Williams v. Jeld-Wen Inc

Filing 140

MEMORANDUM ORDER granting in part and denying in part 89 Motion to Compel; denying 89 Motion for Attorney Fees; granting in part and denying in part 101 Motion to Compel; denying 101 Motion for Attorney Fees. Signed by Magistrate Judge Joseph H L Perez-Montes on 2/18/2022. (crt,Reeves, T)

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b

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
RAY WILLIAMS,
Plaintiff

CIVIL DOCKET NO. 1:17-CV-01366

VERSUS

DISTRICT JUDGE DRELL

JELD-WEN, INC.,
Defendant

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court are Motions to Compel filed Plaintiff Ray Williams
(“Williams”) and Defendant Jeld-Wen, Inc. (“Jeld-Wen”). ECF Nos. 89, 101. JeldWen seeks an order to produce: (1) a settlement agreement her reached in a
previous lawsuit against a prior employer; and (2) emails between Williams’s wife
and Williams’s attorney. Jeld-Wen also seeks costs and attorney fees. ECF No. 89.
Jeld-Wen’s Motion to Compel (ECF No. 89) is GRANTED IN PART AND DENIED
IN PART, and its Motion for Attorney’s Fees and Costs (ECF No. 89) is DENIED.
Williams filed a Motion to Compel Jeld-Wen to fully answer each if his
discovery requests pursuant to Fed. R. Civ. P. 33(b)(4) and 34, contending Jeld-Wen
waived its objections to the requests by submitting its answers and responses late.
ECF No. 101. Williams’s Motion to Compel (ECF No. 101) is GRANTED IN PART
AND DENIED IN PART, and his motion for Attorney’s Fees and Costs (ECF No.
101) is DENIED.

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I.

Jeld-Wen’s Motion to Compel is GRANTED IN PART AND DENIED IN
PART and its Motion for Attorney’s Fees and Costs is DENIED.
A.

Jeld-Wen’s Motion to Compel Williams
Settlement Agreement is DENIED.

to

Produce

Plaintiff’s

Jeld-Wen asks the Court to compel Williams to produce a settlement
agreement with a previous employer in a prior lawsuit.

ECF No. 89.

In his

deposition, Williams testified that he had previously sued a prior employer and that
the case had settled.

When Jeld-Wen requested the settlement agreement,

Williams’ attorney refused, explaining that the settlement agreement contained a
confidentiality agreement that prohibited Williams from disclosing the facts
underlying the case.
Jeld-Wen argues, vaguely, that Williams’ allegations in the prior case “would
have a bearing on Williams’s credibility.”

Citing Sonnino v. University of Kansas

Hospital Authority, 2004 WL 769325 (D. Kan. 2004), Jeld-Wen argues that the Court

need not address the argument that the evidence is not admissible at trial, but only
need determine whether it is reasonably calculated to lead to the discovery of
admissible evidence, such as proof of intent or impeachment evidence.
Fed. R. Civ. P. 26(b)(1) governs the scope of discovery.

It provides that

“[p]arties may obtain discovery regarding any matter, not privileged, that is
relevant to the claim or defense of any party, including the existence, description,
nature, custody, condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
2

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discoverable matter. . . . Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”

The moving party bears the burden of showing that the materials and

information sought are relevant to the action or will lead to the discovery of
admissible evidence.

See Davis v. Young, 2012 WL 530917, at *3 (E.D. La. 2012)

(citing Export Worldwide, Ltd. v. Knight, 241 F .R.D. 259, 263 (W.D. Tex. 2006)).
As a general matter, Rule 26(b)(1) provides for two types of discoverable
information: “unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged matter that is
relevant to the claim or defense of any party. . . . For good cause, the court may
order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence. All discovery
is subject to the limitations imposed by Rule 26(b)(2)(C).”
While the Federal Rules of Procedure do not define “relevant,” courts turn to
the definition in Federal Rule of Evidence 401: “‘Relevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” See Enron Corporation Savings Plan v. Hewitt Associates, L.L.C.,
258 F.R.D. 149, 159 (S.D. Tex. 2009).

“Relevancy is broadly construed, and a

request for discovery should be considered relevant if there is ‘any possibility’ that
3

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the information sought may be relevant to the claim or defense of any party . . . .”

See Enron Corporation Savings Plan, 258 F.R.D. at 159 (citing Merrill v. Waffle
House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)). The party resisting discovery
bears the burden to clarify and explain its objections and to provide support for
those objections. See id.
Relevance, for the purposes of Rule 26(b)(1), is when the request is
reasonably calculated to lead to the discovery of admissible evidence. See Van Dyke

v. Retzlaff, 2020 WL 1866075, at *1 (E.D. Tex. 2020) (citing Crosby v. Louisiana
Health & Indemnity Co., 647 F.3d 258, 262 (5th Cir. 2011)). Rule 37 of the Federal
Rules of Civil Procedure allows a discovering party, on notice to other parties and
all affected persons, to “move for an order compelling disclosure or discovery.” Fed.
R. Civ. P. 37(a)(1). See Van Dyke, 2020 WL 1866075, at *1. The moving party
bears the burden of showing that the materials and information sought are relevant
to the action or will lead to the discovery of admissible evidence. See Van Dyke,
2020 WL 1866075, at *1 (citing Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259,
263 (W.D. Tex. 2006)).
Once the moving party establishes that the materials requested are within
the scope of permissible discovery, the burden shifts to the party resisting discovery
to show why the discovery is irrelevant, overly broad, unduly burdensome, or

4

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oppressive, and thus should not be permitted. See id1; see also Enron Corporation

Savings Plan, 258 F.R.D. at 159 (citing McLeod, Alexander, Powel & Apffel, P.C. v.
Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (holding that objections to document
requests on the ground that they were “overly broad, burdensome, oppressive, and
irrelevant” were insufficient)).

“[B]oilerplate objections are not acceptable . . .

specific objections are required in responding to a Rule 34 request.”

