Strong v. Grambling State University et al
Filing
60
ORDER granting in part 47 Motion to Compel. Defendants shall produce copies of their income tax returns, including all supporting schedules, for years 2008-2012. ORDER granting 47 Motion for Attorney Fees. Defendants shall remit the sum of & #036;500 to plaintiff via counsel, within 14 days. ORDER granting in part 49 Motion for Protective Order. The parties shall execute a confidentiality agreement/order that protects the confidentiality of defendants' tax returns. OTHERWISE, the motions are denied. Signed by Magistrate Judge Karen L Hayes on 6/18/14. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
AVAINE STRONG
*
CIVIL ACTION NO. 13-0808
VERSUS
*
JUDGE DONALD E. WALTER
GRAMBLING STATE UNIVERSITY,
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MAG. JUDGE KAREN L. HAYES
ET AL.
MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, are two,
opposing, discovery-related motions: 1) a second motion to compel [doc. # 47] filed by plaintiff
Avaine Strong; and 2) a motion for protective order [doc. # 49] filed by defendants Connie
Walton, Evelyn Wynn, Danny Hubbard, Monica Bailey, Raymond Abraham, and Frank Pogue.
For reasons assigned below, the motions are GRANTED IN PART and DENIED IN PART.1
Background
On April 18, 2013, Avaine Strong, a professor at Grambling State University, filed the
instant pro se complaint pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1986; Title VII of the
Civil Rights Act; the Equal Pay Act; and 18 U.S.C. § 1346 against his employer, Grambling
State University (“GSU”), and various university officials. (Compl.). On August 1, 2013, Strong
amended his complaint to join each member of the Board of Supervisors for the University of
Louisiana System. See Amend. Compl. Strong contends, inter alia, that university officials
1
As these motions are not among 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).
discriminated against him on account of his race, African American, and because he is
heterosexual. See Amend. Compl., ¶ 17. He seeks approximately $7.8 million for compensatory
and punitive damages, attorney’s fees, interest, and costs. Id.
On, or about October 13, 2013, plaintiff, now represented by counsel, propounded certain
discovery requests to defendants, including item number 11 which requested copies of income
tax return for years 2008-2012, together with all supporting schedules, for individual defendants:
Connie Walton, Evelyn Wynn, Danny Hubbard, Monica Bailey, Raymond Abraham, and Frank
Pogue. (M/Compel [doc. # 30] Exh. A). Defendants, however, failed to respond to this, and
other discovery requests. Accordingly, on December 23, 2013, plaintiff filed his initial motion to
compel.
On February 6, 2014, the undersigned granted plaintiff’s motion to compel, in part, and
ordered defendants to fully and completely respond to plaintiff’s interrogatories and requests for
production within 14 days from the date of the order. (Feb. 6, 2014, Order [doc. # 41]). The
court further remarked that by failing to respond or object to plaintiff’s interrogatories or requests
for production, defendants had waived their right to do so. Id.
On February 20, 2014, defendants filed a motion to modify the court’s February 6 Order
by seeking to extend defendants’ compliance deadline and to clarify a portion of the order
directed at plaintiff’s requests for admissions. (M/Modify [doc. # 43]). The court granted the
motion that same day. (Feb. 20, 2014, Order [doc. # 45]).
Meanwhile, counsel for both sides conferred amongst themselves and agreed to modify
plaintiff’s discovery item number 11. Plaintiff’s counsel memorialized this agreement in a
February 18, 2014, facsimile transmission addressed to defense counsel, wherein she conceded
that she would “accept W-2 statements for each named employee in lieu of the federal tax form,
2
provided [she received] assurances that compensation from all employment is accounted for,
including income from outside employers, boards, and commissions.” (Feb. 18, 2014, Facsimile
Letter from Dianne Hill to John Ellis; Pl. 2nd M/Compel, Exh.).
