*1 Before me is a Motion to Compel Discovery filed by Defendants Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Carlton “Trey” Jones III (together, “Defendants”). ECF No. 143. Plaintiffs Katherine Muslow and Meredith Cunningham filed a timely Opposition Memorandum. ECF No. 157.

Having considered the record, the submissions and arguments of counsel, and the applicable law, Defendants’ motion is GRANTED IN PART AND DENIED IN PART 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. Briefly, 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. As to movants, Plaintiffs assert claims of gender discrimination and retaliation under both Title VII and the Equal Pay Act against LSU and a claim for retaliation under the Equal Pay Act against Defendant Jones in his individual capacity. ECF No. 99, at 12–14.

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 4. Defendants issued Interrogatories and Request for Production to Plaintiffs on February 19, 2021.[1] After being granted a short extension through March 26, 2021, Plaintiffs delivered their unverified written responses to the requests on April 9, 2021.[2] Plaintiffs’ responses did not include any documents, or privilege log, or signed authorizations, or responses to Defendant Jones’ Interrogatories. ECF No. 143-1, at 4, 8–11, 21–23. Plaintiffs’ depositions are scheduled for May 10–11, 2021. Id. at 2.

Defendants argue that Plaintiffs have improperly refused to answer more than 4 of Defendant Jones's interrogatories on the basis that they have already answered LSU's 21 interrogatories. Id. at 6–8. Defendants contend that it seeks Plaintiffs’ Social Security earnings and other information, federal and state income tax returns, personnel records, unemployment records, workers’ compensation administrative records, criminal records, and medical records, including psychotherapy notes, because that information is relevant to Plaintiffs’ damages and Defendants’ defenses, including failure to mitigate and after-acquired evidence. Id. at 11–19. In addition, Defendants argue that they are entitled to Plaintiffs’ contingency fee contract with counsel (id. at 19–20) and that Plaintiffs have improperly invoked privilege and failed to deliver a privilege log to support those assertions (id. at 20–21). Finally, Defendants ask that the court order Plaintiffs to amend their responses asserting that they “produced” the LSU documents that Judge Ashe ordered to be returned to LSU in his April 14, 2020 Order (ECF No. 45, at 52), and again in denying Plaintiffs’ Motion for Reconsideration on August 4, 2020 (ECF No. 83), and rule that Plaintiffs have waived any and all objections (other than privilege) based on their failure to respond fully and completely to the discovery requests in a timely manner. ECF No. 143-1, at 23–25.

*2 Plaintiffs oppose the motion, arguing that they have submitted full and complete responses and asserted proper objections. ECF No. 157. Specifically, Plaintiffs argue that they are not obliged to respond to more than 25 interrogatories and that many of the interrogatories are partially duplicative and cumulative. Id. at 5–6. Plaintiffs also argue that they provided responsive documents when they “returned” LSU's documents in accordance with Judge Ashe's August 4, 2020 order and they are no longer in possession of those documents, (id. at 6–7, 11) and they have produced all documents in their possession and thus have no documents to identify on a privilege log. Id. at 10. Plaintiffs contend that the Federal Rules of Civil Procedure do not authorize a party to demand execution of a written authorization for release of documents (id. at 7–9) and they do not have “a formal contingency fee agreement.” Id. at 9–10. Finally, they argue that Defendants’ Requests Nos. 11, 12 and 13 are overly broad, unduly burdensome, and not proportionate to the needs of this case and seek documents that are already in the possession of LSU. Id. at 10. For those reasons, Plaintiffs contend that their discovery responses were proper and do not justify imposition of costs or fees under Rule 37. Id. at 11.

II. APPLICABLE LAW

A. Scope of Discovery

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.” Fed. R. Civ. P. 26(b)(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.[3] The disclosure duty is a central concept of the discovery process and finds expression not only in the rules of discovery, but also in this Court's Rules of Professional Conduct, which prohibit an attorney from suppressing any evidence subject to a legal obligation to reveal or produce.[4] 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.