Enron

Corporation Savings Plan, 258 F.R.D. at 159 (citing Frontier–Kemper Constructors,
Inc. v. Elk Run Coal Company, Inc., 246 F.R.D. 522, 528 (S.D. W. Va. 2007)).
Jeld-Wen argues broadly that the settlement agreement in Williams’ prior
case against a different employer is “reasonably calculated” to lead to the discovery
of evidence regarding Plaintiff’s credibility and his intent or motive in filing his
claims.

Jeld-Wen has not produced either its discovery request or Williams’s

response to it.
In Sonnino, the Court “agree[d] with Plaintiff that information pertaining to
an EEOC charge of discrimination that she filed against a prior employer is not
relevant to whether the adverse employment actions taken against her by
defendants in this case were motivated by discriminatory animus,” but were
relevant “to the defense of these claims, specifically the credibility of Plaintiff's

Rule 26(b) “has never been a license to engage in an unwieldy, burdensome, and
speculative fishing expedition.” Dockery v. Christopher Epps, 2014 WL 12573327, at *4
(S.D. Miss. 2014) (citing Crosby v. Louisiana Health Services and Indemnity Co., 647 F.3d
258, 264 (5th Cir. 2011)).
1

5

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allegations of discrimination in this case.” Sonnino, 2004 WL 769325 at *2. It
appears that, in Sonnino, the court did not require a specific showing of how the
previous settlement agreement is “reasonably calculated to lead to the discovery of
admissible evidence.” No specifics were discussed in the opinion.
In this case, Jeld-Wen has likewise offered no reasoning as to how the prior
settlement agreement, from an unrelated case, is “reasonably calculated” to lead to
the discovery of admissible evidence. Although Jeld-Wen claims the documents are
relevant to Williams’s credibility, it has not explained how.
Williams testified in his deposition that he sued his previous employer
(Greenbriar/Gunderson Rail Services) in 2007 or 2008 for age discrimination and
because other employees placed some drawings on his desk: (1) a picture of
clansmen with the clan emblem and a teardrop; (2) a picture of an African with a
bone through his nose and by his eyes; and (3) a picture of the cartoon character
Snoopy dressed in camouflage and shooting black men. ECF No. 95-1 at 7-8.
Williams also testified that similar graffiti was laced on tank cars and box
cars, and that once another employee held up a noose for him to see. ECF No. 95-1
at 8.

Williams testified that he had also been passed over for promotions at

Greenbriar. ECF No. 95-1 at 8. Williams had a different attorney for the previous
lawsuit. ECF No. 95-1 at 9. Williams also testified that, under the terms of the

6

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settlement agreement, Greenbriar paid him a sum of money and he agreed to leave
its employ.2 ECF No. 95-1 at 8.
In Salvatorie Studios, International v. Mako's, Inc., 2001 WL 913945, at *1
(S.D.N.Y. 2001), the court was also presented with a request for a settlement
agreement from a previous, unconnected lawsuit. Citing Rule 26(b)(1), the Court
found the defendant had failed to demonstrate relevance because it failed to
establish that the settlement agreement it sought was in any way relevant to the
claims or defenses raised in this action—a different lawsuit against a different
party.
“Once a settlement is filed in district court, it becomes a judicial record. The
presumption in favor of the public's common law right of access to court records
therefore applies to settlement agreements that are filed and submitted to the
district court for approval.” Bradley on behalf of AJW v. Ackal, 954 F.3d 216, 225–
26 (5th Cir. 2020). “There is no established presumption of access” to information
contained in settlement documents that were “entered into on a confidential basis
between the parties and are not themselves a part of the court record.” Bradley on

behalf of AJW, 954 F.3d at 225–26 (citing Gambale. Deutsche Bank AG, 377 F.3d
133, 143 (2d Cir. 2004)).

Williams’s attorney submitted a copy of the settlement agreement to the Court for in
camera inspection. An inspection is not required because Jeld-Wen has not carried its
2

burden of proof regarding relevance.

7

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In this case, the settlement agreement sought by Jeld-Wen was not filed into
the record of the court. Instead, the parties simply notified the court the case had
settlement and the case was dismissed.. See Williams v. Gunderson Rail Services,
3:07-CV-00887 (W.D. La.) (Monroe Division).
Jeld-Wen has not explained how obtaining Williams’s written settlement
agreement with his previous employer would lead to the discovery of admissible
evidence as to Williams’s credibility. See Morris v. Aircon Corp., 2016 WL 7665418,
at *2 (E.D. Tex. 2016) (“Aircon was unable to articulate how these potential needs
fell within the ‘claim or defense’ rubric in Rule 26.”); Gardner v. Huott, 2015 WL
12733406, at *10 (W.D. Tex. 2015) (Because Plaintiffs did “not present an analysis
to demonstrate which claim(s) or defense(s) to which the information at issue is
relevant or explain why the requests are reasonably calculated to lead to the
discovery of admissible evidence” and “fail[ed] to present argument to support their
conclusory assertion,” their motion to compel was denied.); Castillo v. Bank of

America, N.A., 2013 WL 12394348, at *8 (W.D. Tex. 2013) (Because “plaintiff's
motion to compel provides no argument or authority to show such information and
documents is a ‘nonprivileged matter that is relevant to any party's claim or
defense,’ including information that may not be admissible at the trial, but is
reasonably calculated to lead to the discovery of admissible evidence” . . . “plaintiff
has not sustained his burden to show the issuance of an order compelling further
discovery is appropriate.”).
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Williams’s previous lawsuit was filed ten years before this action and clearly
involved different circumstances and defendants. The only connection is similarity
in the nature of some of Williams’s claims.3 Because Jeld-Wen has not explained
why or how the settlement agreement in that prior action is likely to lead to the
discovery of admissible evidence in this action, Jeld-Wen’s Motion to Compel
discovery of the settlement agreement (ECF No. 89) is DENIED.
B.

Jeld-Wen’s Motion to Compel Williams to produce
correspondence between his wife and his attorney is DENIED.

