KAREN WELLS ROBY, Magistrate Judge.
Before the Court is Plaintiff, Prixie Montgomery, et al.'s, ("Montgomery")
This is a Title VII case brought by Plaintiffs Montgomery, Ave Gaines, ("Gaines") and Lela Logan, ("Logan"). The Plaintiffs allege that they are African-American former sales account managers for Clear Channel, who were subjected to disparate treatment and compensation structure on account of their race, as well as for unlawful retaliation. On August 9, 2013, the presiding U.S. District Judge entered an Order of Dismissal as to all claims brought by Plaintiffs Gaines and Logan; this left only Plaintiff Montgomery in the suit. (R. Doc. 72).
Rule 26(b)(1) provides that "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Rule 26(b)(1). The Rule specifies that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. The discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 177 (1979). Nevertheless, discovery does have "ultimate and necessary boundaries." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Further, 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); Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994).
Under Rule 26(b)(2)(c), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit. Rule 26(b)(2)(C). In assessing whether the burden of the discovery outweighs its benefit, a court must consider: (1) the needs of the case; (2) the amount in controversy; (3) the parties' resources; (4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed discovery in resolving the issues. Id. at 26(b)(2)(C)(iii).
Rule 34 further provides that a party may request another party to produce "any designated documents or electronically stored information . . . stored in any medium from which information can be obtained." Id. at 34(a)(1)(A). This request "must describe with reasonable particularity each item or category of items to be inspected." Id. at (b)(1)(A). "For each item or category, the response must either state that inspection . . . will be permitted as requested or state an objection to the request, including the reasons." Id. at (b)(2)(B).
Finally, Rule 37 provides that "[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: . . . (iii) a party fails to answer an interrogatory submitted under Rule 33, or (iv) a party fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34." Rule 37(a)(3)(B). Rule 37 further requires that all discovery motions "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Rule 37(a)(1).
In support of her underlying Motion, Montgomery argues that she propounded Rule 34 requests for production of documents on June 12, 2013. (R. Doc. 57-1, p. 1). Montgomery then argues that she wrote a letter to Clear Channel on July 22, 2013, stating that Clear Channel's discovery responses were unsatisfactory and requesting a conference in connection with the same. In particular, Montgomery cited Requests for Production Nos. 1, 18, 22, 23, 24, 25, 26, 27, and 28, as well as No. 14, which was "incomplete as well as non-searchable native format for emails and text messages." (R. Doc. 57-4, p. 1). Montgomery argues that a "meeting" was held later that afternoon. (R .Doc. 57-1, p. 1).
On July 23, 2013, Clear Channel sent a letter to Montgomery, outlining its responses to Request for Production Nos. 14, 20, and 21, but not otherwise responding to the requests explic itly raised in Montgomery's July 22, 2013 letter. (R. Doc. 57-4, p. 1).
Montgomery's underlying Motion now requests that the Court order production of Requests Nos. 1, 15, 16, 18, 19, 22, 23, 24, 25, 26, 27, 28, 31 and 14, as well as "Answers to Interrogatories," without further specification in either her Motion or her supporting documents. (R. Doc. 57-1, p. 2; 57-4, p. 1).
In its Opposition, Clear Channel points out that the parties never conferred as to Requests Nos. 15, 16, 19, or 31. (R. Doc. 66, p. 2). Since it was not afforded a prior opportunity to address these alleged deficiencies prior to Montgomery's filing of the Motion, Clear Channel argues that the motion was filed "in bad faith." Id.
Here, it is at best unclear that the Rule 37 conference conducted by the parties addressed all of the issues arising in connection with this Motion. At oral argument, Montgomery raised several requests which were not explicitly made part of Montgomery's Rule 37 notification — Nos. 15, 16, 19, 20 and 21, and Clear Channel did not contest procedural propriety of raising these issues even though they were apparently not addressed at the conference. Therefore, the Court will consider those discovery requests either referenced in Montgomery's Rule 37 notification, or raised by the parties at oral argument.
Plaintiffs' Request Nos. 14, 20, and 21 demanded production of both information, as well as the information in native format.
