RULING AND ORDER ON DEFENDANT'S MOTION TO COMPEL AND FOR ATTORNEY'S FEES
ERIN WILDER-DOOMES, Magistrate Judge.
Before the Court is a Motion to Compel Discovery and for Attorney's Fees (the "Motion to Compel"), filed by Troy Hebert ("Hebert"), in his individual capacity and in his official capacity as the former Commissioner of the Louisiana Office of Alcohol and Tobacco Control ("ATC").
For the reasons that follow, the Motion to Compel is
On September 16, 2015, Plaintiff filed a Complaint in this Court against Hebert, asserting claims of retaliation under 42 U.S.C. §§ 1981 and 1983, invasion of privacy under the United States and Louisiana Constitutions, and defamation under Louisiana law.
On January 30, 2017, Hebert filed the instant Motion to Compel, seeking to compel Plaintiff to respond to Request for Production Nos. 8, 9, 10, 11 and 12, which request the following documents: (1) all text messages exchanged between Plaintiff and any former or current ATC employee between January 1, 2012 and the present; (2) all e-mails sent, received or exchanged by or between Plaintiff and any former or current ATC employee between January 1, 2012 and the present from any email accounts maintained or accessed by Plaintiff; (3) any text messages or emails sent, received or exchanged by Plaintiff referring to Hebert or Plaintiff's employment with the ATC; (4) all text messages sent or received from Plaintiff's ATC-issued cell phone between January 1, 2012 and February 25, 2015; and (5) any emails, text messages, data, information or documents deleted from Plaintiff's ATC-issued cell phone before the phone was returned to the ATC in February 2015.
Plaintiff raised the same objection to Request for Production Nos. 8 and 9, asserting that he had returned his ATC-issued cell phone to the ATC and, therefore, does not have possession, custody, or control of any text messages or e-mails other than those previously provided by Hebert.
As a result of a discovery conference held pursuant to Fed. R. Civ. P. 37(a)(1) on December 9, 2016, Plaintiff served Hebert with supplemental discovery responses on December 21, 2016. Hebert asserts, however, that Plaintiff did not produce any additional documents and merely added objections to his original discovery responses. In his supplemental responses to Request for Production Nos. 8, 9 and 10, Plaintiff asserted that he did not use his personal cell phone or personal email addresses for ATC business, so the contents of any text messages or emails sent or received from those email accounts or that device are irrelevant, not discoverable, and not reasonably calculated to lead to the discovery of admissible evidence.
In the Motion to Compel, Hebert asserts that the emails and text messages requested are relevant to the claims and defenses in this case. Specifically, Plaintiff claims he was wrongfully terminated and that Hebert conducted an unreasonable search of the text messages on Plaintiff's ATC-issued cell phone and Hebert asserts that Plaintiff was terminated for non-retaliatory reasons, including sending a racially inflammatory text message to another ATC employee. Thus, Hebert contends that Plaintiff's text messages and how the ATC came to acquire those text messages is a central issue in this case. Hebert also asserts that the communications are relevant because Hebert "believes Plaintiff has been and continues to communicate with current and former employees of the ATC, coaching them, and providing misinformation about Hebert and the ATC in an effort to stir employees up against Hebert and to bring litigation against the ATC."
In opposition, Plaintiff asserts that Hebert failed to cite any authority or otherwise explain why the information sought is discoverable.
Plaintiff argues that although Hebert conclusively states that other possibly existing racially-charged text messages and/or emails between Plaintiff and his family members are relevant, Hebert fails to explain how such information is discoverable to prove any of Hebert's defenses. Plaintiff cites a recent Fifth Circuit opinion, in which the Court held that, "as the ultimate issue is the employer's reasoning at the moment the questioned employment decision is made, a justification that could not have motivated the employer's decision is not evidence that tends to illustrate the ultimate issue and is therefore simply irrelevant at this stage of the inquiry." Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 237 (5th Cir. 2016) (emphasis in original). Plaintiff points out that Hebert cites no authority for his position that a party must produce personal, confidential and irrelevant communications between himself and his family and friends to the requesting party, especially where, as here, the requesting party previously published such information in news media outlets throughout Louisiana to harass Plaintiff. Plaintiff denies Hebert's assertion that Plaintiff has been communicating with ATC employees and encouraging them to sue the ATC. Plaintiff asserts that even if the requested communications supported Hebert's assertion, Hebert fails to explain what defense these communications would support. Nonetheless, Plaintiff included a short privilege log for the information that has been withheld on the basis that it is privileged, irrelevant, and/or consists of private/personal information.
In reply, Hebert reasserts many of the arguments raised in the Motion to Compel, emphasizing that Plaintiff has not provided any emails from his private email accounts, any text messages from his personal cell phone, or the information Plaintiff deleted from his ATC-issued cell phone prior to returning it to the ATC.
II. Law and Analysis
Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). A determination of relevancy is tied to applicable substantive law and then weighed against six proportionality factors. Any information sought that is not relevant to a party's claim or defense is not discoverable, regardless of proportionality. The Court must additionally limit the frequency or extent of discovery if it determines that: "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C).
