U.S. EEOC v. Exxon Mobil Corp.
U.S. EEOC v. Exxon Mobil Corp.
2024 WL 4249229 (M.D. La. 2024)
September 11, 2024
Bourgeois Jr., Richard L., United States Magistrate Judge
Summary
The court has determined that ESI will be relevant and necessary for discovery, but has limited the scope of ESI searches to certain custodians and devices. The court has also required the parties to meet and confer to determine the most appropriate custodians and devices for ESI searches. Additionally, the court has addressed the use of a protective order to protect both parties from annoyance, embarrassment, oppression, or undue burden.
Additional Decisions
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
EXXON MOBIL CORPORATION
v.
EXXON MOBIL CORPORATION
CIVIL ACTION NO. 23-159-SDD-RLB
United States District Court, M.D. Louisiana
Signed September 11, 2024
Bourgeois Jr., Richard L., United States Magistrate Judge
ORDER
*1 Before the Court is the U.S. Equal Employment Opportunity Commission's (“Plaintiff” or “EEOC”) Renewed Motion to Compel Discovery (“Renewed Motion to Compel”) (R. Doc. 37; see R. Doc. 41). Exxon Mobil Corporation (“Defendant” or “Exxon” or “ExxonMobil”) filed an opposition. (R. Doc. 47). The EEOC filed a reply. (R. Doc. 56). Exxon filed a surreply. (R. Doc. 62).
Also before the Court is the EEOC's Second Motion to Compel Discovery and Alternative Motion for Entry of a Protective Order (“Second Motion to Compel”) (R. Doc. 39). Exxon filed an opposition. (R. Doc. 45). The EEOC filed a reply. (R. Doc. 57). Exxon filed a surreply. (R. Doc. 61).
Also before the Court is the EEOC's Motion to Strike Declaration of Thomas Gobert for Lack or Personal Knowledge (“Motion to Strike”). (R. Doc. 60). The motion is opposed. (R. Doc. 66).
I. Background
On March 2, 2023, the EEOC brought this civil rights employment action against Exxon to obtain recovery under Title VII, 42 U.S.C. § 2000e-2(a), (R. Doc. 1). The EEOC alleges that Exxon subjected Milferd McGhee (“McGhee”), a Black man who has been employed by Exxon at its Chemical Plant in Baton Rouge since 2010, to “a hostile work environment on the basis of race” given that “five hangman's nooses were reported at the Baton Rouge Complex” between April 2016 and December 2020. (R. Doc. 1 at 1, 3). The EEOC alleges that in January 2020, McGhee, while employed as an Assistant Operator (“AO”) in the Infrastructure Team of Exxon's Baton Rouge Chemical Plant, “found a rope tied into a hangman's noose at his worksite at the chemical plant.” (R. Doc. 1 at 5; see R. Doc. 41 at 8). The EEOC alleges that Exxon did not take appropriate remedial measures in response to these reports, “including training, counseling, or policy changes, to prevent further racial harassment,” failing to notify Human Resources of one of the nooses, and failing to complete all recommended measures in response to investigative reports. (R. Doc. 1 at 3-5). The EEOC further alleges that (i) Exxon failed to take proper action despite its knowledge of the alleged nooses, and (ii) the alleged nooses “materially altered the terms or conditions of Mr. McGhee's employment.” (R. Doc. 1 at 5-6). The Complaint does not raise any other allegations regarding racial harassment directed at McGhee.
The EEOC asserts that Exxon's “Baton Rouge Complex” includes the Chemical Plant (a/k/a “BRCP” or “Baton Rouge Chemical Plant”) and the Refinery (a/k/a “BRRF” or “Baton Rouge Refinery”). (R. Doc. 1 at 3). In its discovery requests, however, the EEOC defined the “Baton Rouge Complex” to include four facilities in the Baton Rouge area: the Chemical Plant, the Refinery, the Plastics Plant, and the Polyfolefins Plant. (See R. Doc. 41 at 4, 8; see R. Doc. 41 at 8 n.6; R. Doc. 47 at 3 n.4). Exxon acknowledges that its “Baton Rouge area operations” include these four facilities, as well as the Port Allen Lube Plant. (R. Doc. 47 at 2). Nevertheless, Exxon asserts that while it does sometimes refer to the Chemical Plant and the Refinery as a “Complex”—given their geographic proximity – it does not refer to all of its Baton Rouge area operations as such. (R. Doc. 47 at 3 n.4). Exxon further explains that the Chemical Plant has three “Process/Operations Departments (Polymers, Olefins & Instructure (‘O&I’), and Intermediate, Aromatics & Synthetics (‘IA&S’)” and the “O&I Department is broken down into three separate business teams/units: SACC, NACC [North Area Control Center], and Infrastructure (sometimes referred to as Infrastructure/Environmental).” (R. Doc. 47 at 3).
*2 The Complaint, when read in conjunction with the three investigative reports in the record, provide the following timeline of five alleged incidents as follows:
• April 20, 2016 – The first alleged noose was found by an AO with the Infrastructure Unit in the NACC unit/area of the Chemical Plant.
• February/March 2019 – The second alleged noose was found by an unidentified contractor at the “EPLA-S” turnaround located in the Chemical Plant.
• August 17, 2019 – The third alleged noose was found by an AO with the NACC Unit in the NACC unit/area of the Chemical Plant.
• January 22, 2020 – The fourth alleged noose was found by McGhee in the Infrastructure unit/area of the Chemical Plant.
• December 2020 – The fifth alleged noose was found in the OSD/Feed unit of the Refinery.
(R. Doc. 1 at 4-5; R. Doc. 41-2; R. Doc. 47 at 5 n.8). In sum, there is no dispute that the first four alleged nooses were found in the Chemical Plant and the fifth alleged noose was found in the Refinery.
On December 1, 2023, the EEOC served requests for production and interrogatories on Exxon. (R. Docs. 14-1; 14-2). On February 2, 2024, pursuant to an agreed upon extension, Exxon provided timely objections, answers, and responses to the written discovery requests. (R. Doc. 15-7). Exxon provided amended and supplemental responses on February 9, 2024. (R. Doc. 15-6).
On February 16, 2024, the EEOC filed its First Motion to Compel Responses, which sought supplemental responses to various requests for production and interrogatories. (R. Doc. 11). The Court denied the motion as premature because the parties did not sufficiently engage in good faith on the issues presented as required under Rule 37(a)(1) of the Federal Rules of Civil Procedure. (R. Doc. 31). The Court provided the EEOC until July 3, 2024 to refile its motion to compel.
The record indicates that the parties then conferred three times by telephone, with each meeting lasing approximately two hours, but were unable to resolve their disputes raised in the First Motion to Compel. (R. Doc. 37 at 2-3, 9).
On July 3, 2024, the EEOC filed its Renewed Motion to Compel, which seeks an order requiring supplemental responses to Interrogatory Nos. 8-11, 13, 15-20 and Requests for Production Nos. 9, 12-48. (R. Doc. 37). The EEOC also filed its Second Motion to Compel, which seeks an order overruling Exxon's objections based on confidentiality and the entry of a protective order proposed by the EEOC regarding the exchange of confidential information in discovery. (R. Doc. 39).
Plaintiff's Renewed Motion to Compel concerns whether and to what extent the EEOC may obtain discovery regarding the four alleged noose incidents (as well as additional discovery bearing upon racial animus and harassment) other than the alleged noose sighting reported by McGhee. Exxon seeks to limit the scope of discovery to the single alleged noose discovered by McGhee (1) by defining the temporal scope of discovery as limited to the three-year period of January 2017 to January 2020 and (2) by defining the geographic scope of discovery as limited to the Infrastructure Unit at the Chemical Plant. In contrast, the EEOC seeks a more expansive scope of discovery with respect to Exxon (1) by defining the temporal scope of discovery to the five-year period of April 2016 to April 2021 and (2) by defining the geographic scope of discovery to include the EEOC's definition of the “Baton Rouge Complex” (i.e., the Chemical Plant, the Refinery, the Plastics Plant, and the Polyfolefins Plant) and, with respect to some discovery requests, Exxon's operations in Louisiana.
*3 Plaintiff's Second Motion to Compel concerns whether and to what extent documents and information in this action may be designated as “confidential” for the purposes of discovery. The parties engaged in some negotiations regarding the scope of the entry of a “stipulated” protective order governing confidential information and documents, but were unable to reach any agreement. Each of the parties is now seeking entry of its own version of a proposed protective order.
II. Law and Analysis
A. Legal Standards for Discovery
“Unless otherwise limited by court order, the scope of discovery is as follows: 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(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).” Fed. R. Civ. P. 26(b)(2)(C).
“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). Rule 26(c)'s “good cause” requirement indicates that the party seeking a protective order has the burden “to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).
A party must respond or object to an interrogatory or request for production within thirty days after service of the discovery. See Fed. R. Civ. P. 33(b)(1)(2); Fed. R. Civ. P. 34(b)(2)(A). This default date may be modified by stipulation between the parties. Fed. R. Civ. P. 29(b). “An objection must state whether any responsive materials are being withheld on the basis of that objection.” Fed. R. Civ. P. 34(b)(2)(C). If a party fails to respond fully to discovery requests made pursuant to Rule 33 or Rule 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel responses and for appropriate sanctions under Rule 37. An “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).
“Once a party moving to compel discovery establishes that the materials and information it seeks are relevant or will lead to the discovery of admissible evidence, the burden rests upon the party resisting discovery to substantiate its objections.” Wymore v. Nail, No. 14-3493, 2016 WL 1452437, at *1 (W.D. La. Apr. 13, 2016) (citing McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
B. Legal Standards for Hostile Work Environment Claims
*4 “To plead a hostile work environment claim, Plaintiff must allege that (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was because of his race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.” Norman v. ExxonMobil Corp., No. 23-00330, 2024 WL 477521, at *2 (M.D. La. Feb. 7, 2024) (citing Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)). “A hostile work environment claim ... necessarily rests on an allegation that an employer has created ‘a working environment heavily charged with ... discrimination.’ ” Raj v. La. State Univ., 714 F.3d 322, 330-31 (5th Cir. 2013).
“To affect a condition or privilege of employment, the harassment must be ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ ” Stone v. La. Dept. of Revenue, 590 F. App'x 332, 340 (5th Cir. 2014); see also Alaniz v. Zamora-Quezada, 591 F.3d 761, 771 (5th Cir. 2009) (holding that the workplace must be “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment”) (quotation omitted)). “Simple teasing, ... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citations omitted). Still, “[a]n egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment and satisfy the fourth element necessary to constitute a hostile work environment.” Lauderdale v. Tex. Dept. of Crim. Justice, Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007); see Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022) (“[A] single incident of harassment, if sufficiently severe, [can] give rise to a viable Title VII claim.”) (citing EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007)).[1]
*5 The Court will address the scope of discovery relative to the claims and defenses as alleged in the pleadings. To that end, the Court recognizes that “[t]he imposition of unnecessary limitations on discovery is especially frowned upon in Title VII cases.” Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983); see also Miller v. Sam Houston State Univ., 986 F.3d 880, 891 (5th Cir. 2021) (“[The Rule 26(b) scope of discovery] standard is broad, especially when viewed in the context of Title VII.”).
C. The EEOC's Motion to Strike (R. Doc. 60)
As an initial matter, the EEOC has filed a motion to strike from the record the declaration of Thomas Gobert (R. Doc. 62-1), which was submitted by Exxon with its surreply memorandum in support of its opposition to the EEOC's Renewed Motion to Compel.
Exxon submitted the declaration of Thomas Gobert (“Gobert”) in support of its argument that “the Infrastructure Unit is the relevant geographic scope for discovery purposes and January 2017-January 2020 is a reasonable general temporal scope for discovery purposes” (R. Doc. 62 at 2). In the declaration, Gobert states that he is currently the Coastal Plain Manufacturing Planner for ExxonMobil Products Solutions and, from May 2021 to May 2024, was a Business Team Leader (a/k/a second line supervisor or SLS) for the Infrastructure Unit/Business Team at the Chemical Plant. (R. Doc. 62-1 at 2). Gobert then describes the Exxon's operations and facilities in Baton Rouge, largely restating what was already stated in Exxon's opposition memorandum.
