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Id. at 14-16.

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As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive
of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil
Procedure, this ruling is issued under the authority thereof, and in accordance with the standing
order of this Court. Any appeal must be made to the district judge in accordance with Rule 72(a)
and L.R. 74.1(W).

On July 28, 2015, Plaintiff propounded her first set of requests for production to
Defendants. [doc. # 21-3]. On September 10, 2015, Defendants responded to some of the
interrogatories and document requests but objected to others on the basis of overbreadth,
vagueness, ambiguity and undue burden. Id. [doc. # 29, p. 4]. On October 28, 2015, Defendants
forwarded supplemental responses to Plaintiff and advised that they would supplement again if
additional responsive documents were uncovered. [doc. # 29-1]. On November 4, 2015,
Defendants supplemented responses for a second time. [doc. # 29-2]. On November 6, 2015,
Plaintiff filed the instant Motion to Compel discovery and request for associated attorney’s fees.
[doc. # 21]. Defendants filed their opposition on November 23, 2015, and Plaintiff filed a reply
on November 30, 2015. [docs. # 29, # 30]. Thus, the matter is now before the court.
Standard of Review
Rule 34 dictates that “a party may serve on any other party a request within the scope of
Rule 26(b) . . . to produce . . . any designated documents . . . or any tangible things” that are
within the “party’s possession, custody, or control . . .” FED. R. CIV. P. 34(a)(1). An evasive or
incomplete disclosure, answer, or response is treated as a failure to disclose, answer, or respond.
FED. R. CIV. P. 37(a)(4).
Under Rule 26(b),
[u]nless 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.

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FED. R. CIV. P. 26(b)(1).
The courts understand the rule to provide for broad and liberal discovery. See
Schlagenhauf v. Holder, 379 U.S. 104, 114-5 (1964); Hickman v. Taylor, 329 U.S. 495, 507
(1947). Nonetheless, the scope of discovery is limited by relevance, albeit “relevance” is to be
broadly construed. Wyatt v. Kaplan, 686 F.2d 276, 284 (5th Cir. 1982). Ultimately, the relevance
inquiry ends where it starts; i.e., the relevancy of a discovery request depends upon whether it is
“reasonably calculated” to lead to admissible evidence. Wiwa v. Royal Dutch Petroleum Co., 392
F.3d 812, 820 (5th Cir. 2004). A party objecting to discovery “must state with specificity the
objection and how it relates to the particular request being opposed, and not merely that it is
‘overly broad and burdensome’ or ‘oppressive’ or ‘vexatious' or ‘not reasonably calculated to
lead to the discovery of admissible evidence.’” Reyes v. Red Gold, Inc. 2006 WL 2729412 (S.D.
Tex. Sept. 25, 2006).
Upon a showing of good cause, a court may issue an order to “protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c).
The party seeking the protective order must establish that good cause exists for the entry of the
order by making a “particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981);
see also In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998). “Rule 26(c) confers broad
discretion on the trial court to decide when a protective order is appropriate and what degree of
protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
A party seeking discovery may move for an order compelling production against another
party when the latter has failed to produce documents for inspection. See FED. R. CIV. P.
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37(a)(3)(B). An evasive or incomplete response is treated as a failure to respond. Id. at (a)(4).
Furthermore, the court “may, on motion, order sanctions if . . . a party after being properly served
with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its
answers, objections or written response.” Id. at (d)(A).
The discovery rules are accorded a broad and liberal treatment in order to achieve their
purpose of adequately informing litigants in civil trials. Hebert v. Lando, 441 U.S. 153, 177
(1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). A court may limit discovery if: (1) the
discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more
convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had
ample opportunity to obtain the information sought; or (3) the burden or expense of the proposed
discovery outweighs its likely benefit. FED. R. CIV. P. 26(b)(2)(C).
Law and Analysis

