Having considered the record, the submissions and arguments of counsel, and the applicable law, Plaintiffs’ Motion to Compel is DENIED for the reasons stated herein.

I. BACKGROUND

The background of this matter is more fully set forth in prior rulings. See ECF Nos. 45, 83–86, 91, 98, 135, 169, 170. Briefly, Plaintiffs Katherine Muslow and Meredith Cunningham formerly worked for LSU as “General Counsel” to LSU (New Orleans) and a staff attorney at LSU (New Orleans), respectively. Plaintiffs have filed suit asserting claims of, among other things, gender discrimination and retaliation under both Title VII and the Equal Pay Act. ECF No. 99, at 12–16. The court issued a Scheduling Order on December 9, 2020, which among other things, established a July 9, 2021 discovery deadline. ECF No. 111, at 2.

A. Judge Ashe's Prior Orders

Defendants filed a Motion to Strike and for Protective Order after Plaintiffs included certain attorney-client privileged exhibits and information in their complaint. See ECF No. 33. On April 14, 2020, Judge Ashe granted Defendants’ motion (ECF No. 45, at 20, 52), finding that “Plaintiffs’ retention and use of LSU's documents ... without its authorization – documents they possess only as a result of their having been engaged by LSU in positions of trust as its lawyers – good cause has been shown as required by Rule 26(c) of the Federal Rules of Civil Procedure to support issuance of a protective order.” Id. at 20. He further ordered Plaintiffs to return to LSU any documents or other information belonging to LSU that came into their possession by virtue of their service as counsel to LSU and to identify all persons who have received or viewed any such documents or information. Id. at 20.

On August 4, 2020, Judge Ashe denied Plaintiffs’ Motion for Reconsideration of the Protective Order, noting that while the court ordered the return any documents or other information – whether privileged, confidential, or not – belonging to LSU which came into their possession by virtue of their service as counsel to LSU, the court did not bar Plaintiffs from seeking those same documents and information through the discovery process or other proper vehicles such as a public-records request nor did the Order prohibit Plaintiffs from ever using such documents or information in this litigation if later obtained properly. ECF No. 83, at 7. Judge Ashe again ordered Plaintiffs “to return to LSU all copies of documents in their possession, whether in electronic or hard-copy form, that they obtained as a result of their former representation of LSU (including, but not limited to, all documents Plaintiffs transmitted to any private email account). Plaintiffs are barred from using or referring to such documents. After all such documents are returned to LSU, Plaintiffs may seek to use any of these same documents if they are obtained through the normal processes of discovery or public-records disclosure.” Id. at 11.

B. Plaintiffs’ Motion to Compel

*2 In their supporting memorandum, Plaintiffs represent that, pursuant to Judge Ashe's August 4, 2020 Order, they returned LSU's documents (0001-1324) on August 18, 2020. ECF No. 141-1, at 1. Later, in December 2020, the parties exchanged initial disclosures. Defendants’ initial disclosures identified “[d]ocuments produced by Plaintiffs to Defendants on August 18, 2020 pursuant to EDLA Court Order, Civil Action No. 19-11793, R. Doc. 83, in possession of Plaintiffs and Defendants.” ECF No. 141-4, ¶32, at 8. Plaintiffs’ initial disclosures similarly included “[a]ll documents previously produced August 18, 2020, to defendants[ ] as per USDC Judge Ashe[’]s Order (R. 83, “Order”), Bates Stamped 0001-1324.” ECF No. 155-1, at 7.

Plaintiffs then issued discovery requests seeking the documents “identified or described in Your or any Individual Defendant's Initial Disclosures under Fed. R. Civ. P. 26 and any supplements thereto ....” ECF No. 141-5, at 3. In response to that request, Defendants lodged objections that the information is publicly available and in the possession of either Plaintiff or a third party, but did not deliver an entire set of returned documents (0001-1324) or object on the basis of privilege. ECF No. 141-1, at 2. Plaintiffs filed this Motion to Compel seeking production of all documents that they returned to LSU on the basis that by listing of all, not simply a portion, of the documents returned on August 18, 2020, Defendants have rendered the entire set of documents discoverable. Id. at 3–4. Plaintiffs also state “LSU's past ‘objection’ to Plaintiffs’ use of the August 2020 documents – which are already in Plaintiffs’ possession and contemplated to be sued as such by LSU's [initial disclosure] – should be overruled.” Id. at 5.