Jeld-Wen

asks

the

Court

to

Compel

Williams

to

produce

email
email

correspondence between Williams’s wife (Maudie Williams) and Williams’s attorney
(James Carroll).

ECF No. 89.

Williams claims the marital privilege and the

attorney-client privilege.
During his deposition, Williams testified: “when I come home I have my wife,
she writes things down for me.” ECF No. 95-1 at 39 (dep. p. 152). Williams testified
that his conversation with the HR manager was something he would have written
down in his diary. ECF No. 95-1 at 39 (dep. p. 152).

If Jeld-Wen seeks the settlement agreement in order to try to evaluate the value of
Williams’s claim, a court in this Circuit has already held that “a settlement agreement and
its impact on an evaluation of the case and potential future settlements” is not “relevant to
the merits of a claim or defense” and therefore not discoverable for that reason. See Morris,
2016 WL 7665418, at *2.
3

9

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Jeld-Wen made a discovery request for that diary or written chronology.
Williams responded that it is protected by the attorney-client privilege, and
attached a privilege log that references emails dating back to 2018 from Maudie
Williams to James Carroll. Apparently, because this action had already been filed,
Williams would tell his wife about his interactions at work and she would “write
them down” in an email to Williams’s attorney.
Jeld-Wen contends that Williams’s privilege log references emails dating
back to 2018 from Maudie Williams to attorney James Carroll. Jeld-Wen asks the
Court to compel Williams to produce those emails.
Williams’s attorney, James Carroll, contends that those emails are protected
by the attorney-client privilege (as stated in the privilege log) and the marital
privilege. Jeld-Wen responds that neither privilege is applicable.
1. The spousal privilege is not applicable.
Communications between the spouses, privately made, are generally
assumed to have been intended to be confidential, and hence they are privileged;
but, wherever a communication, because of its nature or the circumstances under
which it was made, was obviously not intended to be confidential, it is not a
privileged communication. See Wolfle v. United States, 291 U.S. 7, 14 (1934); see

also United States v. Livingston, 272 Fed. Appx. 315, 316-17 (5th Cir. 2008).
The spousal privilege only permits Williams to prohibit disclosure to a third
party (such as Jeld-Wen) by Maudie Williams of a communication made to her by
10

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Williams. It does not preclude disclosure by Carroll (a third party) to another third
party of a communication between Williams and Maudie that Maudie has already
disclosed to Carroll. See United States v. Koehler, 790 F.2d 1256, 1258 (5th Cir.
1986) (citing Wolfle, 291 U.S. at 14 (“[T]he spousal communication privilege applies
only to husband/wife communications when no third party is present.”)).
In Johnson v. Oscar Winski Company, Inc., 2020 WL 4539620, at *3 (N.D.
Ind. 2020), the court expressly rejected the argument (also made by Plaintiff herein)
that “the marital privilege meshes into the attorney-client privilege to create a unit
of three persons where confidentiality remains unbroken.”
Therefore, the spousal privilege does not protect Maudie Williams’s emails to
Williams’s attorney.
2. The attorney-client privilege is not applicable.
Williams also asserts the attorney-client privilege protects the emails
between his wife and his attorney. Jeld-Wen contends the attorney-client privilege
does not protect Maudie Williams’s communications with Williams’s attorney.4
The purpose of the attorney-client privilege to be “to encourage clients to
make full disclosures to their attorneys.” United States v. El Paso Co., 682 F.2d
530, 538 (5th Cir. 1982), cert. den., 466 U.S. 944 (1984) (quoting Upjohn Co. v.
To the extent that Jeld-Wen may still argue that Maudie Williams sent Williams’s
attorney a “diary,” it is noted that Williams admitted only the existence of emails from his
wife to his attorney, not of a “diary.” There does not appear to be a pre-existing document
that were transferred to Williams’s attorney.
4

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United States, 449 U.S. 383, 389 (1981)). Sound legal advice or advocacy serves
public ends and depends upon the lawyer being fully informed by the client. See El

Paso Co., 682 F.2d at 538. The privilege protects only those disclosures necessary to
obtain informed legal advice which might not have been made absent the privilege.

See Fisher v. United States, 425 U.S. 391, 403 (1976).
The attorney-client privilege only protects disclosure of communications. It
does not protect disclosure of the underlying facts by those who communicated with
the attorney. See Upjohn Co., 449 U.S. at 395–96. “[T]he protection of the privilege
extends only to communications and not to facts.

A fact is one thing and a

communication concerning that fact is an entirely different thing.” Upjohn Co., 449
U.S. at 396. “The client cannot be compelled to answer the question, ‘What did you
say or write to the attorney?’ but may not refuse to disclose any relevant fact within
his knowledge merely because he incorporated a statement of such fact into his
communication to his attorney.” Upjohn Co., 449 U.S. at 396.
“A party invoking the attorney-client privilege bears the burden of
demonstrating its applicability and must show: (1) that he made a confidential
communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of
securing either a legal opinion or legal services, or assistance in some legal
proceeding.” Tonti Mgmt. Co., Inc. v. Soggy Doggie, L.L.C., 2020 WL 9172077, at *3
(E.D. La. 2020). Disclosure of privileged communications to a third party generally
eliminates the confidentiality of the attorney-client privilege and serves to waive
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the privilege. See Tonti Mgmt. Co., Inc., 2020 WL 9172077, at *4. This waiver rule,
however, is subject to certain exceptions.

See Tonti Mgmt. Co., Inc., 2020 WL

9172077, at *3.
The attorney-client privilege is not waived by disclosure of confidential
communications

to

third

parties

if

those

third

parties

are

“agents”

or

“representatives” of the client who made or received a confidential communication
for the purpose of effecting legal representation for the client, while acting in the
course and scope of employment for the client. See Tonti Mgmt. Co., Inc., 2020 WL
9172077, at *4.