Information need not be admissible into evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Rather, the information merely needs to be proportional and relevant to any claim or defense. Id. The threshold for relevance at the discovery stage is lower than the threshold for relevance of admissibility of evidence at the trial stage.[5] This broader scope is necessary given the nature of litigation, where determinations of relevance for discovery purposes are made well in advance of trial.[6] Facts that are not considered in determining the ultimate issues may be eliminated in due course of the proceeding.[7] At the discovery stage, relevance includes “[a]ny matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.”[8] Discovery should be allowed unless the party opposing discovery establishes that the information sought “can have no possible bearing on the claim or defense of the party seeking discovery.”[9] If relevance is in doubt, the court should be permissive in allowing discovery.[10]

*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). If a party resists discovery on the grounds of proportionality, it bears the burden of making a specific objection and showing that the discovery fails Rule 26(b)’s proportionality calculation by coming forward with specific information to address 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.[11]

While the discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials,[12] discovery does have “ ‘ultimate and necessary boundaries.’ ”[13] 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).”[14] Further, Rule 26(b) “has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.”[15] 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.[16]

Under Fed. R. Civ. P. 26(c)(1): “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). A protective order may forbid discovery or specify terms for discovery. Id. 26(c)(1)(A), (B). Rule 26’s requirement of “good cause” to support a protective order places the burden upon the movant to show the necessity of its issuance, which contemplates a “ ‘particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.’ ”[17]

B. Discovery Methods

Discovery may be obtained through various avenues, including interrogatories and requests for production. Rule 33(a)(1) of the Federal Rules of Civil Procedure expressly provides:

The interrogatories must be answered “separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). Objections “must be stated with specificity.” Fed. Rule Civ. P. 33(b)(4).

*4 Rule 34 authorizes a party to request another party to produce documents or items within that party's possession, custody or control. Fed. R. Civ. P. 34(a)(1). The request must describe each item or category of items with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1)(A).

Fed. R. Civ. P. 34(b)(1)(B). Any objections “must state whether any responsive materials are being withheld on the basis of that objection,” and if the responding party objects, it must specify the objectionable part and permit inspection of the rest. Fed. R. Civ. P. 34(b)(1)(C).

Under these rules, “a party served with written discovery must fully answer each interrogatory or document request to the full extent that it is not objectionable and affirmatively explain what portion of an interrogatory or document request is objectionable and why, affirmatively explain what portion of the interrogatory or document request is not objectionable and the subject of the answer or response, and affirmatively explain whether any responsive information or documents have been withheld.”[18] The party objecting to discovery “must state with specificity the objection and how it relates to the particular request being opposed, and not merely that it is ‘overly broad and burdensome’ or ‘oppressive’ or ‘vexatious’ or ‘not reasonably calculated to lead to the discovery of admissible evidence.’ ”[19] General objections are insufficient.[20] Any objection must clearly state how the information sought is not relevant to any claim or defense in this matter or how the request is overbroad, burdensome or oppressive.[21]

Objections interposed without also clearly indicating whether any document or information is being withheld are improper.[22] All responses must clearly state whether any responsive materials are being withheld and the specific basis for objecting and not producing same.[23]

C. The Requirement for a Privilege Log

A party withholding information by claiming privilege or work product “must (i) expressly make the claim; and (ii) 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 the other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5) (emphasis added). The use of the word “must” indicates that production of a privilege log, including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory. Indeed, the “privilege log's description of each document and its contents must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.”[24] “A privilege log ... should not only identify the date, the author, and all recipients of each document listed therein, but should also ‘describe the document's subject matter, purpose for its production, and specific explanation of why the document is privileged or immune from discovery.’ ”[25]

*5 Proper substantiation of a privilege objection thus imposes an evidentiary burden, and the party asserting the objection must prove that each document it has withheld is privileged, and it cannot rely merely on a blanket assertion of privilege.[26] The party asserting privilege bears the burden of proof sufficient to substantiate its claims.[27] The secondary issue is whether such failure should constitute a waiver of the privilege objections or whether the party should be allowed an opportunity to supplement its privilege log and correct the deficiencies contained therein.