The EEOC argues that because the declaration “fails to provide evidence to establish that Gobert has personal knowledge of the facts stated,” and does not submit the “original writings to prove their contents,” the declaration should be excluded as evidence under Rules 602, 802, and 1002 of the Federal Rules of Evidence. (See R. Doc. 60-1). In support of these arguments, the EEOC relies upon Lewis v. Eye Care Surgery Ctr., Inc., No. 21-475, 2023 WL 8880348 (M.D. La. Dec. 22, 2023). In that decision, the district judge granted summary judgment for the defendant, concluding that an affidavit submitted by the plaintiff to oppose summary judgment presented various “evidentiary problems” because it was not based on her personal knowledge, was “rife with hearsay and speculation lacking underlying factual support,” and contained numerous legal conclusions offered as facts. Id. at *2-3; see Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”).
Here, Exxon Gobert's declaration is in support of its opposition to a motion to compel. “There is no procedural rule governing the motions to strike portions of a declaration attached to a memorandum in opposition to a discovery motion.” Shaw Grp., Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 931624, at *2 (M.D. La. Mar. 10, 2014). Indeed, the Court need not make evidentiary determinations to rule on the instant discovery dispute. Furthermore, the Court recognizes that the information submitted in Mr. Gobert's declaration is largely duplicative of information already submitted by Exxon in its opposition brief, which was submitted by Exxon's counsel in accordance with Rule 11.
*6 Given the foregoing, the Court finds no basis for striking Mr. Gobert's declaration from the record and will give it the appropriate weight, if any, in ruling on the underlying discovery motion.
D. The EEOC's Renewed Motion to Compel (R. Doc. 37)
1. Conclusory and Boilerplate Objections
The EEOC first argues that the Court should disregard Exxon's “garden variety” objections to the discovery requests. (R. Doc. 41 at 10-11). In opposition, Exxon argues that it has not waived any objections because its objections have been raised with the requisite specificity. (R. Doc. 47 at 8-9).
Conclusory, boilerplate objections to discovery requests are insufficient. See McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990). A party waives boilerplate objections based upon relevance, over breadth, undue burden, or any other objection unrelated to privilege. Aubin v. Columbia Casualty Co., No. 16-290, 2017 WL 1682661, at *8 (M.D. La. Apr. 25, 2017) (“The Court finds such boilerplate language does not suffice to assert a valid objection to Plaintiffs' outstanding discovery request under McLeod. Thus, the Court finds that the general rule applies here, and Defendants have waived their objections ... based upon relevance, over breadth, unduly burdensomeness, or any other objection unrelated to privilege.”). The responding party must provide responses and answers to the extent specific objections to written discovery requests are not made. See Fed. R. Civ. P. 34(b)(2)(B) (“For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objection to the request, including the reasons.”); Fed. R. Civ. P. 34(b)(2)(C) (“An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”); Fed. R. Civ. 33(b)(3) (“[E]ach interrogatory must, to the extent it is not objected to, be answered separately and fulling writing under oath”); Fed. R. Civ. P. 33(b)(4) (“The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.”).
Here, Exxon objects to virtually every discovery request at issue by providing the following identical paraphrasing of the scope of discovery as provided by Rule 26(b)(1):
Defendant also objects to this Request on the ground it is overbroad, unduly burdensome and oppressive, and seeks materials that are not relevant to any party's claims 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' relevant 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).
(See, e.g., R. Doc. 37 at 6). These boilerplate objections, however, are followed by particular objections mostly pertaining to the alleged overbreadth of the geographic and temporal scope of the information sought. Exxon also raises other more particular objections to the use of certain undefined phrases such as “other communications,” although Exxon generally not elaborate on the objections in its opposition memorandum.
*7 The Court agrees with the EEOC that Exxon has waived any conclusory and boilerplate objections that are not accompanied by any particular specific grounds. That said, the Court will consider any specific objections raised by Exxon notwithstanding the inclusion of boilerplate language. See Amos v. Taylor, No. 20-7, 2020 WL 7049848, at *8 (N.D. Miss. Dec. 1, 2020) (recognizing that an objection is not boilerplate simply by incorporating “standardized text” and the purported boilerplate objections must be read in the context of its other specific objections). To the extent specific objections are not directly addressed below, the Court has considered them in the context of determining the scope of information and documents that must be produced in response to the particular document request at issue.
2. Objections Based on Attorney-Client Privilege and/or Work Product Immunity
“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party 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 other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Blanket assertions of a privilege are unacceptable, and the court and other parties must be able to test the merits of a privilege claim. United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982) (citing United States v. Davis, 636 F.2d 1028, 1044 n.20 (5th Cir. 1981)). In addition, this Court's Local Rule 26(c) provides the following: “A party withholding information claimed privileged or otherwise protected must submit a privilege log that contains at least the following information: name of the document, electronically stored information, or tangible things; description of the document, electronically stored information, or tangible thing, which description must include each requisite element of the privilege or protection asserted; date; author(s); recipient(s); and nature of the privilege.” LR 26(c); see also Cashman Equip. Corp. v. Rozel Operating Co., No. 08-363, 2009 WL 2487984, at *2 (M.D. La. Aug. 11, 2009) (“[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, the purpose for its production, and a specific explanation of why the document is privileged or immune from discovery.”) (quoting Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. Mar. 10, 2008)).
The record indicates that Exxon has not produced a privilege log with respect to responsive information that were withheld, if any, solely on the basis of the attorney-client privilege and/or work product immunity. (See R. Doc. 41 at 7 n.5).
This Order clarifies the scope of discoverable information and documents, and requires Exxon to provide supplemental answers and responses. To the extent Exxon continues to withhold responsive documents or information (as defined by this Order) based solely on the attorney-client privilege and/or work product immunity, Exxon must produce a proper privilege log identifying the withhold documents or information in accordance with Federal Rule 26(b)(5)(A) and Local Rule 26(c).
3. Objections Based on Confidential, Proprietary, and/or Trade Secret Information
The Court will address the exchange of confidential information in discovery below in the context of resolving the EEOC's Second Motion to Compel. Exxon must produce any documents or information withheld solely on the grounds that it is confidential, propriety, or constitutes a trade secret, consistent with the protective order issued in this action governing the exchange of such information in discovery.
4. Objections Based on Discrete Subparts of Interrogatories
*8 “Unless otherwise stipulated or ordered by the court, a party may serve any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).” Fed. R. Civ. P. 33(a)(1). Rule 33(a) states that “discrete subparts” should be counted as separate interrogatories, but it does not define what constitutes “discrete subparts” for this purpose. The Advisory Committee addressed this issue and provided some guidance as to when subparts are to be considered separate interrogatories:
Each party is allowed 25 interrogatories upon any other party, but must secure leave of court (or stipulation from the opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device of joining as ‘subparts’ questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication.
Advisory Committee's Notes to Fed. R. Civ. P. 33(a). “In deciding whether subparts should be considered separate interrogatories, courts consider ‘whether the interrogatory subparts are logically or factually subsumed within and necessarily related to the primary interrogatory question.’ ” Blackmon v. Bracken Constr. Co., Inc., No. 18-142, 2020 WL 6731113, at *6 (M.D. La. Nov. 16, 2020) (quoting Estate of Manship v. United States, 232 F.R.D. 552, 554 (M.D. La. 2005)).
Here, Exxon objected to the EEOC's interrogatories on the basis that they exceed the 25-interrogatory limit given the inclusion of discrete subparts. For example, in response to Interrogatory No. 20, Exxon asserted that it “would be reasonable to consider Interrogatory No. 20 as actually being Interrogatory Nos. 176-177” when all discrete subparts in all previous interrogatories were counted. (See R. Doc. 37 at 95-96). In opposing the instant motion, however, Exxon asserts that the EEOC's concerns regarding the subpart objections are “without merit” given that Exxon has provided substantive answers to the interrogatories at issue. (R. Doc. 47 at 32-33).
It appears, therefore, that Exxon has withdrawn its “discrete subpart” objection to the interrogatories. It also appears that the interrogatories at issue contain subparts that “are logically or factually subsumed within and necessarily related to the primary interrogatory question” relating to the “who, what, where and when” of the complaints, investigations, and responses at issue. See Cook v. Flight Servs. & Sys., Inc., No. 16-15759, 2018 WL 11447512, at *6 (E.D. La. Nov. 1, 2018) (“[T]he types of subparts here merely request factual elaboration about a potential response and are factually subsumed within the main interrogatory. The subparts merely ask for further factual elaboration as to who, what, when, where, and how. That is acceptable under the rules.”).
Based on the foregoing, Exxon's objections based on the 25-interrogatory limit are overruled.
5. The Geographic and Temporal Scope of Discoverable Information
The primary dispute between the parties raised by the EEOC's Renewed Motion to Compel is the geographic and temporal scope of discoverable information in this case.
With respect to the temporal scope, “the EEOC contends that discovery from the period of April 2016-April 2021 is relevant and proportional to the needs of the case because the EEOC's complaint alleges that five nooses were found in that timeframe, all within the Baton Rouge Complex.” (R. Doc. 41 at 12).[2] In contrast, Exxon argues that the “general relevant discoverable temporal scope should be limited to a three-year period before McGhee's complaint (January 2017-January 2020),” which would effectively limit all discovery to the single alleged noose discovered by McGhee. (R. Doc. 47 at 23).
*9 Having considered the record, and the pertinent decisional law, the Court concludes that the five-year period proposed by the EEOC (April 2016 to April 2021) is an appropriate temporal scope for discovery in this case. “The relevant timeframe is case specific, but courts have generally limited discovery of other employee's claims of discrimination to 3 to 5 years.” Dean v. Shell Pipeline Co., LP, No. 19-137, 2020 WL 2813521, at *9 (M.D. La. May 29, 2020); see Rahman v. ExxonMobil Corp., No.18-894, 2020 WL 354320, at *5 (M.D. La. Jan. 21, 2020) (generally limiting the scope of information discoverable from Exxon pertaining to other employees to information bearing upon discrimination based on race within three years of the plaintiff's termination in intentional race discrimination action); Odeh v. City of Baton Rouge/Parish of East Baton Rouge, No. 14-793, 2016 WL 1254361 (M.D. La. Mar. 29, 2016) (permitting discovery regarding disciplinary actions taken against other employees for incidents involving persons of Middle Eastern descent to last five years of the plaintiff's employment); Gillum v. ICF Emergency Mgmt. Services, L.L.C., No. 08-314, 2009 WL 2136269, at *8 (M.D. La. July 16, 2009) (requiring production of “all claims/complaints of age discrimination and disparate treatment ... for the past five (5) years.”).
The five years between April 2016 to April 2021 encompass the five alleged noose incidents referenced in the Complaint and fall within McGhee's time of employment. This period begins with the discovery of the first alleged noose in the Chemical Plant and ends within a few months after the discovery of the fifth and final alleged noose in the Refinery. Evidence regarding all five alleged noose incidents is relevant to the terms and conditions of McGhee's employment, regardless of whether McGhee discovered the four other alleged nooses or was specifically targeted. See Waltman v. Int'l Paper Co., 875 F.2d 468, 478 (5th Cir. 1989) (“[W]e agree that ‘a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive.’ ”) (quoting Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985)); see also E.E.O.C. v. WRS Infrastructure & Env't, Inc., No. 09-4272, 2011 WL 4460570, at *10 (N.D. Ill. Sept. 27, 2011) (“[A] reasonable jury could conclude that [a noose] poisoned the workplace for all the black workers, not just [the individuals] who saw it.”) (citing Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007)). Accordingly, the Court finds it appropriate to allow discovery for a five-year period encompassing all five alleged noose incidents alleged in the Complaint.