(R. Doc. 57-3, p. 14).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery, beyond a request that the information be provided in "native format." Clear Channel's opposition argues that they have specifically responded with the following document productions: "CCB-000001 to 00233 Plaintiffs' personnel files; CCB-000277 to 000598 Plaintiffs' EEOC files; CCB-001311 to 01775 Supervisor and HR files pertaining to Plaintiffs." (R. Doc. 66, p. 6).
(R. Doc. 57-3, p. 16). Clear Channel does not specifically respond to this request, but its response to the Rule 37 conference indicates that 3,584 "hits" were returned in a computer search query. (R. Doc. 57-5, p. 1).
(R. Doc. 57-3, p. 17). Clear Channel does not specifically respond to this request, but its response to the Rule 37 conference indicates that 229,626 "hits" were returned in a computer search query. (R. Doc. 57-5, p. 1).
At oral argument, Montgomery contended generally that for Requests Nos. 14, 20, and 21, it had requested documents for these three requests in native format, which had not been produced.
In opposition, Clear Channel argued that it had produced a list of the number of "hits" which had occurred as a result of modified search terms at the Rule 37 conference. Clear Channel argued that after entering a confidentiality agreement with Montgomery, it produced some of the responsive documents via email. It subsequently produced additional responses to Montgomery by handdelivering on a compact disc to Montgomery's counsel, Evan Williams, during a deposition, and then by hand-delivering a mailing a copy of the disc to Montgomery's other counsel, Dale Williams, at a subsequent deposition on July 24, 2013.
The Court found that because Montgomery could not state whether the contents of the discs had actually been investigated, Clear Channel had satisfied its production obligations by delivering its responses via email and on the compact discs. Accordingly, it sustained Clear Channel's objection and denied Montgomery's Motion to Compel as to Requests for Production No. 14. Since no distinct arguments were made as to Nos. 20 and 21, but finding that the three requests were argued together by Montgomery, the Court also sustains Clear Channel's objections as to Nos. 20 and 21, and denies Montgomery's motion to compel.
(R. Doc. 57-3, p. 17).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery. In its Reply, Montgomery claims that they "apparently concede" that they have failed to produce responsive documents. (R. Doc. 81, p. 5). Clear Channel's opposition argues that they have specifically responded with the following document productions: "CCB-000001 to 00233 Plaintiffs' personnel files; CCB-001311 to 01775 Supervisor and HR files pertaining to Plaintiffs." (R. Doc. 66, p. 7).
At oral argument, Montgomery argued that the request for performance reviews were relevant to establish that Montgomery performed her job adequately. She also contended that because the pivotal period in the case occurred in 2009, she needed performance reviews dating back to 2003. In opposition, Clear Channel argued that it had already produced Montgomery's personnel file on July 12, 2013, which contained all of the relevant performance reviews. Clear Channel also contended that it had produced Montgomery's supervisor's files on July 24, 2013. According to Clear Channel, the supervisor's files were contained on the disc which they had hand-delivered to Montgomery, which Montgomery had not inspected.
The Court found that the request, as stated, was overbroad, sustained Clear Channel's objection, and denied Montgomery's discovery request.
(R. Doc., 57-3, p. 17).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery. In its Reply, Montgomery claims that they "apparently concede" that they have failed to produce responsive documents. (R. Doc. 81, p. 5). Clear Channel's opposition argues that they have specifically responded with the following document productions: "Producing 2009-2012." (R. Doc. 66, p. 7).
(R. Doc. 57-3, p. 18).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery. In its Reply, Montgomery claims that they "apparently concede" that they have failed to produce responsive documents. (R. Doc. 81, p. 5). Clear Channel's opposition argues that they have specifically responded with the following document productions: "Producing 2009-2012." (R. Doc. 66, p. 7).
At oral argument, Montgomery argued that in seeking the performance reviews of Michael Masson (No. 23), and Michael Cagowski (No. 26) she was trying to establish the "network of associations" in the Clear Channel office, and that the personnel records of both Masson and Cagowski were relevant to that effect.
In opposition, Clear Channel argued that Montgomery's requests for the performance reviews of Masson and Cagowski were relevant to the claims of Gaines and Logan, who had both been dismissed. Although Gaines and Logan had not been dismissed from the suit at the time the production was due, Clear Channel argued that they had been "close" to resolving all of the claims of those two individuals at that time. Clear Channel also argued that the performance reviews of these two employees were irrelevant, because their "relationship" between Montgomery was that Masson had been slapped by Montgomery in the workplace, and Cagowski was the individual who witnessed the slapping.
