Burdette v. Panola County et al
Filing
108
ORDER granting in part and denying in part 85 Motion to Compel. Signed by Magistrate Judge S. Allan Alexander on 3/31/15. (bnd)
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
EARL BURDETTE, on behalf of
himself and those similarly situated
v.
PLAINTIFF
3:13-CV-286-MPM-SAA
PANOLA COUNTY, Municipal Corporation,
PANOLA COUNTY SHERIFF’S DEPARTMENT,
a Municipal Corporation
DEFENDANTS
ORDER GRANTING MOTION TO COMPEL
Plaintiff has filed a motion to compel1 defendants to provide supplemental responses to
discovery requests, and as to some issues, requests a negative inference or a spoliation
instruction. Docket 85. In addition to his motion, plaintiff has provided two notarized affidavits
from former Panola County Sheriff’s Department employees who swear defendants have not
produced all responsive documents. Generally, plaintiff argues that defendants have either failed
to produce responsive documents or completely failed to respond to requests as propounded.
Defendants respond that the records produced are complete and that “[p]laintiff’s dispute over
the accuracy and completeness of certain records is a red herring for the fact that he habitually
did not sign in and out as required by policy.” Docket 97. The court has reviewed the Motion
and brief in support (Docket 85, 86), Defendants’ Response in Opposition (Docket 97),
Plaintiff’s Supplement to the Motion to Compel (Docket 98), both Affidavits submitted in
support of the Motion to Compel (Docket 104, 105), and Defendants’ Supplemental Response in
1
In his Motion, plaintiff indicates that he will be filing a separate Motion for Spoliation
Instruction.
Opposition to the Motion to Compel2 (Docket 106) and concludes that the Motion to Compel
should be GRANTED IN PART AND DENIED IN PART.
Federal Rule of Civil Procedure 37(a)(3) provides that a party may move for an order
compelling an answer, designation, production, or inspection when another party fails to
properly answer discovery. The United States Supreme Court has held that the rules of
discovery are to be accorded a broad and liberal treatment. Hickman v. Taylor, 329 U.S. 495,
507 (1947). Furthermore, the parties’ mutual knowledge of all relevant facts is a prerequisite for
proper litigation. Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977). Rule
26(b)(1) allows parties to “obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense . . . . Relevant information sought need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.”
The party resisting discovery bears the burden of explaining its objections and providing
support for its objections. Enron Corp. Savings Plan v. Hewitt Associates, L.L.C., 2009 W.L.
764310, *8 (S.D. Tex. 2009) (internal citations omitted).
There is a necessary element of gamesmanship which applies in discovery, but parties
must act in the spirit of discovery. Id. Under Rule 33, “[e]ach interrogatory must, to the extent
it is not objected to, be answered separately and fully in writing under oath.” Likewise, Rule
37(a)(3) provides that “an evasive or incomplete . . . answer or respond must be treated as a
2
Neither the Federal Rules of Civil Procedure nor the Uniform Local Civil Rules allow a
Supplemental Response in Opposition to a motion, and defendants did not request permission to
file one. However, the undersigned considered defendants’ Supplemental Response despite the
fact that it was not timely or properly filed under the rules.
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failure to . . . answer or respond.” Discovery by interrogatory requires candor in responding.
Dollar, 561 F.2d at 616. A party must respond with candor and good faith in either providing
the information sought or stating a legitimate objection to doing so. In this case, the defendant
has been less than candid and does not appear to have attempted to obtain the requested
documents in good faith.
It appears that the defendants, in response to all discovery responses at issue, chose to
object first and answer questions, if necessary, later. Defendants’ answers to many of the
interrogatories are wholly insufficient and refer plaintiff to documents, with no legitimate
attempt to answer the Interrogatory. Although defense counsel has an extensive federal practice
and knows better than to provide what amount to virtually worthless responses to discovery,
defendants’ answers are either unresponsive or they are evasive and certainly not made in the
spirit of good faith discovery. Defendants and their counsel are forewarned that if the
supplemental responses compelled below are not thorough and forthcoming, both the parties and
their counsel will be subject to severe sanctions. The inability of these parties to cooperate in
discovery appears to rest at the feet of defense counsel who has failed at every turn to provide
meaningful responses and cooperate with plaintiffs’ counsel in a professional manner. This
obstreperous behavior has required countless hours of both plaintiff’s counsel and the court to
push through the fog defendants have created to determine what documents actually exist or ever
existed, in what form they exist[ed], and where they may be located. The court will not tolerate
such behavior.
