Herr v. Elos Envtl., LLC (Aug. 12, 2025)

Case details
Full caption
Andrew HERR v. ELOS ENVIRONMENTAL, LLC
Country
United States
Jurisdiction
Federal
Decided
Aug. 12, 2025
Disposition
Motion Denied
Majority
Donna Phillips Currault (J.) (unanimous Court)
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2319926Only the Westlaw citation is currently available.United States District Court, E.D. Louisiana.Andrew HERRv.ELOS ENVIRONMENTAL, LLC, et al.CIVIL ACTION NO. 25-387|Signed August 11, 2025|Filed August 12, 2025Attorneys and Law FirmsAndrew Herr, New Orleans, LA, Pro Se.Edward Francis Harold, Lawrence Joseph Sorohan II, KaitlinAubrey Wall, Fisher & Phillips, LLP, New Orleans, LA, forELOS Environmental L.L.C., Aventia Operations, LLC.Edward Francis Harold, Kaitlin Aubrey Wall, Fisher &Phillips, LLP, New Orleans, LA, for Aventia Holdings LLC.SECTION “T” (2)ORDER AND REASONSDONNA PHILLIPS CURRAULT, UNITED STATESMAGISTRATE JUDGE*1 Pending before me is Plaintiff Andrew Herr's Motionto Compel and for Sanctions and Motion for Leave to FileSupplemental Rule 37(a)(1) certificate. ECF Nos. 18, 25.Defendants Elos Environmental, LLC and Aventia Holdings,LLC filed a Memorandum in Opposition to the Motion toCompel, and Plaintiff filed a Reply Memorandum. ECF Nos.23, 24. No party requested oral argument in accordance withLocal Rule 78.1, and the court agrees that oral argument isunnecessary.Having considered the record, the submissions and argumentsof counsel, and the applicable law, Plaintiff's Motionto Compel and for Sanctions is DENIED WITHOUTPREJUDICE for the reasons stated herein and the Motionfor Leave to File Supplemental Rule 37 Certificate isGRANTED.I. BACKGROUNDPlaintiff filed this pro se lawsuit alleging violations of theFair Labor Standards Act. ECF Nos. 1, 15. After being hiredas a geologist on January 6, 2025, Plaintiff alleges that hewas misclassified, and his hours worked were improperlyrecorded. ECF No. 15 ¶¶ 1-4. Plaintiff alleges that hewas terminated from his position on February 12, 2025, inretaliation for inquiring about FLSA violations. Id. ¶¶ 7-9.Plaintiff issued discovery to Defendants on June 11, 2025.ECF No. 18-5. Defendants timely responded on July 11,2025. ECF No. 23-1. Plaintiff now moves that Defendantsbe ordered to supplement their deficient responses and besanctioned, pursuant to Rules 11, 26, and 37 and the court'sinherent powers, for fabricating evidence, acting in bad faithin discovery and for a “pattern of falsehoods, obstruction, andbad faith.” ECF No. 18 at 1; No. 18-2 at 1, 10. Plaintiff assertsthat Defendants have fabricated evidence by falsely assertingthat Plaintiff arrived late to a job site at Lakeside Mall,that Plaintiff made disparaging comments about third-partyemployees, and that Plaintiff failed to follow instructions.ECF No. 18-2 at 2-5. Plaintiff also asserts that Defendantshave mischaracterized the factual record, distorted Plaintiff'sconduct, and concealed relevant context regarding Plaintiff'sattendance and budget overruns. Id. at 5-6. Plaintiff alsocontends that Defendants falsely denied multiple requests foradmission and submitted responses with evasive objectionsand responses. Id. at 6-10.In Opposition, Defendants argue that Plaintiff did notproperly meet and confer in good faith, as required by Rule37, before filing this motion, and the parties’ fact disputesand differing interpretation of events and documents areinsufficient to support a motion to compel. ECF No. 23 at1-4. Defendants argue that Plaintiff is improperly attemptingto use a discovery motion to argue the merits of his claim.Id. at 4-5. Defendants also assert that they have no objectionto producing responsive documents but simply required theissuance of a protective order to prohibit the use or disclosureof confidential information, which has now been entered. Id.at 5-6; see ECF No. 21. Defendants assert that their objectionsand responses to Request for Admission Nos. 3 and 20-26,Request for Production No. 8, and Interrogatory Nos. 6, 10are proper. Id. at 6-9. Defendants conclude by asserting thatsanctions are not proper under Rule 11, and Plaintiff has nobasis for sanctions under either Rule 37 or the court's inherentpowers. Id. at 9-10.
