Halleen v. BELK, INC.

Filing 147

MEMORANDUM OPINION AND ORDER. ORDERED that Plaintiff's Motion to Compel (Dkt. #98) is hereby GRANTED in part. Signed by District Judge Amos L. Mazzant, III on 8/6/2018. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

HOPE HALLEEN, INDIVIDUALLY; and
DONNA MANER, INDIVIDUALLY and
ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED
v.
BELK, INC.

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Civil Action No. 4:16-CV-55
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Compel Production of Documents and
Electronically Stored Information, and Proper, Complete Answers to Interrogatories (Dkt. #98).
After reviewing the relevant pleadings and motion, the Court finds that the motion should be
granted in part.
BACKGROUND
This is a Fair Labor Standards Act (“FLSA”) conditionally classified collective action filed
by Hope Halleen and Donna Maner on behalf of themselves and all others similarly situated
(collectively, “Plaintiffs”) against Defendant Belk. Plaintiffs allege that Defendant misclassified
Sales Team Managers (“STM”) as “exempt” under the FLSA and failed to pay overtime
compensation for work in excess of a forty-hour workweek. Included in the conditionally certified
class are Sales Team Managers who worked at any of Defendant’s locations at any time during the
three-year period preceding January 19, 2016.
On March 26, 2018, Plaintiffs filed a Motion to Compel Production of Documents and
Electronically Stored Information, and Proper, Complete Answers to Interrogatories (Dkt. #98).

On April 9, 2018, Defendant filed its response (Dkt. #105). On May 24, 2018, Plaintiffs filed their
reply (Dkt. #118). On June 7, 2018, Defendant filed its sur-reply (Dkt. #135).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding
any non[-]privileged matter that is relevant to any party’s claim or defense . . . .” FED. R. CIV. P.
26(b)(1). Relevance, for the purposes of Rule 26(b)(1), is when the request is reasonably
calculated to lead to the discovery of admissible evidence. FED. R. CIV. P. 26(b)(1); Crosby v. La.
Health & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011). The Court’s scheduling order requires
that the parties produce, as part of their initial disclosure, “documents containing, information
‘relevant to the claim or defense of any party.’” (Dkt. #25 at p. 3). Moreover, the Local Rules of
the Eastern District of Texas provide further guidance suggesting that information is “relevant to
any party’s claim or defense [if]: (1) it includes information that would not support the disclosing
parties’ contentions; . . . (4) it is information that deserves to be considered in the preparation,
evaluation or trial of a claim or defense. . . .” LOCAL RULE CV-26(d). It is well established that
“control of discovery is committed to the sound discretion of the trial court.” Freeman v. United
States, 556 F.3d 326, 341 (5th Cir. 2009) (quoting Williamson v. U.S. Dep’t of Agric., 815 F.2d
368, 382 (5th Cir. 1987)).
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). 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.
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

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shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly
burdensome or oppressive, and thus should not be permitted. Id.
Federal Rule of Civil Procedure 34 governs requests for production of documents,
electronically stored information, and tangible things. Rule 34 requires responses to “either state
that inspection and related activities will be permitted as requested or state with specificity the
grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). “An
objection [to the entire request] must state whether any responsive materials are being withheld on
the basis of that objection.” FED. R. CIV. P. 34(b)(2)(C). On the other hand, “[a]n objection to part
of a request must specify the part and permit inspection of the rest.” FED. R. CIV. P. 34(b)(2)(C).
After responding to each request with specificity, the responding attorney must sign their
request, response, or objection certifying that the response is complete and correct to the best of
the attorney’s knowledge and that any objection is consistent with the rules and warranted by
existing law or a non-frivolous argument for changing the law. FED. R. CIV. P. 26(g). This rule
“simply requires that the attorney make a reasonable inquiry into the factual basis of his response,
request, or objection.” Fed. R. Civ. P. 26(g) advisory committee note (1983).
The federal rules follow a proportionality standard for discovery. FED. R. CIV. P. 26(b)(1).
Under this requirement, the burden falls on both parties and the court to consider the
proportionality of all discovery in resolving discovery disputes. FED. R. CIV. P. 26(b)(1), advisory
committee note (2015). This rule relies on the fact that each party has a unique understanding of
the proportionality to bear on the particular issue. Id. For example, a party requesting discovery
may have little information about the burden or expense of responding. Id. “The party claiming
undue burden or expense ordinarily has far better information—perhaps the only information—
with respect to that part of the determination.” Id.