I. Request for Production Nos. 1, 3, 4 and 9
Request for Production No. 1, seeks “all records, reports, writings, notes, documents,
memoranda, emails, photographs, videotapes, text messages, tape recordings or statements, or
communication, relating to and/or referencing Plaintiff and any allegations in the complaint.”
[doc. # 21-3, p. 5]. Request for Production No. 3 seeks “[a] copy of all records, reports, writings,
notes, documents, memoranda, emails, photographs, videotapes, text messages, tape recordings
or other statements, communications, or recordings relating to the policies, practices, customs
and/or procedures of Pineville Junior High School and/or the Defendant Rapides Parish School
District regarding employee use of social media.” Id. at 6. Request for Production No. 4 seeks
“[a] copy of all communications between any defendant and any of the individuals identified in
your Rule 26 Disclosures relating to Plaintiff and any of the allegations in the Complaint.” Id.
Finally, Request for Production No. 9 seeks “[a] copy of all written authorities, policies,
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practices, or customs that authorized any Defendant to direct Plaintiff to remove an entry from
her personal Facebook page and/or to refrain from displaying her opinion about Common Core or
other issues on social media.” Id. at 7.
Defendants responded by objecting to Request Nos. 1 and 4 as overly broad, unduly
burdensome, vague and ambiguous. [docs. # 21-3, p. 5; # 21-7, p. 2]. Defendants objected to
Request for Production No. 9 as vague, ambiguous and misleading. Id. at 5. Additionally,
Defendant provided Plaintiff with eleven documents responsive to Plaintiff’s Request for
Production No. 1 and RPSB’s employee policies responsive to Request for Production Nos. 3
and 9. [doc. # 29, p. 5-9]. Defendants also responded to request No. 4 with emails from Susan
Dewees to Dana Nolan and emails from Shelly Close to Plaintiff. [doc. # 21-7, p. 4].
Plaintiff contends that Defendants are purposefully withholding information relevant to
Plaintiff’s case by providing incomplete responses. [doc. # 21-1, p. 2]. Defendants supplemented
their responses on October 28, 2015 and November 4, 2015. [docs. # 29-1; # 29-2]. Defendants
represented to the court that, following an exhaustive search, they had produced all responsive
documents for these requests in their possession, custody, or control. [doc. # 29]. Federal Rule of
Civil Procedure 34(a) provides that a party may only request production of documents “in the
responding party’s possession, custody, or control.” Obviously, Defendants need only produce
the information that they possess or control. Thus, Plaintiff’s motion to compel further response
to Request for Production Nos. 1, 3, 4 and 9 are denied. Defendants are reminded of their duty to
supplement should additional responsive documents be found.

II. Request for Production No. 2
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Request for Production No. 2, seeks “[a] copy of all statements issued on behalf of
Pineville Junior High School and/or the Defendant Rapides Parish School District to students,
parents of students, teachers, the media, or the general public relating to the school’s
participation in or approval of Common Core.” [doc. # 21-3, p. 6]. Defendants originally
responded by stating “[n]one,” and then later supplemented their response to object to the
relevancy of the request. [doc. # 21-7, p. 4; # 29-1, p. 1]. Defendants contend that their
statements concerning Common Core are irrelevant because the Board of Elementary and
Secondary Education voted to adopt Common Core standards, not RPSB. [doc. # 29, p. 7].
Plaintiff argues that the statements are relevant due to Defendants “rabid fervor with which [they]
support Common Core” and that the statements “provide[] information and motivation for why
they suppressed Plaintiff’s private speech . . . .” [doc. # 30, p. 2].
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .
Information within this scope of discovery need not be admissible in evidence to be
discoverable.” FED. R. CIV. P. 26(b)(1). Here, Plaintiff claims that she was reprimanded in order
to suppress her speech on a matter of public concern. Defendants statements regarding Common
Core are relevant to demonstrate a potential motivation to chill the speech of the Plaintiff.
In the supplemental response, Defendants produced two emails referencing links to a
YouTube video and an article in a local newspaper. [doc. #29-1, p. 1]. Defendants also claim to
have produced a document containing a printout of a link that formerly contained informational
resources on Common Core. Id. Plaintiff contends that the documents produced by Defendants