Defendants oppose Plaintiffs’ Motion to Compel, arguing that Plaintiffs seek all documents previously returned, not only that portion of documents that are relevant and proportional to this litigation. ECF No. 155, at 11, 13. Defendants contend that they produced responsive documents that were also included in the documents returned by Plaintiffs on August 18, 2020, but objected to Plaintiffs’ retention or use of the documents Judge Ashe ordered be returned. Id. at 8–9 (citing ECF No. 155-2, at 24). Defendants allege that, in violation of Judge Ashe's Order, when, Plaintiffs returned LSU's documents on August 18, 2020, they improperly kept a copy of the documents and have impermissibly used them during depositions. Id. at 12–13. That issue is subject to a separate motion before Judge Ashe. ECF No. 147.

II. APPLICABLE LAW AND ANALYSIS

Rule 26(b)(1) provides, in pertinent part: “Parties may obtain discovery regarding any non-privileged 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.”[1] This broad duty of disclosure extends to all documents that fit the definition of relevance for the purposes of discovery—whether the documents are good, bad, or indifferent.[2] The disclosure duty is a central concept of the discovery process and finds expression both in the discovery rules and this Court's Rules of Professional Conduct, which prohibit an attorney from suppressing evidence that is subject to a legal obligation to reveal or produce.[3]

*3 A party seeking discovery must comply with Rule 26(b)(1)’s proportionality limits on discovery requests and is subject to Rule 26(g)(1)(B)’s requirement to certify that the discovery request is “(i) consistent with these rules ...; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Fed. R. Civ. P. 26(g)(1)(B). While the discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials,[4] discovery does have “ ‘ultimate and necessary boundaries.’ ”[5] Rule 26(b)(2)(C) mandates that the Court limit the frequency or extent of discovery otherwise allowed, if it determines: “(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).”[6] Further, Rule 26(b) “has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.”[7] While relevancy in the discovery context is broader than in the trial context, that legal tenet should not be misapplied to allow fishing expeditions in discovery.[8] See also Fed. R. Civ. P. 26(c)(1) (authorizing court to issue order protecting party from annoyance, embarrassment, oppression, or undue burden or expense).

Plaintiffs either misunderstand or mischaracterize Defendants’ initial disclosures. In their disclosure, Defendants do not identify all documents returned by Plaintiffs on August 18, 2020, as suggested by Plaintiffs. Rather, Defendants’ disclosure explicitly limited the universe of August 18, 2020 documents to those in possession of both Plaintiffs and Defendants. Pursuant to Judge Ashe's Order, after Plaintiffs returned LSU's documents on August 18, 2020, Plaintiffs would not be “in possession” of any of the August 18, 2020 documents. Only if, as Judge Ashe indicated, Plaintiffs later obtained the documents “through the normal processes of discovery or public-records disclosure” (ECF No. 83, at 11) would both Plaintiffs and Defendants then be in possession of any August 18, 2020 documents.

Defendants’ disclosure is unambiguous. It simply lists as potential evidence documents returned August 18, 2020 documents that are later produced to Plaintiffs during the normal discovery processes or obtained by Plaintiffs via public records requests. Only when the documents are produced in the normal course of discovery or via public records requests would both Plaintiffs and Defendants then be in possession of the August 18, 2020 documents. Contrary to Plaintiffs’ argument, Defendant's initial disclosure simply does not transform all August 18, 2020 documents into discoverable, relevant documents that must be produced.

III. CONCLUSION

For the foregoing reasons and considering the record, the submissions and arguments of counsel, and the applicable law,

IT IS ORDERED that Plaintiffs’ Motion to Compel (ECF No. 141) is DENIED.

New Orleans, Louisiana, this 28th day of April, 2021.

Fed. R. Civ. P. 26(b)(1). Federal Rules of Civil Procedure 26(a) and (e) also require a litigant to supplement disclosures and discovery responses once the litigant learns that the disclosures or discovery responses are incomplete. See Fed. R. Civ. P. 26.

Yelton v. PHI, Inc., 279 F.R.D. 377, 384 (E.D. La. 2011), objections overruled, 284 F.R.D. 374 (E.D. La. 2012) (citation omitted).

Id.

Herbert v. Lando, 441 U.S. 153, 176 (1979) (citations omitted).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)).

Fed. R. Civ. P. 26(b)(2)(C)(i)–(iii).

Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011).

Trident Mgmt. Grp., LLC v. GLF Constr. Corp., No. 16-17277, 2017 WL 3011144, at *4 (E.D. La. July 14, 2017) (citations omitted); see also Crosby, 647 F.3d at 264; Ganpat v. E. Pac. Shipping, PTE, Ltd., No. 18-13556, 2020 WL 1046336, at *3 (E.D. La. Mar. 4, 2020).