Thereafter, defendants produced W-2 forms from their employment with GSU. However,
they did not produce any W-2s from outside employment, or any statements that compensation
from all employment was accounted for – as per the prior agreement between counsel. Thus,
plaintiff’s counsel advised defense counsel that she needed the tax returns, with schedules, as
originally requested so she could verify all sources of income. (March 20, 2014, Letter from
Dianne Hill to John Ellis; 2nd M/Compel, Exh.). In subsequent communications, plaintiff’s
counsel maintained that she required defendants to produce the tax schedules, as demanded in
her original discovery. See April 10, 2014, Letter rom Dianne Hill to John Ellis; 2nd M/Compel,
Exh.
After efforts to bridge the discovery impasse proved unsuccessful, on April 25, 2014,
plaintiff filed the instant motion to compel defendants to provide full responses to discovery item
number 11, in accordance with the court’s prior order. Plaintiff also requested an award of
attorney’s fees.
On May 19, 2014, defendants filed their response to plaintiffs’ second motion to compel,
together with an embedded motion for protective order. Defendants argue that plaintiff has not
demonstrated a need for the tax returns. They also fear “misuse and abuse of their most private
documents” if their federal tax documents are mishandled or otherwise compromised. Defense
counsel also stressed that opposing counsel had failed to return a proposed confidentiality
agreement that he had forwarded to her for consideration.
In conjunction with their response, defendants belatedly submitted declarations wherein
3
they denied, inter alia, income from activity involving any of the named defendants or any
employment relationships, other than with GSU. (M/ Protective Order, Exhs.).2 They contend
that the declarations obviate the need for the wholesale production of sensitive financial
information such as their tax documents. Alternatively, defendants propose that the court order
plaintiff to elect from one of four less-invasive options: 1) submit additional interrogatories that
specifically probe the issue of outside employment; 2) require defendants to complete
declarations that address non-university employment; 3) require defendants to submit to
depositions; or 4) require defendants to sign releases to allow plaintiff to obtain the specific tax
information from the taxing agency.
On May 27 and June 2, 2014, plaintiff submitted his reply in support of his motion to
compel and his response to defendants’ motion for protective order, respectively. Plaintiff
maintains that defendants have failed to comply with the court’s discovery order. He also objects
to defendants’ motion for protective order as untimely, and that their proposed confidentiality
agreement is overly broad because it applies to “all information of any nature whatsoever
acquired or known.” See Response, Exh.
Defendants did not seek leave to file a reply brief, and the time to do so has lapsed. See
Notice of Motion Setting [doc. # 50]. Thus, the matter is ripe.
Law
a)
Motion to Compel/Sanctions
Rule 37 of the Federal Rules of Civil Procedure specifies that,
2
Defendants’ declarations, however, are neither sworn, nor signed under penalty of
perjury. Federal law permits unsworn declarations to substitute for an affiant's oath if the
statements contained therein are made “under penalty of perjury” and verified as “true and
correct.” See Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n2 (5th Cir. 2013) (citing 28 U.S.C. §
1746).
4
[i]f a party or a party's officer, director, or managing agent . . . fails to obey an
order to provide or permit discovery, including an order under Rule 26(f), 35, or
37(a), the court where the action is pending may issue further just orders. They
may include the following:
(i) directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the prevailing
party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in
evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.
Fed.R.Civ.P. 37(b)(2)(A).
Furthermore,
[i]nstead of or in addition to the orders above, the court must order the disobedient
party, the attorney advising that party, or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(b)(2)(C).
b)
Motion for Protective Order
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, including [an order] . .
. specifying terms . . . for the disclosure or discovery . . . ” Fed.R.Civ.P. 26(c)(1)(B). “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, 104
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S.Ct. 2199 (1984).
The party seeking the protective order must establish good cause 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, 101 S.Ct. 2193 (1981);
see also, In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998). A party seeking to protect the
disclosure of sensitive information must first establish the confidential nature of the requested
discovery. See Freeport McMoran Sulpher, LLC v. Mike Mullen Energy Equipment Resource,
Inc., 2004 WL 595236, 10 (E.D. La. March 23, 2004).
