Muslow v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.
Muslow v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.
2021 WL 4239102 (E.D. La. 2021)
July 22, 2021
Currault, Donna P., United States Magistrate Judge
Summary
The Court denied the motion to compel the Defendant to produce his federal and state income tax returns from 2017 to present, finding that the information sought was not “compellingly necessary” and that relevancy should not be misapplied to allow fishing expeditions in discovery.
Additional Decisions
KATHERINE MUSLOW, ET AL.
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, ET AL
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, ET AL
CIVIL ACTION NO. 19-11793
United States District Court, E.D. Louisiana
Signed July 22, 2021
Counsel
Kyle D. Schonekas, Schonekas, Evans, McGoey & McEachin, LLC, Peter Stephan Koeppel, Koeppel Clark, Christopher L. Williams, Williams Litigation, LLC, David F. Gremillion, Natasha Z. Wilson, Koeppel, LLC, Franz L. Zibilich, Franz L. Zibilich, Attorney at Law, New Orleans, LA, Nelson W. Wagar, III, Wagar Hickman, LLC, Mandeville, LA, for Katherine Muslow, Meredith Cunningham.Maria Nan Alessandra, Kim M. Boyle, Phelps Dunbar, LLP, New Orleans, LA, for Louisiana State University and Agricultural and Mechanical College, Carlton Jones, III.
Dennis J. Phayer, Gregory C. Fahrenholt, Burglass & Tankersley, L.L.C., Metairie, LA, Maria Nan Alessandra, Kim M. Boyle, Phelps Dunbar, LLP, New Orleans, LA, for Thomas Skinner.
Craig R. Watson, Amanda M. Plaiscia, Guice Anthony Giambrone, III, Blue Williams, LLP, Metairie, LA, Maria Nan Alessandra, Kim M. Boyle, Phelps Dunbar, LLP, New Orleans, LA, for Larry Hollier.
Darren Albert Patin, Hailey, McNamara, Hall, Larmann & Papale, LLP, Metairie, LA, Maria Nan Alessandra, Kim M. Boyle, Phelps Dunbar, LLP, New Orleans, LA, for Jon Harman.
Darren Albert Patin, Hailey, McNamara, Hall, Larmann & Papale, LLP, Metairie, LA, for John Harman.
Currault, Donna P., United States Magistrate Judge
ORDER AND REASONS
*1 Before me is a Motion to Compel filed by Plaintiffs Katherine Muslow and Meredith Cunningham seeking to compel Defendant Larry Hollier to fully respond to Plaintiffs’ Supplemental Request for Production of Documents No. 74, which seeks production of Defendant Harman's federal and state income tax returns. ECF No. 286. Defendant Hollier filed a timely Memorandum in Opposition (ECF No. 296), and Plaintiffs sought leave to and filed a Reply Memorandum. ECF Nos. 298; 300.
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
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 assert claims of (1) gender discrimination, in violation of Title VII, against the LSU Board; (2) retaliation, in violation of Title VII, against the LSU Board; (3) gender discrimination, in violation of the EPA, against the LSU Board, Hollier, Harman, and Skinner; (4) retaliation, in violation of the EPA, against the LSU Board, Hollier, Skinner, and Jones; (5) gender discrimination, in violation of the Fourteenth Amendment to the U.S. Constitution, pursuant to § 1983, against Harman and Hollier; and (6) retaliation under § 1983 against Harman. ECF No. 99, at 12-16. They seek, inter alia, punitive damages against Harman and Hollier in their individual capacities.[1] Id. at 17.
Plaintiffs filed a “Motion to Compel Defendant Larry Hollier's Response to Plaintiffs’ Supplemental Request for Production of Documents.” See ECF No. 286. Plaintiffs request an order compelling Defendant Hollier to respond to “Plaintiffs’ Supplemental Request for Production of Documents No. 74,” which seeks Defendant's federal and state income tax returns from 2017 to present, which Plaintiffs assert are relevant to enable the jury to determine the extent to which punitive damages may apply. ECF No. 286-1, at 3-4. In response, in light of this Court's ruling on Plaintiffs’ identical motion (ECF No. 231) as to Defendant Harman (ECF No. 251, objections overruled, ECF No. 290), Defendant Hollier provided an Affidavit from his certified public accountant (ECF No. 296-1) which Plaintiff indicated would acceptable in response. ECF No. 286-1, at 4.
II. APPLICABLE LAW
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).