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are insufficient and that other statements exist within Defendants’ control.2 [doc. # 21-1, p. 3].
Plaintiff argues that the documents produced thus far contain dead links and that Defendants
“must have an archived copy of this information.” Id. To the extent it has not already done so,
Defendants shall supplement their response within the next 14 days to provide the requested
information. If, after reasonable and diligent inquiry, Defendants are unable to identify anything
more specific, it shall so certify in its supplemental response.
III. Request for Production No. 7
Request for Production No. 7, asks Defendant to provide “[a] copy of all records, reports,
writings, notes, documents, memoranda, emails, photographs, videotapes, text messages, tape
recordings or other statements, or communications, regarding the policies, practices, or customs
regarding documented conferences and the criteria for determining when a documented
conference is appropriate.” [doc. # 21-3, p. 7]. Defendants initially responded to Request for
Production No. 7 with, “[n]one. These personnel conferences are held at the Principal’s
discretion.” [doc. # 21-7, p. 5]. Defendants later provided Plaintiff with a Power Point
presentation containing a slide entitled “Personnel Conference Records.” [docs. # 29-1, p. 2; #
29-2]. Defendants claim that they are unable to locate any additional information responsive to
Plaintiff’s request. [doc. # 29, p. 9].
Plaintiff contends that there is an official RPSB Document for personnel conferences.
[doc. 21-1, p. 5]. Plaintiff claims that RPSB is required “to have information on personnel

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Plaintiff contends that the Superintendent has made public comments about Common
Core on behalf of the district, RPSB has discussed Common Core at school board meetings and
Defendants response to Request for Production No. 15 alludes to a report by the Superintendent
concerning Common Core. [docs. # 21-1, p. 3; # 29-1, p. 3].
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conferences in its agenda and minutes from when this topic was discussed.” Id. Plaintiff also
asserts that there are written guidelines explaining the principal’s power to issue a documented
conference and the procedures the principal must follow when issuing the documented
conference. Id. To the extent it has not already done so, Defendants shall supplement their
response within the next 14 days to provide the requested information. If, after reasonable and
diligent inquiry, Defendants are unable to identify anything more specific, it shall so certify in its
supplemental response.
IV. Request for Production No. 15
In Request for Production No. 15 Plaintiff asks Defendants to provide “[a] copy of all
records, reports, writings, notes, documents, memoranda, emails, photographs, videotapes, text
messages, tape recordings or other statements, recordings, or communication responsive to
Plaintiff’s First Set of Interrogatories directed to each and every Defendant.” [doc. # 21-3, p. 9].
Defendant responded by objecting to the request as vague, ambiguous, overly broad and unduly
burdensome. [doc. # 21-7, p. 8]. Defendants contend that Plaintiff’s request does not meet the
reasonable particularity standard in Rule 34. [doc. # 29, p. 10]. Rule 34(b)(1)(A) requires a
request for production to describe the sought after items with “reasonable particularity.” “The
goal is that the description be sufficient to apprise a man of ordinary intelligence which
documents are required.” U.S. v. Nat'l Steel Corp., 26 F.R.D. 607, 610 (S.D. Tex. 1960) (stating
that particularity or preciseness of designation depends on circumstances of each case).
Plaintiff has requested “all [documents] responsive to Plaintiff’s First Set of
Interrogatories directed to [RPSB & Dr. Dana Nolan].” [doc. # 21-3, p. 9]. Plaintiff requests
