United States District Court, N.D. Mississippi, Oxford Division
EARL BURDETTE, on behalf of himself and those similarly situated, Plaintiff,
PANOLA COUNTY, Municipal Corporation, PANOLA COUNTY SHERIFF'S DEPARTMENT, a Municipal Corporation, Defendants.
ORDER GRANTING MOTION TO COMPEL
S. ALLAN ALEXANDER, Magistrate Judge.
Plaintiff has filed a motion to compel defendants to provide supplemental responses to discovery requests, and as to some issues, requests a negative inference or a spoliation instruction. Docket 85. In addition to his motion, plaintiff has provided two notarized affidavits from former Panola County Sheriff's Department employees who swear defendants have not produced all responsive documents. Generally, plaintiff argues that defendants have either failed to produce responsive documents or completely failed to respond to requests as propounded. Defendants respond that the records produced are complete and that "[p]laintiff's dispute over the accuracy and completeness of certain records is a red herring for the fact that he habitually did not sign in and out as required by policy." Docket 97. The court has reviewed the Motion and brief in support (Docket 85, 86), Defendants' Response in Opposition (Docket 97), Plaintiff's Supplement to the Motion to Compel (Docket 98), both Affidavits submitted in support of the Motion to Compel (Docket 104, 105), and Defendants' Supplemental Response in Opposition to the Motion to Compel (Docket 106) and concludes that the Motion to Compel should be GRANTED IN PART AND DENIED IN PART.
Federal Rule of Civil Procedure 37(a)(3) provides that a party may move for an order compelling an answer, designation, production, or inspection when another party fails to properly answer discovery. The United States Supreme Court has held that the rules of discovery are to be accorded a broad and liberal treatment. Hickman v. Taylor, 329 U.S. 495, 507 (1947). Furthermore, the parties' mutual knowledge of all relevant facts is a prerequisite for proper litigation. Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977). Rule 26(b)(1) allows parties to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... Relevant information sought need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
The party resisting discovery bears the burden of explaining its objections and providing support for its objections. Enron Corp. Savings Plan v. Hewitt Associates, L.L.C., 2009 W.L. 764310, *8 (S.D. Tex. 2009) (internal citations omitted).
There is a necessary element of gamesmanship which applies in discovery, but parties must act in the spirit of discovery. Id. Under Rule 33, "[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." Likewise, Rule 37(a)(3) provides that "an evasive or incomplete... answer or respond must be treated as a failure to... answer or respond." Discovery by interrogatory requires candor in responding. Dollar, 561 F.2d at 616. A party must respond with candor and good faith in either providing the information sought or stating a legitimate objection to doing so. In this case, the defendant has been less than candid and does not appear to have attempted to obtain the requested documents in good faith.
It appears that the defendants, in response to all discovery responses at issue, chose to object first and answer questions, if necessary, later. Defendants' answers to many of the interrogatories are wholly insufficient and refer plaintiff to documents, with no legitimate attempt to answer the Interrogatory. Although defense counsel has an extensive federal practice and knows better than to provide what amount to virtually worthless responses to discovery, defendants' answers are either unresponsive or they are evasive and certainly not made in the spirit of good faith discovery. Defendants and their counsel are forewarned that if the supplemental responses compelled below are not thorough and forthcoming, both the parties and their counsel will be subject to severe sanctions. The inability of these parties to cooperate in discovery appears to rest at the feet of defense counsel who has failed at every turn to provide meaningful responses and cooperate with plaintiffs' counsel in a professional manner. This obstreperous behavior has required countless hours of both plaintiff's counsel and the court to push through the fog defendants have created to determine what documents actually exist or ever existed, in what form they exist[ed], and where they may be located. The court will not tolerate such behavior.
1. Panola County Sheriff's Office Deputy Schedules - Plaintiff seeks production of the Panola County Sheriff's Office Deputy Schedules for February 2012 to October 2012 and various portions of 2013 and 2014. Defendants have produced schedules from the current administration, but represent that they have not been able to locate and produce the schedules from former Sheriff Griffin's administration. They argue, curiously, that plaintiff's motion to compel these schedules is premature because discovery has not ended. Plaintiff correctly points out that the Sheriff's Department owed a duty to maintain the records for FLSA purposes, and the department should not be able to evade liability by blaming the former Sheriff for misplacing the schedules. Plaintiff seeks production of the schedules or a jury instruction that defendant failed to properly maintain records in accordance with the law. Defendants are directed to further investigate and either produce the deputy schedules or receive a jury instruction advising that defendants did not maintain proper employment records.