*2 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.[2] This broader scope is necessary given the nature of litigation, where determinations of relevance for discovery purposes are made well in advance of trial.[3] Facts that are not considered in determining the ultimate issues may be eliminated in due course of the proceeding.[4] 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.”[5] 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.”[6] If relevance is in doubt, the court should be permissive in allowing discovery.[7]
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.[8]
While the discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials,[9] discovery does have “ ‘ultimate and necessary boundaries.’ ”[10] 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).”[11] Further, Rule 26(b) “has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.”[12] 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.[13]
III. ANALYSIS
*3 Plaintiffs assert that Defendant Hollier's tax returns are relevant because they will “enable the jury to effectively determine the extent of punitive damages that may be applied if Plaintiffs are successful with their 42 U.S.C. § 1983 gender discrimination claim.” ECF No. 286-1, at 3–4. Plaintiffs’ claims of intentional discrimination allow for recovery of punitive damages;[14] therefore, courts recognize that “evidence of a defendant's financial worth is relevant, discoverable, and admissible at trial to evaluate a plaintiff's punitive damages claim.”[15]
However, because tax returns are highly sensitive documents, courts will compel their production only where the requesting party demonstrates both: (1) that the tax information is “relevant” to the subject matter of the action; and (2) that there is a “compelling need” for the information because the information contained in the tax returns is not “otherwise readily obtainable through alternative forms of discovery, such as depositions or sworn interrogatory answers.[16] Once the party seeking production of the tax returns shows the relevance of the tax returns, the burden shifts to the party opposing production to show other sources exist from which the information contained in the returns may be readily obtained.[17]
In this case, Defendant contends that it has provided the relevant financial information via an Affidavit of his certified public accountant. ECF No. 296, at 2. Plaintiff contends that the affidavit is insufficient because it does not reflect “assets, unearned income, and liabilities, which along with other financial information are necessary to determine his relevant net worth for punitive damages purposes.” ECF No. 300, at 2. Plaintiff ignores, however, that such additional information is otherwise readily obtainable through alternative forms of discovery, such as verified interrogatory responses. As such, there is no “compelling need” for Defendant's tax returns as the same desired information may be obtained through alternative sources.
IV. CONCLUSION
*4 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. 286) is DENIED.
Footnotes
Though the Court dismissed with prejudice Plaintiffs’ § 1983 official-capacity claims against Harman, the Court did not dismiss Plaintiffs’ § 1983 claims against Harman in his individual capacity, nor punitive damages as a remedy against him. See ECF No. 84.
Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 2011) (citations omitted).
Dotson v. Edmonson, No. 16-15371, 2017 WL 11535244, at *2 (E.D. La. Nov. 21, 2017) (citing Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)).
E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 2010) (quoting Truswal Sys. Corp. v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987)).
Mir v. L–3 Commc'ns Integrated Sys., L.P., 319 F.R.D. 220, 226 (N.D. Tex. 2016).
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).
42 U.S.C. § 1981a(b)(1); see Tingle v. Hebert, No. 15-626, 2017 WL 2335646, at *4 (M.D. La. May 26, 2017). Before pretrial discovery of financial information, a minority of courts will require a minimal showing (less than prima facie) of entitlement to punitive damages. Jackson v. Wilson Welding Serv., Inc., No. 10-2843, 2011 WL 5024360, at *3 (citing D'Onofrio v. Sfx Sports Grp., Inc., 247 F.R.D. 43, 45 (D.D.C. 2008)); see also Mid Continent Cabinetry, Inc. v. George Koch Sons, Inc., 130 F.R.D. 149, 151 (D. Kan. 1990) (citing cases) (“When a punitive damages claim has been asserted by the plaintiff, a majority of federal courts permit pretrial discovery of financial information of the defendant without requiring plaintiff to establish a prima facie case on the issue of punitive damages.”).
Ferko v. Nat'l Ass'n for Stock Car Auto Racing, 218 F.R.D. 125, 137 (E.D. Tex. 2003) (footnote omitted); accord Tingle, 2017 WL 2335646, at *4 (citing Jackson, 2011 WL 5024360 at *3); Wright v. Weaver, No. 4:07-cv-369, 2009 WL 5170218, at *4 (E.D. Tex. Dec. 18, 2009).
Williams v. U.S. Envtl. Servs., LLC, No. 15-168, 2016 WL 684607, at *2 (M.D. La. Feb. 12, 2016) (citing Butler v. Exxon Mobile Refin. & Supply Co., No. 08-386-C-M2, 2008 WL 4059867, at *2 (M.D. La. Aug. 28, 2008) (citing National Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1411 (5thCir. 1993))).
Rafeedie v. L.L.C., Inc., No. A-10-CA-743, 2011 WL 5352826, at *2 (W.D. Tex. Nov. 7, 2011) (citation omitted); Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 587 (N.D. Tex. May 27, 2016); see also F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995) (applying a similar two-part test to determine whether tax returns are available during post-judgment discovery under Rule 69(a)).