documents concerning thirty-four different interrogatories directed to the two Defendants, which
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would cover a large array of potential documents. Id. Moreover, Defendants state that they have
“produced everything clearly approximating Plaintiff’s request,” after a thorough search. [doc. #
29, p. 10]. The Court agrees that Plaintiff’s Request for Production No. 15 is overly broad and
does not meet Rule 34’s reasonable particularity standard.
V. Request for Production No. 14
In Request for Production No. 14 Plaintiff seeks “[a] copy of the employment records of
defendant Nolan referencing all reprimands and/or documented conferences issued by Defendant
Nolan during the 2014-2015 school year to all employees.” [doc. # 21-3, p. 8]. Plaintiff contends
that the past personnel conference records of other employees is relevant to her claims and has
yet to be produced by defendant. [docs. # 21-1, p. 9; # 30, p. 6]. Defendants objected to the
request “insofar as it requests private, protected information concerning other employees of the
Rapides Parish School Board.” [doc. # 21-7, p. 8].
Defendants relied on LSA–R.S. 17:1237(A), noting that it provides, in part, that “[t]he
contents of a school employee’s personnel file shall not be divulged to third parties absent the
express written consent of the school employee, except when ordered by a court or by subpoena.”
Defendants argue that the party seeking this information must show “why it [is] entitled to this
presumably confidential and private record,” in order to obtain a valid court order. [doc. # 29, p.
10-11]; Gannett River States Publ’g Corp. v. Monroe City Sch. Bd., 8 So. 3d 833, 838 (La. App.
2d Cir. 2009). “[A] general request for the entire record is insufficient to prove entitlement to the
presumably confidential contents of the personnel file.” Gannett, 8 So. 3d at 838.
However, Plaintiff has not made a general request for an entire employment record;
instead Plaintiff seeks “employment records of Defendant Nolan referencing all reprimands
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and/or documented conferences issued by Defendant Nolan during the 2014-2015 school year to
all employees.” [doc. # 21-3, p. 9]. Plaintiff is entitled to the documents requested because the
requested information is reasonably calculated to lead to admissible evidence within the scope of
FED. R. CIV. P. 26(b). Plaintiff has carried her burden of showing what specific records she seeks
and why she is entitled to the requested information. Gannet, 8 So. 3d at 838.
Defendants request that should the court decide that Plaintiff is entitled to the records she
seeks, that disclosure be made subject to the protective provisions outlined in Defendants’
proposed protective order. [docs. # 29, p. 12; # 29-8]. Plaintiff agrees to the protective order
proposed by Defendants, except that “the records may be ‘divulged or described’ to the Parties
and presented at defendants’ depositions.” [doc. # 30, p. 6]. Due to the sensitive and personal
nature of some of the records involved, the court orders that the disclosure of the documents
requested in Request for Production No. 14 be subject to a protective order to govern their use in
the course of these proceedings as outlined in Defendants’ proposed order and Plaintiff’s
exception.3 See below.
VI. Motion for Sanctions Based on Spoliation
In addition to compelling the Defendant to answer certain Requests for Production of
Documents, Plaintiff seeks “a sanction on Defendant’s false and misleading production.” [doc. #
21-1, p. 9]. Plaintiff requests that the court “preclude the use of Exhibits B and C for evidentiary
purposes for a summary judgment motion or for trial.” Id. Plaintiff claims that Defendants
manipulated, altered and misrepresented an image of a Facebook post. Id. at 7. Plaintiff asks that