Disclosure of an attorney-client communication to an agent is

privileged only “if the disclosure was to an agent ‘whose services are necessary for
effective [legal] representation of the client's interests.’” See Tonti Mgmt. Co., Inc.,
2020 WL 9172077, at *5 (citing Louisiana Municipal Police Employees Retirement

System v. Sealed Air Corp., 253 F.R.D. 300, 311 (D.N.J. 2008)). This means that
the agent must “evaluate the information and in a sense ‘translate’ it into
understandable terms for the non-expert attorney.” See Tonti Mgmt. Co., Inc., 2020
WL 9172077, at *5 (citing Louisiana Municipal Police Employees Retirement

System, 253 F.R.D. at 312).
The party who claims that a third party is its agent for purposes of the
privilege bears the burden of showing that the person in question worked at the
direction of the lawyer, and performed tasks relevant to the client's obtaining legal
advice, while responsibility remained with the lawyer. See Tonti Mgmt. Co., Inc.,
13

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2020 WL 9172077, at *5.

The critical inquiry is whether the representative

“furthers the provision of legal services to the client.” See Tonti Mgmt. Co., Inc.,
2020 WL 9172077, at *5.
Williams bears the burden of showing that his wife worked at the direction of
his attorney, Carroll, when she emailed his attorney regarding Williams’s daily
interactions with his co-workers. Compare King v. University Healthcare System,

L.C., 2009 WL 10679780, at *5 n. 38 (E.D. La. 2009); see also El Paso Co., 682 F.2d
at 541. Williams has not done that. Williams indicates, instead, that his wife wrote
down his daily interactions with co-workers and emailed it to Williams’s attorney at
Williams’s instigation. Therefore, the attorney-client privilege is not applicable.
Williams further argues that Carroll represented both he and his wife.
However, Williams is the only named Plaintiff in this action. Williams has not
produced a contract to show Carroll is representing both Williams and his wife.
Finally, Williams has not shown that he and his wife have a “common legal
interest” privilege, since that applies only to: (1) communications between codefendants in actual litigation and their counsel; and (2) communications between

See Tonti Mgmt. Co., Inc., 2020 WL

potential co-defendants and their counsel.
9172077, at *4.

The common legal interest privilege has not been extended to

plaintiffs. See Tonti Mgmt. Co., Inc., 2020 WL 9172077, at *4 n. 25 (citing BCR

Safeguard Holding, L.L.C. v. Morgan Stanley Real Estate Advisor, Inc., 614 Fed.
Appx. 690, 703 (5th Cir. 2015)).
14

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It is noted that, from Williams’s statements in his deposition concerning the
emails to his attorney, the emails concerned his interactions with co-workers while
at work. In other words, the emails concerned facts as to who he interacted with,
when, and how. Those are facts which are otherwise discoverable by Jeld-Wen and
which are not protected by the attorney-client privilege.
Because the emails are not protected by a privilege, Jeld-Wen’s Motion to
Compel discovery of the emails from Maudie Williams to Williams’s attorney (ECF
NO. 89) IS GRANTED. Williams SHALL PROVIDE the emails to defense counsel
WITHIN 14 DAYS OF THE DATE OF THIS ORDER.
Plaintiff’s counsel SHALL FILE A NOTICE OF COMPLIANCE with the
Court WITHIN 14 DAYS from the date of this order.
C.

Jeld-Wen’s Motion for Attorney Fees and Costs is DENIED.

Jeld-Wen asks for an award of attorney fees and costs.

Fed. R. Civ. P.

37(a)(4)(A) provides that when a motion to compel is granted, “the court shall, after
affording an opportunity to be heard, require the party or deponent whose conduct
necessitated the motion or the party or attorney advising such conduct or both of
them to pay to the moving party the reasonable expenses incurred in making the
motion, including attorney's fees, unless the court finds that the motion was filed
without the movant's first making a good faith effort to obtain the disclosure or
discovery without court action, or that the opposing party's nondisclosure, response,

15

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or objection was substantially justified, or that other circumstances make an award
of expenses unjust.” See Walker v. Petry, 2006 WL 1084003, at *1 (W.D. La. 2006).
A movant may be considered a “prevailing party” for attorney's fees purposes
if he succeeds on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit. See Abner v. Kansas City Southern

Railway Co., 541 F.3d 372, 382 (5th Cir. 2008) (citing Hensley v. Eckerhart, 461
U.S. 424, 433 (1933)). This is a generous formulation that brings the plaintiff only
across the statutory threshold. It remains for the district court to determine what
fee is “reasonable. See Hensley, 461 U.S. at 433.
Because the existence and factual content of the emails was largely disclosed
to Jeld-Wen by Williams during his deposition, and Jeld-Wen could have otherwise
discovered the facts as to

Williams’s employee interactions by questioning or

deposing the employees themselves,

Jeld-Wen’s Motion for Attorney’s Fees and

Costs (ECF No. 89) associated with its Motion to Compel is DENIED.
II.

Williams’s Rule 37 Motion to Compel discovery responses is GRANTED IN
PART AND DENIED IN PART, and his Motion for Attorney’s Fees and Costs
is DENIED.
Williams filed a Rule 37 Motion to Compel Jeld-Wen to comply with all of his

discovery requests, as well as a Motion for Attorney’s Fees and Costs. ECF No. 101.
Williams cites Fed. R. Civ. P. 33, contending that Jeld-Wen waived its right to
object to his discovery requests because it filed untimely responses.

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A.

Background

Williams alleges that he sent his First Request for Interrogatories and
Requests for Production of Documents to Defendant on February 12, 2020.
Defendant’s responses were due March 13, 2020, but Williams’s attorney gave JeldWen’s counsel an informal extension of time to answer, to March 13, 2020. ECF No.
101-1 at 1.
Shortly thereafter, Jeld-Wen terminated its relationship with that law firm.
New counsel were enrolled on March 13, 2020. Defense counsel inquired on July 15,
2020 whether prior counsel had responded to Williams’s discovery request. ECF
No. 101-1 at 1. On being told they had not, defense counsel stated she would send
the responses as soon as possible.