2. Radio Dispatch Log Book Records - Plaintiff asserts that defendants failed to produce the radio dispatch logbook records that are vital to his case because they serve as plaintiff's time records and provide the actual hours worked by plaintiff. Instead of the relevant records, says plaintiff, defendants have produced thousands of pages of irrelevant and obviously incomplete documents. According to plaintiff, whose counsel has now had to review the records three different times, defendants have yet to produce even one complete day of records (clock in and clock out) for the relevant time. Defendants respond that they have produced the complete record of radio dispatch log books in their possession; they posit that the lack of a complete clock-in/clock-out day is attributable to plaintiff's routine failure to radio in to dispatch to clock in and clock out.
These records were requested by plaintiff for the first time on March 27, 2014. Defendants have supplemented their production of these records twice, but neither production included all of the documents, as evidenced by the Affidavits of former Sheriff Department employees Rosa Wilson and Carolyn Cauthen. Both Wilson and Cauthen provided sworn statements that they have reviewed the produced log books and concluded that the complete books were not produced. The testimony indicates, for example, that even though a log from Burdette's day shift might have been produced, the shift following his was missing, and that is the log that would show his radioing in to clock out. In other words, a complete response to this request would require that defendants produce all of the logs; this circumstance exemplifies why it is significant that defendant has not yet produced the logs for even one single entire day during the relevant period.
Additionally, Wilson swears that plaintiff worked at least 21 hours of overtime on an average week, and Cauthen swears that plaintiff worked approximately 25 hours of overtime on a weekly basis. Thus, according to Wilson, "[i]t is very rare that all of an officer's recorded activities would have been recorded by only one of the dispatchers in a given shift." Docket 104, p. 5. Further, Wilson testified that two dispatchers worked each shift, but defendants only produced dispatch logbook records for one of the dispatchers for these shifts. Wilson also stated that because the dispatchers often could not keep up with the pace of calls when recording data into the dispatch log book records, they also wrote down the dispatch calls on legal pads that were saved and preserved in the filing cabinet along with the dispatch logbook records. Id. at 6. Based upon this sworn testimony, defendants should be able to piece together evidence to create a schedule of plaintiff's hours worked. Given that defendants assert that they just cannot locate some documents or believe that others were taken by the previous administration, it is difficult for the undersigned to believe that in this instance defendants have made a thorough search and have produced every page of the dispatch log books or any other information that would provide the schedule of hours plaintiff worked.
Defendants are ordered to produce complete log books, including A, B, C and D shifts for both dispatchers for the relevant period of time as well as any other note pads or records that evidence the hours plaintiff worked. If defendants fail to produce a record of the hours plaintiff worked, the court will enter an order prohibiting defendants from contesting that plaintiff worked an average of 23 hours of overtime per week.
3. MVA Reports, Offense Reports - Plaintiff requested Motor Vehicle Accident Reports and offense reports which will evidence days and times that plaintiff worked. Remarkably, defendants have only produced two MVA reports for plaintiff from 2010 to 2013. Plaintiff says he created significantly more than two accidents during this period, and Wilson testified that plaintiff created more MVA reports than were produced. Docket 104, p. 8. Wilson advised of the existence of a Motor Vehicle Accident Case book created by the dispatchers that would prove which documents are missing from the MVA reports produced by defendants. As for the other offense reports, Wilson also advised in her sworn statement that a Juvenile casebook created by defendants would also coincide with the plaintiff's offense reports and the dispatcher's complaint sheets that would help identify offense reports completed by plaintiff.
In response, defendants state that plaintiff only produced two MVA reports because plaintiff did not originally draft and submit others. Docket 97, p. 3. Defendants did not address in either their response or the supplemental response the fact that Motor Vehicle Accident Case book, a Juvenile case book and dispatcher's complaint sheets exist and will serve as a mechanism to prove or disprove plaintiff's assertion that he created other reports that have not been produced. Defendants are ordered to more thoroughly investigate and produce all reports in their possession authored by plaintiff, as well as the Motor Vehicle Accident Case book, the Juvenile case book and dispatcher's complaint sheets.
4. Damage Calculation - Plaintiff asserts that defendants should have provided a damage calculation. Defendants argue that they paid plaintiff what he was owed, so any "calculation" would equal zero. Federal Rule of Civil Procedure 26(a)(1)(A)(iii) only requires "a computation of each category of damages claimed by the disclosing party..." Because ...