*1 Defendant Wal-Mart Associates, Inc. (“Walmart”) asks me to enter its proposed confidentiality order. Plaintiff Sindy Jean objects. On March 13, 2024, I held a hearing on Defendant's motion for entry of a confidentiality order. ECF No. 24. This Order memorializes and supplements my rulings from the bench. If there is any inconsistency between this Order and my oral pronouncement, this Order controls.

Ms. Jean brought this action alleging that her employer, Walmart, violated the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (FMLA) by interfering with her exercise of FMLA rights and by wrongfully terminating her. Among her claimed damages were back pay, front pay, loss of benefits. ECF No. 1. Walmart accepted service on July 17, 2023. ECF No. 4. At that point, Walmart was on notice that Ms. Jean's employment history (and hence Walmart's records about her employment) was highly relevant to her claims.

On August 8, 2023, the parties submitted their Joint Scheduling Report and Discovery Plan. ECF No. 17. Walmart did not tell the Court that a confidentiality protective order was likely to be needed. Rather, in the section for “Other orders that should be entered by the Court under Fed. R. Civ. P. 26(c) or 16(b) and (c),” Walmart “agree[d] that there are no other orders that should be entered by the Court under Rule 26(c) or 16(b) or (c) at this time.” Id. at 2.

On August 18, 2023, Walmart filed its Answer. ECF No. 18. Among its defenses were that (1) “any adverse employment action with respect to Plaintiff was taken for legitimate, non-discriminatory, non-retaliatory reasons, and was based on a legitimate business reason,” and (2) “the same decisions would have been reached regarding Plaintiff's employment and termination regardless of Plaintiff's request for FMLA leave.” Id. By asserting these defenses, Walmart put at issue the facts supporting its decision to take employment actions against Ms. Jean, including whether Ms. Jean had engaged in workplace misconduct.

On September 29, 2023, Judge Rosenberg entered a scheduling order. ECF No. 19. That Order directed, “Discovery shall begin immediately.” Id. at 3 (emphasis in original). It required the parties to make Initial Disclosures by October 16, 2023, and to complete fact discovery by April 12, 2024. A few days later, on October 4, 2023, I set a final discovery status conference for March 13, 2024. ECF No. 20. That order required the parties to submit a Joint Discovery Status Report by March 6, 2024. Id.

On September 12, 2023, Walmart served written discovery on Ms. Jean. ECF No. 22 at 1. She responded on October 25, 2023. Id.

On September 20, 2023, Plaintiff served 60 Requests for Production (RFPs). ECF Nos. 22, 25-1. Among other things, they asked for:

On November 3, 2023, Walmart served its responses to Plaintiff's RFPs. ECF No. 25-1. For approximately two-thirds of the requests, including all of the requests listed above, Walmart said, “This request seeks confidential information. Therefore, subject to Plaintiff's execution, and the Court's entry, of an acceptable confidentiality agreement, Defendant will produce documents responsive to this request.” Id. For many of the responses, the claim of confidentiality was preceded by a series of legal objections, after which Walmart said, “Subject to and without waiving the foregoing, this request seeks confidential information.” Id.

In an email exchange on November 3, 2023, Plaintiff's counsel acknowledged receiving Walmart's written responses to the RFPs, and asked defense counsel to produce the responsive documents. Defense counsel responded, “We will send you the confidentiality order for review next week. Once the Court enters the Order, we will send the documents.” ECF NO. 26-1 at 5. Walmart did not send the proposed confidentiality order the following week. Rather, as I now explain, there was no further discussion or action relating to the confidentiality issue — and no document production by Walmart — until March 2024, which was four months later and approximately one month before the discovery cutoff.

On March 5, 2024, while preparing to take Walmart's corporate representative's deposition, Ms. Jean's counsel emailed Walmart's counsel, “We have not received responsive documents. Please produce them by COB today, we need to review them before the deposition scheduled for Thursday.” ECF No. 26-1 at 4. In response, on the afternoon of March 5, 2024, Walmart finally sent a proposed confidentiality order to Ms. Jean. Id. at 4. Plaintiff's counsel objected to the proposed order. Id. at 2-3. Walmart then filed the instant Motion for Entry of a Confidentiality Order. ECF No. 24.

On March 6, 2024, the parties filed their Joint Discovery Status Report. ECF No. 22. By that point, Walmart had not made any initial disclosures nor produced a single document in response to Ms. Jean's RFPs. Id. at 1-2. In the Joint Status Report, Walmart explained:

Id. Walmart also said, “Defendant submits that, as of the filing of this Status Report, Defendant has complied with all of its discovery obligations and will continue to comply.” Id. at 2.