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2*2 In Reply, Plaintiff asserts that Defendants’ responses arecontradicted by objective documentary evidence, and as such,the proper subject of a motion to compel. ECF No. 24 at 1,4-6. He further argues that, contrary to Defendants’ position,the requests are relevant. Id. at 6-8. Plaintiff also asserts thathe substantially complied with Rule 37's meet and conferobligation, and this motion is not an improper effort to litigatethe merits. Id. at 2-4. Plaintiff concludes with his assertionthat sanctions are appropriate. Id. at 8-10.II. IMPROPER CITATIONSBefore addressing Plaintiff's motion to compel, the Courtquestions certain authorities cited by Plaintiff in his filings.For instance, in his Reply Memorandum, Plaintiff writes:“When documentary evidence objectively contradicts sworndiscovery responses, courts have both the authority andobligation to address such fabrications. See Wilson v.Volkswagen of Am., Inc., 561 F.2d 494, 504 (4th Cir. 1977)(discovery sanctions appropriate for “clearly contradicted”sworn testimony).” Id. at 4-5. While the Wilson caseaddressed the impropriety of entering a default judgmentbased on failure to comply with an oral discovery order,nowhere in that case does the court discuss “clearlycontradicted” sworn testimony.Likewise, Plaintiff cites “Precision Specialty Prods., Inc. v.Douglas Labs. Corp., No. 12-CV-6437, 2015 WL 1515505, at*8 (E.D. Pa. Mar. 31, 2015) (sanctions warranted where partymade “knowingly false statements” in discovery responses).”Id. at 5-6. This citation, however, appears to be an ArtificialIntelligence (“AI”) hallucination. Entering the citation of2015 WL 1515505 into Westlaw retrieves an SEC filing, nota decision by the Eastern District of Pennsylvania. And nodocuments are found when searching Westlaw's All Federaldatabase for a case entitled “Precision Specialty Prods., Inc.v. Douglas Labs. Corp.” Moreover, according to the EasternDistrict of Pennsylvania's CM/ECF systems, the case underdocket no. 12-6437 is entitled “Jerry Sipe v. Trans Union LLCand Equifax Information Services, LLC.”Similarly, there is no Fifth Circuit case entitled “Olivarez v.Stephens,” reported at 646 F. App'x 328 (5th Cir. 2016), asPlaintiff asserts. Id. at 9. Although there is a case reportedat 646 F. App'x 328, it is a 2016 Fourth (not Fifth) Circuitdecision entitled “Robert Steven Visintine v. Kenny Atkinson,Warden,” and that case does not address any discovery issuewhatsoever.Given the relative novelty of AI, Plaintiff may not be aware ofthe risk that AI programs can generate fake case citations andother legal misstatements. Rather than issue sanctions againstthis pro se litigant at this time, the Court opts to provide thiswritten warning.1 Now that Plaintiff is aware the risks ofusing AI-generated legal filings, he is on notice that he maybe subject to sanctions should he cite fake, AI-generated legalauthority again.III. APPLICABLE LAWA. Scope of DiscoveryRule 26 of the Federal Rules of Civil Procedure authorizesthe parties toobtain discovery regarding anynonprivileged matter that is relevantto any party's claim or defense andproportional to the needs of the case,considering the importance of theissues at stake in the action, the amountin controversy, the parties’ relativeaccess to relevant information, theparties’ resources, the importance ofthe discovery in resolving the issues,and whether the burden or expenseof the proposed discovery outweighsits likely benefit. Information withinthis scope of discovery need notbe admissible in evidence to bediscoverable.*3 FED. R. CIV. P. 26(b)(1). Rule 26(b)(2)(C) mandatesthat the Court limit the frequency or extent of discoveryotherwise allowed, if it determines: (1) the discoverysought is unreasonably cumulative or duplicative, or can beobtained from some other source that is more convenient,less burdensome, or less expensive; (2) the party seekingdiscovery had ample opportunity to obtain the information; or(3) the proposed discovery is outside the scope of Rule 26(b)(1).2The relevancy evaluation necessarily begins with anexamination of the pending claims and defenses.3 Thethreshold for relevance at the discovery stage is lower thanthe threshold for relevance of admissibility of evidence at the
