Barback v. Fisher
| Decision Date | 30 March 2022 |
| Docket Number | Civil Action 20-515-SDD-EWD |
| Parties | BRAD BARBACK v. BRYAN FISHER, ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
RULING AND ORDER
Before the Court is a Motion for Protective Order and Motion to Quash (“Motion for Protective Order”) [1] filed by Bryan Fisher (“Fisher”) and Bryan D Fisher, LLC (the “Firm”) (collectively “Defendants”). Defendants seek a protective order regarding and/or an order quashing the Rule 30(b)(6) Notice of Deposition issued by Brad Barback (“Plaintiff”) to the Firm. Plaintiff opposes the Motion for Protective Order.[2] Also before the Court is a Motion to Compel Further Responses to Interrogatories (“Motion to Compel”), [3] filed by Plaintiff. Plaintiff seeks to compel further responses from Defendants to Plaintiff's First Set of Requests for Production and to Plaintiff's Second Set of Interrogatories.[4] Defendants oppose the Motion to Compel.[5] The topics of information at issue in the Motions largely overlap.
For the reasons explained below, each motion is granted in part and denied in part.[6] I. Background
On August 12, 2020, Plaintiff, a lawyer, filed suit against his former employer, the Firm, and its sole member, Fisher, asserting claims for retaliation under the Fair Labor Standards Act (“FLSA”), [7] for reprisal in violation of the Louisiana Whistleblower Protection statute, [8] and for violation of the Louisiana Unfair Trade Practices Act (“LUPTA”).[9] Plaintiff seeks the following damages: “(1) General, compensatory, and special damages, including past and future lost earnings, backpay, benefits, front-pay in lieu of reinstatement, loss of reputation, loss of employability, and mental anguish; (2) Liquidated, punitive, and treble damages; (3) Attorney fees and costs; (4) Pre-and post-judgment interest; and (5) All such other legal and equitable relief that may be proper.”[10]
Plaintiff alleges that after being recruited by Fisher in September 2019, he left his position at another firm and began working for the Firm.[11] Plaintiff initially worked as a “1099 contract attorney” at the Firm in October 2019 before becoming a “W-2 employed attorney” in January 2020.[12] On April 2, 2020, Defendants terminated Plaintiff's employment with the Firm.[13]
The parties' views on why Plaintiff was terminated vary greatly. Plaintiff claims that he was fired in retaliation and/or as reprisal for his “refusal to participate in” and for “complaining, and encouraging another employee to complain, about an unlawful work for free scheme concocted by Fisher.”[14] Conversely, Defendants contend that they had legitimate, non-retaliatory reasons for terminating Plaintiff's employment.[15] The parties have engaged in various discovery efforts, including interrogatories, requests for production of documents, depositions, and an attempted Rule 30(b)(6) deposition of the Firm, and multiple discovery disputes have arisen. In addition to several exchanges detailing their disputes over the relevancy of the information sought, Defendants have also expressed concern that responding to Plaintiff's requests may require the disclosure of Defendants' “confidential information regarding client identities, work product, and attorney-client privileged information without having first received client consents in violations of Louisiana Rule of Professional Conduct 1.6.”[16]
On June 3, 2021, a telephone conference was held with counsel for the parties to discuss the Motions.[17] After noting that it appears that both parties raise valid arguments/objections to some issues and overbroad arguments/objections to others, a lengthy discussion on the Motions was had. During this discussion, the parties answered questions about particular issues/objections raised in the Motions and related attachments considering the scope of discovery here, i.e., what is relevant to Plaintiff's claims and Defendants' defenses. Notwithstanding the fact that counsel's responses did not suggest that they had conferred as robustly as they should have before seeking Court intervention, counsel were given guidance on the Motions and encouraged to have ongoing discussions in an effort to resolve some (or all) of their discovery disputes as raised in the Motions. Because the parties were apparently unable to resolve their disputes, the Motion for Protective Order and Motion to Compel are now fully briefed and ripe for resolution.
II. Law and Analysis
Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense[18] 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.[19] The Court must additionally 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).”[20] The court may also limit a Rule 30(b)(6) deposition notice to the extent it requests the organization to designate an agent to testify on topics of information that are overly broad, vague, or ambiguous.[21]
“The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”[22] 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.”[23]
If a party fails to answer an interrogatory under Rule 33 or fails to respond fully to a request for production in the time allowed these Rules, the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37.[24] Likewise, if a deponent fails to answer a question asked under Rule 30, the party seeking the deposition may move to compel a response and for appropriate sanctions under Rule 37.[25] “An evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”[26] “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.”[27] “A party objecting to discovery ‘must state with specificity the objection and how it relates to the particular request being opposed, and not merely that it is ‘overly broad and burdensome' or ‘oppressive' or ‘vexatious' or ‘not reasonably calculated to lead to the discovery of admissible evidence.'”[28]
“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.”[29] Blanket assertions of a privilege are unacceptable, and the court and other parties must be able to test the merits of a privilege claim.[30]
Given the considerable overlap in matters for which Plaintiff seeks to compel responses or production and for which Defendants seek a protective order, the subjects will be grouped and analyzed that way.[31]
In defense of Plaintiff's claims, Defendants assert there are numerous “legitimate, non-retaliatory reasons” for which the Firm terminated Plaintiff's employment. In Defendants' own words, those reasons are:
Then, in January 2020, Barback became a W-2 employed attorney for Fisher, LLC.1 On April 2, 2020. Barback's employment with Fisher, LLC was terminated because of his poor job performance: poor productivity: inability to handle basic tasks, such as client intake meetings; not being goal-oriented; inability to get along well with his co-worker(s); continual complaints about tasks that he believed were "non-lawyer" tasks, such as updating case status lists; and being the most expensive and last hired Fisher. LLC employee at a time when Fisher reasonably believed that operating costs needed to be decreased due to the Coronavirus pandemic.2
Considering the defenses asserted, Plaintiff has asked for written discovery, as well as the Firm's 30(b)(6) deposition on these defenses. Defendants have objected to these requests and deposition topics, in whole or in part, on multiple grounds.[33] However, the thrust of Defendants' objections are that these requests and proposed deposition topics would require “disclosure of [the Firm's] confidential information regarding client identifies, work product, and attorney-client privileged information without having first received client consents in violation of Louisiana Rule of Professional Conduct 1.6.”[34]
Given that the information and documents sought are clearly relevant to the asserted defenses in this case, the crux of the parties' dispute is whether Defendants can shield relevant, responsive...
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