Having concluded that a five-year period is the appropriate temporal scope, the Court also concludes that an appropriate geographic scope of discovery includes discovery with respect to all five alleged noose incidents, which occurred in the Chemical Plant and the Refinery. There is no dispute that McGhee, as an AO with the Infrastructure Team at the Chemical Plant, had access to other areas within the Chemical Plant in which the three previous nooses were located. The Court is aware that Exxon has asserted that McGhee's access to the Refinery (where the fifth alleged noose was discovered) was minimal at best:
McGhee's access or possible access to the [Refinery] was/is minimal.... The Infrastructure Unit has four posts that its AOs qualify for and then work on. Each shift, an AO is potentially assigned to a different post. McGhee is qualified on all four posts. One of the posts requires minimal access to the outskirts of the [Refinery] facilities. Specifically, on shifts that McGhee is assigned to this one particular post, McGhee's job duties require that he make operator rounds, including driving down a street on the outskirts of Refinery facilities following piping that runs from the [Chemical Plant] to the [Refinery] to check piping, valves, etc. But, the Infrastructure Unit's “ownership” of such pipelines transitions to Refinery operators where the pipelines transition to [the Refinery] utilities. This process should generally take less than an hour's time (out of a 12-hour shift). However, McGhee does not access or enter any of the Refinery units to perform his job duties. In fact, if an operator who is not assigned to a certain unit needs to access that unit, access requires notifying the relevant console operator and/or obtaining proper approvals because the console operators must know who is physically present in their unit in the event of an emergency.
*10 (R. Doc. 47 at 10) (emphasis in the original). Nevertheless, Exxon admits that it does refer to the Chemical Plant and the Refinery as a “Complex” given their geographic proximity. (See R. Doc. 47 at 3 n.4).
Having considered the record, and the arguments of the parties, the Court finds it appropriate to define, in general, the geographic scope of discoverable information to include the Chemical Plant and the Refinery. The record indicates that upper management and HR representatives for these two facilities worked on the various alleged noose investigations. For example, a Refinery Mechanical HR Advisor was one of the investigators with respect to the April 20, 2016 alleged noose sighting by an AO in the Infrastructure Unit in the Chemical Plant. (See R. Doc. 41-2 at 10). Similarly, the investigation report regarding McGhee's alleged noose sighting on January 22, 2020 recommends consideration of a “communication regarding appropriate types of knots when using ropes in the Complex” without limiting the communication to the Chemical Plant. (R. Doc. 41-2 at 4). In response to both the August 17, 2019 and January 22, 2020 alleged noose sightings at the Chemical Plant, the investigation reports suggest that management should send “a site-communication stating the Company's position on harassment in the workplace” without specifying whether the communication would be limited to the Chemical Plant. (R. Doc. 41-2 at 4, 8). The August 30, 2018 site communication references the “Baton Rouge Complex” in general and is signed by Site Managers for the Chemical Plant and the Refinery. (R. Doc. 27-2). Finally, the BRA (i.e., “Baton Rouge Area”) Sr. Labor Advisor was an investigator with respect to the April 20, 2016 and January 22, 2020 incidents. (See R. Doc. 41-2 at 2, 10).
Exxon's request to limit all discovery to the Infrastructure Unit of the Chemical Plant ignores the site-wide nature of the alleged harassment. Exxon does not argue that McGhee, as an AO with the Infrastructure Unit, lacks access to other areas within the Chemical Plant. Indeed, the first alleged noose incident referenced in the Complaint involved an AO with the Infrastructure Unit, but Exxon asserts that the alleged noose was not found in the Infrastructure unit/area but was instead found in the NACC unit/area. (See R. Doc. 47 at 27). Given that there were three alleged noose sightings within the Chemical Plant prior to the McGhee incident, and that Exxon sent site-wide communications in response to these incidents, the Court finds it appropriate to allow discovery (in general) with respect to the entire Chemical Plant.
The Court also finds it appropriate to allow discovery (in general) with respect to the Refinery. The EEOC has alleged a hostile work environment claim involving alleged noose sightings at two of Exxon's facilities. As discussed above, the investigation reports in the record indicate that Exxon provided site-wide communications to include both the Chemical Plant and the Refinery. The fifth and final alleged noose sighting referenced in the Complaint was made within one year of McGhee's alleged noose incident. Exxon has acknowledged that it was unable to identify who hung the alleged noose discovered by McGhee. (R. Doc. 15-7 at 29). Given the record, the Court concludes that, for the purposes of discovery, the fifth and final noose incident in the Refinery is relevant both (1) to the pervasiveness of the alleged hostile work environment and (2) to Exxon's alleged failure to take proper remedial actions. While it is unclear whether the incident at the Refinery has any causal relationship to the prior four incidents at the Chemical Plant, it is appropriate to allow discovery with respect to this fifth and final incident at the Refinery as part and parcel to the EEOC's hostile work environment claim.[3] Among other things, Exxon has raised the affirmative defense to punitive damages on the basis that it made good faith efforts to comply with Title VII, see Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999), and discovery with respect to the fifth and final noose sighting is relevant to that affirmative defense. (See R. Doc. 5 at 2).
*11 The Court is aware of the size of the Chemical Plant and the Refinery, as well as the number of employees working within these facilities. The Court has taken into consideration the potential undue burden to Exxon with respect to discovery entailing a review of thousands of employee's personal and company devices in further detailing, and limiting, the scope of discoverable information and documents within the context of addressing the individual discovery requests at issue. Furthermore, to the extent Exxon is arguing that the geographic scope of discovery should be limited because the EEOC has raised “vague and conclusory” allegations (see R. Doc. 47 at 14), Exxon may seek dismissal of this action for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The EEOC overreaches, however, where it seeks “discovery on noose complaints and efforts to prevent nooses” involving “all Exxon facilities in Louisiana.” (R. Doc. 41 at 12).[4] “Limits on discovery as to scope, time, and geography must be carefully constructed and premised on the notion that plaintiffs have a right to seek discovery on similarly motivated discriminatory acts if it is likely that a finder of fact would conclude that those other acts are probative of the intention or motivation of which the plaintiff has complained.” Mitchell v. Nat'l R.R. Passenger Corp, 208 F.R.D. 455, 458-60 (D.D.C. 2002). As discussed below, the Court will allow the EEOC to conduct discovery with respect to (1) the complaints of racial harassment and nooses alleged in the pleadings and (2) remedial actions by Exxon in response to those complaints. The problem with the EEOC's position regarding state-wide discovery is that it is seeking discovery outside of the scope of the five incidents referenced in the Complaint, including discovery with respect to undocumented and hypothetical incidents, including “discovery related to nooses at Exxon's facilities through Louisiana.” (R. Doc. 41 at 18-25).
The virtually unlimited state-wide discovery sought by the EEOC is not proportional to the needs of this case. The Court does not dispute that “[a] noose is a visceral symbol of the deaths of thousands of African-Americans at the hand of lynch mobs.” Porter v. Erie Foods Int'l, 576 F.3d 629, 636 (7th Cir. 2009). But while discovery of all racial discrimination, including noose incidents, throughout Exxon's corporate history may have some limited relevance to the claims in this action, the resources required to locate and produce such information is disproportionate to the needs of this case.
In sum, the Court concludes that the scope of discovery in this action is limited, in general, to the five years between April 2016 to April 2021 to the extent the discovery pertains to the five alleged noose findings at the Chemical Plant and the Refinery. The Court will proceed to considering the specific requests for production and interrogatories at issue below in the order presented by the EEOC, and will further address the scope of discovery to the extent necessary in addressing the individual discovery requests.
6. Disputes Regarding Electronically Stored Information (“ESI”)
Much of the information and communications sought by the EEOC will consist of electronically stored information (“ESI”). The EEOC proposed a custodian list with respect to Requests for Production Nos. 46-49. (R. Doc. 15-4). Exxon has objected to the use of EEOC's proposed custodian list given that that the temporal and geographic scope of discovery has remained in dispute. Nevertheless, Exxon has agreed to conduct certain keyword searches in emails and company phones with respect to certain custodians. (See R. Doc. 41-3 at 1-2).
*12 The parties had a duty to discuss “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced” in the development of their discovery plan. See Fed. R. Civ. P. 26(f)(3)(C). Regardless of the parties' agreements, Exxon has a duty to conduct a diligent search for responsive documents and ESI.
Accordingly, Exxon must conduct appropriate searches for ESI in light of the temporal and geographic scope of discovery as defined in this Order. It appears that at this point in discovery, Exxon is not disputing that it must conduct ESI discovery (at least with respect to with respect to Requests for Production Nos. 46-49). Instead, it is only disputing the scope of applicable search terms and custodians with respect to locating responsive ESI that falls within the scope of discovery.
A party resisting discovery of ESI based on undue burden must make a specific showing that “the information is not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). The responding party cannot simply refuse to search for ESI because the party conducting discovery has not provided search terms:
A producing party generally has an obligation to collect and review ESI pursuant to its own search protocol ... and to provide the requesting party with the names of custodians whose ESI was searched, date ranges for the searches, and any search terms applied. Such information is properly included in written responses to document requests pursuant to Rule 34's specificity requirements.... A producing party is usually in the best position to know where to find relevant documents.... If problems are found with the search, a requesting party can raise them afterwards.
Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 646 n.5 (S.D.N.Y. 2019); see also The Sedona Conference, The Sedona Principles, Third Edition, 19 Sedona Conf. J. 1, 52 (2018) (“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for ... producing their own electronically stored information.”); AIDS Healthcare Found., Inc. v. City of Baton Rouge, No, 17-229, 2018 WL 5259465, at *5 n.4 (M.D. La. Oct. 22, 2018) (“District courts within the Fifth Circuit have acknowledged that the Sedona Principles and related Sedona commentaries are the leading authorities on electronic document retrieval and production.” (citation and internal quotation marks removed); Firefighters' Ret. Sys. v. Citco Grp. Ltd., No. 13-373, 2018 WL 276941, at *4 (M.D. La. Jan. 3, 2018) (“A responding party is generally entitled to select the custodians most likely to possess responsive information.”); Scott v. Mobilelink Louisiana, LLC, No. 20-826, 2022 WL 3009111, at *5 n.2 (M.D. La. July 28, 2022) (“To be clear, the lack of an ESI protocol does not wholly negate Defendant's obligation to respond to a valid discovery request, even if electronically stored information might be responsive.”).
The parties are encouraged to again meet-and-confer with respect to the appropriate ESI discovery protocols required with respect to discovery given the dictates of this Order. In the absence of any further agreement between the parties, at the time of production, Exxon must certify that it has conducted diligent searches and identify the efforts made to locate responsive ESI, including custodians whose ESI was searched, date ranges for the searches, and any search terms applied. With respect to the discovery requests at issue, Exxon need only search for and produce documents and ESI within the parameters set by this Order.
7. Specific Discovery Requests
*13 The Court has reviewed the underlying discovery requests, responses, and objections at issue, as well as the correspondence between the parties regarding the specific discovery disputes. The Court's discussion of the temporal and geographic scope of discovery information, as outlined above, resolves the majority of the disputes between the parties. Nothing in the following limits Exxon's right to produce documents and information subject to the protective order governing the exchange of confidential information to be later entered in this action, or to withhold documents and information based on an applicable privilege or immunity as identified in a privilege log. Finally, while this Order requires Exxon to provide supplemental written responses and answers by a date certain, the actual production of documents and ESI may occur within a reasonable time as agreed upon by the parties.
The Court will now address the discovery requests in the order presented by the parties. To the extent the Court does not address a specific objection raised by Exxon, that objection has been overruled.
a. Request for Production No. 13
Request for Production No. 13: Produce all Documents that set forth, describe, explain, or reflect each of Defendant's policies, practices, procedures, and/or codes of conduct relating to race discrimination, racial harassment, and/or retaliation, including any procedures for reporting or investigating reports of such race discrimination, racial harassment, or retaliation, that were in effect between April 1, 2016, and the present.
In response, Exxon originally agreed only to produce documents in effect on January 2020 at the Chemical Plant. (R. Doc. 37 at 7). Exxon subsequently agreed to produce policies in effect between January 2017 and January 2020 that are applicable to the Chemical Plant. (R. Doc. 47-1 at 7).