When faced with the failure to deliver a privilege log, or delivery of an inadequate log, the court may: (1) permit the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) conduct an in camera inspection of the withheld documents; or (4) conduct an in camera inspection of a select sample of the withheld documents.[28] Most courts take a flexible approach, particularly as to an insufficient privilege log when there is no evidence of bad faith, and find that waiver should be imposed only for flagrant or willful failures.[29] No doubt, the “[c]ontinual failure to adhere to Rule 26’s prescription may result in waiver of the privilege where a court finds that the failure results from unjustified delay, inexcusable conduct, or bad faith.”[30]

In assessing waiver, courts will typically examine the circumstances behind the failure to respond timely to determine whether it was inadvertent, defiant, or part of a larger calculated strategy of noncompliance, will consider subsequent actions by the party to ascertain whether it was acting in good faith as opposed to acting in a disinterested, obstructionist or bad faith manner, and will take into account any resulting prejudice and the need to preserve the integrity of the rules.[31] For instance, when a case presents somewhat unusual circumstances or the discovery is facially objectionable and there is adequate time remaining before trial such that the requesting party would not face undue prejudice, objections are not deemed waived.[32] When, however, the party simply fails to make even minimal effort to comply with its obligations under Rule 26(b)(5) or acts in bad faith, courts have found waiver.[33]

D. Motions to Compel

*6 If a party fails to respond fully in a timely manner, the party seeking discovery may move to compel responses under Rule 37(a), which provides, in pertinent part, that a party seeking discovery may move for an order compelling full and complete responses or production if the latter party has failed to respond or produce documents as requested. Fed. R. Civ. P. 37(a)(3)(B). The moving party bears the burden to establish that the materials requested are within the scope of permissible discovery, after which the burden shifts to the party resisting discovery to show why the discovery is irrelevant, why discovery should not be permitted, and/or to substantiate its objections.[34] “[A]n 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).

Rule 37 also authorizes the imposition of costs, including attorneys’ fees, caused by the failure, unless the failure was substantially justified or other circumstances make the award of expenses unjust as well as other sanctions. Fed. R. Civ. P. 37(a)(5), (c)(1). A failure to disclose under Rule 37 includes a party's untimely production of documents and information required to be produced.[35] The failure to respond to discovery may result in a waiver of objections.[36] The failure to timely object on the basis of privilege, however, does not result in an automatic waiver[37] as privilege waiver is a serious sanction reserved for cases of unjustified delay, inexcusable conduct, bad faith, or other flagrant violations.[38]

The purpose of discovery sanctions are to secure compliance with the rules of discovery, deter others from violating them, and punish those who do violate them.[39] The presence or lack of good faith is relevant to the orders that should be given and the severity of the sanctions.[40] While a finding of bad faith or willful misconduct is required to support the severest remedies under Rule 37(b) (i.e., striking pleadings or dismissing a case), lesser sanctions do not require a finding of willfulness.[41] Of course, courts also have the inherent power to sanction litigants for a wide range of abuses during litigation.[42] Courts exercise their inherent powers with restraint and discretion,[43] imposing “the least severe sanction that is sufficient to deter future conduct.”[44]

III. ANALYSIS

A. Plaintiffs’ Objection to Jones’ Interrogatories

*7 Plaintiffs’ objection to Jones’ Interrogatories on the grounds that they have already answered 21 interrogatories from LSU is overruled. The explicit language of Rule 33 makes clear that the numerical limitation applies per party.[45] As Plaintiffs have named five separate defendants, each defendant is entitled to propound 25 interrogatories to each Plaintiff (i.e., 125 total interrogatories to each Plaintiff), absent stipulation or court order. Accordingly, Plaintiffs’ objection to responding to Jones’ interrogatories based on their prior response to LSU's 21 interrogatories is entirely unfounded and lacks any basis in law.

Although each party is entitled to propound 25 interrogatories to the other parties, that does not mean that a party can issue unreasonably cumulative or duplicative discovery requests. Indeed, the court must limit discovery that is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome or less expensive. Fed. R. Civ. P. 26(b)(2)(C). Given Plaintiffs’ total failure to respond to Jones’ interrogatories, there is no basis to determine which, if any, interrogatories Plaintiffs contend are cumulative or duplicative of LSU's interrogatories. An independent review of the interrogatories, however, reflect that, while some questions are substantially similar, those similarly phrased interrogatories from LSU are tied to Plaintiffs’ claims and allegations against LSU while those from Jones are tied to the retaliation claim against Jones. As such, the Jones interrogatories, even though phrased similarly, are not cumulative or substantially duplicative of LSU's interrogatories. Accordingly, Plaintiffs must provide full and complete responses to the Jones interrogatories within 7 days, i.e., on or before Friday, April 30, 2021.