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3trial stage.4 This broader scope is necessary given the natureof litigation, where determinations of relevance for discoverypurposes are made well in advance of trial. Facts that arenot considered in determining the ultimate issues may beeliminated in due course of the proceeding.5 At the discoverystage, relevance includes “[a]ny matter that bears on, or thatreasonably could lead to other matter that could bear on,any issue that is or may be in the case.”6 Discovery shouldbe allowed unless the party opposing discovery establishesthat the information sought “can have no possible bearingon the claim or defense of the party seeking discovery.”7If relevance is in doubt, the court should be permissive inallowing discovery.8Whether a party will ultimately prevail is not the test fordetermining if it is entitled to discovery because discoverymotions cannot be used to obtain dispositive rulings deprivinga party of discovery concerning a claim it seeks to presentat trial.9 Indeed, the court does not determine the merits ofthe case in the context of a discovery dispute. Rather, theissue in context of a discovery dispute is whether the evidencesought falls within the scope of discovery (i.e., is relevant toany claim or defense), not whether one party's legal positionprevails over another; that is a merits issue determined in thecontext of trial or dispositive motion.10B. Duties in Responding to Discovery1. Full and Complete Interrogatory Responses*4 Discovery by interrogatory “requires candor inresponding....The candor required is a candid statement ofthe information sought or of the fact that objection is madeto furnishing the information. A partial answer by a partyreserving an undisclosed objection to answering fully isnot candid. It is evasive.”11 The fact that an interrogatorycalls for a thorough response—one that will take time andeffort to answer—does not make it improper.12 Where aninterrogatory answer ‘‘‘as a whole disclose[s] a conscientiousendeavor to understand the question[ ] and to answerfully [that question],’ a party's obligation under Rule 33 issatisfied.”13Rule 33 requires a party to pull together complete answers by“reviewing all sources of responsive information reasonablyavailable to [it] and providing the responsive, relevant factsreasonably available.”14 Thus, while a party is not requiredto make an extensive investigation in responding to aninterrogatory, the party must review all sources of responsiveinformation reasonably available and provide the responsive,relevant facts reasonably available.15Interrogatories must be answered separately, in writingand under oath. FED. R. CIV. P. 33(b)(3). Verifiedinterrogatory responses have evidentiary value. Id. at 33(c).“[I]nterrogatories serve not only as a discovery device butas a means of producing admissible evidence; there is nobetter example of an admission of a party opponent, which isadmissible because it is not hearsay (FED. R. EVID. 801(d)(2)), than an answer to an interrogatory.”16 Interrogatoryresponses that are not signed under oath as required are notadmissible as evidence to establish lying under oath (or forany other purpose).172. Responses to Requests for ProductionRule 34 authorizes a party to request another party to producedocuments or items within that party’ s possession, custodyor control. FED. R. CIV. P. 34(a)(1). The request mustdescribe each item or category of items with “reasonableparticularity.” Id. at 34(b)(1)(A). The party served withwritten discovery must fully answer each request to the fullextent that it is not objectionable and affirmatively explainwhat portion of an interrogatory or document request isobjectionable and why, affirmatively explain what portion ofthe request is not objectionable and the subject of the answeror response, and affirmatively explain whether any responsiveinformation or documents have been withheld.18The responding party must produce responsive documents notonly that are within that party's actual, physical possession,but also documents that are within the party's constructivepossession, custody or control. FED. R. CIV. P. 34(a)(1). Aparty has “control” over documents or materials that it hasthe legal right or practical ability to obtain even though it hasno copy and even if the documents are owned or possessedby a nonparty.19 Thus, “possession, custody, and control”does not simply contemplate physical and actual possession,but rather whether the responding party could come intopossession of the requested document.20*5 A party responding to a Rule 34 request must eitherproduce documents “as they are kept in the usual course ofbusiness” or “must organize and label them to correspondto the categories in the request.” FED. R. CIV. P. 34(b)