Exxon shall produce policies, practices, procedures, and/or codes of conduct in effect from April 2016 to April 2021 applicable to both the Chemical Plant and the Refinery. Exxon need only produce the actual policies, practices, procedures, and/or codes of conduct. The request is overly broad to the extent it seeks Exxon to produce all documents “that set forth, describe, explain, or reflect” the actual policies, practices, procedures, and/or codes of conduct.
b. Interrogatory No. 15
Interrogatory No. 15: Identify each person, as the instructions and definitions provide, who was involved in preparing or promulgating any polic(ies), site communication(s), or email(s) relating to discrimination, harassment, or nooses or similar knotted ropes during the relevant period, and specify their role in preparing or promulgating any such polic(ies), site communication(s), or email(s).
In response, Exxon stated, subject to various objections, that “the anti-discrimination and anti-harassment provisions in its Equal Employment Opportunity and Harassment in the Workplace Policies, Standards of Business Conduct, Working Together Booklet, and Collective Bargaining Agreement are drafted with input from HR, Law, EEO, and Labor Relations professionals.” (R. Doc. 37 at 87-88).
The Court agrees with Exxon that, to respond to this request as written, “[t]he amount of interviews and investigation [Exxon] would have to do to determine every person involved in these activities across all of its facilities for eight years is unduly burdensome.” (R. Doc. 37 at 88). That said, Exxon most provide a revised answer identifying the specific individuals, and their roles, with respect to preparing or promulgating any policies or communications in direct response to any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021, as well as any other policies specifically identified in response to Request for Production No. 13.
c. Request for Production No. 55
Request for Production No. 55: Produce (or identify by Bates number, if already produced) all Documents or communications regarding recommendations about how to prevent racial harassment, nooses, or complaints of nooses at any facility operated by Defendant between January 1, 2015, and the present.
*14 In response, Exxon raised various objections without agreeing to produce any documents.
(See R. Doc. 37 at 69-71).
This request for production, as written, is overly broad. The Court will, however, require Exxon to produce non-privileged documents and communications generated by the individuals identified in response to Interrogatory No. 15 regarding the preparation or promulgation of any policies, practices, procedures, and/or codes of conduct and site-wide (or unit specific) communications in direct response to any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021.
d. Request for Production No. 9
Request for Production No. 9: Produce all statements, declarations, affidavits, or recordings from any witness or potential witness that pertain to the above-captioned action or the subject charge of discrimination.
In response, Exxon agreed, pursuant to certain objections and entry of a protective order governing the exchange of confidential information, to produce documents responsive to McGhee's alleged noose incident (i.e., “January 2020 Investigation Report; November 3, 2020 Charge of Discrimination; January 27, 2021 Position Statement and Exhibits; April 5, 2021 Response to Request for Information; and January 30, 2020 EBRSO Investigation File.”). (See R. Doc. 37 at 69-71).
The Court will require Exxon to produce similarly responsive documents regarding all noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021.
e. Request for Production Nos. 15-22
Request for Production No. 15: Produce all Documents related to the April 2016 report of a rope referenced in Paragraph 17 of your Answer.
Request for Production No. 16: Produce all Documents related to the investigation referenced in Paragraph 18 of your Answer concerning the April 2016 report.
Request for Production No. 17: Produce all Documents related to any training, counseling, policy changes, or other corrective or remedial action to prevent racial harassment taken between April 2016 and March 2019 in response to the April 2016 report referenced in Paragraph 17 of your Answer or in response to a noose as alleged in Paragraph 11-F of the EEOC's Complaint.
Request for Production No. 18: Produce all Documents related to the March 2019 report of a rope referenced in Paragraph 20 of your Answer.
Request for Production No. 19: Produce all Documents related to any investigation into the March 2019 report referenced in Paragraph 20 of your Answer.
Request for Production No. 20: Produce all Documents related to any training, counseling, policy changes, or other remedial action to prevent racial harassment taken between March 2019 and August 2019 in response to the March 2019 report of a rope referenced in Paragraph 20 of your Answer or in response to a noose as alleged in Paragraph 11-F of the EEOC's Complaint.
Request for Production No. 21: Produce all Documents related to the August 2019 report of a rope referenced in Paragraph 23 of your Answer.
Request for Production No. 22: Produce all Documents related to the investigations referenced in Paragraph 24 of your Answer regarding the August 2019 report.
*15 Exxon specifically objected to these document requests because they pertain to the first three alleged noose incidents referenced in the Complaint prior to McGhee's alleged noose incident. (R. Doc. 37 at 9-15).
Exxon shall produce documents responsive to these document requests consistent with Exxon's responses to Requests for Production Nos. 23-25, which all pertain to McGhee's alleged noose incident. (See R. Doc. 37 at 15-17).
f. Request for Production Nos. 35-37
Request for Production No. 35: Produce all Documents that set forth, describe, or explain how to tie or use knots in the workplace.
Request for Production No. 36: Produce (or identify by Bates number, if already produced) all Documents concerning training provided to any employee at the Baton Rouge Complex, as defined, on how to tie or use knots in the workplace, including any Documents that identify the date(s) that such training was provided.
Request for Production No. 37: Produce (or identify by Bates number, if already produced) all Documents concerning any training that Defendant provided to any contractor who Defendant authorized to access to the Baton Rouge Complex, as defined, on how to tie or use knots in the workplace, including any Documents that identify the date(s) that such training was provided.
Exxon specifically objected to these document requests because they are not limited to McGhee's alleged noose incident. (See R. Doc. 37 at 36-41). Exxon has since agreed to produce the requested policies or training materials applicable to individuals “working in the Infrastructure Unit at the Baton Rouge Chemical Plant, if any, in effect between January 2017 and January 2020.” (R. Doc. 47-1 at 12).
Exxon shall produce responsive documents to the extent they pertain to supervisors, employees, or contractors working in the Chemical Plant or the Refinery, if any, in effect between April 2016 to April 2021.
g. Request for Production Nos. 38-39
Request for Production No. 38: Produce all nooses, suspected nooses, and/or ropes tied in knots that resemble nooses that have ever been the subject of any complaint or report or investigation at the Baton Rouge Complex, as defined.
Request for Production No. 39: Produce (or identify by Bates number, if already produced) all images of any and all nooses, suspected nooses, or ropes tied with knots that resemble nooses that have been found at the Baton Rouge Complex, as defined.
Exxon specifically objected to these document requests because they are not limited to McGhee's alleged noose incident. (See R. Doc. 37 at 41-43). Exxon did agree, however, “to make the alleged noose for Mr. McGhee's January 2020 report available for inspection at a mutually convenient time” and to “produce copies of the responsive and non-privileged documents or of electronically stored information related to Mr. McGhee's report that he found an alleged noose in the Infrastructure Unit of the Baton Rouge Chemical Plant in January 2020 after entry of an agreed protective order.” (R. Doc. 37 at 41, 43). Exxon has since agreed to produce responsive documents and images “related to suspected noose incidents in the Baton Rouge Chemical Plant Infrastructure Unit [from] January 2017 through January 2020.” (R. Doc. 47-1 at 13).
*16 Exxon shall produce all documents and images in direct response to any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021.
h. Request for Production Nos. 40-42
Request for Production No. 40: Produce (or identify by Bates number, if already produced) all “site communications” sent to Exxon employees in response to McGhee's report of a noose or similarly knotted rope at the Baton Rouge Complex, as defined, including the site communications referenced in Defendant's Exhibit A to its Position Statement.[5]
Request for Production No. 41: Produce (or identify by Bates number, if already produced) all “site communications” sent to Exxon employees in response to Ray Breaux's report of a noose or similarly knotted rope at the Baton Rouge Complex, as defined, including the site communications referenced in Defendant's Exhibit B to its Position Statement.
Request for Production No. 42: Produce (or identify by Bates number, if already produced) all “site communications” sent to Exxon employees in response to any other report of a noose or similarly knotted rope at the Baton Rouge Complex, as defined, and not already produced in response to Requests No. 41 and 42.
Exxon specifically objected to these document requests because they are not limited to McGhee's alleged noose incident and because the phrase “site communications” was undefined and open to multiple interpretation. (See R. Doc. 37 at 43-48). Exxon has since agreed that it understands the meaning of “site communications” (a term that appears in its own investigative reports) and that it would produce certain responsive documents. (R. Doc. 47-1 at 13).
Exxon shall produce all “site communications” in direct response to any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021.
i. Request for Production No. 56
Request for Production No. 56: Produce all Documents or tangible things showing security camera footage of the worksites where nooses were reported in April 2016, March of 2019, August 2019, January 2020, and December 2020 as alleged in the Complaint.
Exxon specifically objected to these document requests because they are not limited to McGhee's alleged noose incident. (See R. Doc. 37 at 71-72). Subject to these objections, Exxon responded further stating “that there is no responsive security camera footage related to the January 2020 incident sued upon.” (R. Doc. 37 at 72).
Exxon shall produce all security camera footage for a 24-hour period directed for the location of any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021. If no responsive security camera footage exists, Exxon shall indicate such in its response.
j. Request for Production No. 57-58
Request for Production No. 57: Produce all documents, including memoranda, emails, text messages, voicemails and other communications, regarding news reports in February 2021 that a noose was displayed at the Baton Rouge Complex. See, e.g. Fox.40.com report, ExxonMobil Contractor Fired After Displaying Noose to Coworker, available at https://fox40.com/news/national-and-worldnews/exxonmobil-employee-fired-after-displaying-noose-to-co...; brproud.com report, Contractor Working at ExxonMobil Fired after Displaying Noose to Coworker, available at https://www.brproud.com/news/localnews/contractor-working-at-exxonmobilfired-after-displaying-noose-....
*17 Request for Production No. 58: Produce (or identify by Bates number, if already produced) all communications, including memoranda, emails, text messages, and voicemails between Defendant and Jonah Gilmore or any representative of BRProud.com or Fox news regarding allegations of nooses or hate speech.
Exxon specifically objected to these document requests because they are not limited to McGhee's alleged noose incident and on the basis that “the phrase ‘other communications’ is undefined, overly broad, vague, ambiguous, and subject to multiple interpretations such that it is impossible to respond.” (See R. Doc. 37 at 72-75).[6]
The Court will limit this discovery to all communications (in any recorded form) between Exxon and Jonah Gilmore (the author of the reports) or any representative of BRProud.com or Fox news regarding allegations of nooses or hate speech. Discovery of all communications “regarding” news reports, without limitations, is overly broad.
k. Interrogatory Nos. 9-11, 16, and 18
Interrogatory No. 9: Identify each complaint or report (whether written or oral, formal or informal, verified or unverified) that Defendant has received from any Person(s) alleging racial harassment, racial mistreatment, racial misconduct, nooses or similarly knotted ropes at the Baton Rouge Complex, as defined, at any time between January 1, 2016, and the present. For each such complaint or report, provide the following information: (a) the date of the complaint or report; (b) the full name, job title or position, and race of each Person who made the complaint or report; (c) the full name, job title or position, and race of each Person against whom the complaint or report was made; (d) the full name, job title or position, and race of each Person who received such complaint or report; and (e) a detailed description of the alleged behavior or conduct at issue;
Interrogatory No. 10: For each complaint or report identified in your response to Interrogatory No. 9 above, fully describe Defendant's investigation of the complaint or report, if any, including: (a) the date(s) of any investigation, (b) the Person(s) involved or consulted in connection with any investigation into the complaint or report, stating their role in the investigation, (c) any Person(s) interviewed during the investigation, including the date(s) of such interviews, (d) any Documents or things reviewed during such investigation; and (e) the findings of such investigation into the complaint or report.
Interrogatory No. 11: For each complaint or report identified in your response to Interrogatory No. 9 above, provide a detailed description of all corrective action(s) that Defendant took in response to the complaint or report and the findings of its investigation thereof, including: (a) the date(s) of any corrective action, [and] (b) the Person(s) involved or consulted in connection the decision to make the corrective action, stating their role in the action.