The Court found that to the degree Montgomery's requests for the performance reviews of Masson and Cagowski were relevant, they should be disallowed to the degree the information requested from each party pertained to the claims originally brought by Gaines and Logan. The Court found that there was a disconnect between the assault in the workplace and the performance reviews which Montgomery sought. Therefore, it sustained Clear Channel's objection and denied Montgomery's discovery request.
(R. Doc. 57-3, p. 18) (brackets in original).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery of Requests Nos. 24 and 25, which are the performance reviews of Sandy Garcia (No. 24) and Melissa Bev (No. 25). In its Reply, Montgomery claims that they "apparently concede" that they have failed to produce responsive documents. (R. Doc. 81, p. 5). Clear Channel's opposition objects to the production of documents responsive to both requests on the basis of relevance. (R. Doc. 66, p. 7).
At oral argument, Montgomery argued that the performance reviews of Garcia and Bev were relevant because they would demonstrate that Garcia's performance reviews had changed considerably after she received some of Montgomery's accounts.
In opposition, Clear Channel pointed out that this information was not relevant to the instant suit now that Plaintiffs Gains and Logan had been dismissed, because Montgomery's cause of action was not for Title VII discrimination, but instead for retaliation. Specifically, Clear Channel contends that Montgomery has filed two administrative complaints with the EEOC, on May 2, 2011 and May 11, 2011. Id. at 3. Her May 2 Charge pertained to discrimination based on a disparate impact theory; her May 11 Charge alleged retaliation. Id. Clear Channel argues that Montgomery's May 2, 2011 Charge is still pending before the EEOC, and thus only Montgomery's retaliation charges are presently relevant for purposes of discovery. Id. at 3-4. As such, "her claim for damages can only be based upon what she was earning at the time of her termination — not any alleged disparate impact damages arising out of her first charge of discrimination for which earning records from 2006, 2007 or 2012 would pertain." Id. at 4. Clear Channel also argued that it had been "close" to resolving all of the claims of those two individuals at the time discovery had been propounded.
After listening to the argument of the parties and considering the posture of the current case, the court sustains Clear Channel's relevancy objection, and denies Montgomery's motion to compel as to this request.
(R. Doc. 57-3, p. 19).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery. Her Reply argues that "no response" has been received. (R .Doc. 81, p. 6). Clear Channel's opposition argues that they have specifically responded with the following document productions: "Producing 2007 to 2012." (R. Doc. 66, p. 8).
Montgomery argued during the hearing that the information requested was relevant to the allegations in the suit because in order to meet her prima facie burden of retaliation, she was required to show that she had a good faith basis to bring her EEOC charge. In opposition, Clear Channel argued that on July 24, 2013 it had produced data related to the shift in Montgomery's accounts.
The Court sustained the objection of Clear Channel, denied Montgomery's motion to compel, and found that the data regarding shifts in Montgomery's accounts was sufficient for Montgomery to demonstrate a good faith basis to file her EEOC complaint for purposes of her retaliation charge. Moreover, since Clear Channel had produced the information and Montgomery could not dispute receipt of the requested information, the production satisfied the request.
(R. Doc. 57-3, p. 19) (brackets in original).
Montgomery's Motion does not assert any particular arguments in support of her entitlement to discovery. In her Reply, Montgomery concedes that "some discovery" has been made, but argues that "it is difficult to believe that the accounts handled by Plaintiffs were `let go', with that revenue stream abruptly ending with their departure." (R. Doc. 81, p. 5). Clear Channel's opposition argues that they have specifically responded with the following document productions: "No one replaced Plaintiffs; CCB-000666-000786 W-2s for NOLA AEs 2008 to 2011." (R. Doc. 66, p. 8).
To the degree Montgomery's request sought additional data to support her allegation that her accounts had been shifted to non African-American account executives, the request pertained more directly to Montgomery's Title VII disparate impact claim still pending before the EEOC, rendering the request premature. The Court then found that Clear Channel's production to date was sufficient for purposes of the current suit.