Rule 34 of the Federal Rules of Civil Procedure provides for the discovery of documents and tangible things. Under Rule 34, a party has 30 days after service of discovery to respond or object in writing to the request for production. Fed. R. Civ. P. 34(b)(2)(A). If a party fails to respond fully to requests for production in the time allowed by Rule 34(b)(2)(A), the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37. "An evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4).
A. Hebert's Requests for Plaintiff's Emails and Text Messages from Plaintiff's Private Email Accounts and Personal Cell Phone Are Not Proportional to the Needs of the Case.
In the Motion to Compel, Hebert seeks to compel Plaintiff to respond to the following discovery requests:
Hebert asserts that the emails and text messages are relevant to his assertion that Plaintiff was terminated for non-retaliatory reasons, including sending a racially inflammatory text message to another ATC employee. Hebert also asserts that the communications are relevant to his claim that Plaintiff has been communicating with ATC employees and providing misinformation about Hebert and the ATC to persuade ATC employees to file suit against Hebert and the ATC. Hebert does not cite any jurisprudence to support his claim that Plaintiff should be compelled to produce these communications. In contrast, Plaintiff asserts that he did not use his personal cell phone or his personal email addresses for ATC business, so the contents of any such text messages and emails are irrelevant to this matter, not discoverable, not reasonably calculated to lead to the discovery of admissible evidence, and are requested solely to harass Plaintiff and to invade the privacy of Plaintiff and his family.
Hebert's discovery requests for Plaintiff's emails and text messages are not proportional to the needs of the case. A request for "all text messages" and "all electronic mail (e-mail) messages" that Plaintiff exchanged with any former or current employee of the ATC between January 1, 2012 and the present encompasses a large array of communications, not all of which are likely to be relevant. Hebert's request for "any text or electronic mail messages sent, received, or exchanged by you referring to or otherwise relating to Troy Hebert or your employment with the ATC" fails to specify a time period for the information requested. The request would also encompass a large number of communications that may not be relevant to the claims or defenses in this litigation. Parties are not required to produce discovery regarding matters not relevant to the litigation.
Emails and text messages exchanged between Plaintiff and current or former ATC employees relating to Hebert or allegations of race discrimination at ATC, if such communications exist, are potentially relevant in this case. For example, Plaintiff is required as part of his retaliation claim to establish a good faith, reasonable belief that he was opposing an employment practice made unlawful by Title VII. If, for example, Plaintiff's communications with ATC employees showed that he was trying to incite other ATC employees to bring allegations against Hebert without a good faith belief that Hebert was engaging in employment practices that violated Title VII, that information would be relevant. However, any such communications should be limited to the pertinent time period of the period of retaliation alleged in this case. According to the Complaint, the acts of retaliation giving rise to this litigation allegedly occurred from October 4, 2012, the day Hebert received copies of the EEOC charges filed by Gilmore, McDowell, and Hingle and learned of Plaintiff's participation as a witness in those proceedings, through Plaintiff's termination on August 18, 2015.
To the extent that any of the text messages or emails produced subject to this Ruling and Order contain "confidential information," Plaintiff may designate those communications as containing "confidential information" in compliance with the Protective Order
B. Hebert's Requests for All Text Messages, Emails, and Information Deleted from Plaintiff's ATC-Issued Cell Phone Seek Irrelevant Information.
Hebert also seeks to compel Plaintiff to respond to the following discovery requests:
In the Motion to Compel, Hebert addresses these discovery requests together, asserting that whether there were other racially-charged text messages and/or emails on Plaintiff's ATC-issued cell phone that were deleted before Plaintiff returned the phone to the ATC is relevant to Hebert's defense that Plaintiff was terminated for non-retaliatory reasons, namely for sending a racially inflammatory text message to another ATC employee. Hebert asserts that the information is also relevant to determine whether Plaintiff was communicating with other ATC employees and feeding them misinformation about Hebert and the ATC. Hebert further asserts that the deleted information is relevant to Plaintiff's invasion of privacy claim because Plaintiff knew the ATC was going to search his ATC-issued cell phone, so the deleted information shows what information Plaintiff considered confidential when he returned the phone to the ATC. Plaintiff maintains that he previously testified that the information deleted from his ATC-issued cell phone includes bank statements, Coast Guard passwords, and text messages between Plaintiff and his family members and friends, and that he did not delete any communications between himself and ATC employees.
The information and communications sought by Request for Production Nos. 11 and 12 do not appear to be relevant to any claim or defense in this litigation. According to the portion of Plaintiff's deposition testimony attached to the Motion to Compel, Plaintiff described the information deleted from his ATC-issued cell phone as "notes with passwords on it," "my "bank stuff," and "bank account records and passwords for the Coast Guard and that kind of stuff that I didn't want on my phone."
However, to the extent that Plaintiff deleted any emails or text messages from his ATC-issued cell phone that were exchanged between Plaintiff and a former or current ATC employee between August 22, 2012 and August 18, 2015 that reference or discuss Hebert or race discrimination at ATC, such communications must be produced for the same reasons set forth in Section II(A). Similarly, if Plaintiff maintains that any such communications contain "confidential information," Plaintiff may designate the communications as containing "confidential information" in compliance with the Protective Order
Since the Motion to Compel is only granted in part (and denied in part), Hebert's request for the reasonable expenses and attorney's fees incurred in filing the Motion to Compel
For the reasons set forth herein,