Opinion
CIVIL ACTION No. 03-244, SECTION "J" (3)
August 6, 2003
Jeffrey A. Schwartz, for plaintiff
Richard E. McCormack, for defendant
MINUTE ENTRY
The matter of plaintiffs Motion to Compel came for hearing before the undersigned Magistrate Judge in Chambers: Participating were:
Jeffrey A. Schwartz — counsel for plaintiff
Richard E. McCormack — counsel for defendant
Plaintiffs, Barbara Lash and Claudia C. Walker, have sued their former employer, Ethicon-Endo Surgery, for alleged gender discrimination pursuant to La.Rev.Stat. § 23:301 et seq. Plaintiffs contend that similarly situated male Account Managers, who engaged in the same conduct they engaged in, were not terminated. The plaintiffs were fired for violation of company policies regarding certain impermissible sales practices. The discovery dispute focuses on the temporal scope of discovery, the failure to produce the personnel file Barbara Lash and four specific requests for production of documents. Pursuant to the hearing in Chambers, the Court rules as follows.
As to the scope of discovery, plaintiffs submit that the defendant has waived all objections to their discovery requests by failing to respond within the time frame set forth by the rules ( i.e., 30 days). Nevertheless, the Court has the discretion to determine whether the discovery sought is relevant or "patently improper." See Zapata Protein Inc. v. H. J. Baker Bro., Inc., 1996 WL 719373 (E.D.La.) (Livaudais, J.) (attached); Godsey v. United States, 133 F.R.D. 111 (S.D. Miss. 1990) (Russell, J.).
Regarding the temporal scope of discovery it was agreed that preliminarily, the scope of discovery would be confined to the period of the defendant's investigation (January 1, 2001 to July 1, 2002), subject to the plaintiffs' right to reurge their argument for a more expanded scope, after having had the opportunity to review the initial responses to the requests for production.
As to Request No. 9: Defendants shall produce all documents which evidence monthly expense allocation dollars for each sales representative from January 1, 2001 to July 1, 2002.
As to Request No. 11: Defendants agreed to file a supplemental response indicating that they have no documents evidencing yearly budgets for continuing education specialists.
As to Request No. 12: Defendants shall produce all documents evidencing the regional budgets from January 1, 2001 to July 1, 2002.
Request No. 13: Defendants shall produce documents evidencing the attendance of participants at all continuing medical education courses offered by the defendant and documents evidencing payments by physicians attending those courses for the period of January 1, 2001 to July 2, 2002. If records of such payments do not exist, the defendants shall update its response to the Request No. 13 accordingly.
In addition to the aforesaid, the defendant has agreed to supplement its response to indicate that the personnel file of Barbara Lash has been misplaced, cannot be located, and that every effort is being made to find the file. Defendant shall, in any event, use its best effort to replicate the personnel file and provide a copy to plaintiffs' counsel. It was further agreed that in the event that the original file is located, the defendant shall supplement its response accordingly and provide a copy of the original personnel file to plaintiffs' counsel.
As to the request for sanctions, no such award is due in this case. The defendant has agreed to provide supplemental responses consistent with the foregoing instructions within thirty (30) days. Accordingly,
IT IS ORDERED that the plaintiffs Motion to Compel is GRANTED IN PART and DENIED IN PART, all as more specifically detailed above.