Montgomery expands the scope of her Motion to include several additional Requests not included in her July 22, 2013 letter to Clear Channel. Three of these requests are Nos. 15, 16, and 19. (R. Doc. 57-1, p. 2; 57-4, p. 1). Clear Channel has opposed consideration of these requests, noting that they were not explicitly referenced in Montgomery's Motion. (R. Doc. 66, p. 2). Although there is no evidence or concession that these responses were actually discussed at the parties' Rule 37 conference, Clear Channel failed to contest the fact that they were raised at oral argument.
(R. Doc. 57-3). In its Reply, Montgomery argues that the request has had "no production." (R. Doc. 81, p. 3). Clear Channel's opposition argues that they have specifically responded with the following document productions: "CCB-001127 to 001224 AE policies, procedures, plans and tools; CCB-001776 to 002619 Leads assignments." (R. Doc. 66, p. 6).
Montgomery argued during the hearing that No. 15 pertained to documents regarding the reassignment of accounts to another Clear Channel employee. In opposition, Clear Channel argued that it had produced some documents, including: assignments of "leads," some of the supervisor's files as to how the "leads" were distributed, as well as hand-written notes of supervisors related to the assignment of "leads," on July 24, 2013. Clear Channel also contended that upon dismissal of Logan and Gaines, the documents sought to be produced were no longer relevant.
The Court sustained Clear Channel's objection as to No. 15. In so doing, the Court noted that counsel for Montgomery was in no position to refute the receipt of the rested information.
(R. Doc. 57-3). Montgomery's Reply argues that there has been "no production." (R. Doc. 81, p. 3). Clear Channel's opposition argues that they have specifically responded with the following document productions: "CCB-001127 to 001224 AE policies, procedures, plans and tools." (R. Doc. 66, p. 6).
Montgomery argued during the hearing that all that Clear Channel had produced was a "code of conduct" which she had in her possession since the beginning of the lawsuit. In opposition, Clear Channel argued that it had produced documents relative to its policies, procedures, plans, and account executive tools as to how performance bonus methodologies were calculated. After execution of the protective order referenced in Clear Channel's objection, Clear Channel then produced the W2's for the account executives for 2010 and 2011. Clear Channel also stated that it had produced documents which would have been used to calculate performance bonuses — i.e., supervisor's "tools," outlines, agendas, power points, which had been produced in electronic form on the disc which had been delivered to Montgomery's counsel on July 24, 2013.
The Court found that because Clear Channel claimed to have produced the documents on July 24, 2013, and that Montgomery had failed to actually read these documents, Clear Channel's objection was sustained.
(R. Doc. 57-3). Montgomery's Reply argues that there has been "no production." (R. Doc. 81, p. 3). Clear Channel's opposition argues that they have specifically responded with the following document productions: "CCB-001225 to 001229 Advisory Board Emails." (R. Doc. 66, p. 7).
During oral argument, Montgomery argued that Clear Channel had failed to produce any responsive documents. In opposition, Clear Channel contended that it had produced "what it had uncovered" on the discs previously delivered to Montgomery's counsel on July 24, 2013. Moreover, Clear Channel argued that the request was targeted to the now-dismissed claims of Logan and Gaines.
The Court noted that there was a relevancy problem due to the dismissal, and moreover Montgomery could not state that she did not have the documents because she had simply failed to review what had been produced to her on July 24, 2013. Therefore, the Court sustained Clear Channel's objection and denied the request.
Montgomery's Motion also raised Requests Nos. 1, 18, and 31 in her Motion and Reply (R. Docs. 66, 81), but she failed to sufficiently re-urge them at oral argument. When asked explicitly by the Court at the end of the motion hearing, "is that it?" counsel for Montgomery represented "yes, your honor, I think that was it." Based on this explicit representation by counsel, the Court finds that Requests Nos. 1, 18, and 31, which were not explicitly raised and argued at the August 14, 2013 hearing, are deemed abandoned.
Montgomery also argues that Clear Channel should be ordered to respond in full to her discovery requests and that should Clear Channel fail to comply, sanctions should be imposed. (R. Doc. 57-1, p. 2). Because Montgomery's Motion has been denied, there is no basis to award sanctions against Clear Channel.
Accordingly,