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4(2)(E)(i). Regardless of which option is taken, Rule 34requires the producing party to turn over the documents“in an organized, comprehensible arrangement—either byspecifically indexing each document to the request towhich it was responsive, or, failing that, by turning overthe documents with the business's filing system or otherorganizational structure still intact and useable by therequesting party.”21 A party cannot invoke Rule 34’s “usualcourse of business exception” if that party's record-keepingsystem is “so deficient as to undermine the usefulness of theproduction.”22Of course, the court cannot compel a party to producedocuments that do not exist.23 And a party's mere disbeliefor disagreement with a response is not a recognized groundfor compelling discovery, “absent some indication beyondmere suspicion that the response is incomplete or incorrect”;nor is a requesting party's belief, without evidence, that theresponding party's production is not complete grounds forcompelling production.24Control of discovery is committed to the sound discretionof the trial court.25 If a court has concerns about thereasonableness of a party's efforts in responding to discovery,the court may require the party to certify the manner andcompleteness of its production.26 Thus, when a party orcounsel represents that documents do not exist, the court mayrequire a certification or “confirm[ation]” that the discoveryat issue does not exist.27 If the other party has or acquiresevidence that the response is incomplete or that the affidavitor representation is false, then other remedies may be soughtby motion.283. Objections Must be Stated with Specificity*6 A party served with written discovery must fully answereach request to the full extent that it is not objectionableand affirmatively explain what portion of an interrogatoryor document request is objectionable and why, affirmativelyexplain what portion of the interrogatory or document requestis not objectionable and the subject of the answer or response,and affirmatively explain whether any responsive informationor documents have been withheld.29 The party objectingmust state how the objection “relates to the particular requestbeing opposed, and not merely that it is ‘overly broad andburdensome’ or ‘oppressive’ or ‘vexatious’ or ‘not reasonablycalculated to lead to the discovery of admissible evidence.’”30 Any objection must clearly state how the informationsought is not relevant to any claim or defense, or how therequest is overbroad, burdensome or oppressive.31When a party objects to a request for production, the“objection must state whether any responsive materials arebeing withheld on the basis of that objection. An objection topart of a request must specify the part and permit inspectionof the rest.” FED. R. CIV. P. 34(b)(2)(C).32 Objectionsinterposed without also indicating whether any document orinformation is being withheld are improper.33 Responsesmust also clearly state whether any responsive materials arebeing withheld and the specific basis for objecting and notproducing same.34Courts throughout the country have long interpreted thefederal rules to prohibit general, boilerplate objections.35Boilerplate objections use standardized, ready-made or all-purpose language without regard to the particular discoveryrequest.36 General objections refer to objections that aparty responding to discovery asserts as applicable tomultiple individual requests set forth in a given set ofdiscovery requests.37 A general objection untethered tospecific requests (and is thus also a boilerplate objection)is improper.38 Merely copying and pasting an objection byitself, however, does not render an objection a boilerplateobjection.39 Likewise, in some instances, general objectionsmay serve as an efficient response whereby the court mayconsider and rule upon general objections raised againstsets of interrogatories or requests for production.40 Toserve this purpose and to comply with the Federal Rulesof Civil Procedure, however, the general objections mustraise specific objections and correspond to specific discoveryrequests.41 Where a general objection is connected both tothe facts of the case and specific discovery requests, they areproper; when it is disconnected from either the facts or thediscovery requests, the general objection is improper.42C. Rule 37's Meet and Confer Requirement*7 In connection with a discovery motion, Rule 37(a)(1) ofthe Federal Rules of Civil Procedure requires: “The motionmust include a certification that the movant has in good faithconferred or attempted to confer with the person or partyfailing to make disclosure or discovery in an effort to obtainit without court action.” To ensure compliance with this Rule,