1. Panola County Sheriff’s Office Deputy Schedules – Plaintiff seeks production of
the Panola County Sheriff’s Office Deputy Schedules for February 2012 to October 2012 and
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various portions of 2013 and 2014. Defendants have produced schedules from the current
administration, but represent that they have not been able to locate and produce the schedules
from former Sheriff Griffin’s administration. They argue, curiously, that plaintiff’s motion to
compel these schedules is premature because discovery has not ended. Plaintiff correctly points
out that the Sheriff’s Department owed a duty to maintain the records for FLSA purposes, and
the department should not be able to evade liability by blaming the former Sheriff for misplacing
the schedules. Plaintiff seeks production of the schedules or a jury instruction that defendant
failed to properly maintain records in accordance with the law. Defendants are directed to
further investigate and either produce the deputy schedules or receive a jury instruction advising
that defendants did not maintain proper employment records.
2. Radio Dispatch Log Book Records – Plaintiff asserts that defendants failed to
produce the radio dispatch logbook records that are vital to his case because they serve as
plaintiff’s time records and provide the actual hours worked by plaintiff. Instead of the relevant
records, says plaintiff, defendants have produced thousands of pages of irrelevant and obviously
incomplete documents. According to plaintiff, whose counsel has now had to review the records
three different times, defendants have yet to produce even one complete day of records (clock in
and clock out) for the relevant time. Defendants respond that they have produced the complete
record of radio dispatch log books in their possession; they posit that the lack of a complete
clock-in/clock-out day is attributable to plaintiff’s routine failure to radio in to dispatch to clock
in and clock out.
These records were requested by plaintiff for the first time on March 27, 2014.
Defendants have supplemented their production of these records twice, but neither production
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included all of the documents, as evidenced by the Affidavits of former Sheriff Department
employees Rosa Wilson and Carolyn Cauthen. Both Wilson and Cauthen provided sworn
statements that they have reviewed the produced log books and concluded that the complete
books were not produced. The testimony indicates, for example, that even though a log from
Burdette’s day shift might have been produced, the shift following his was missing, and that is
the log that would show his radioing in to clock out. In other words, a complete response to this
request would require that defendants produce all of the logs; this circumstance exemplifies why
it is significant that defendant has not yet produced the logs for even one single entire day during
the relevant period.
Additionally, Wilson swears that plaintiff worked at least 21 hours of overtime on an
average week, and Cauthen swears that plaintiff worked approximately 25 hours of overtime on
a weekly basis. Thus, according to Wilson, “[i]t is very rare that all of an officer’s recorded
activities would have been recorded by only one of the dispatchers in a given shift.” Docket
104, p. 5. Further, Wilson testified that two dispatchers worked each shift, but defendants only
produced dispatch logbook records for one of the dispatchers for these shifts. Wilson also stated
that because the dispatchers often could not keep up with the pace of calls when recording data
into the dispatch log book records, they also wrote down the dispatch calls on legal pads that
were saved and preserved in the filing cabinet along with the dispatch logbook records. Id. at 6.
Based upon this sworn testimony, defendants should be able to piece together evidence to create
a schedule of plaintiff’s hours worked. Given that defendants assert that they just cannot locate
some documents or believe that others were taken by the previous administration, it is difficult
for the undersigned to believe that in this instance defendants have made a thorough search and
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have produced every page of the dispatch log books or any other information that would provide
the schedule of hours plaintiff worked.
Defendants are ordered to produce complete log books, including A, B, C and D shifts
for both dispatchers for the relevant period of time as well as any other note pads or records that
evidence the hours plaintiff worked. If defendants fail to produce a record of the hours plaintiff
worked, the court will enter an order prohibiting defendants from contesting that plaintiff worked
an average of 23 hours of overtime per week.
3. MVA Reports, Offense Reports – Plaintiff requested Motor Vehicle Accident
Reports and offense reports which will evidence days and times that plaintiff worked.
Remarkably, defendants have only produced two MVA reports for plaintiff from 2010 to 2013.
Plaintiff says he created significantly more than two accidents during this period, and Wilson
testified that plaintiff created more MVA reports than were produced. Docket 104, p. 8. Wilson
advised of the existence of a Motor Vehicle Accident Case book created by the dispatchers that
would prove which documents are missing from the MVA reports produced by defendants. As
for the other offense reports, Wilson also advised in her sworn statement that a Juvenile
casebook created by defendants would also coincide with the plaintiff’s offense reports and the
dispatcher’s complaint sheets that would help identify offense reports completed by plaintiff.