In addition, the court notes that Plaintiffs’ discovery response to LSU fail to include the required verification. See ECF No. 143-1, at 4. When responding to Jones’ interrogatories, Plaintiffs must comply with the Federal Rules of Civil Procedure's requirement that their responses be provided under oath. Additionally, Plaintiffs must supplement their earlier responses to LSU's interrogatories to deliver a signed verification within 7 days, i.e., on or before April 30, 2021.

B. Failure to Deliver Responsive Documents

Defendants assert that Plaintiffs failed to produce any responsive documents. ECF No. 143-1, at 8–11, 21–23. Plaintiffs have not articulated any justification for their failure to produce responsive documents in a timely manner. Instead, Plaintiffs assert that their return of LSU's documents pursuant to Judge Ashe's April 14 and August 4, 2020 Orders satisfied their production obligation. ECF No. 157, at 6–7, 10–11. That assertion is completely unfounded. Moreover, Plaintiffs’ Fourth Supplemental Disclosure delivered to Defendants on April 19, 2021 (ECF No. 167-2) reflect that documents in Plaintiffs’ possession have not been timely delivered (ECF No. 167, at 2) and that Plaintiffs’ assertions otherwise are untrue.

Plaintiffs objections to LSU Requests for Production Nos. 4, 11, 12, 13, 21, 22 and 27, and Jones’ Requests for Production No. 4 are overruled. Plaintiffs must provide amended responses that clearly and unambiguously state whether any responsive documents are in Plaintiffs’ possession, custody or control, and if so, such responsive documents must be produced within 7 days, i.e., by April 30, 2021.

C. Requests for Execution of Release Authorizations

*8 Within the Fifth Circuit, courts have recognized that Rule 34, along with Rule 37, empower federal courts to compel parties to sign written authorizations consenting to the production of various documents.[46] As Judge Alvin Rubin made clear over 50 years ago: “Rule 34 permits the Court to require a party to produce any document under his control. Obviously the plaintiff is in control of these records, because, by either granting or withholding her consent, she may determine who shall have access to them.”[47] Thus, contrary to the Colorado and Kansas district court decisions cited by Plaintiffs (ECF No. 157, at 7–8), there is no issue regarding whether Plaintiffs may be required to sign the written authorization for release of records within the Fifth Circuit.

Although Plaintiffs may be required to sign necessary release authorizations, Defendants must still establish that the information sought is relevant to a claim or defense to justify an order compelling same. Defendants argue that this information is relevant to Plaintiffs’ claim for damages as well as to Defendants’ affirmative defenses, such as mitigation of damages and after-acquired evidence. ECF No. 143-1, at 13–19. Plaintiffs represent they agree to sign the tax and social security authorizations in their Opposition (ECF No. 157, at 9), and accordingly, those signed releases/authorizations must be delivered within five (5) days, i.e., on or before Wednesday, April 28, 2021. Plaintiffs object, however, to signing the authorizations for personnel, unemployment, criminal and/or arrest records, and worker's compensation administrative records, because they have not applied for unemployment, been convicted of a crime, or had any administrative dealings. Id. at 9. Plaintiffs also object to producing their medical information as neither has asserted a claim for injuries or medical treatment. Id.

Defendants are entitled to discovery of Plaintiff's unemployment and workers’ compensation records to assess Plaintiffs’ damages and develop their mitigation defense. Likewise, Plaintiffs’ personnel records are relevant at least to Defendants’ after-acquired evidence defense. See ECF No. 109, at 12. Further, compensatory damages in employment discrimination cases under § 1983 and Title VII include damages for mental anguish or emotional distress, which requires evidence at trial.[48] Therefore, these records fall within the relevancy standard of Rule 26(b).[49] The medical authorizations do, however, appear overly broad insofar as they are not restricted in time and thus conceivably would require disclosure of Plaintiffs’ medical records for their entire lives. Absent further justification, Defendants must narrow the time period of the medical records requests to limit the production to a five-year period (i.e., 2017 to present).