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5this Court expressly requires the parties to provide detailedinformation in the required Rule 37 certification, specifying:(1) how the required conference was scheduled,(2) who participated in the conference,(3) the date and time of the conference,(4) whether the conference was conducted by phone or inperson,(5) the duration of the conference,(6) the specific topics that were addressed at theconference, and(7) whether any issues were resolved by the parties, and, ifso, the terms of the resolution.43These instructions further direct that the “meet and confer[must be] either in person or by telephone, not simply viaemail exchange.”44Plaintiff did not include a proper Rule 37 certification withregard to the issues raised in this motion. The failure to engagein a fulsome meet and confer prior to filing a discovery motionconstitutes sufficient reason in itself to deny the motion.45Indeed, courts routinely deny discovery motions for failure tocomply with Rule 37(a)(1).46IV. ANALYSISRule 26(e) requires a party to supplement a discoveryresponse in a timely manner if that party learns that in somematerial respect the response or disclosure is incomplete orincorrect. FED. R. CIV. P. 26(e)(1)(A). But a party's factualdispute or disagreement with the veracity of a discoveryresponse is an issue of fact for trial, not the proper subjectof a motion to compel.47 Additionally, Plaintiff has failed toconduct a good faith Rule 37 conference, as required by Rule37. A fulsome Rule 37 conference requires more than sendinga letter outlining deficiencies and waiting three days to file amotion to compel. ECF No. 25-1 at 1. Offering to discuss thediscovery dispute after the filing of a motion to compel doesnot cure that failure. ECF No. 25-1 at 1.*8 The failure to conduct a proper Rule 37 conferencecoupled with Plaintiff's failure to specify the particulardiscovery request at issue, response, and basis for objectionto the response renders the court unable to resolve the motionto compel at this time. Although Defendant addresses someof the particular requests that it believes Plaintiff sought toaddress (Request for Admission Nos. 3 and 20-26, Requestfor Production No. 8, and Interrogatory Nos. 6 and 10),there is no indication that Plaintiff considered the relevanceobjection seeking terminations of improper comparators orpost-termination documents. A fulsome Rule 37 discussionmay resolve many of these issues. Accordingly, the motion tocompel will be denied without prejudice.V. CONCLUSIONDiscovery is proper when it seeks information that relates toa pending claim or defense, and the discovery is proportionalto the needs of the case. Discovery that is not relevant orproportional is improper and will not be allowed. Discoveryshould thus be directed to evidence that bears on any claim ordefense and is proportional to the needs of the case.Prior to filing a motion to compel, the parties mustengage ina proper Rule 37 conference. After engaging in proper Rule37 conference, keeping in mind the discovery principles citedabove, any unresolved issues may be raised in a new Motionto Compel. Any motion must properly identify each discoveryrequest at issue, the response, the basis of the objection,and valid citation to cases in support of the motion. Simplychallenging the factual accuracy of the other party's discoveryresponses, however, is a matter for resolution by the trier offact, not the judge via a discovery motion.Accordingly, for the foregoing reasons,IT IS ORDERED that Plaintiff Andrew Herr's Motion toCompel and For Sanctions (ECF No. 18) is DENIEDWITHOUT PREJUDICE.IT IS FURTHER ORDERED that Plaintiff Andrew Herr'sMotion to File Supplemental Rule 37 Certificate (ECF No.25) is GRANTED.All CitationsSlip Copy, 2025 WL 2319926
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6Footnotes1See, e.g., Dukuray v. Experian Info. Sols., No. 23-9043, 2024 WL 3812259, at *11–12 (S.D.N.Y. July 26,2024), R.