No. Civ.A. 2-1030
United States District Court, E.D. Louisiana
February 26, 2003
Decided On March 14, 2003
*1 Before this Court is the defendant Lockheed Martin's Motion for Review and Set Aside of the Magistrate Judge's Order Compelling Discovery and Awarding Attorney Fees. (Rec.Doc. 34). For the following reasons the Court finds that the Magistrate Judge's findings are not clearly erroneous and, therefore, and DENIES Lockheed's motion.
The plaintiff, Felicia Giardina filed the instant suit on April 5, 2002 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, claiming that she was discriminated against during her employment with Lockheed. On July 30, 2002, Giardina propounded her First Request for Production of Documents and First Set of Interrogatories upon Lockheed. Lockheed responded to the interrogatories on September 10, 2002 and responded to the plaintiff's document request on September 13, 2002. On October 15, 2002 Lockheed filed supplemental responses. Thereafter, on November 12, 2002, Giardina filed a motion with the magistrate judge claiming that the responses provided by Lockheed did not comply with the liberal discovery rules allowed in employment discrimination cases. Lockheed responded that its responses did, in fact, comply and that the plaintiff was not entitled to any discovery that was outside her relevant work unit. The Magistrate Judge, in a minute entry dated January 9, 2003, granted the plaintiff' motion to compel and awarded attorneys fees. In its Motion for Review and Set Aside of the Magistrate Judge's Order Compelling Discovery and Awarding Attorney Fees Lockheed now objects to the magistrate judge's order as it relates to Interrogatory No. 17 and to the magistrate judge's award of attorneys fees.
The District Court may reconsider a magistrate judge's determination of non-dispositive pre-trial matters where it has been shown that the magistrate judge's order is “clearly erroneous or contrary to law.” See
28 U.S.C. § 636(b)(1)(a); Fed.R.Civ.P. 72(a).
Lockheed's first objection is to the magistrate judge's order on Interrogatory No. 17. Interrogatory 17 asks for the following:
Please list all non-work related internet sites accessed on all computers in Weld Sub Assembly (WSA) areas, One, Two, and Three from January 1998 until September 22, 1999.
The Defendant answered by stating:
The interrogatory is objected to as overly broad and unduly burdensome. Subject to the objection counsel has been advised that Lockheed does not retain such data for more than six months and therefore cannot obtain the information requested for the time period in question.
The plaintiff subsequently modified her request by explaining that “Answer to Interrogatory No. 17 is needed for whatever months the company has the data. If the only data the company has is the last six months, the Plaintiff hereby modifies the request to include the data of non-work related internet sites accessed.” In response, the defendant maintained its original objection-that the request was overly burdensome.
*2 The magistrate judge, however, found that the fact that a party does not have possession of the requested materials does not excuse its failure to respond to the request. She ordered the defendant to provide the available data and also respond by stating the steps taken to obtain non-work related internet sites accessed during the dates requested. The magistrate judge also instructed the defendant to include a detailed explanation of its efforts to obtain the information and the reasons its efforts were not successful if it was unable to obtain the data necessary to fully respond to the request. The magistrate judge's instruction specifically took into consideration the fact that the defendant only retains such data for six months.
Lockheed objects to the magistrate judge's order to the extent that she intended to order the production of records created over the past six months. Lockheed argues that this is an abuse of discretion because the discovery requested would involve the production of a special report, a time consuming effort with obviously no connection to the plaintiff's claims. It argues that there are sixteen computers in the three areas identified by the plaintiff. Lockheed insists that “running [a] report for six months [on the internet sites accessed] would result in a document listing about three and a half million ‘hits.” ’ It maintains that in order to produce such a report Lockheed would have to assign an automatic data processing technician to the job for at least fifty-two hours. Additionally, it asserts that such a report cannot distinguish between work-related and non-work related internet “hits” much less identify the user.
However, the Court does not read the magistrate judge's order as mandating the production of internet records over the past six months. The order specifically addressed Interrogatory No. 17 in its original form-as a request for all non-work related internet sites accessed on Weld Sub Assembly areas One, Two, and Three between January 1998 and September 22, 1999. It did not address the plaintiff's amended request for documents over the past six months. See
Magistrate Judge's Minute Entry p. 6, 1-9-03. The magistrate judge's order does not direct that Lockheed produce this information for the past six months. Instead it states “to the extent the plaintiff has claimed that pornography was viewed on the internet and left on company computers in retaliation for her having filed several complaints, the information requested is relevant.” This undoubtedly implies that the order refers to records kept during the time Giardina was employed. Therefore, Lockheed is required, as ordered, to explain its efforts in obtaining the information between January 1998 and September 22, 1999, and if unable to access this information, to explain why. See
Fed.R.Civ.P. 33(b)(1)(“Each interrogatory shall be answered separately and fully ...”).
As to the second objection, that the magistrate judge incorrectly awarded attorneys fees to the plaintiff, the Court finds that there is no clear error, nor was the decision to grant attorneys fees to the plaintiff contrary to the law. Motions to compel discovery responses are governed by Federal Rule of Civil Procedure 37. That rule provides that “[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions.” Fed.R.Civ.P. 37(a)(2). Subsection (a)(4)(A) of Rule 37, which governs sanctions under the rule, mandatorily requires the award of reasonable expenses, including attorney's fees, unless the motion to compel discovery was unjustified or other circumstances make the award unjust. That subsection states that:
*3 (4) Expenses and Sanctions
(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
The magistrate judge found that after reviewing the circumstances, attorney's fees were warranted. Lockheed has not met its burden of showing that the magistrate judge's decision was clearly erroneous or contrary to law. Accordingly,
IT IS ORDERED that the defendant's Motion for Review and Set Aside of the Magistrate Judge's Order Compelling Discovery and Awarding Attorney Fees, (Rec.Doc. 34), is DENIED.
End of Document.