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ANALYSIS
In their motion to compel, Plaintiffs request that the Court compel Defendant to (1) produce
all documents responsive to Plaintiffs’ Requests for Production (“RFP”), (2) provide complete
answers to all Interrogatories, and (3) search and collect, via specified search terms and parameters,
all electronically stored information (“ESI”) germane to identified corporate custodians and
30(b)(6) corporate representatives.1 The Court addresses the first and second requests collectively
followed by the request for ESI.
I.

Defendant’s Responses to Plaintiffs’ RFPs and Interrogatories
Plaintiffs argue that Defendant’s objections to Plaintiffs’ RFPs and Interrogatories are

deficient, inapplicable, and/or without merit. Defendant responds that its objections are not only
appropriate but necessary to protect itself from Plaintiffs’ abusive discovery requests. In pertinent
part, Defendant’s responses and objections consist of assertions of privilege or contain “subject
to” or boilerplate language.
Regarding Defendant’s assertions of privilege, Plaintiffs claim that Defendant fails to
provide a privilege log accompanying such objections.2

Defendant contends that it is not

withholding any information on the basis of privilege. Rule 26(b)(5) provides that a party
withholding information on the basis of privilege or trial-preparation material must expressly make
such claim and “describe the nature of the documents, communications, or tangible things not
produced or disclosed—and do so in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5). The Court
Defendant avers that Plaintiffs’ request for ESI is inappropriate because Plaintiffs did not satisfy the meet and confer
requirement imposed by Local Rule CV–7(h). On February 28, 2018, the Court held a telephonic conference
discussing various discovery issues. The Court noted that if certain issues were not resolved, Plaintiffs could forego
the meet and confer requirement and file a motion to compel. The Court finds that the relief Plaintiffs seek in their
motion is permissible and within the scope of the previous telephonic conference.
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Specifically, Plaintiffs point to Defendant’s responses to Interrogatories 1, 8, 13, and 15 and Defendant’s responses
to RFPs 19-20, 22, 26, 29-30, 32, 35, 39, 41, 46-47, 50, and 53 (Dkt. #98, Exhibits 3, 4).
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orders Defendant to produce a privilege log for each assertion of privilege it makes. If Defendant
claims that it is not withholding documents based on privilege, then Defendant must file amended
responses removing language stating or implying that it is.
Concerning Defendant’s responses which use “subject to” or boilerplate language,3 the
Court finds that Defendant, as a result of using such language, waived each of its objections. The
practice of including “subject to” or “without waiving” statements after objections is an age-old
habit comparable to belts and suspenders. This practice is “manifestly confusing (at best) and
misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure.” Keycorp
v. Holland, No. 3:16-cv-1948-D, 2016 WL 6277813, at *11 (N.D. Tex. Oct. 26, 2016) (quoting
Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459, 470 (N.D. Tex. 2015)). Such an objection
and answer “leaves the requesting [p]arty uncertain as to whether the question has actually been
fully answered,” Consumer Elecs. Ass’n v. Compras & Buys Magazine, Inc., No. 08-21085-CIV,
2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008), and “wondering as to the scope of the
documents or information that will be provided as responsive.” Heller v. City of Dall., 303 F.R.D.
466, 487 (N.D. Tex. 2014). Rule 34 requires a party objecting to a RFP to state the objection and
supporting reasons. FED. R. CIV. P. 34(b)(2)(B). Stated differently, the party resisting discovery
“must show specifically . . . how each [request] is not relevant or how each question is overly
broad, burdensome or oppressive.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894
F.2d 1482, 1485 (5th Cir. 1990) (quoting Josephs v. Harris Corp., 677 F.2d 985, 991–92 (3d Cir.
1982)). A party may not “refuse discovery simply by making a boilerplate objection that it is not
proportional.” FED. R. CIV. P 26(b)(1), advisory committee note (2015).