&R. adopted, 2024 WL 3936347 (S.D.N.Y. Aug. 26, 2024); Anonymous v. N.Y.C. Dep't of Educ.,No. 24-4232, 2024 WL 3460049, at *7 (S.D.N.Y. July 18, 2024); Transamerica Life Ins. Co. v. Williams, No.24-379, 2024 WL 4108005, at *2 n.3 (D. Ariz. Sept. 6, 2024).2FED. R. CIV. P. 26(b)(2)(C)(i)–(iii).3Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., No. 02-3398, 2006 WL 378523, at *4 (E.D.La. Feb. 17, 2006) (Zainey, J.).4Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 2011) (citations omitted).5Id. at 590 n.5 (citation and quotations omitted).6Id. 590 (citations omitted).7Dotson v. Edmonson, No. 16-15371, 2017 WL 11535244, at *2 (E.D. La. Nov. 21, 2017) (Morgan, J.) (citingMerrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005)).8E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 2010) (quoting Truswal Sys. Corp.v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987) (internal quotations omitted)).9Puradigm, LLC v. DBG Grp. Invs., LLC, No. 23-216, 2023 WL 6883656, at *8 (N.D. Tex. Oct. 18, 2023)(citing Cagle v. United Surgical Partners Int'l Inc., No. 20-1681, 2021 WL 3710565, at *7 (N.D. Tex. Aug.18, 2021)); see also Randstad Gen. Partner (US), LLC v. Beacon Hill Staffing Grp., LLC, No. 20-2814, 2021WL 4319673, at *1 (N.D. Tex. Sept. 23, 2021) (noting that a party is not be excused from responding todiscovery simply because the discovery is relevant to a claim on which the resisting party believes that hewill or should prevail at trial).10See Chevron TCI, Inc. v. Cap. House Hotel Manager, LLC, No. 18-776, 2019 WL 5697176, at *8 (M.D. La.Nov. 4, 2019).11Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616–17 (5th Cir. 1977).12Areizaga v. ADW Corp., 314 F.R.D. 428, 437 (N.D. Tex. 2016) (citing Burns v. Thiokol Chem. Corp., 483F.2d 300, 307–08 (5th Cir. 1973)).13Id. (quoting Meltzer/Austin Rest. Corp. v. Benihana Nat'l Corp., No. 11–542, 2013 WL 2607589, at *3 (W.D.Tex. June 10, 2013) (quoting 8B WRIGHT, MILLER & MARCUS, FEDERAL PRACTICE AND PROCEDURE§ 2177 (3d ed. 2010))).14Lopez v. Don Herring Ltd., 327 F.R.D. 567, 579 (N.D. Tex. 2018) (citation omitted).15Areizaga, 314 F.R.D. at 437 (citing 8B WRIGHT, MILLER & MARCUS, FED. PRAC. & PROC. § 2174 (3ded. 2013)).16Melius v. Nat'l Indian Gaming Comm'n, No. 98–2210, 2000 WL 1174994, at *1 (D.D.C. July 21, 2000); accord.Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008).
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.717Wagner v. Boh Bros. Constr. Co., No. 11-2030, 2012 WL 3637392, at *4 (E.D. La. Aug. 22, 2012) (collectingcases).18Lopez, 327 F.R.D. at 580 (citation omitted).19Becnel v. Salas, No. 17-17965, 2018 WL 691649, at *3 (E.D. La. Feb. 2, 2018) (citations omitted); Est. ofMonroe v. Bottle Rock Power Corp., No. 03-2682, 2004 WL 737463, at *10 (E.D. La. Apr. 2, 2004) (citationomitted).20Ruby Slipper Cafe, LLC v. Belou, No. 18-1548, 2020 WL 4905796, at *4 (E.D. La. Jan. 15, 2020) (citingBecnel, 2018 WL 691649, at *3 (“Rule 34’s definition of possession, custody, or control, includes more thanactual possession or control of [documents]; it also contemplates a party's legal right or practical ability toobtain [documents] from a [non-party] to the action”)).21United States v. Bollinger Shipyards, Inc., No. 12-920, 2015 WL 13529562, at *3 (E.D. La. Apr. 13, 2015)(Vance, J.) (quoting Anderson Living Tr. v. WPX Energy Prod., LLC, 298 F.R.D. 514, 522 (D.N.M. 2014); andciting SEC v. Collins & Aikman Corp., 256 F.R.D. 403, 411 (S.D.N.Y. 2009) (“The key to this dichotomy isthe assumption that in either case the documents will be organized ....”)).22Id. (quoting Mizner Grand Condo. Ass'n, Inc. v. Travelers Prop. Cas. Co. of Am., 270 F.R.D. 698, 700 (S.D.Fla. 2010)) (citing Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 n.2 (N.D.N.Y. 2008)); ArmorScreen Corp.v. Storm Catcher, Inc., No. 07-81091, 2009 WL 291160, at *2 (S.D. Fla. Feb. 5, 2009) (holding that partyexercising option to produce records as kept in the usual course of business must organize them in amanner that enables the requesting party to obtain, with reasonable effort, the documents responsive to theirrequests).23Butler v. La. Dep't of Pub. Safety & Corr., No. 12-420, 2014 WL 3867552, at *1 (M.D. La. Aug. 6, 2014);accord. Payne v. Forest River, Inc., No. 13-679, 2015 WL 1912851, at *4 (M.D. La. Apr. 22, 2015) (“The courtcannot order the production of documents that no longer exist or, despite a diligent search, cannot be foundin the possession, custody, or control of a party.”); Callais v. United Rentals N. Am., Inc., No. 17-312, 2018WL 6517446, at *7 (M.D. La. Dec. 11, 2018) (same); Terral v. Ducote, No. 15-2366, 2016 WL 5017328, at*2 (W.D. La. Sept. 19, 2016) (same).24VeroBlue Farms USA Inc. v. Wulf, 345 F.R.D. 406, 420 (N.D. Tex. 2021) (cleaned up).25Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009).26See, e.g., Ramirez v. Cnty. of Marin, No. 10-2889, 2011 WL 1522347, at *1 (N.D. Cal. Apr. 20, 2011) (“Thisorder sets a deadline for Finnegan to certify completion of his document production ....”); Who Dat Yat Chat,LLC v. Who Dat, Inc., No. 10-3333, 2011 WL 4018320, at *4 (E.D. La. Sept. 