Williams received discovery Answers to

Interrogatories on November 9, 2020 and Responses to Requests for Production on
December 30, 2020. ECF No. 101-1 at 2; ECF No. 119 at 12.5
On March 1, 2021, Williams’s attorney mailed and emailed a letter to defense
counsel, detailing deficiencies in their discovery responses.

Defense counsel

supplemented their answers to interrogatories on March 25, 2021, and
supplemented their responses to requests for production of documents on April 22
and 26, 2021. ECF No. 101-1 at 2; ECF No. 119 at 12.
Plaintiff’s counsel than sent a Second Set of Requests for Production of
Documents on May 4, 2021. On May 5, 2021, Williams received Defendant’s “First
Defendant contends responses to both the First Set of Request for Production and the
First Set of Interrogatories were provided on November 9, 2020.
5

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Amended

Response

to

Request

for

Production

of

Documents,”

involving

renumbering of the Bates stamps. ECF No. 101-1 at 2.
On June 10, 2021, Williams sent Defendant a second set of Interrogatories
and a letter to counsel detailing the documents they had agreed to produce in the
depositions of George Plunkett and Crystal Green on June 7, 2021. ECF No. 101-1
at 2; No. 101-2. On June 23, 2021, Williams sent a second letter to Defense counsel
inquiring about the documentation that was to be produced after the June 7, 2021
depositions.

Williams also sent a Third Set of Requests for Production of

Documents. ECF No. 101-1 at 2; No. 101-3.
During a Rule 37 conference on July 14, 2021, Williams’s attorney asked
defense counsel why they had not responded to Plaintiff’s discovery.

Defense

counsel’s response was “you know what to do.” ECF No. 101-1 at 3.
After the Rule 37 conference on July 14, 2021, Plaintiff received Defendant’s
Third Supplemental Response to Plaintiff’s First Set of Requests for Production of
Documents. ECF No. 101-1 at 2; ECF No. 119 at 12. Defendant responded to
Williams’s Second Request for Production of documents on July 27, 2021. ECF No.
101-1 at 2; ECF No. 119 at 12. On August 3 or 4, 2021, Defendant sent its answers
to plaintiffs second set of interrogatories and its responses to Plaintiff’s third set of
requests for production of documents. ECF No. 101-1 at 2; ECF No. 119 at 12.
On August 18, 2021, Williams sent a third letter to defense counsel regarding
their responses to the requests for production of documents and held a Rule 37
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counsel with defense counsel to address defendant’s objections. Williams then filed
this Motion to Compel as to certain requests for production of documents, arguing
Defendant had waived all objections by providing untimely responses to Williams’s
discovery requests. ECF No. 101.
On September 9, 2021, Defense counsel sent supplemental responses to
Williams’s Third Set of Requests for Production of Documents. ECF No. 119 at 12.
B.

Jeld-Wen’s objections to Williams’s Second and Third Sets of Requests
for Production of Documents are waived.

Under Fed. R. Civ. P. 33(b), a party must serve its answers and any
objections to interrogatories within thirty days after being served with the
interrogatories. “For each item or category, the response must either state that
inspection and related activities will be permitted as requested or state an objection
to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). An evasive or
incomplete response is treated as a failure to answer or respond. Fed. R. Civ. P.
37(a)(4). See Ocean Sky International, L.L.C. v. The LIMU Company, L.L.C., 2020
WL 4927516, at *4 (W.D. La. 2020).
Absent good cause, when a party fails to object timely to interrogatories,
production requests, or other discovery efforts, then any objections thereto are
waived. See Jackson v. YRC, Inc., 2016 WL 3566250, at *2 (W.D. La. 2016) (citing

In re: United States of America, , 1156 (5th Cir. 1989)). Courts have held that Rule
34 implicitly incorporates both the waiver and “good cause” provisions of Rule
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33(b)(4). See RE/MAX International, Inc. v. Trendsetter Realty, L.L.C., 2008 WL
2036816, at *6 (S.D. Tex. 2008). Courts generally make no distinction between
interrogatories and requests for production. See Madison One Holdings, L.L.C. v.

Punch International, B.V., 2008 WL 11483220, at *1 (S.D. Tex. 2008).6
Untimely objections are waived “unless the court, for good cause, excuses the
failure.” Fed. R. Civ. P. 33(b)(4); see also Madison One Holdings, L.L.C., 2008 WL
11483220, at *1 (citing In re United States, 864 F.2d at 1156); Bolden v. Federal

Emergency Management Agency, 2007 WL 2990547, at *1 (E.D. La. 2007)
(Defendant's failure to provide timely responses to plaintiffs' interrogatories and
requests for production resulted in its waiver of all objections.). It is insufficient to
provide untimely written responses that are subject to and contain waived
objections. See also Bolden, 2007 WL 2990547, at *1. This waiver applies to all

Counsel have an obligation, as officers of the court, to assist in the discovery process by
making diligent, good-faith responses to legitimate discovery requests. See McLeod,
Alexander, Powel & Apffel, P.C., 894 F.2d at 1486; see also Innova Hospital San Antonio,
Limited Partnership v. Blue Cross and Blue Shield of Georgia, Inc., 892 F.3d 719, 729 at n.
9 (5th Cir. 2018). Where no explanation or excuse for a failure to timely serve responses
and objections to interrogatories is given, a party fails to demonstrate good cause to excuse
this failure. See Talley v. Spillar, 2017 WL 9288622, at *3 (W.D. Tex. 2017) (citing
Paralikas v. Mercedes Benz, LLC, 2008 WL 111186, at * 1 (E.D.N.Y. 2008) (“In cases where,
as here, no good cause has been shown for the late responses, a finding of waiver is
appropriate.”)). Delays caused by the flouting of discovery deadlines “are a particularly
abhorrent feature of today's trial practice.” McLeod, Alexander, Powel & Apffel, P.C., 894
F.2d at 1486 (citing Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990)). “They
increase the cost of litigation, to the detriment of the parties enmeshed in it; they are one
factor causing disrespect for lawyers and the judicial process; and they fuel the increasing
resort to means of non-judicial dispute resolution. Adherence to reasonable deadlines is
critical to restoring integrity in court proceedings.” Id.
6

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objections, including objections based on attorney-client privilege and work product.