Interrogatory No. 16: Identify each person, as the instructions and definitions provide, who had any role in preparing or reviewing the conclusions and recommendations related to any investigation of any employee or contractor at the Baton Rouge Complex's report of finding a noose or knotted rope resembling a noose.
*18 Interrogatory No. 18: Identify each person, as the instructions and definitions provide, who was involved in the drafting of any and all site communications or other memoranda sent to Exxon employees following any report of a noose or similarly knotted rope at the Baton Rouge Complex. For each person, identify their role in drafting the communication(s) or memoranda.
Exxon answered the foregoing interrogatories by providing certain responsive information regarding the noose incident involving McGhee. (See R. Doc. 37 at 77-85, 88-92). Exxon then agreed to expand its answers to Interrogatory Nos. 9, 10, and 11 to “purported racial harassment by employees in Baton Rouge Chemical Plant Infrastructure Unit from January 2017 through January 2020,” adding that Exxon will “not certify” that its responses “include every oral or informal complaint.” (See R. Doc. 47-1 at 2-3). Similarly, Exxon agreed to expand its answers to Interrogatory Nos. 16 and 18 to “reports by employees in Baton Rouge Chemical Plant Infrastructure Unit from January 2017 through January 2020.” (R. Doc. 47-1 at 4-5).
Exxon must provide supplemental answers to these interrogatories consistent with the scope of discovery as defined in this Order, i.e., complaints of racial harassment or noose sightings at the Chemical Plant or the Refinery between April 2016 to April 2021. Exxon need not certify that its responses to Interrogatory Nos. 9, 10, and 11 “include every oral or informal complaint.” Discovery directed at every oral, informal, or unverified grievance is disproportionate to the needs of this case and would subject Exxon to undue burden.
l. Interrogatory Nos. 19-20
Interrogatory No. 19: For all reported nooses, suspected nooses, and/or ropes with knots that resemble nooses that have been reported and/or investigated at the Baton Rouge Complex, explain in detail the purpose(s) of the rope used.
Interrogatory No. 20: Identify the current location and custodian of all nooses, suspected nooses and/or ropes with knots that resemble nooses that have been reported and/or investigated at the Baton Rouge Complex. For any noose or rope that has been the subject of a report and/or investigation which you are unable to produce, please identify and describe in detail what disposition was made of the rope, by whom, and when.
Exxon's answers to the foregoing interrogatories provided certain responsive information regarding the noose incident involving McGhee. (R. Doc. 37 at 92-96). Exxon shall revise its answers to include any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021.
m. Request for Production No. 14
Request for Production No. 14: Produce all Documents that set forth, describe, explain, or reflect each of Defendant's policies, practices, procedures, and/or codes of conduct related to nooses or similarly knotted ropes that were in effect between April 1, 2016, and the present.
In response, Exxon originally agreed only to produce documents in effect on January 2020 at the Chemical Plant. (R. Doc. 37 at 8-9). Exxon subsequently agreed to produce policies in effect between January 2017 and January 2020 that are applicable to the Baton Rouge Chemical Plant. (R. Doc. 47-1 at 7). The EEOC specifically seeks an order compelling production of documents from state-wide sources. (R. Doc. 41 at 38-39).
*19 Consistent with the required response to Request for Production No. 13, Exxon shall produce all policies, practices, procedures, and/or codes of conduct in effect from April 2016 to April 2021 applicable to both the Chemical Plant and the Refinery. Exxon need only produce the actual policies, practices, procedures, and/or codes of conduct. The request is overly broad to the extent it seeks Exxon to produce all documents “that set forth, describe, explain, or reflect” the actual policies, practices, procedures, and/or codes of conduct.
n. Request for Production Nos. 26-29 and Interrogatory No. 13
Request for Production No. 26: Produce (or identify by Bates number, if already produced) each complaint or report (whether written or oral, formal or informal, verified or unverified) grievance, charge of discrimination, or lawsuit that Defendant has received from any Person(s) concerning a noose, a suspected noose, or similarly tied rope at any location, not limited to the Baton Rouge Complex, at any time between January 1, 2015, and the present.
Request for Production No. 27: For each complaint or report, grievance, charge of discrimination, or lawsuit concerning a noose, suspected noose, or similarly tied rope referenced in the above Request No. 26, produce (or identify by Bates number, if already produced) all Documents relating to any investigation(s) that Defendant undertook in response to each complaint or report, including but not limited to, any and all witness statements, affidavits, investigation notes, and investigation findings or conclusions.
Request for Production No. 28: For each complaint or report, grievance, charge of discrimination, or lawsuit concerning a noose, suspected noose, or similarly tied rope referenced in the above Request No. 26, produce (or identify by Bates number, if already produced) all Documents relating to all corrective actions that Defendant undertook in response, including disciplinary action taken against any employees.
Request for Production No. 29: For each complaint or report of nooses, suspected nooses, or similarly tied ropes referenced in the above Request No. 26, produce (or identify by Bates number, if already produced) all Documents related to training, counseling, policy changes, or other remedial action to prevent further racial harassment in response to the complaint or report.
Interrogatory No. 13: Identify each person, as the instructions and definitions provide, who was counseled, disciplined (either formally or informally), discharged, or separated because of their involvement with the placement of nooses or similar knotted ropes during the relevant period. Include in your response the race of each person identified.
Exxon raised various objections to the Requests for Production Nos. 26-29 and refused to provide any responsive documents. (See R. Doc. 37 at 18-25). Exxon subsequently agreed to produce “reports by employees in Baton Rouge Chemical Plant Infrastructure Unit from January 2017 through January 2020,” adding that it will “not certify” that its responses “include every oral or informal complaint.” (R. Doc. 47-1 at 8-9). Exxon did, however, provide certain information in response to Interrogatory No. 13 with respect to the alleged noose discovered by McGhee. (R. Doc. 37 at 86-67).
As discussed above, the Court will allow discovery regarding racial harassment and any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021. Thee Court will require Exxon to provide supplemental responses to these written discovery requests consistent with the scope of discovery as defined in this Order. Exxon need not certify that its responses to these discovery requests “include every oral or informal complaint.”
o. Request for Production No. 47
*20 Request for Production No. 47: Produce (or identify by Bates number, if already produced) all Documents, including emails, text messages, voicemails, and other communications, created between January 1, 2016, and the present that include the term “noose.”
Exxon objected to this request and refused to produce any responsive documents. (See R. Doc. 37 at 54-56). The EEOC then proposed a list of custodians with respect to this document request. (R. Doc. 15-4 at 11). Exxon argues that this list is “egregiously overbroad” because it includes managers and employees throughout Exxon's Louisiana facilities. (R. Doc. 47 at 36 n.57). Exxon has subsequently agreed to the following:
In response to Request for Production No. 47, ExxonMobil will conduct a keyword search for noose in emails (only in ExxonMobil company e-mail accounts) and text messages (only in phones for those individuals with company phones, if any) for the following custodians from January 1, 2020 through November 3, 2020: (1) Matthew Abbott, (2) David Cutrer, (3) Dave Dartez, (4) Bruce Lilly, (5) Carl Mulder, (6) Megan Sledge, (7) Rich Trepagnier, (8) Paula Veal, and (9) other operators, FLSs, and SLSs assigned to the Infrastructure Unit. However, ExxonMobil does not agree to produce any correspondence returned related to alleged incidents at any sites other than the Chemical Plant, if any.
(R. Doc. 41-3 at 2). Exxon also agrees to search for “noose” in its “Employee Services shared LAN Drive” with respect to a scope of “January 2017-January 2020 and BRCP Infrastructure Unit.” (R. Doc. 47 at 36).
There does not appear to be any dispute that a diligent search for responsive documents and communications including the word “noose” (other than Exxon policies or investigative reports specifically addressing nooses) will largely require searches for ESI. The Court has limited the temporal and geographic scope of discovery to the Chemical Plant and the Refinery for the years April 2016 to April 2021. Accordingly, the Court will require Exxon to conduct a proper search for responsive ESI given that scope.
To the extent necessary, the parties shall meet and confer with respect to any reasonable revisions to the custodians and devices to be subject to searches for the term “noose” in light of the general scope of discovery as defined by this Order.
p. Request for Production Nos. 50-51
Request for Production No. 50: Produce (or identify by Bates number, if already produced) all Documents, including emails, text messages, voicemails, and other communications exchanged between Defendant and any law enforcement official between January 1, 2015 and present regarding a noose, suspected noose, or complaint of a noose at any facility operated by Defendant.
Request for Production No. 51: Produce (or identify by Bates number, if already produced) all Documents, including memoranda, emails, text messages, voicemails and other communications, exchanged between Defendant and any agent or representative of United Steelworkers International Union between January 1, 2015, and present regarding a noose, suspected noose, or complaint of a noose at any facility operated by Defendant.
Exxon objected to these requests and refused to produce any responsive documents. (See R. Doc. 37 at 60-65). Exxon has subsequently agreed to “produce communications of relevant ExxonMobil HR or management-level employees (limited to those searchable in Company e-mail accounts or company-issued phones, if any) with [law enforcement or union representatives] regarding McGhee's January 2020 report.” (R. Doc. 47-1 at 16-17).
*21 The Court will require Exxon to produce responsive documents and communications between Exxon and law enforcement or union representatives regarding any noose, suspected noose, or complaint of a noose at the Chemical Plant or the Refinery between April 2016 to April 2021. The Court finds it reasonable to limit searches for ESI to Exxon's HR or management-level employees and Exxon's issued email accounts and phones, as well as appropriate HR and management files.
To the extent necessary, the parties shall meet and confer with respect to any reasonable revisions to the custodians and devices to be subject to searches for responsive ESI.
q. Request for Production Nos. 30-34
Request for Production No. 30: Produce all Documents (or identify by Bates number, if already produced) reflecting any complaint or report (whether written or oral, formal or informal, verified or unverified), grievance, charge of discrimination, or lawsuit that Defendant has received from any person(s) alleging racial harassment, mistreatment, or misconduct at the Baton Rouge Complex, as defined, at any time between January 1, 2016, and the present.
Request for Production No. 31: For each lawsuit, charge of discrimination, grievance, and/or complaint or report alleging race discrimination, racial harassment, mistreatment, or misconduct referenced in the above Request No. 30, produce (or identify by Bates number, if already produced) all Documents or tangible things relating to all investigations that Defendant undertook in response to the lawsuit, charge, grievance, and/or complaint or report, including but not limited to, any and all witness statements, affidavits, investigation notes, and investigation findings or conclusions.
Request for Production No. 32: For each lawsuit, charge of discrimination, grievance, and/or complaint or report alleging race discrimination, racial harassment, mistreatment, or misconduct referenced in the above Request No. 30, produce (or identify by Bates number, if already produced) all Documents relating to all corrective or remedial actions that Defendant undertook in response to the lawsuit, charge, grievance, and/or complaint, including disciplinary action taken against any employees.[7]
Request for Production No. 33: Produce (or identify by Bates number, if already produced) all Documents reflecting any training that Defendant provided to any of its employees at the Baton Rouge Complex, as defined, relating to race discrimination, racial harassment, retaliation, and/or any aspect of Title VII of the Civil Rights Act of 1964 at any point between January 1, 2016, and the present, including any Documents that identify the date(s) that such training was provided.
Request for Production No. 34: Produce (or identify by Bates number, if already produced) all Documents reflecting any training that Defendant provided to any contractor authorized to access the Baton Rouge Complex, as defined, related to race discrimination, racial harassment, retaliation, and/or any aspect of Title VII of the Civil Rights Act of 1964 at any point between January 1, 2016, and the present, including any Documents that identify the date(s) that such training was provided
Exxon objected to Request for Production Nos. 30-34 and refused to produce any responsive documents. (See R. Doc. 37 at 26-36). Exxon subsequently agreed to produce “reports by [employees or contractors] in Baton Rouge Chemical Plant Infrastructure Unit from January 2017 through January 2020,” adding that it will “not certify” that its responses “include every oral or informal complaint.” (R. Doc. 47-1 at 10-12).