In response, defendants state that plaintiff only produced two MVA reports because
plaintiff did not originally draft and submit others. Docket 97, p. 3. Defendants did not address
in either their response or the supplemental response the fact that Motor Vehicle Accident Case
book, a Juvenile case book and dispatcher’s complaint sheets exist and will serve as a
mechanism to prove or disprove plaintiff’s assertion that he created other reports that have not
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been produced. Defendants are ordered to more thoroughly investigate and produce all reports
in their possession authored by plaintiff, as well as the Motor Vehicle Accident Case book, the
Juvenile case book and dispatcher’s complaint sheets.
4. Damage Calculation – Plaintiff asserts that defendants should have provided a
damage calculation. Defendants argue that they paid plaintiff what he was owed, so any
“calculation” would equal zero. Federal Rule of Civil Procedure 26(a)(1)(A)(iii) only requires
“a computation of each category of damages claimed by the disclosing party . . .” Because
defendants are not claiming any damages, they are not required to provide a damage calculation.
RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS:
Request 1: Plaintiff requested documents which evidence terms and conditions of
employment such as personnel manuals, employee handbooks, memos from defendants, payroll
records, record keeping guidelines, directives, practices of defendants with respect to payment of
overtime compensation and the defendants’ policies and practices relating to maintenance of
records of hours worked by employees. Defendants’ response indicates that they have produced
all policies and guidelines followed by defendants, but fail to address each item requested. For
instance, defendants’ only identify the Policy and Procedure Manual from the previous
administration and a transcript of an audio recording made by plaintiff as documents produced.
Defendants’ response does not mention record keeping policies, policies regarding overtime pay,
payroll practice guidelines, or record keeping guidelines, much less specify whether and what
portions of those items are responsive to the request itself. If there are any other documents that
evidence the terms and conditions of plaintiff’s employment, concern payment of overtime
compensation or the policies and practices of defendants relating to the maintenance of records
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of hours worked by employees, defendants are compelled to produce these records and if
defendants are not in possession of any such documents, they are ordered to specifically identify
each type of document and indicate that they do not have any documents in that category.
Request 2: Plaintiff has requested all daily time records, time slips, time card or other
records evidencing when plaintiff arrived at work, was on break or lunch and departed from
work. This is another attempt to simply obtain the hours that plaintiff worked for defendants
since defendant only produced incomplete dispatch logs. Defendants’ discovery response only
states that all documents have been produced in core or supplemental core disclosures, and their
response to the motion to compel fails to address this Request. The court is puzzled by
defendants’ blatant failure to address the largest discovery issue in the case at the moment.
Certainly defendants had a record of the hours plaintiff worked at some point during his
employment to determine how much he was paid. Defendants have not provided a credible
explanation for how they are totally lacking in any record that evidences the dates and times that
plaintiff worked. Defendants are ordered to take whatever means necessary to compile the dates
and times that plaintiff worked, including searching all filing cabinets, reviewing accident and
offense reports, etc.
Request 5: Plaintiff requested all documents relied upon in responding to Interrogatories
and Requests for Admission. Defendants’ discovery response indicated that plaintiff had not
tendered any Interrogatories or Requests for Admissions, but defendants had tendered all
responsive documents via core disclosure and/or supplemental core disclosure. Although
plaintiff served the Requests for Production of Documents on March 27, 2014, he did not
propound Interrogatories and Requests for Admissions until September 30, 2014, so the original
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response was the only one available to defendants. Therefore, plaintiff’s motion to compel as to
this Request is denied.
Request 7: Plaintiff requested all training materials provided to employees performing
tasks similar to plaintiff during the last three years. In their discovery response, defendants
indicated that they had produced what documents they have, that plaintiff’s professional training
certificate is in the possession of the Como Police Department and that, surprisingly, the former
Sheriff took the hard drive to his computer when he left office. In their response to the Motion
to Compel this Request, defendants simply indicate that they have provided all discoverable
information. Docket # 97. Defendants are ordered to identify the documents they have produced
which are responsive to this request, along with the bates stamp numbers for each applicable
document. Further, defendants are ordered to conduct a thorough examination of all files in their
possession and produce any training materials not previously produced or risk a spoliation
instruction.
Request 16: Plaintiff requested emails from any computer he used while at defendants’
office to the extent that they have evidentiary value pertaining to plaintiff’s hours of work.
Defendants simply responded “Not applicable. See Ex. G.” However, in their Response to the
Motion to Compel, defendants indicated that they had not looked for these records and would
supplement them before the discovery deadline. If defendants have not done so already, they are
ordered to produce all emails that plaintiff sent from any computer in defendants’ possession,
and if defendants are not able to identify any, they must state with specificity the steps they took
to acquire this evidence, including the specific terms used to search the computers.