Discussion
Defendants argue the court should not order production of their tax returns because
plaintiff cannot satisfy the applicable two-pronged test for compelling tax returns.3 Succinctly
stated, however, that ship has sailed. Defendants have eschewed multiple opportunities to
contest the propriety of disclosing their tax returns: first, they could have objected to plaintiff’s
initial discovery request(s); second, they could have raised the issue in opposition to plaintiff’s
original motion to compel; and third, they could have sought to amend the court’s prior discovery
order. Defendants, instead, prevailed upon plaintiff to compromise his court-ordered right to
defendants’ tax returns by agreeing to accept in lieu thereof defendants’ W-2 forms, together with
certain assurances. When defendants failed to comply with the full terms of the parties’ side
agreement, plaintiff reasserted his right to the full tax returns pursuant to the existing court order.
3
Courts have construed Rule 26 to require a party seeking to compel the disclosure of
tax returns to demonstrate (1) that the returns are relevant to the subject matter of the action; and
(2) a compelling need for the returns because the information contained therein is not otherwise
readily obtainable through alternative forms of discovery. Natural Gas Pipeline Company of
America et al. v. Energy Gathering, Inc., et al., 2 F.3d 1397, 1411 (5th Cir. 1993).
6
Neither side has submitted any authority for the proposition that parties enjoy the
autonomy to modify a court order by mutual agreement. Indeed, the fact that defendants
previously saw fit to petition the court to modify and endorse minor changes to the February 6
Order demonstrates their awareness of the need to obtain the court’s imprimatur. In fact, other
than the two modifications requested by defendants, the February 20 Order specified that “in all
other respects the Memorandum Order issued February 6, 2014, shall be maintained.” (Feb. 20,
2014, Order [doc. # 45]). Consequently, when the parties’ side agreement fell through,
defendants were obliged to comply with the terms of the court’s still outstanding discovery order.
This, they have failed to do.
To the extent that defendants now intend (via their response to a second motion to compel
and hybrid motion for protective order) for the court to revisit the discovery issue, defendants’
efforts are too little, too late. However, given the parties’ mutual attempt to resolve the discovery
issue, the court is persuaded that defendants did not intentionally disregard a court order or
otherwise act in bad faith. As a result, the more draconian remedies available under Rule
37(b)(2)(A) are not warranted. Instead, the court will order defendants and/or their counsel to
pay plaintiff the total sum of $500 as reasonable attorney’s fees for having to file a successive
motion to compel.4
In addition, because of the sensitive nature of tax returns, the court finds that they should
be governed by a confidentiality agreement/order. However, the court agrees with plaintiff that
the proposed agreement submitted by defendants is too broad. See Pl. Opp., Exh. [doc. # 57-1].
4
In deriving this sum, the court has considered the affidavit of time and expenses
submitted by plaintiff’s counsel. (M/Compel, Affidavit). The reduced award contemplates the
time expended by counsel to file the instant motion, as well as the mitigating circumstances of
defendants’ conduct.
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Accordingly, the parties shall confect and execute a confidentiality agreement that encompasses
the parties’ tax returns (and any other such sensitive documents to which they mutually agree).
Conclusion
For the above-assigned reasons,
IT IS ORDERED that plaintiff’s second motion to compel [doc. # 47] is hereby
GRANTED IN PART, to the following extent,
IT IS ORDERED that, within the next 30 days from the date of this order, defendants,
Connie Walton, Evelyn Wynn, Danny Hubbard, Monica Bailey, Raymond Abraham, and Frank
Pogue shall produce to plaintiff copies of their income tax returns, including all supporting
schedules, for years 2008-2012.
IT IS FURTHER ORDERED that, within 14 days from the date of this order, defendants,
Connie Walton, Evelyn Wynn, Danny Hubbard, Monica Bailey, Raymond Abraham, and Frank
Pogue, and/or their counsel, shall remit the sum of $500 to plaintiff Avaine Strong, via counsel,
and file proof of said payment in the record of these proceedings within 7 days thereafter.
IT IS FURTHER ORDERED that defendants’ motion for protective order [doc. # 49] is
hereby GRANTED IN PART, only to the extent that, within the next 14 days from the date of
this order, the parties shall execute a confidentiality agreement/order that, at minimum, protects
the confidentiality of defendants’ tax returns.
IT IS FURTHER ORDERED that the pending motions [doc. #s 47 & 49] otherwise are
DENIED.
In Chambers, at Monroe, Louisiana, this 18th day of June 2014.
__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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