Walmart brought its Motion for Entry of a Confidentiality Order under Federal Rule of Civil Procedure 26(c). In it, Walmart says the burden was on Ms. Jean to take steps to address Walmart's demand for a confidentiality order. Walmart says that Local Rule 26.1(g) required Ms. Jean to file a motion to compel before December 1, 2023, and her failure to do so waives any objection to the proposed confidentiality order. Walmart also says it would be unduly burdensome to redact non-responsive sensitive information. ECF No. 24.

At the March 13 hearing, I questioned defense counsel on Walmart's failure to produce any documents and whether Walmart was asserting that every responsive document was confidential. Defense counsel responded, “Yes. Walmart's position in all cases is that the employment documents are confidential.”[1]

According to Rule 26(c), “[a] party or any person from whom discovery is sought may move for a protective order ... [and] [t]he court may, for good cause, issue an order to protect [that party] from annoyance, embarrassment, oppression, or undue burden or expense, including [having to disclose] a trade secret or other confidential research, development, or commercial information.” Fed. R. Civ. P. 26(c)(1)(G). The party moving for a protective order bears the burden of proving one is necessary. Ekokotu v. Fed. Express Corp., 408 F. App'x 331, 336 (11th Cir. 2011) (citing United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).

The parties dispute who had the obligation to act after Walmart served its RFP Responses. The answer is Walmart. Walmart's refusal to produce admittedly responsive documents without a protective order was not an “objection” that required Ms. Jean to file a motion to compel. Federal Rule of Civil Procedure 34 says that a responding party must “state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). And, the party must “state whether any responsive materials are being withheld on the basis of the objection.” Fed. R. Civ. P. 34(b)(2)(C). So, an “objection” to a discovery request is an assertion that the requester is not entitled to get what they are asking for. See also OBJECTION, Black's Law Dictionary (11th ed. 2019) (“objection n. (18c) 1. A formal statement opposing something that has occurred, or is about to occur, in court and seeking the judge's immediate ruling on the point.”).

Here, Walmart agreed that Ms. Jean was entitled to the responsive documents. What Walmart wanted were limitations on how Ms. Jean could use the documents, specifically a court order that these documents could “be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G). That is not an objection; it is a request for a protective order. By waiting four months to bring this matter to the Court's attention, Walmart forfeited its opportunity to ask for a protective order. See S.D. Fla. L. R. 26.1(g)(2)(A)(iv), (B) (“a party shall submit the [discovery] dispute within twenty-eight (28) days of the date when the issue was first raised with the opposing party” and failure to so, “absent a showing of good cause, may, in the Court's discretion, constitute grounds for denial of the requested relief”). Walmart has not shown good cause or substantial justification for its conduct. For this reason, Walmart is procedurally barred from seeking a confidentiality order.

*4 Additionally, on the merits, Walmart lacked a good faith basis to refuse to produce documents until a confidentiality order was in place. Its decision to refuse to produce responsive documents on confidentiality grounds is sanctionable.

Rule 26(g)(1) requires a lawyer serving a discovery response to sign that response. That signature “certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:

Fed. R. Civ. P. 26(g)(1)(B). And, “[i]f a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.” Fed. R. Civ. P. 26(g)(3).

Walmart's response to Ms. Jean's RFPs failed to comply with Rule 26(g). Walmart failed to conduct a reasonable, case-specific analysis of the RFPs. Instead of making the case-specific analysis required by Rule 26(g), Walmart blindly asserted its own categorical policy. As applied here, that policy is not consistent with the Federal Rules of Civil Procedure, is contrary to existing law, and was unreasonable considering the issues at stake in this case.

Any reasonable inquiry and good faith review of the RFPs would have shown that virtually all of Walmart's confidentiality claims were unfounded. Courts have recognized the need for a protective order when a party seeks personnel records and other evidence relating to a non-party's employment. See, e.g., Cabrera v. Goodyear Tire & Rubber Co., No. 10-21226-CIV, 2011 WL 13220447, at *1 (S.D. Fla. May 18, 2011) (noting strong public policy against public disclosure of personnel files). That conclusion makes sense where there is a risk that the requesting party will further disclose sensitive information about the non-party. That situation does not exist here. Ms. Jean is asking for evidence relating to her own employment, including her pay, benefits, and medical condition. If she wants to further disclose that information, no innocent third party is harmed. Walmart has neither argued nor shown how it will be harmed by further disclosure of these documents.