*22 As discussed above, the Court will allow discovery regarding racial harassment and any noose or suspected noose sighting in the Chemical Plant or the Refinery between April 2016 to April 2021. Accordingly, the Court will require Exxon to provide supplemental responses to these written discovery requests consistent with the scope of discovery as defined in this Order. Exxon need not certify that its responses to these discovery requests “include every oral or informal complaint.” Discovery directed at every oral, informal, or unverified grievance is disproportionate to the needs of this case and would subject Exxon to undue burden.
r. Request for Production Nos. 52
Request for Production No. 52: Produce (or identify by Bates number, if already produced) all Documents, including memoranda, emails, text messages, voicemails and other communications, exchanged between Defendant and any agent or representative of United Steelworkers International Union between January 1, 2016, and present regarding racial harassment.
Exxon objected to this request and refused to produce any responsive documents. (See R. Doc. 37 at 65-67). Exxon has subsequently agreed to “produce communications of relevant ExxonMobil HR or management-level employees (limited to those searchable in Company e-mail accounts or company-issued phones, if any) with union representatives regarding McGhee's January 2020 report.” (R. Doc. 47-1 at 17).
The Court will require Exxon to produce responsive documents and communications between Exxon and union representatives regarding racial harassment at the Chemical Plant or the Refinery between April 2016 to April 2021. The Court finds it reasonable to limit searches for ESI to Exxon's HR or management-limited employees and Exxon's issued e-mail accounts and phones, as well as appropriate HR and management files.
To the extent necessary, the parties shall meet and confer with respect to any reasonable revisions to the custodians and devices to be subject to searches for responsive ESI.
s. Request for Production Nos. 43
Request for Production No. 43: Produce a map of the Baton Rouge Complex, as defined.
Subject to objections, Exxon responded to this request by stating that it was “diligently searching for responsive maps of the Baton Rouge Chemical Plant.” (R. Doc. 37 at 48-49). Exxon has subsequently confirmed that it would produce a map of the Chemical Plant if one exists. (R. Doc. 47-1 at 14). The EEOC argues that maps of all of Exxon's Baton Rouge facilities are required given the parties' dispute regarding the geographic scope of relevant information. (R. Doc. 41 at 45).
Given the geographic scope of discovery as defined by above, Exxon must produce a map (or maps) of the Chemical Plant and the Refinery to the extent responsive maps exist.
t. Request for Production Nos. 44-45 and Interrogatory No. 8
Request for Production No. 44: Produce all organizational directories, lists, or charts identifying any persons who worked at the Baton Rouge Complex at any time from January 1, 2016, to the present.
Request for Production No. 45: Produce (or identify by Bates number, if already produced) all organizational charts from January 1, 2016, to the present showing the staffing structure/hierarchy of the Baton Rouge Complex, as defined.
Interrogatory No. 8: Identify each person, as the instructions and definitions provide, who worked at the Baton Rouge Complex, as defined, during the relevant period. Include in your response the race of each person identified.
Exxon objected to these written discovery requests and refused to produce any responsive documents or information. (See R. Doc. 37 at 49-52, 76). The EEOC has, for the time period of April 2016 to April 2021, “agreed to limit the geographic scope of these requests to the Chemical Plant, except for Human Resources/Employee Services and Upper Management (plant manager and higher) personnel, whose identities the EEOC seeks throughout Exxon's Baton Rouge facilities.” (R. Doc. 41 at 45). Exxon subsequently agreed to “produce the requested information, if it exists, for employees in the Infrastructure Unit from January 2017-January 2020 (per [its] original responses/objections), but agrees to provide the information for HR/Employee Services (excluding payroll) and upper management at or assigned to the Chemical Plant.” (R. Doc. 41-3 at 1).
*23 With respect to Requests for Production Nos. 44-45, the Court finds the organization directory and chart information sought (when limited to the Chemical Plant and the Refinery for the time period of April 2016 to April 2021) to fall within the scope of discovery.
The Court finds Interrogatory No. 8 to be overly broad as written. Even if the scope of the interrogatory is limited to the Chemical Plant between April 2016 to April 2021, it remains unclear what relevance the identities and races of each person who has worked at those facilities during that period of time has to the claims and defenses in this action. To the extent that the EEOC is seeking information of other employee or contractor complaints of racial harassment or discrimination, that information is covered by other discovery requests. Even if the identities and races of each person who worked at the Chemical Plant or the Refinery over the course of five years has some minimal relevance, this discovery is not proportionate to the needs of this case given the current record.
Exxon shall respond to Interrogatory No. 8 by providing the identities of HR/Employee Services (excluding payroll) personal and upper management at or assigned to the Chemical Plant or the Refinery between April 2016 to April 2021.
u. Request for Production No. 46
Request for Production No. 46: Produce (or identify by Bates number, if already produced) all Documents, including emails, text messages, voicemails, and other communications, created between January 1, 2019, and the present that reference Milferd McGhee.
Exxon objected to this request for production and refused to produce any responsive documents. (See R. Doc. 37 at 52-54). The EEOC provided a proposed list of custodians with respect to this document request. (R. Doc. 15-4 at 10). The EEOC also offered to limit the scope of document request as follows:
Produce (or identify by Bates number, if already produced) all emails, text messages, voicemails, interoffice messages, complaints, memos, or internal notes, created between January 1, 2019, and January 1, 2024, that reference Milferd McGhee.
(R. Doc. 41 at 46). Exxon argues that the EEOC's request is “overly broad as limited” because it includes proposed custodians who had no direct involvement in McGhee's alleged noose incident. (See R. Doc. 47 at 41 and n.62). After the parties were ordered to meet and confer, Exxon agreed to the following:
In response to Request for Production No. 46, ExxonMobil will conduct a keyword search for Milferd McGhee in e-mails (only in ExxonMobil company e-mail accounts) and text messages (only in phones for those individuals with company phones, if any) for the following custodians from January 1, 2020 through November 3, 2020: (1) Matthew Abbott, (2) David Cutrer, (3) Dave Dartez, (4) Bruce Lilly, (5) Carl Mulder, (6) Megan Sledge, (7) Rich Trepagnier, and (8) Paula Veal. However, if after attorney review it is clear the only reason McGhee is “referenced” is because he is copied to an e-mail dealing with day-to-day operations or wholly irrelevant e-mail blasts, we will not produce such documents.
(R. Doc. 41-3 at 2). Exxon also agreed to conduct a search for Milferd McGhee in its “Employee Services shared LAN Drive.” (R. Doc. 47 at 42).
*24 There does not appear to be a dispute that responsive communications involving McGhee will be contained primarily within ESI. The Court will limit this document request to specific communications bearing upon any racial harassment or discrimination directed or concerning McGhee. For this purpose, the Court finds a reasonable time period to being on January 1, 2019 (as agreed upon by the EEOC) and March 1, 2023 (the day prior to the filing of this lawsuit). The Court will require Exxon to conduct a proper search for responsive ESI given that scope. This search shall include witnesses listed in Exxon's initial disclosures (to the extent they are identified as having specific information regarding McGhee) and witnesses listed in the investigative report pertaining to McGhee's alleged noose incident. In addition, the Court agrees with Exxon that it need not produce general emails on which McGhee was copied that merely concern “day-to-day operations or wholly irrelevant e-mail blasts.”
To the extent necessary, the parties shall meet and confer with respect to any reasonable revisions to the custodians and devices to be subject to a reasonable search for discoverable ESI pertaining to McGhee.
v. Request for Production No. 48
Request for Production No. 48: Produce (or identify by Bates number, if already produced) all Documents, including emails, text messages, voicemails, and other communications created between January 19, 2020, and the present that include the term “Infrastructure Incident.” See EEOC_000103-104.
Exxon objected to this request for production and refused to produce any responsive documents. (See R. Doc. 37 at 56-58). The EEOC provided a proposed list of custodians with respect to this document request. (R. Doc. 41-5 at 15). The EEOC also offered to limit the temporal scope of the document request “to the timeframe of January 2020 to the present.” (R. Doc. 41 at 48). Exxon argues that the EEOC's request is “overly broad as limited” because it includes proposed custodians who had no direct involvement in McGhee's noose incident. (See R. Doc. 47 at 42 and n.64). After the parties were ordered to meet and confer, Exxon agreed to the following:
In response to Request for Production No. 48, ExxonMobil will conduct a keyword search for “Infrastructure incident,” in e-mails (only in ExxonMobil company e-mail accounts) and text messages (only in phones for those individuals with company phones, if any) for the following custodians from January 1, 2020 through November 3, 2020: (1) Matthew Abbott, (2) David Cutrer, (3) Dave Dartez, (4) Bruce Lilly, (5) Carl Mulder, (6) Megan Sledge, (7) Rich Trepagnier, and (8) Paula Veal. ExxonMobil will also conduct a keyword search for “Infrastructure Incident” in the Employee Services shared LAN drive.
(R. Doc. 41-3 at 2).
There does not appear to be a dispute that responsive communications and documents including the term “Infrastructure Incident” will be contained primarily within ESI. This document request is self-limiting to specific communications bearing upon the noose incident involving McGhee and will largely (if not completely) overlap with the communications and documents sought pursuant to Request for Production No. 46. The Court finds a reasonable time period to begin on January 1, 2020 (as agreed upon by Exxon) and March 1, 2023 (the day prior to the filing of this lawsuit). The Court will require Exxon to conduct a proper search for responsive ESI given that scope. This search shall include witnesses listed in Exxon's initial disclosures (to the extent they are identified as having specific information regarding McGhee) and witnesses listed in the investigative report pertaining to McGhee's alleged noose incident.
To the extent necessary, the parties shall meet and confer with respect to any reasonable revisions to the custodians and devices to be subject to a reasonable search for discoverable ESI pertaining to the alleged “Infrastructure Incident.”
w. Request for Production Nos. 53-54 and Interrogatory No. 17
*25 Request for Production No. 53: Your Position Statement stated that Defendant “personally visited every unit and discussed [any noose] incident with all employees.” Produce all documents, including memoranda, emails, text messages, voicemails, and other communications, regarding the visits.
Request for Production No. 54: With regard to the visits referenced in Request No. 53, produce all Documents identifying the employees who were present or absent at the visits, including sign-in sheets.
Interrogatory No. 17: Identify each person, as the instructions and definitions provide, who “personally visited every unit and discussed [any noose] incident with all employees,” as described in your Position Statement, and provide the dates, locations (units), and times, of each visit.
Exxon objected to the foregoing requests for production and refused to produce any responsive documents. (See R. Doc. 37 at 67-69). Subject to various objections, Exxon stated the following in response to Interrogatory No. 17:
Notwithstanding the foregoing objections, ExxonMobil responds that in the early part of 2020, meetings were held with all shifts concerning the alleged noose incident. For each shift, in general, a member of unit management and a Human Resources [member] presented and/or was present. ExxonMobil it [sic] is diligently gathering the information related to the meeting that was held with the Infrastructure Unit and will amend and/or supplement this response in accordance with the Federal Rules of Civil Procedure and/or any applicable local rules or orders to provide such information.
(R. Doc. 37 at 91). Exxon has since stated that it declines to produce any documents in response to Request for Production No. 53, and that it will “produce documentation with identifying information, if any, related to meetings held with employees assigned to Baton Rouge Chemical Plant Infrastructure Unit” in response to Request for Production No. 54. (R. Doc. 47-1 at 18).
The EEOC has clarified that it is only seeking information regarding “the noose incident referred to by Exxon in its position statement submitted to the EEOC during the administrative investigation” of McGhee's claim. (R. Doc. 41 at 49-50).
It appears that the primary issue is what Exxon meant in the position statement and response to Interrogatory No. 11, where Exxon stated it “took action in response to the incident, with Management and Human Resources personally visiting every unit and discussing the incident with all employees.” (R. Doc. 37 at 84) (emphasis added); (See R. Doc. 15-4 at 7). Exxon shall clarify its response to Interrogatory No. 11 to indicate the particular scope of “every unit” visited (i.e., whether “every unit” refers to “shifts” solely within the Infrastructure Unit, all shifts in “every unit” at both the Chemical Plant and the Refinery, or something else altogether). Without this context, it is unclear what Exxon means when it states it discussed McGhee's noose incident “with all employees.”