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Requests for Admissions:
Request 4: Plaintiff requested that defendants admit that the documents they produced
fail to provide a basis for determining the precise number of hours worked by plaintiff.
Defendants response denied this Request and referred plaintiff to Exhibit I. Plaintiff argues that
there is no way to determine the hours he worked based upon the documents provided by
defendants, and their denial is not in good faith. In response to the Motion, defendants state only
that they “maintain their position that their records regarding Plaintiff’s check-in and check-outs
are accurate, and have provided Plaintiff with a full copy of said records for his review.”
Defendants miss the point–this request is not about whether defendants have produced all
documents requested. Instead, it seeks defendants’ admission that the documents produced do
not provide sufficient information to enable them or plaintiff to determine the precise hours
plaintiff worked. Plaintiff seeks an order compelling defendants to explain how this response is
in good faith or amend their response.
Rule 36 performs two vital purposes: (1) facilitating proof with respect to issues that
cannot be eliminated from the case, and (2) narrowing the issues by eliminating those that can
be. Rule 36 Advisory Committee Notes, 1970 Amendment. There is very little case law in the
Fifth Circuit addressing the sufficiency of responses to requests for admissions. However, given
the nature of the discovery disputes at issue here, it is hard to fathom how defendants could deny
this Request for Admission in good faith. All parties agree that the log books do not contain
complete clock in and clock out times for plaintiff. It does not appear that defendants have
produced any other records that would provide a way to determine the hours plaintiff worked.
Defendants are ordered to provide an explanation of how they could reasonably deny this
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request. If the court deems the explanation unsatisfactory, the Request for Admission will be
deemed admitted.
First Set of Interrogatories:
Interrogatory 2: Plaintiff requests compensation details such as rate of pay, whether it
was hourly or salary, and an identification of each person who has knowledge of income paid to
plaintiff. Defendants’ response simply referred plaintiff to Panola County Payroll History for
Earl Burdette and provided the names of 4 individuals. Defendants did not identify the manner
in which plaintiff was compensated, the basis for the calculation, whether he was paid on an
hourly or salary basis, etc. In response to plaintiff’s attempt to resolve this discovery issue
without court intervention, defendants stated, “Our response is consistent with the requirements
of Fed.R.Civ.P. 33(d).” However, defendants’ response does not comply with the Federal Rules
of Civil Procedure and is certainly not in good faith. The Payroll History does not provide the
details that plaintiff has requested. Defendants are compelled to fully and completely answer
each specific component of plaintiff’s Interrogatory.
Interrogatory 9: Plaintiff requested identification of any non-privilege documents upon
which defendant relied in answering Interrogatories. Defendants responded “None. . . ” and
explained that a disinterested employee had compiled the applicable radio logs for plaintiff and
the entire set of radio logs was available. However, this response is wholly unresponsive to
plaintiff’s question. Defendants are ordered to identify specifically by name and bates number
any non-privileged document upon which it relied in answering each of the Interrogatories
propounded by plaintiff.
Interrogatory 12: Plaintiff requested that defendants identify and describe plaintiff’s job
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duties while employed by defendants including “scheduled work hours, daily work assignments,
documentation completion, pay structure, dress and appearance, tools usage, insurance
requirements, business expense reimbursements, reporting structure, location(s) of work
performed, . . .” Plaintiff further requested that defendants “[s]eparately state whether plaintiff
had a written job description and, if so, set forth the job description or, if not, describe the
plaintiff’s job duties for all positions held throughout the last three years of his employment with
defendant. Defendants responded that plaintiff was a “Supervisory Employee” and referred
plaintiff to “written job descriptions of supervisory employees and sworn members per the
Panola County Sheriff’s Department Law Enforcement Policy and Procedure Section 2.07. . .”
Defendants also responded with plaintiff’s salary amount and referred plaintiff to his payroll
history. In his response to plaintiff’s Motion, defendants assert that they have complied with
Federal Rule of Civil Procedure 33(d) which allows them to refer to a party’s business records
when an answer to an interrogatory may be determined by reviewing the record. However,
defendants have not complied with Fed.R.Civ.P. 33(d) as the records referenced by defendants
do not provide the specific answers requested by plaintiff.
Therefore, defendants are compelled
to provide specific answers to plaintiff’s request without general reference to documents
produced.