When asked to explain how documents such as Ms. Jean's paychecks were confidential, Counsel merely repeated Walmart's policy that in all cases it takes the position that all employment documents are confidential. Walmart did not argue or explain why disclosure of the particular requested documents in this case would disclose a trade secret or other confidential information. Nor could it. Walmart has not argued or shown a privacy interest in the records of Ms. Jean's employment, nor is it protecting any third party's privacy. For documents relating to Ms. Jean's performance as an employee and the basis for her dismissal, Walmart has asserted affirmative defenses indicating that it intends to offer evidence of the legitimate, non-discriminatory, non-retaliatory business reason why it terminated Ms. Jean. If Walmart intends to offer this evidence as a defense at a public trial, there is no justification for Walmart claiming that this same information cannot be disclosed to Ms. Jean without a protective order.

*5 Further evidence of Walmart's lack of good faith and non-compliance with Rule 26(g) is found in its approach to Ms. Jean's requests for electronically stored information (ESI). See RFPs 14, 23. Walmart first unilaterally refused to search for, let alone produce, electronically stored information (ESI). It demanded, “Before any searches of ESI are conducted and ESI is produced, the Parties will meet and confer to fashion reasonable searches of Defendant's ESI.” Responses to RFPs 14, 23. It then asserted that the requested information was confidential and that a confidentiality order was required. It concluded by saying it would produce non-ESI documents responsive to the requests. No legal objection was made. Walmart did not say it would be unduly burdensome or expensive to search. It clearly did not conduct any reasonable inquiry to determine how expensive or burdensome it would be to comply with the discovery requests.

In the absence of a proper objection, Walmart had no legal basis to refuse to search for ESI. Nor did it have a legal basis to demand conferral and agreement on search terms. If Ms. Jean would not, or could not, agree to search terms, Walmart was obligated to conduct a reasonable search using whatever search parameters it unilaterally chose. In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2021 WL 5299847, at *4 (S.D. Fla. Nov. 15, 2021) (“Once the substantive scope of discovery is defined (i.e., after any objections are resolved) a party is required to conduct a ‘reasonable inquiry’ to identify responsive materials.”). At that point, if Ms. Jean thought the search was inadequate, her remedy would be to ask the Court to assess whether the search satisfied Rule 26(g). Id.

Walmart also failed to comply with this Court's Standing Discovery Order (ECF No. 8) in at least three ways. In response to RFPs 27 and 28, it first objected on grounds of overbreadth, irrelevance, and disproportionality. It then said that no responsive documents existed. If no responsive documents exist, there is nothing to be withheld based on the objection, so asserting the objection has no purpose and merely wastes the time of the Court and opposing counsel. See ECF No. 8 § II(A) (“When a party asserts a discovery objection, the Court assumes that a Rule 26(g) compliant search has been conducted and that responsive materials exist. If a party interposes an objection and later asserts that no responsive documents exist, the Court will impose sanctions.”) (emphasis in original).

Second, for multiple RFPs, Walmart asserted a legal objection, then responded to the request “[s]ubject to and without waiving the foregoing.” See, e.g., RFP Responses 1, 3, 32, 33, 41. The Standing Discovery Order instructs:

ECF No. 8 § II(D).

Third, because Walmart did not object to the RFPs, it was obligated to produce the responsive documents within 30 days or to file a motion for an extension of time. ECF No. 8 § II(F). It did not do either.

*6 For all these reasons, the totality of Walmart's conduct, including blindly applying its universal policy of designating all employment records as confidential, violates Rule 26(g) and demonstrates a bad-faith callous disregard for its discovery obligations. See Jackson v. Nassau Cnty., No. CV183007JSAKT, 2021 WL 2525397, at *5 (E.D.N.Y. June 19, 2021) (“The parties are reminded that a blanket confidentiality designation is generally found not to be made in good faith.”) (citing United States v. Mount Sinai Hosp., 185 F. Supp. 3d 383, 396 (S.D.N.Y. 2016) (A party “may not simply designate its entire production ... as confidential. [It] may only designate documents within its production as confidential after making a good faith determination that there is a legitimate basis for a confidentiality designation.”)); Laughon ex rel. Laughon v. Jacksonville Sheriff's Off., No. 3:06 CV 692 J 25HTS, 2007 WL 1247305, at *2 (M.D. Fla. Apr. 30, 2007) (“[c]ommunicating to opposing counsel a party's objections to production, without timely bringing the matter to the attention of the Court, is not adequate under Federal Rule[s] of Civil Procedure.”).[2]

WHEREFORE, it is ORDERED that, Walmart's Motion for Entry of a Confidentiality Order (ECF No. 24) is DENIED and Walmart must produce all responsive documents by 5:00 p.m. ET on March 20, 2024.

As a further appropriate sanction under Rule 26(g)(3):

DONE AND ORDERED in Chambers this 15th day of March 2024, at West Palm Beach in the Southern District of Florida.