The scope of Exxon's supplemental responses to Requests for Productions Nos. 53-54 and Interrogatory No. 17 will be defined by the foregoing clarification. Regardless of the clarification, Exxon must respond to Request for Production No. 54 and Interrogatory No. 17 in full (i.e., Exxon must identify, after a diligent search, the employees present at site visits specifically addressing the McGhee noose incident and the dates, locations (units), and times of those visits). Exxon shall provide a supplemental response to Request for Production No. 53 consistent with the supplemental response to Interrogatory No. 11.
x. Request for Production No. 12
*26 Request for Production No. 12: Produce any personal and/or work device policies you had in place during the relevant period (including, for instance, any “bring your own device” policy).
Subject to objections, Exxon stated that it was “diligently searching for any responsive documents applicable to its Baton Rouge Chemical Plant during the January 2020 time period” and would amend and supplement its response in accordance with the Federal Rules. (R. Doc. 37 at 6-7).
This request falls within the scope of discovery because it bears upon the potential location of ESI relevant to the claims and defenses in this action. As with other employment policies sought, the location and production of policies pertaining to the use of personal and/or work devices will not subject Exxon to undue burden. Exxon shall produce responsive personal and/or work device policies in effect from April 2016 to April 2021 applicable to the Chemical Plant or the Refinery.
y. Request for Production No. 49
Request for Production No. 49: Produce (or identify by Bates number, if already produced) all Documents, including emails, text messages, voicemails, and other communications, between January 1, 2016, and present referencing race and/or color, or which would tend to support or contradict the existence of racial animus at the Baton Rouge complex, as defined, including but not limited to the following terms or any terms substantially similar to the following terms: Black, African American, colored, Negro, nigger, African, BIPOC, person of color, biracial.
Exxon objected to this request for production and refused to produce any responsive documents. (See R. Doc. 37 at 58-60). Exxon maintains its objections. (R. Doc. 47-1 at 16).
The EEOC argues that because it alleges “race discrimination” it is entitled to the sought discovery. (R. Doc. 41 at 50). In opposition, Exxon states the following: “The EEOC makes no allegations that McGhee's alleged hostile work environment claims is in any way based on the use of racial slurs or otherwise derogatory terms, and even further, makes no allegations that any particular individual(s) contributed to his alleged hostile work environment.” (R. Doc. 47 at 44).
The EEOC has limited its request to the dates April 2016 to April 2021 using the following search terms: alligator bait, African, Afro, Buckwheat, Burrhead, colored, darky, Coon, cotton picker, Jungle bunny, monkey, nigga, nigger, Negro, oreo, or spook. (R. Doc. 41 at 50). The EEOC argues that “Exxon's manner of addressing situations involving these terms is directly probative of its liability for a hostile work environment and to Defendant's stated defenses.” (R. Doc. 41 at 50-51).
While the Complaint does not contain any specific allegations identifying any racial pejoratives directed at McGhee, evidence of such racial pejoratives used by Exxon's employees in the Chemical Plant and the Refinery falls within the scope of discovery. That said, the EEOC overreaches given that the discovery request (as well as the proposed custodians list) is not limited to establishing racial animus directed at McGhee. See Mason v. S. Illinois Univ. at Carbondale, 233 F.3d 1036, 1046 (7th Cir. 2000) (“Mean-spirited or derogatory behavior of which a plaintiff is unaware, and thus never experiences, is not ‘harassment’ of the plaintiff (severe, pervasive, or other). Thus, for alleged incidents of racism to be relevant to showing the severity or pervasiveness of the plaintiff's hostile work environment, the plaintiff must know of them.”). Here, the EEOC seeks an order compelling Exxon to conduct overly broad searches for evidence of racial animus with respect to HR personal, supervisors, and employees throughout Exxon's plants in Baton Rouge with no limitation. (See R. Doc. 38-2 at 12). The EEOC does not even attempt to limit the searches to the underlying noose incidents referenced in the Complaint, or with respect to McGhee.
*27 As such, the EEOC's request for an order compelling Exxon to basically search all of its electronic files in Baton Rouge for evidence of “racial animus” over the course of five years must be denied as written. Exxon must, however, conduct a diligent search of communications involving the foregoing pejorative terms to the extent they were applied to McGhee.
E. The EEOC's Second Motion to Compel (R. Doc. 39)
1. The Parties' Arguments
Through its Second Motion to Compel, the EEOC seeks an order (1) compelling Exxon to produce responsive documents and ESI to the extent they have been withheld on the basis of confidentiality and (2) entering its unilaterally proposed protective order governing the exchange of confidential information in this action. (R. Doc. 39). The EEOC first argues that Exxon improperly withheld purportedly confidential information in the absence of a protective order. (R. Doc. 39-1 at 5-9). The EEOC then argues that the Court should adopt its own proposed protective order governing the exchange of confidential information. (R. Doc. 39-1 at 9-15). The EEOC has submitted a copy of its proposed protective order to be entered into the record. (R. Doc. 39-6).
In opposition, Exxon argues that it has not waived its rights to identify withheld documents as “confidential” pursuant to a protective order, and that there is good cause for the entry of its own version of a proposed protective order governing the exchange of confidential information. With respect to the first issue, Exxon argues that it made good faith efforts to seek entry of a protective order governing the exchange of confidential information, but the EEOC filed their motion while the parties were still in discussions. (R. Doc. 45 at 8-9). Exxon further argues that the EEOC's proposed protective order is insufficient because (1) it defines “Confidential Information” too narrowly; (2) it creates an overly burdensome and impractical mechanism or designating deposition testimony as confidential; (3) it fails to protect documents and information already provided by Exxon to the EEOC prior to discovery in this action; and (4) it does not require the parties to seek leave to file documents designated as confidential into the record under seal. (R. Doc. 45 at 9-15). Exxon seeks entry of its own proposed version of the protective order, which it has attached to its opposition. (R. Doc. 45-1).
2. Whether Exxon Waived Its Confidentiality Objections
The EEOC specifically seeks an order compelling Exxon to produce documents and information in response to Requests for Production Nos. 1-5, 9, 13, 14, 23-25, 39, 40, 59, and 60 – despite Exxon's timely objections based on confidentiality – because Exxon did not immediately seek a protective order and was not otherwise the first party to seek entry of a protective order governing the exchange of confidential information. (See R. Doc. 39 at 1). The Court rejects these arguments.
In seeking an order compelling production notwithstanding “confidentiality” objections, the EEOC appears to seek relief under Rule 37(d)(2) of the Federal Rules of Civil Procedure. That rule does not, as the EEOC suggests, require a party to file a motion for protective order at the same time it objects to producing documents and information based on confidentiality. Instead, the rule provides that “[a] failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2). In turn, Rule 37(d)(1)(A) provides that the Court may sanction a party if that “party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.” Fed. R. Civ. P. 37(d)(1)(A)(ii). The record indicates that Exxon timely responded to the EEOC's discovery requests by providing written responses, answers, and objections (including those based on confidentiality), a draft Joint Motion to Enter Agreed Protective Order, and a draft Agreed Protective Order (with an attached Non-Disclosure Certificate) (R. Doc. 45-2). Accordingly, Rule 37(d)(2) has no application here.[8]
*28 The EEOC seeks support for its untenable position in Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 414 (M.D.N.C. 1991) and Hendrick v. Progressive Prop. Ins. Co., No. 21-731, 2023 WL 3680075 (M.D. La. Jan. 17, 2023). The out-of-district Brittain decision is inapposite because, even if the Court found it persuasive, it set the “outside limit” to file a motion for protective order at the deadline to respond to a “motion to compel the written discovery,” not the deadline to respond to the written discovery itself. See Brittain, 136 F.R.D. at 414. The current deadline to file discovery motions – including motions for protective order – was extended to August 30, 2024. (See R. Docs. 9, 34). Neither Rule 26(c) nor Local Rule 26(d) requires a motion for protective order to be filed prior to the discovery deadline.
The Hendrick decision is also distinguishable. In Hendrick, the undersigned reopened discovery for the purpose of requiring the defendant to produce documents and information withheld solely on the basis of confidentiality (i) where the defendant proposed, and the plaintiff agreed to, a stipulated protective order governing the exchange of confidential information (ii) but the defendant failed to seek entry of the protective order into the record prior to the close of discovery. See Hendrick, 2023 WL 3680075, at *3. In this case, the EEOC and Exxon have never agreed on the scope of a protective order governing the exchange of confidential information in discovery and the instant dispute was timely raised prior to the close of discovery. As discussed below, the Court construes Exxon's opposition as its own competing motion for protective order, thus mooting any argument that Exxon did not timely file a motion for a protective order prior to the close of discovery.
Finally, the timeline of events indicates that the EEOC (again) has not met its obligations to confer in good faith with respect to the proposed protective order. On June 6, 2024, the Court denied the EEOC's First Motion to Compel, which also raised issues regarding the exchange of confidential information. (R. Doc. 31; see R. Docs. 11, 14). The Court specifically required the parties to confer by June 15, 2024, and provided Plaintiff the opportunity to refile its motion to compel by July 3, 2024. (R. Doc. 31 at 6).
Exxon represents that after the parties met and conferred, the EEOC provided certain proposed revisions to the protective order, and then Exxon proposed its own additional revisions to the protective order on June 26, 2024. (See R. Doc. 45 at 5). One week later, on July 3, 2024, the EEOC's counsel emailed Exxon's counsel at 4:16 pm to state the following:
Unfortunately, we are at an impasse in our efforts to agree on a protective order. Your last round of edits to the proposed protective order merely restored language that we had removed in our previous set of edits. Continued exchange of revisions would find us reverting to previous versions of the proposed protective order. We are therefore moving the Court to enter our proposed protective order, please see attached.
(R. Doc. 45-8). The EEOC then filed its Second Motion to Compel two minutes later at 4:18 pm. (R. Doc. 39). The foregoing procedural history indicates that the EEOC prematurely filed its Second Motion to Compel (as it did with its First Motion to Compel) without conferring in good faith to resolve the issues regarding confidentiality without court intervention. See Fed. R. Civ. P. 37(a)(1); Fed. R. Civ. P. 26(c).
Given the foregoing, the Court finds no basis for concluding that Exxon has waived any of its timely raised confidentiality objections. To the extent necessary, the Court will construe the EEOC's motion and Exxon's opposition as competing motions for entry of a protective order governing the exchange of confidential information. The Court will consider the arguments raised by both parties in the context of determining the language of the final protective order to govern the exchange of documents and information.
3. The Scope of the Protective Order
*29 “To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and ‘what degree of protection is required.’ ” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). This circuit recognizes three types of protective orders: (1) specific, (2) blanket, and (3) umbrella. On one side of the spectrum are specific protective orders, which cover specific, identified information. Cox Operating, LLC v. ATINA, M/V, No. CV 20-2845, 2021 WL 5405259, at *2 (E.D. La. Oct. 1, 2021). On the opposite side of the spectrum are umbrella protective orders, which provide for the designation of all discovery as protected without any screening by either the parties or the court. Id. at *2. In the middle of the spectrum are blanket protective orders, which require the parties to designate as protected “documents which they in good faith believe contain trade secrets or other confidential commercial information and which are usually agreed to by the parties and approved of by the courts.” MBA Eng'g Inc. v. Matrix Tr. Co., No. 20-01915, 2023 WL 2619172, at *2 (N.D. Tex. Mar. 23, 2023). Even in the case of a blanket protective order, however, the party seeking protection bears the burden of justifying the confidentiality of the documents sought to be covered. Anding v. Ace Am. Ins. Co., No. 22-627, 2023 WL 4280921, at *3 (M.D. La. June 29, 2023) (citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) (even when there is an umbrella protective order, “the burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the protective order.”).