See Madison One Holdings, L.L.C., 2008 WL 11483220, at *1.
However, there are exceptions to automatic imposition of a waiver. Courts
have found that, pursuant to Rule 26(b)(5) which concerns withholding information
on the basis of privilege, the failure to timely object on the basis of privilege does
not result in an automatic waiver.

See B&S Equipment Co., Inc. v. Truckla

Services, Inc., 2011 WL 2637289, at *5 (E.D. La. 2011); see also Seals v. Shell Oil
Company, 2013 WL 12439172, at *3 (E.D. La. 2013). Moreover, a court may not
order discovery responses that violate a statutory proscription. See In re United

States, 864 F.2d at, 1156.

And some courts have allowed untimely discovery

objections even in the absence of a good-cause showing. A court has the “discretion
to decline to compel production of requested documents even if a timely objection
has not been made ‘... when the request far exceeds the bounds of fair discovery
(4)27’ ” See RE/MAX International, Inc., 2008 WL 2036816, at *6. A court can also
refuse to find waiver where the requested information is neither relevant to the
subject matter of the suit nor reasonably calculated to lead to the discovery of
admissible evidence. See Salman v. Balderas, 2019 WL 11005040, at *2 (E.D. La.
2019).
In determining whether good cause exists and waiver should be denied, a
court may resort to a factor-based test: “(1) the length of the delay or failure to
particularize; (2) the reason for the delay or failure to particularize; (3) whether
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there was any dilatory or bad faith action on the part of the party that failed to
raise the objection properly; (4) whether the party seeking discovery has been
prejudiced by the failure; (5) whether the document production request was
properly framed and not excessively burdensome; and (6) whether waiver would
impose an excessively harsh result on the defaulting party.” Enron Corp. Savings

Plan v. Hewitt Associates, L.L.C., 258 F.R.D. 149, 157 (S.D. Tex. 2009); see also
Salman, 2019 WL 11005040, at *3.

“Acknowledging the harshness of a waiver

sanction, courts have reserved the sanction for those cases where the offending
party committed unjustified delay in responding to discovery. Minor procedural
violations, good faith attempts at compliance, and other such mitigating
circumstances militate against finding waiver.” Salman, 2019 WL 11005040, at *3
(citing Enron Corp. Savings Plan, 258 F.R.D. at 157).
Still, “[g]enerally, in the absence of an extension of time or good cause, the
failure to file a written response in the time fixed by the rule constitutes a waiver of
any objection.” Salman, 2019 WL 11005040, at *2 (quoting Ordoyne v. McDermott,

Inc., 2000 WL 1154616, at *1 (E.D. La. 2000)); see also Serigne v. Preveau, 2013 WL
1789520, at *3 (E.D. La. 2013); Seals, 2013 WL 12439172, at *3; B & S Equipment

Co. v. Truckla Services Inc., 2011 WL 2637289, at *5 (E.D. La. 2011).
Although Williams did not file a Motion to Compel responses to his First Set
of Discovery, it is noted that Defendant’s responses to those interrogatories were
almost eight months late and the responses to the requests to production of
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documents were nine-and-a-half months late.

After Plaintiff’s counsel gave an

informal extension of time, current defense counsel enrolled on the day those
responses were due, made no inquiry about them until mid-July 2020, then sent the
responses several months after that. Defendant alleges generally that there were
delays due to COVID (in 2020).
However, in mid-2021, defense counsel continued to send untimely discovery
responses to Williams–seven-and-a-half weeks late for the responses to the Second
Set of Requests for Production of Documents, and six weeks late for the responses to
the Third Set of Requests for Production of Documents.
For good cause for its dilatoriness as to the Second and Third Sets of
discovery, defense counsel contends the delays were caused by “COVID-19,” the fact
that Williams has filed four EEOC charges, and the large amount of information
sought by Williams in discovery. ECF No. 119 at 13.
However, by July of 2021, vaccines were available and many COVID-related
restrictions had been lifted.

Moreover, the number of EEOC charges filed by

Williams is irrelevant, particularly where the discovery on each charge appears to
have some overlap. Even if Williams sought a large and burdensome amount of
information (which he does not appear to have done), that is not “good cause” for
delaying a response.

Williams’s attorney had already shown himself willing to

grant informal extensions and wait on discovery as long as Jeld-Wen appeared to be
working with him.
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Accordingly, Defendant generally waived its objections to Williams’s second
and third sets of discovery. However, as discussed below, that waiver does not
mean that Williams is automatically entitled to the information he seeks.
1.

Plaintiff’s Motion to Compel for Request for Production No. 28 is
GRANTED IN PART AND DENIED IN PART.

In his Second Set of Requests for Production, Williams asks Jeld-Wen to
“[p]roduce the personnel files for the following employees or former employees of
Jeld-Wen, including but not limited to their application, resume, jobs bids, and test
results.” Williams lists 17 employees.
Jeld-Wen responded that its employees’ personnel files may contain medical
information and personal data identifiers that it is prohibited from disclosing
pursuant to Rule 5.2. Jeld-Wen further argues that it has been unable to determine
how eight of the persons named by Williams may be related to the instant lawsuit,
whether they have facts relevant to the action, or whether they are or were
employees of Jeld-Wen.
Discovery of the personnel files of all persons presents special concerns about
the privacy rights of the individuals involved. See Zantiz v. Seal, 2013 WL 2459269,
at *3 (E.D. La. June 6, 2013), aff'd, 602 Fed. Appx. 154 (5th Cir. 2015).

Any

employment personnel files can be expected to contain much information that is
personal and private, including medical records and personal data identifiers of the
type contemplated by Fed. R. Civ. P. 5.2(a), and that is irrelevant to a particular
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lawsuit. See Zantiz, 2013 WL 2459269, at *3. This does not mean that a party is
never entitled to discover relevant portions of the personnel files of an opponent's
employees or that everything contained in them is irrelevant. See Zantiz, 2013 WL
2459269, at *3. The court must balance the interests of the parties in obtaining
relevant discovery against the privacy interests of individual employees.