Specifically, Plaintiffs point to Defendant’s responses to Interrogatories 1-8, 10, and 12-15 and Defendant’s
responses to RFPs 2-4, 6-10, 12-17, 19-30, 32-33, 37-38, 42-44, 46-48, 50-51, and 53-54 (Dkt. #98, Exhibits 3, 4).
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The Court finds that Defendant’s inclusion of “subject to and without waiving these
objections” is not supported by the federal rules and goes against the purposes of a just, speedy,
and inexpensive resolution. See Carr, 312 F.R.D. at 470. Further, by answering questions in such
a manner Defendant fails to specify the scope of its answer in relation to the request. This makes
it impossible for Plaintiffs or the Court to assess the sufficiency of the response. Therefore,
Defendant has waived each objection by including “subject to” or boilerplate language in its
responses. See id. As such, Defendant’s failure to specify specific grounds in the objections results
in waiver of those objections. FED. R. CIV. P. 34(b)(2)(B); Keycorp, 2016 WL 6277813, at *11.
As a result, Defendant is ordered to provide amended responses as discussed below.
II.

Plaintiffs’ Request for ESI
Plaintiffs seek an order compelling Defendant to produce ESI for identified corporate

custodians and 30(b)(6) witnesses. Specifically, Plaintiffs reference an exhibit which list search
terms, sample percentages, and specific custodians (Dkt. #118, Exhibit 1). Defendant responds
that Plaintiffs’ suggested search terms and requests are overly broad and unnecessarily increase
the volume of ESI. Nevertheless, Defendant contends that the parties are still working on agreed
search terms and have yet to reach an impasse warranting a motion to compel.
The Court finds that Plaintiffs’ request for ESI as specified in Exhibit 1 to its Reply is
appropriate and should be granted (Dkt. #118, Exhibit 1). Although Defendant asserts that the
parties are not at an impasse, the Court finds that given the ongoing discovery disputes and inability
to cooperate the requested relief is necessary.

Plaintiffs further request an order requiring

Defendant to produce a randomized five percent of content on a share drive from 2013 to the
present regarding various divisions of employees, including STMs. Because this request is raised
for the first time in Plaintiffs’ reply, the Court declines to grant such relief at this time. Rather, the

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Court encourages Plaintiffs to confer with Defendant to reach a common ground on the amount of
share drive that needs to be produced and for which specific divisions.
CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion to Compel (Dkt. #98) is hereby
GRANTED in part.
Accordingly, Defendant is ORDERED to, within seven days, provide a privilege log for
each assertion of privilege made. If Defendant is not withholding documents or information on
the basis of privilege, Defendant must file amend responses removing language stating or implying
that it is.
It is further ORDERED that Defendant shall, within seven days from the date of this Order,
serve upon counsel for Plaintiffs the following:
1.

An amended, corrected and complete set of answers to Plaintiffs’ Interrogatories
Nos. 1, 8, 10, and 12-15; and

2.

An amended, corrected, and complete set of responses to Plaintiffs’ Requests for
Production Nos. 2-4, 6-10, 12-17, 19-30, 32-33, 35, 37-39, 41-44, 46-48, 50-51,
53-54.

It is further ORDERED that in preparing all the above sets of answers or responses (each,
a “Set”), Defendant shall observe and comply with the following:
A.

Defendant and its counsel shall sign each Set separately, attesting to the accuracy
and completeness of that Set’s answers or responses and to Defendant’s
performance of a thorough, good faith search for responsive documents.

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B.

Each Set shall include answers or responses to all of Plaintiffs’ discovery requests,
even if Defendant has answered or responded to such requests before. However,
Defendant may amend their previous answers or responses.

C.

If Defendant determines after a full, complete, and good faith search and inquiry
that the true and correct answer to a particular interrogatory is that there are no
items that correspond to the information requested by that interrogatory in its
response to that interrogatory it shall state that fact clearly, in a full sentence, and a
short explanation should be given.

D.

If Defendant determines after a full, complete, and good faith search and inquiry
that there are no documents responsive to a particular request for production, in
their response to that request for production it shall state that fact clearly, in a full
sentence, and recite what search efforts it undertook to locate and obtain all
documents responsive to that request for production.

It is further ORDERED that Defendant produce, in TIFF format, the appropriate ESI as
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specified in Dkt. #188, Exhibit 1 within two weeks of the issuance of this Order.
Defendant is reminded that any failure to comply fully with this Order may subject
Defendant to sanctions by the Court.
IT IS SO ORDERED.
SIGNED this 6th day of August, 2018.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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