Having considered the arguments of the parties, the Court generally finds good cause for entry of such a blanket protective order to protect both parties “from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters....” See Fed. R. Civ. P. 26(c). Both parties will be allowed to designate documents and information “confidential” pursuant to the final protective order to be entered in this action for the purpose of facilitating the exchange of documents and information in the discovery phase of this litigation.
The Court recognizes, however, that the parties have not been able to agree on certain language to be contained within the final protective order. To the extent the parties have not reached agreement on the scope of the protective order, it is appropriate to place the burden on the party seeking a greater scope of protection. In this case, that is Exxon. The Court will rule on the scope of the protections allowed in the final blanket protective order, but will require the parties to submit a final version of the protective order consistent with this ruling.
a. The Definition of “Confidential Information”
The parties' dispute regarding the definition of “Confidential Information” in Section 2 of the proposed Protective Order. The first, and more significant dispute, is whether the definition should include the following category of documents and information as sought by Exxon:
ExxonMobil's proprietary information and materials that (1) are not accessible by or distributed to the public, (2) that are generally only distributed to or accessible to certain ExxonMobil employees, and (3) that have been developed by ExxonMobil through research, development, and/or technical or other expertise.
(See R. Doc. 45-1 at 3). Exxon represents that this category of information would “include proprietary policies, training, procedures, or guidelines that have been developed through much time, effort, and expertise.” (R. Doc. 45 at 10). Exxon further argues that denial of protection would allow its competitors to “unfairly benefit” from Exxon's “significant investment of time and money in developing its policies, guidelines, and training materials.” (R. Doc. 45 at 10).
The Court finds Exxon's proposed category of protected “propriety information and materials” to be broad and amorphous. Rule 26(c)(1)(G) allows a district court to issue a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or revealed only in a specific way.” Fed. R. Civ. P. 26(c)(1)(G). To obtain protection under this rule, “a party must first establish that the information sought is a trade secret or other confidential information and then demonstrate that its disclosure would cause an identifiable, significant harm.” Occidental Chem. Corp. v. Louisiana Public Service Com'n, Nos. 06-894, 06-903, 2008 WL 566833, at *2 (M.D. La. Feb. 29, 2008).“That showing requires specific demonstrations of fact, supported where possible by affidavits and concrete examples, rather than broad, conclusory allegations or potential harm.” Id.
*30 The language proposed by Exxon would transform virtually every document it creates into protected “confidential” information under the final protective order.[9] That said, the Court finds good cause to allow both parties to designate as confidential “trade secrets” as that term is defined under any applicable law. See E.E.O.C. v. Coughlin, Inc., No. 21-99, 2022 WL 1568529, at *3 (D. Vt. May 18, 2022) (adopting the EEOC's definition of “confidential information” to include trade secrets under the Uniform Trade Secrets Act, finding the corporate defendant's language with respect to protected trade secrets to be too vague). Furthermore, the court also finds good cause to allow both parties to designate as confidential “propriety research, technical, or financial information” that the party has maintained as confidential and that pertain directly to the designating party's business or governmental operations.
Indeed, it appears that the EEOC's main concern regarding Exxon's proposed broad category of “proprietary information and materials” is that Exxon has sought to withhold documents (such as Human Resources documents) that are wholly unrelated to its underlying oil and gas business. (R. Doc. 57 at 6-7). To address this concern, Exxon has agreed to withdraw its proposed confidentiality designations with respect to the following HR documents that were specifically addressed in the EEOC's reply memorandum: “Equal Employment Opportunity (‘EEO’) Policy in effect during the January 2020 time period; Harassment in the Workplace Policy in effect during the January 2020 time period; Standards of Business Conduct in effect during the January 2020 time period; Working Together Booklet in effect during the January 2020 time period; and Toolbox Talk – Criminal Display of Nooses.” (R. Doc. 62 at 4). That Exxon originally sought protection of these documents as prospectively “confidential” propriety information and materials highlights that Exxon's proposed broad category of “proprietary information and materials” is unworkable. While the Court will allow Exxon to identify as confidential specific “propriety research, technical, or financial information” related to the oil and gas industry, such documents should be few and far between given that the underlying issues in this case have no relation to Exxon's business operations.
The remaining dispute regarding the definition of “Confidential Information” appears to concern whether the redaction of personal identifying information would negate the need to identify documents as confidential. Both parties seek to include the following in the definition of “Confidential Information”: “(i) medical information concerning any individual”; (ii) “personnel, employment, or investigation records or files of a person who is not a party to the case”; and “statements by or information related to complainants or witnesses contained in confidential investigation records.” (Compare R. Doc. 39-6 at 3 with R. Doc. 45-1 at 3).
The EEOC proposes, however, that where “personally identifying information (such as name, address, phone number, email address, and social security numbers)” are “redacted,” then the document would be excluded from the definition. (R. Doc. 39-6 at 2). Given the record, the Court finds good cause to allow the parties to produce these categories of documents, in full, without wasting resources on redactions. Furthermore, to the extent the EEOC is suggesting that the receiving party may redact documents designated as confidential to remove them from protection under the final protective order, the Court denies that request. To the extent a party is overreaching in its confidentiality designations, the final protected order (as reflected in Section 8 of the proposed protective orders) will provide procedures for challenging the designations.
b. The Designation of Deposition Testimony as Confidential
*31 Exxon argues that Section 4 of the EEOC's proposed protective order “includes unnecessary and overly onerous requirements to protect confidential deposition testimony” because it requires “the parties to make on-record designations as specific as possible, and if a party fails to do so, it waives its right to protect such testimony and Confidential Information.” (R. Doc. 45 at 11) (citing R. Doc. 39-6 at 5-6). The EEOC makes no specific arguments with respect to its position regarding the designation of deposition testimony.
The Court finds it appropriate, and consistent with common practice in this district, to allow the parties to designate, at the time of the deposition and up to 30 days after the receipt of the final transcript of the deposition of any party or witness in this case, deposition testimony as “Confidential Information” under the terms of the protective order. Providing the parties with a period of time to review deposition transcripts for “Confidential Information” will increase the efficiency of depositions by avoiding needless interruptions for the purposes of designating testimony as confidential in real time.
c. Previously Obtained Documents and Information
Exxon has not established good cause to include documents or information previously disclosed to the other party, or publicly available documents or information otherwise obtained outside of discovery in this action, within the scope of protected “Confidential Information.” While the parties may designate, in good faith, documents and information in this action as “Confidential Information” in accordance with the terms of the final protective order, such designations will not change the status of non-protected documents and information obtained outside of discovery in this action. Accordingly, to the extent Exxon has disclosed documents to the EEOC, those documents are not subject to the protections provided by the final protective order governing discovery in this action to be entered by the Court.
d. Filing of Confidential Information into the Record
Finally, the parties dispute whether, under Section 6 of the proposed protective order, a party seeking to file a document designated as “Confidential Information” must seek leave of court to file the document under seal prior to filing the document into the record. (Compare R. Doc. 39-6 at 8 with R. Doc. 45-1 at 10).
The Court agrees with Exxon that allowing a party to file a document designated as “Confidential Information” without seeking leave to file under seal would largely negate the protections to both parties provided by the final blanket protective order. (R. Doc. 45 at 15). Accordingly, the Court adopts Exxon's version of Section 6, which provides the following:
6. Filing of Confidential Information. This Order does not, standing alone, authorize the filing of any document under seal. However, any party wishing to file a document designated as Confidential Information must seek leave of court to file the document under seal and must comply with Local Rules and Administrative Procedures for the Middle District of Louisiana in connection therewith.
(R. Doc. 45-1 at 10).
In adopting this language, the Court reminds the parties that regardless of any designation of documents exchanged in discovery as “Confidential Information” pursuant to the final protective order, which will govern the exchange of documents in the context of discovery, the Court will apply a “stricter balancing standard” to determine whether any documents may be filed into the record under seal with respect to motions that require judicial resolution of the merits. See Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 416-421 (5th Cir. 2021). In short, the protections provided by the final blanket protective order governing the exchange of documents in discovery will not necessarily apply to filings made in the context of the adjudication of this action on the merits.
III. Conclusion
*32 For the foregoing reasons,
IT IS ORDERED that the EEOC's Motion to Strike (R. Doc. 60) is DENIED.
IT IS FURTHER ORDERED that the EEOC's Renewed Motion to Compel Discovery (R. Doc. 37) is GRANTED IN PART and DENIED IN PART consistent with the terms of this Order. Exxon shall provide supplemental written answers and responses, without further objection and consistent with the terms of this Order, within 14 days of the date of this Order, or as otherwise agreed upon by the parties.
IT IS FURTHER ORDERED that the EEOC's Second Motion to Compel Discovery and Alternative Motion for Entry of a Protective Order (R. Doc. 39) is GRANTED IN PART and DENIED IN PART consistent with the terms of this Order. The parties shall file a joint motion seeking entry of a final protective order governing the exchange of confidential information, consistent with the terms of this order, within 14 days of the date of this Order. To the extent disagreements between the parties remain, the parties may submit two proposed versions of the protective order and briefly explain the remaining disputes between the parties.
IT IS FURTHER ORDERED that the parties shall bear their own costs.
Footnotes
The Court makes no determination as to whether a single incident involving the discovery of a noose, without allegations of accompanying threatening intent or racial animus, is sufficient to state a claim for hostile work environment. See Martin v. Am. Midstream Partners, LP, 386 F. Supp. 3d 733, 739 (E.D. La. 2019) (dismissing hostile work environment claim because “Plaintiffs' single allegation that Percy Martin found a noose does not establish a hostile work environment by itself.”); see also Davis v. Ochsner Med. Ctr., No. 15-88, 2016 WL 1383638, at *4 (E.D. La. Apr. 7, 2016) (“[D]istrict courts in the Fifth Circuit require more serious incidents for the display of a noose to amount to a hostile work environment.”); but see Hudson v. Cleco Corp., 539 F. App'x 615, 620 (5th Cir. 2013) (“Under the proper circumstances, [displaying a hangman's noose] might constitute an extremely serious isolated event causing a discriminatory change in the terms and conditions of one's employment.” (internal quotation marks omitted)). Furthermore, allegations regarding alleged nooses that do not directly affect any terms, conditions, or privileges of the plaintiff's employment cannot support a hostile work environment claim. Norman, 2024 WL 477521, at *2 (“[T]he Court finds that Plaintiff's allegations regarding nooses found at his workplace cannot support his hostile work environment claim because he admits in his opposition to Defendant's Motion that he ‘was not directly affected’ by these incidents. Leaving open the possibility that harassment of other workers could be relevant to a hostile work environment claim, Plaintiff here has failed to plausibly allege that the noose incidents affected any terms, conditions, or privileges of his own employment.”) (internal citation omitted).
Some of the EEOC's discovery requests seek information from April 2016 to the present. The EEOC has since agreed to limit the temporal scope to the five-year period of April 2016 to April 2021.
The Court need not speculate on whether allegations of noose sightings going back decades at Exxon's Baton Rouge facilities would fall within the scope of a “hostile work environment” claim. It is sufficient to conclude that the five sightings alleged in the Complaint fall within a relatively limited number of years (less than 5 years) and within two geographically related facilities to which the employee has at least limited access.
Exxon argues that certain information sought can be construed, as written to be “nationwide – or maybe even worldwide – discovery.” (R. Doc. 47 at 19). As discussed in this Order, the Court will generally limit discovery with respect to the written discovery at issue to the Chemical Plant and the Refinery.
It appears that the EEOC inadvertently left Request for Production No. 40 out of its discussion of Request for Production Nos. 41-42. The EEOC does, however, briefly reference Request for Production No. 40 in its memorandum in support. (See R. Doc. 41).
Exxon objected to both requests for production on this basis even though the phrase “other communications” only appears in Request for Production No. 57.
In conjunction with its discussion of Requests for Documents Nos. 30-32, the EEOC again discusses Interrogatory Nos. 9-11. The Court has already addressed those interrogatories.
Rule 37 also provides that “an 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). The EEOC has not established that Exxon's answers or responses were so “evasive or incomplete” that they must be treated as a failure to answer or respond under Rule 37(a)(4).