9, 2011) (ordering “a writtencertification” regarding the efforts made “to identify and extract” responsive electronically stored information);Gibson v. City of Louisville Metro, No. 09-685, 2011 WL 1827484, at *1 (W.D. Ky. May 12, 2011) (dismissingcase because party failed to comply with court's “order to certify completed discovery”).27Nguyen v. La. State Bd. of Cosmetology, No. 14-80, 2016 WL 67253, at *2 (M.D. La. Jan. 5, 2016) (requiringplaintiff to “confirm that the requested information does not exist”); see also Callais, 2018 WL 6517446, at*7 (ordering qualified representative to provide a sworn certification that no responsive documents exist);Brookshire v. Jackson Pub. Schs., No. 13-772, 2015 WL 11018443, at *1 (S.D. Miss. May 8, 2015) (“If thedocument does not exist, then Defendants are to certify that the document does not exist.”); Beasley v. FirstAm. Real Est. Info. Servs., Inc., No. 04-1059, 2005 WL 1017818, at *4 (N.D. Tex. Apr. 27, 2005) (“[D]efendant
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8is entitled to an unequivocal representation...that the documents specified in this request for production donot exist.”).28Henderson v. Compdent of Tenn., Inc., No. 97-617, 1997 WL 756600, at *1 (E.D. La. Dec. 4, 1997) (denyingmotion to compel based on representation that documents that do not exist and noting other remedies areavailable if representation is untrue).29Lopez, 327 F.R.D. at 580 (citation omitted).30Cheshire v. Air Methods Corp, No. 15-933, 2015 WL 7736649, at *2 (W.D. La. Nov. 30, 2015) (quoting Reyesv. Red Gold, Inc., No. 05-191, 2006 WL 2729412 (S.D. Tex. Sept. 25, 2006)).31Chevron Midstream Pipelines v. Settoon Towing, LLC, Nos. 13-2809, 13-3197, 2015 WL 269051, at *3 (E.D.La. Jan. 20, 2015) (noting objections are boilerplate and insufficient if they merely state “the legal groundsfor the objection without: (1) specifying how the discovery request is deficient and (2) specifying how theobjecting party would be harmed if it were forced to respond.”) (citation omitted).32accord. Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d 476, 507 (N.D. Tex. 2016), objections overruledsub nom. Orchestratehr, Inc. v. Trombetta, No. 13-2110, 2016 WL 5942223 (N.D. Tex. Oct. 13, 2016).33See Chevron, 2015 WL 269051 at *4 (holding that objections fall woefully short of objecting party's burdenwhen party objected to documents and information protected by privilege but did not describe whether anydocuments were withheld or the nature of withheld documents).34Id. (citation omitted) (“Objections that fail to provide an appropriate basis make it difficult for the parties toeven informally discuss any alleged defects in a discovery request or response in hope of fixing the defects.”).35See, e.g., id. at *3 (noting that an objection is boilerplate and insufficient “when it merely states the legalgrounds for the objection without: (1) specifying how the discovery request is deficient and (2) specifyinghow the objecting party would be harmed if it were forced to respond.”) (citation omitted); see also McLeod,Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990) (simply objecting torequests as “overly broad, burdensome, oppressive and irrelevant,” without showing “specifically how...each[request] is not relevant or how each question is overly broad, burdensome or oppressive” is inadequate to“voice a successful objection”).36See Tim Long Plumbing, Inc. v. Kinsale Ins. Co., No. 20-42, 2020 WL 6559869, at *3 (E.D. Tex. Nov. 9,2020) (providing examples of boilerplate language, such as “Defendant objects to this Request, as it is overlybroad and vague” and “Defendant objects to this Request to the extent it seeks discovery of information thatis irrelevant and not proportional to the needs of the case”). Objections are deemed “boilerplate” when theyare identical and not tailored to the specific discovery request. Amazing Ins., Inc. v. DiManno, No. 19-1349,2020 WL 5440050, at *5 (E.D. Cal. Sept. 10, 2020) (citation omitted).37Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 134 n.16 (3d Cir. 2009).38See DL v. Dist. of Columbia, 251 F.R.D. 38, 43 (D.D.C. 2008) (citation omitted) (“When faced with generalobjections, the applicability of which to specific document requests is not explained further, this Court will notraise objections for the responding party, but instead will overrule the responding party's objections on thosegrounds.” (internal quotations omitted)).39Tim Long Plumbing, 2020 WL 6559869, at *4.40Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 304 (D. Kan. 1996) (citations omitted).