See

Zantiz, 2013 WL 2459269, at *3.
Thus, “a district court has discretion to determine whether discovery of such
files is warranted.”

Zantiz, 2013 WL 2459269, at *3 (citing Knoll v. American

Telephone & Telegraph Co., 176 F.3d 359, 365 (6th Cir. 1999); Atkinson v. Denton
Publishing Co., 84 F.3d 144, 148 (5th Cir. 1996)).

Before production of such

documents might be ordered, an in camera inspection of the documents may be
appropriate to determine both their relevance and their need for confidentiality, if
any. See Zantiz, 2013 WL 2459269, at *3 (citing Atkinson, 844 F.3d at 148).
Jeld-Wen contends that some of the information in the employee files cannot
be disclosed pursuant to Fed. R. Civ. P. 5.2.

However, Rule 5.2 provides for

redaction of protected information7 from documents filed with the Court. It does not
provide a ground for a complete failure to comply with a discovery request. JeldWen should have cooperated with Williams and produced redacted employee files,
instead of filing an overbroad objection. However, Williams has not explained to the
Rule 5.2 provides for redaction of an individual’s social-security number, taxpayeridentification number, or birth date, the name of an individual known to be a minor, or a
financial-account number, with specific exceptions, from filings made with the Court.
Additional information may redacted for good cause.
7

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Court why he needs employee medical records. Therefore, medical records should
also be redacted from the employee files.
Jeld-Wen’s objection that eight of the persons named by Williams may not
have been employees of Jeld-Wen, and may not be related to or relevant to this
lawsuit, is unacceptably vague. Jeld-Wen could and should have provided definitive
information as to employment status and specific objections as to each person.
However, Williams’s Motion to Compel Production No. 28 (ECF No. 101) is DENIED
IN PART. Jeld-Wen is not required to provide employee information as to any
persons who have never worked at Jeld-Wen, and as to those persons for whom
Williams did not provide a last name.
Williams’s Motion to Compel Production No. 28 is also GRANTED IN PART
(ECF No. 101). Jeld-Wen is ORDERED to provide employee information as to the
named employees, WITH APPROPRIATE REDACTIONS for social-security
numbers, taxpayer-identification numbers, birth dates, the name of minors,
financial-account numbers, and medical records,8 is GRANTED.

JELD-WEN’S

OBJECTION AS TO RELEVANCE IS WAIVED.
Counsel for both parties SHALL MEET WITHIN 14 DAYS of the date of this
Order and discuss what other employee information can be excluded from
production as unnecessary. Jeld-Wen IS ORDERED TO PRODUCE the employee
information requested by Plaintiff’s counsel WITHIN 7 DAYS THERAFTER.
And any other personal information that counsel for the parties can agree is private or is
not necessary.
8

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Defense counsel SHALL FILE A NOTICE OF COMPLIANCE with the Court
WITHIN 21 DAYS from the date of this order.
2.

Plaintiff’s Motion to Compel Requests for Production Nos. 29,
30, 31, 33, 34, 35, and 37 is DENIED AS MOOT.

In his Third Set of Requests for Production, Williams requests documents
that defense counsel contends are or have already been provided. In one instance,
Doc. No. 29, the document has been requested by defense counsel, who states it will
be provided when received. Williams has not explained what he is attempting to
compel as to these requests.
As to Williams’ Third Set of Requests for Production, Nos. 29, 30, 31, 33, 34,
35 and 37, Williams’s Motion to Compel is DENIED AS MOOT.
As to Request No. 29, IT IS ORDERED that, if it has not already been
provided, Jeld-Wen SHALL SUBMIT WITHIN 14 DAYS of the date of this order, “a
copy of the job posting that George Plunkett testified [to] at his deposition on June
7, 2021, [that] was either currently posted or had recently been removed from the
job board.”
Defendant SHALL FILE A NOTICE OF COMPLIANCE with the Court
WITHIN 14 DAYS from the date of this order.
3.

Plaintiff’s Motion to Compel for Request for Production No. 32 is
GRANTED.

In his Third Set of Requests for Production, in Request No. 32 Williams asks
for “a copy of the backup reports referenced in Exhibit # 9 of the June 7, 2021
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deposition of George Plunkett of 30 unsubmitted PM’s as well as 286 late submitted
PM’s.”

Defense counsel objected to the request, stating it cannot produce

documentation regarding “unsubmitted PM’s,” but that documentation reflecting
the late-submitted PM’s has been requested and will be supplemented upon receipt.
Williams’s Motion to Compel his Request for Production No. 32 (ECF No.
101) is GRANTED. To the extent it has not already done so, WITHIN 14 DAYS
Defense counsel shall provide the “late-submitted PM’s to Plaintiff. Defense counsel
shall also, WITHIN 14 DAYS, make every effort to obtain the “unsubmitted PM’s”
(see George Plunkett’s deposition), and shall notify Plaintiff’s Counsel of its efforts
and findings, and provide the documents, if found.
4.

Plaintiff’s Motion to Compel for Request for Production No. 36 is
GRANTED IN PART AND DENIED IN PART.

In Request No. 36, Williams requests” copies of all job postings that have
been posted to the job board for all millwright positions since January 1, 2021, along
with the names of each individual that applied for the posted positions; whether or
not they took examinations for the posted positions; and who was ultimately
selected for each posted millwright position, as well as copies of the selected
individuals’ tests (if any).
Defendant argues the request is overbroad and irrelevant to the pending
litigation.