*9 With regard to Plaintiffs’ arrest records, Defendants have failed to set forth any basis to conclude that Plaintiffs’ arrest records could possibly have any relevance to any claim or defense in this case.[50] Accordingly, Defendants’ motion to compel execution of this authorization is denied and Plaintiffs need not sign the arrest records release authorizations.

D. Contingency Fee Contract

Defendants requested a copy of any contingency fee agreement. ECF No. 143-2, Request for Production No. 34, at 27, 69. In response, Plaintiffs objected based on privilege. ECF No. 143-6, at 15, 33. Despite the assertion of privilege, there is no indication that Plaintiffs delivered a privilege log with these responses. Regardless, a contingency fee agreement is not privileged.[51] Accordingly, Defendants’ objections to Request for Production No. 34 are overruled.

In their opposition, Plaintiffs state that they “are not in possession of a formal contingency fee agreement. Only one percentage based agreement has been reached in this matter with counsel, which was not reduced to a formal retainer agreement.” ECF No. 157, at 9. Defendants’ request, however, did not only seek “formal” agreements but sought “any contingency fee agreements.” ECF No. 143-1, at 19. Plaintiffs are ordered to either produce any contingency fee agreements that exist or deliver amended responses to Requests for Production No. 34 that clearly and unambiguously state that no contingency fee agreements exist, which shall be done within 7 days, i.e., by April 30, 2021.

E. The Absence of a Privilege Log

Defendants assert that Plaintiffs have failed to provide a privilege log. ECF No. 143-1, at 20–21. Plaintiffs argue that they did not withhold any documents based on privilege. ECF No. 157, at 10; see also Responses to LSU Requests for Production No. 36 and Jones Request for Production No. 25. Despite those representations, Plaintiffs did invoke privilege in their responses to LSU Interrogatory Nos. 4 and 5, LSU Requests for Production Nos. 4, 7, 8, 9, 10, 11, 14, 21, 23, 26, 27, and 34 and Jones’ Request for Production Nos. 4, 6, 7, 8, and 10. ECF No. 143-6. Plaintiffs’ discovery responses are at best inconsistent, confusing and ambiguous, and at worst, patently false.

*10 Plaintiffs are directed to provided amended responses that explicitly state whether any documents have been withheld based on privilege. If any documents have been withheld based on privilege, Plaintiffs must immediately deliver a proper privilege log identifying any documents withheld based on privilege. If no documents have been withheld based on privilege, Plaintiffs’ amended responses must remove any inapplicable and/or unfounded privilege objections to clarify the ambiguity created by their current discovery responses.

IV. CONCLUSION

For the reasons stated above, Plaintiffs’ objections to answering Jones’ interrogatories are overruled and Plaintiffs must provide full and complete responses to those interrogatories, along with verifications for both LSU's and Jones’ interrogatories, within 7 days, i.e., on or before April 30, 2021; Plaintiffs must execute the authorization for records as requested, except they need not execute the authorization for arrest records and they may limit the authorization for medical records to a five-year period (2017 to date), and Plaintiffs must deliver signed authorizations to Defendants within 5 days, i.e, on or before April 28, 2021; and Plaintiffs must amend their responses to provide unambiguous, full and complete responses and produce the responsive documents for LSU's Requests for Production Nos. 4, 11, 12, 13, 21, 22, 27, 34 and 36 and Jones’ Request for Production No. 4 and 25 within 7 days, i.e., by April 30, 2021.

Having found that Plaintiffs’ objections and failure to produce documents were overwhelmingly without substantial justification and in the absence of any other circumstances that would make the award of expenses unjust, this Order reserves to Defendants the right to file an appropriate motion to recover fees and costs incurred in filing the motion, in accordance with Fed. R. Civ. P. 37(a)(5), which must attach supporting documentation for that request (e.g., (a) an affidavit attesting to their attorney's education, background, skills and experience; (b) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill and reputation; and (c) a verified, contemporaneous report reflecting the date, time involved, and nature of the services performed, as required by Local Rule 54.2).

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

IT IS ORDERED that Defendants’ Motion to Compel (ECF No. 143) is GRANTED IN PART AND DENIED IN PART as stated herein.

New Orleans, Louisiana, this 23rd day of April, 2021.