Harper v. Academy of Training School, LLC et al

Filing 25

MEMORANDUM ORDER denying 16 Motion to Compel, subject to defendants' obligation to produce the time sheets if they are located. Signed by Magistrate Judge Kathleen Kay on 8/9/2017. (crt,FinnSld, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
CAROLYN HARPER

:

CIVIL ACTION NO. 2:16-cv-1266

VERSUS

:

JUDGE MINALDI

ACADEMY OF TRAINING SCHOOL, LLC
and PROGRESSIVE BUILDINGS, LLC
:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING

Before the court is a Motion to Compel Discovery Responses [doc. 16] filed by Carolyn
Harper (“plaintiff”). Academy of Training School, LLC and Progressive Buildings, LLC
(“defendants”) oppose the motion. Doc. 24. The plaintiff has not filed a reply and her time for
doing so has passed. See doc. 19.
At issue in this motion is the adequacy of the defendants’ response to the plaintiff’s request
for production of time sheets for the plaintiff. Doc. 24, pp. 1–2; see doc. 16; doc. 16, att. 6. The
defendants state that, since the motion was filed, they have “produced to plaintiff all documents
requested by plaintiff with the exception of three (3) time sheets for the period of January 1, 2016
through January 3, 2016.” Doc. 24, pp. 1–2. They also state that plaintiff’s counsel has informed
them that he considers the documents submitted as time sheets are not responsive to the request
and that he seeks “time sheets that plaintiff would submit on a weekly basis for the remittance of
pay checks.” Id. at 2.
Defendants contend that the sheets they have provided (“sign-in sheets”), which are daily
logs showing each employee’s time in and time out, “are an accurate log of the hours worked by
plaintiff” for the time period requested and that they “accurately and fully reflect any and all time

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worked by an employee on any given day.” Id.; see doc. 24, att. 2 (sign-in sheet example). They
state that the time sheets sought by plaintiff are logs filled out by employees on a weekly basis for
the sole purpose of compensation, and that the time reflected on these sheets should match what
the plaintiff provided on the daily sign-in sheets unless she inaccurately completed the weekly
time sheet for payroll. Doc. 24, p. 3. Additionally, they note that the plaintiff was paid by salary
rather than on an hourly basis, and so the fact that her weekly time sheets were for payroll “is of
no consequence.” Id. Finally, they state that they are not currently aware that they are in possession,
control, or custody of the weekly time sheets or of daily sign-in sheets for January 1 through
January 3, 2016.1 Id.
Under Rule 34 of the Federal Rules of Civil Procedure, a party responding to a request for
production is only required to produce materials in its possession, custody, or control. See FED. R.
CIV. P. 34(a)(1). Furthermore, we cannot compel a party to produce something it does not have.
As the plaintiff has submitted no reply, it appears that there is no rebuttal to the defendants’
argument that they do not have the time sheets sought (or the daily sheets for the specified range)
and have otherwise fulfilled the plaintiff’s discovery requests. Accordingly, the motion is denied,
subject to defendants’ obligation to produce the time sheets if they are located.
THUS DONE AND SIGNED in Chambers this 9th day of August, 2017.

1

Defendants state that the sign-in sheets from these dates were disposed of or otherwise destroyed by the unauthorized
actions of a former employee, who was subsequently terminated. Doc. 24, p. 3.
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