Specifically, Defendant contends Williams has alleged individual

disparate treatment, and not a class action with a pattern and practice claim.
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Therefore, Williams is not entitled to the personnel information of employees that
have no relation to the claims in Williams’ lawsuit.
However, Defendant contends it is “currently confirming whether there have
been advertisements for Millwright positions in 2021” and whether Williams
applied for them, and intends to supplement its response.
Plaintiff’s Motion to Compel is GRANTED IN PART AND DENIED IN PART
as to Request for Production No. 36. Because Plaintiff’s request for the names and
tests of all employees who applied for the positions is overbroad and burdensome,
Defendant is not required to provide the names of every individual who applied for
the job, nor is it required to provide copies of the tests taken by any of the
applicants. Therefore, to that extent, Plaintiff’s Motion to Compel is DENIED.
However, to the extent it has not already done so, and WITHIN FOURTEEN
DAYS, Defendant is ORDERED TO: (1) provide copies of all job postings that have
been posted to the job board for all millwright positions since January 1, 2021; (2)
provide the names of the employees who were ultimately selected for those jobs; and
(3) state whether or not the employees selected for the jobs took examinations for
the posted positions.
Defendant SHALL FILE A NOTICE OF COMPLIANCE with the Court
WITHIN 14 DAYS from the date of this order.

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5.

Plaintiff’s Motion to Compel for Request for Production No. 38 is
DENIED.
Williams asks the Court to compel Defendant to provide a copy of the offer
extended to Williams for a millwright position. Defendant objects to this request,
contending that no offer was ever extended to Williams for a millwright position.
Because Defendant has adequately answered the request, Williams’ Motion
to Compel is DENIED as to Request for Production No. 38.
B.

Plaintiff’s Motion for Attorney’s Fees and Costs is DENIED.

Williams also moves for an award of attorney fees and costs. ECF No. 101.
Because most of Williams’s discovery requests had already been satisfied and some
have been denied, Williams’s Motion for Attorney’s Fees and Costs (ECF No. 101) is
DENIED.
III.

Conclusion
As discussed above, IT IS ORDERED that:
Jeld-Wen’s Motion to Compel Discovery of the settlement agreement (ECF

No. 89) is DENIED.
Jeld-Wen’s Motion to Compel discovery of the emails from Maudie Williams
to Williams’s attorney (ECF NO. 89) IS GRANTED. Williams SHALL PROVIDE
the emails to defense counsel WITHIN 14 DAYS OF THE DATE OF THIS ORDER.
Plaintiff’s counsel SHALL FILE A NOTICE OF COMPLIANCE with the Court
WITHIN 14 DAYS from the date of this order.

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Jeld-Wen’s Motion for Attorney’s Fees and Costs (ECF No. 89) associated
with its Motion to Compel is DENIED.
Williams’s Motion to Compel (ECF No. 101) is DENIED IN PART for Request
for Production No. 28. Jeld-Wen is not required to provide employee information as
to any persons who have never worked at Jeld-Wen, and as to those persons for
whom Williams did not provide a last name.
Williams’s Motion to Compel (ECF No. 101) is also GRANTED IN PART for
Request for Production No. 28.

Jeld-Wen is ORDERED to provide employee

information as to the named employees, WITH APPROPRIATE REDACTIONS for
social-security numbers, taxpayer-identification numbers, birth dates, the name of
minors, financial-account numbers, and medical records,9 is GRANTED.

JELD-

WEN’S OBJECTION AS TO RELEVANCE IS WAIVED. Counsel for both parties
SHALL MEET WITHIN 14 DAYS of the date of this Order and discuss what other
employee information can be excluded from production as unnecessary. Jeld-Wen
IS ORDERED TO PRODUCE the employee information requested by Plaintiff’s
counsel WITHIN 7 DAYS THERAFTER. Defense counsel SHALL FILE A NOTICE
OF COMPLIANCE with the Court WITHIN 21 DAYS from the date of this order.
As to Williams’ Third Set of Requests for Production, Nos. 29, 30, 31, 33, 34,
35 and 37, Williams’s Motion to Compel (ECF No. 101) is DENIED IN PART AS
MOOT, except as provided below for No. 29.
And any other personal information that counsel for the parties agree is private or is not
necessary.
9

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As to Request for Production No. 29, IT IS ORDERED that, if it has not
already been provided, Jeld-Wen SHALL SUBMIT WITHIN 14 DAYS of the date of
this order, “a copy of the job posting that George Plunkett testified [to] at his
deposition on June 7, 2021, [that] was either currently posted or had recently been
removed from the job board.”

Defendant SHALL FILE A NOTICE OF

COMPLIANCE with the Court WITHIN 14 DAYS from the date of this order.
Williams’s Motion to Compel (ECF No. 101) is GRANTED IN PART as to his
Request for Production No. 32. To the extent it has not already done so, WITHIN
14 DAYS Defense counsel shall provide the “late-submitted PM’s to Plaintiff.
Defense counsel shall also, WITHIN 14 DAYS, make every effort to obtain the
“unsubmitted PM’s” (see George Plunkett’s deposition), and shall notify Plaintiff’s
Counsel of its efforts and findings, and provide the documents if found.
Plaintiff’s Motion to Compel (ECF No. 101) is DENIED IN PART for his
Request for Production No. 36, as to the names of every individual who applied for a
millwright job in 2021 and copies of the tests taken by the applicants.
Plaintiff’s Motion to Compel Production (ECF No. 101) is also GRANTED IN
PART for Request No. 36.

To the extent it has not already done so, WITHIN

FOURTEEN DAYS, Defendant is ORDERED TO: (1) provide copies of all job
postings that have been posted to the job board for all millwright positions since
January 1, 2021; (2) provide the names of the employees who were ultimately
selected for those jobs; and (3) state whether or not the employees selected for the
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jobs took examinations for the posted positions.

Defendant SHALL FILE A

NOTICE OF COMPLIANCE with the Court WITHIN 14 DAYS from the date of this
order.
Williams’ Motion to Compel (ECF No. 101) is DENIED as to Request for
Production No. 38.
Williams’s Motion for Attorney’s Fees and Costs (ECF No. 101) is DENIED.
THUS DONE AND SIGNED in chambers at Alexandria, Louisiana on this
18th
_____ day of February 2022.

______________________________
Joseph H.L. Perez-Montes
United States Magistrate Judge

33