Herr v. Elos Environmental, LLC, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.941Dickey v. Apache Indus. Servs., Inc., No. 18-572, 2019 WL 4261117, at *3 (M.D. La. Sept. 9, 2019) (collectingcases); see Hall v. Louisiana, No. 12-657, 2014 WL 2560579, at *1 (M.D. La. June 6, 2014) (“Defendantsinitially gave general objections applicable to all of Plaintiff's discovery requests. But critically, after providingtheir general objections, Defendants addressed each and every discovery request individually, makingspecific objections before providing detailed and informative responses, notwithstanding those objections.”).42Likewise, the practice of responding to discovery requests with “subject to” and/or “without waiving” objectionsis manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules ofCivil Procedure. Heller v. City of Dall., 303 F.R.D. 466, 486–87 (N.D. Tex. 2014) (citations omitted). Suchan objection paired with a response “preserves nothing and serves only to waste the time and resources ofboth the Parties and the Court.” Id. at 487 (citation omitted). To the extent any response or production isdone “subject to” or “without waiving” objections other than privilege or work product, such objections arewaived. Id. at 488.43Motions & Oral Argument, The Honorable Donna Phillips Currault, UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA, http://www.laed.uscourts.gov/judges-information/judge/honorable-donna-phillips-currault (last visited July 21, 2022).44Id.45Shaw Grp. Inc. v. Zurich Am. Ins. Co., No. 12-257, 2014 WL 4373197, at *3 (M.D. La. Sept. 3, 2014) (statingthe Rule 37 certification is a prerequisite).46See, e.g., Greer v. Bramhall, 77 F. App'x 254, 255 (5th Cir. 2003) (finding the district court did not abuse itsdiscretion in denying motion to compel for failing to follow Rule 37); D.H. Griffin Wrecking Co., Inc. v. 1031Canal Dev., L.L.C., No. 20-1051, 2020 WL 8265341, at *3 (E.D. La. Apr. 16, 2020) (citing cases).47See, e.g., Duncan v. Nunez, No. 17-1623, 2019 WL 5862016, at *5 (W.D. La. Nov. 7, 2019); see alsoMcNamara v. Wells Fargo & Co., No. 21-1245, 2023 WL 11955307, at *2 (S.D. Cal. May 10, 2023) (holdingthat a party's disagreement with the accuracy of verified interrogatory responses is not a basis to move tocompel a “more accurate” response under Rule 37 (citing Trujillo v. Bd. of Educ. of the Albuquerque Pub.Sch., No. No. 02-1146, 2007 WL 1306593, at *8 (D.N.M. Mar. 12, 2007) (“The Court concludes that [plaintiff] ismerely challenging the factual accuracy of [defendant's interrogatory] response, and the Court will not resolvefactual challenges in a motion to compel.”); Barnum v. Equifax Info. Servs., LLC, No. 16-2866, 2018 WL1245492, at *2 (D. Nev. Mar. 9, 2018) (denying motion to compel interrogatory responses where “Plaintiffs'counsel's skepticism as to [responses'] accuracy is not grounds to compel a further response.”))); Brown v.Mohr, No. 13-0006, 2017 WL 2832631, at *3 (S.D. Ohio June 30, 2017) (“A motion to compel is not the properway to argue about the factual accuracy of a party's response.”) (citing Grant v. Target Corp., No. 10-823,2013 WL 571845, *9 (S.D. Ohio Feb. 13, 2013)), aff'd, 2017 WL 10056799 (S.D. Ohio Nov. 6, 2017).End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access