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Upon a showing of good cause, a court may issue an order to “protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” FED. R. CIV. P. 26(c).
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the court sanction Defendants by reimbursing Plaintiff for the cost of her expert to verify the
manipulation to the image. Id. Plaintiff also requests that the court bar Defendants from using the
manipulated and altered evidence in any dispositive motions or at trial. Id.
Spoliation of evidence “is the destruction or the significant and meaningful alteration of
evidence.” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex.
2010). We permit an adverse inference against the spoliator or sanctions against the spoliator
only upon a showing of “bad faith” or “bad conduct.” Condrey v. SunTrust Bank of Georgia, 431
F.3d 191, 203 (5th Cir. 2005). “The party seeking the sanction bears the burden of proof.” Hunt
v. Marquette Transp. Co. Gulf–Inland, LLC, 2011 WL 3924926 (E.D. La. Aug. 5, 2011). “In
order to establish the sanction of adverse inference based on spoliation of evidence, this party
must show that the accused had a duty to preserve the destroyed or altered evidence, a culpable
breach of that duty, and resulting prejudice to the party seeking the sanction.” Id. (citing Rimkus,
688 F. Supp. 2d at 615–16); see also Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir.
1999) (“an adverse inference drawn from the destruction of records is predicated on bad conduct
by the defendant”).
Plaintiff has not met her burden of proving that Defendant manipulated the images
through some bad or culpable act. Plaintiff suggests that the Defendants altered the images in
Plaintiff’s exhibits B and C [docs. # 21-4; # 21-5] to make it appear as though the image
represented what Plaintiff had posted to Facebook. [doc. # 21-1, p. 7]. Plaintiff contends that
defendant has now turned over “less-altered evidence”, which has “been in their possession since
September 2014.” [doc. # 30, p. 7].
However, this assertion falls short of proving that the Defendants purposefully and
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wrongfully manipulated the image in order to advance their position in anticipation of this
litigation. Additionally, Plaintiff has failed to demonstrate that Defendants had a duty to preserve
the original image posted as it appeared on Facebook and that Plaintiff was actually prejudiced
by it. Because Plaintiff has failed to prove misconduct by the Defendants, Plaintiff’s motion for
monetary sanctions or to preclude the use of the image is denied.
VII. Request for Discovery Through a Forensic Expert
Plaintiff seeks to have a forensic expert review Defendants’ computers to obtain all
discoverable information in light of Defendants’ alleged dishonesty during litigation. [doc. # 211, p. 9-10]. The comments to the federal rules make clear that, while direct “access [to a party’s
electronic storage device] might be justified in some circumstances,” the rules are “not meant to
create a routine right of direct access.” FED. R. CIV. P. 34 notes of the advisory committee to the
2006 amendments. When allowing such access, the comments to Rule 34 warn courts to “guard
against undue intrusiveness.” Id.
The requesting party should also show that the responding party’s production “has been
inadequate and that a search of the opponent’s [electronic storage device] could recover deleted
relevant materials.” Diepenhorst v. City of Battle Creek, 2006 WL 1851243, at *9 (W.D. Mich.
June 30, 2006) (citing Simon Prop. Group LP v. mySimon, Inc., 194 F.R.D. 639, 640–641 (S.D.
Ind. 2000)). Courts have been reluctant to rely on mere skepticism or bare allegations that the
responding party has failed to comply with its discovery duties. See A.M. Castle & Co. v. Byrne,
2015 WL 4756928, at *2 (S.D. Tex. Aug. 12, 2015) (discussion of Federal case law on direct
access to a party’s electronic device); see also Scotts Co. v. Liberty Mut. Ins. Co., 2007 WL
1723509, at *2 (S.D. Ohio June 12, 2007); see also Balfour Beatty Rail, Inc. v. Vaccarello, 2007
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WL 169628, at *3 (M.D. Fl. Jan. 18, 2007) (denying access to responding party’s hard drives
where requesting party failed to demonstrate responding party’s non-compliance with its
discovery duties); see also McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822,
831 (10th Cir. 2001) (noting that skepticism alone is not sufficient to permit direct access to an
opponent’s electronic storage device).
Plaintiff has been unable to allege more than mere skepticism or bare allegations that the
responding party failed to comply with the discovery rules. Under the circumstances, the court
will not grant Plaintiff’s request to allow a forensic expert to image Defendants’ computers and
servers to obtain all discoverable information.
VIII. Request for Attorney’s Fees
The court generally must award reasonable expenses to the prevailing party on a motion
to compel. FED. R. CIV. P. 37(a)(5)(A). The rule authorizes exceptions, however, for responses
that were substantially justified or other circumstances that make an award unjust. Id. Moreover,
when, as here, a motion to compel is granted in part and denied in part, the court may apportion
the reasonable expenses associated with the motion. FED. R. CIV. P. 37(a)(5)(C). Considering the
mixed relief obtained by movant and the Plaintiff’s failure to comply with Local Rule 37.1, the
court is not inclined to assess costs, expenses, and/or fees in this instance.
Conclusion
For the reasons stated above,
IT IS ORDERED that the motion to compel discovery [doc. # 21] filed by Plaintiff
Deborah Vailes, is hereby GRANTED IN PART and DENIED IN PART. Within 14 calendar
days from the date of this order, Defendants shall supplement their discovery responses in
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accordance with the opinion herein.
IT IS FURTHER ORDERED that Defendants’ motion for a protective order,
nominated in its opposition memorandum as a “request,” [doc. # 29, p. 12] is hereby GRANTED
as outlined in Defendants’ proposed protective order [doc. # 29-8] and subject to Plaintiff’s
modification [doc. # 30, p. 6] described above. The proposed protective order, modified as
ordered herein, is to be filed on or before February 26, 2016.
IT IS FURTHER ORDERED that Plaintiff’s motion for sanctions based on spoliation
[doc. # 21] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s request for direct access to outstanding
discovery contained in Defendant’s computer or server through a forensic expert [doc. # 21] is
DENIED.
IT IS FURTHER ORDERED that Plaintiff’s request for costs and/or fees [doc. # 21] is
DENIED.
In Chambers, Monroe, Louisiana, this 22nd day of February, 2016.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

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