Interrogatory 19: Plaintiff asked whether defendants had a policy in place to protect
employees from unlawful retaliation and if so, requested that defendant provide specific
information as to the policy. Defendants responded by referring to sections of the Panola County
Sheriff’s Department Law Enforcement Policy and Procedure. According to plaintiff, the
referenced sections do not detail whether defendants had a retaliation policy, and defendants did
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not answer “yes” or “no.” Defendants are compelled to directly answer whether they actually
had a retaliation policy in place during plaintiff’s employment and if so, describe the policy in
detail, including when the policy was implemented, how the policy was enforced, how the policy
was disseminated, who investigates alleged retaliation violations, what any investigation
encompasses and what steps were taken to ensure that defendants did not retaliate against
plaintiff.
Interrogatory 21: Plaintiff seeks all factual and legal support for each defense or
counterclaim asserted by defendants and identification of any witnesses who have knowledge of
such facts. Defendants responded with an objection and a reference to the Response to
Interrogatory No. 1; their response to the Motion was to simply assert that the request was
premature because discovery was not over. Aside from the fact that waiting for discovery to be
concluded is not an acceptable reason for an incomplete response, discovery ended on March 27,
2015, so defendants should have all discovery necessary to properly respond to this
Interrogatory. Defendants are compelled to provide a detailed written response to this request.
Plaintiff’s Second Requests for Production
Request for Production 1: Plaintiff requested all notes taken by defendant’s corporate
representative during the deposition of Dennis Darby. Defendants objected asserting attorneyclient privilege and work-product doctrine. At issue are text messages that the corporate
representative allegedly sent to other witnesses, not defendants’ counsel, in an attempt to coach
the witnesses during depositions. Defendants’ response to plaintiff’s Motion indicates that when
questioned under oath concerning these text message, the corporate representative testified that
she was checking on a sick child. Docket 97, p. 6.
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The work product doctrine applies to documents prepared by or for an attorney in
anticipation of litigation. Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir.
1991); see Rule 26(b)(3)(A). Rule 26.1(A)(c) of the Uniform Local Civil Rules requires a party
who withholds information claimed to be protected by privilege or the work product doctrine to
submit a privilege log that contains at least the following information: the name of the document;
description of the document; date; author(s); recipient(s); and nature of the privilege. Failure to
provide the require log subjects the withholding party to sanctions under Rule 37 and may be
viewed as a waiver of the privilege. Id. Defendant simply invoked the privilege and did not
provide a privilege log. The court is suspicious of any text messages or communications a
corporate representative attending depositions made to other individuals waiting to be deposed
outside of the room in which depositions were being conducted. Regardless of the court’s
suspicions, defendants were required to make reasonable inquiry to determine whether any such
documents or communications exist, and if the claim of work product protection or privilege was
indeed appropriately invoked, to provide a privilege log as required by the rules. Defendants are
ordered to produce to the court for in camera review all notes or writings, whether handwritten
or electronic, made by the corporate representative during the deposition of Dennis Darby.
Plaintiff’s Third Requests for Production
Requests for Production 3, 4, 8 and 9: Plaintiff has requested various relevant
documents relating to wage and hour complaints, “Law Enforcement Termination/Reassignment
Reports,” communications relating to plaintiff, and policies and procedures for creating, drafting,
maintaining or preserving log book records. Defendants responded that these requests exceed
the number of allowable discovery requests. Plaintiff argues that because the court granted the
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parties additional requests, defendants should be required to respond to these requests. Plaintiff
propounded his Third Set of Requests for Production on January 6, 2015 and defendants
responded to those requests on February 6, 2015. Docket 68. The court did not grant the
additional discovery requests until February 20, 2015, so any requests over the limit dictated by
the Case Management Order that had been previously propounded were inappropriate.
Plaintiff’s motion to compel responses to these requests is denied.
Defendants are hereby ordered to provide full and complete supplemental responses to
the plaintiff’s discovery requests no later than April 9, 2015. Failure to provide the discovery as
ordered will result in the imposition of sanctions, including the possibility of striking all of
defendants’ defenses to plaintiff’s claims and spoliation instructions to the jury.
Defendants must pay the reasonable expenses, including attorney’s fees, associated with
both the motion to compel and supplemental briefing and affidavits provided, as well as the
second and third reviews of the 11,000 documents produced which plaintiff’s counsel was forced
to undertake. By April 10, 2015, plaintiff must submit an itemization of all reasonable fees and
expenses incurred in connection with the motion to compel and the reviews of the documents
produced. Defendants may file objections to this itemization by April 17, 2015. If no objections
are filed, plaintiff’s itemization of fees and expenses will be deemed reasonable, and defendants
must tender the total amount claimed to plaintiff no later than April 24, 2015.
SO ORDERED, this, the 31st day of March, 2015.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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