Kalch v. Raytheon Technical Services Company, LLC et al

Filing 64

ORDER granting in part and denying in part 60 Motion to Compel responses to discovery. See order for details. Signed by Magistrate Judge Karla R. Spaulding on 3/20/2017. (Spaulding, Karla)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
STEVEN KALCH,
Plaintiff,
v.

Case No: 6:16-cv-1529-Orl-40KRS

RAYTHEON TECHNICAL SERVICES
COMPANY, LLC and RAYTHEON
COMPANY,
Defendants.

ORDER
This cause came on for consideration without oral argument on the following motion filed
herein:
MOTION:

DEFENDANT RAYTHEON COMPANY’S MOTION TO
COMPEL COMPLETE DISCOVERY RESPONSES (Doc. No.
60)

FILED:

March 3, 2017

Plaintiff, Steven Kalch, filed this federal Whistleblower Retaliation case against Defendants,
Raytheon Technical Services Company, LLC and Raytheon Company (collectively “Raytheon”).
Kalch also alleged a claim for wrongful termination under Missouri law. Doc. No. 1. Raytheon
appeared and answered the complaint. Doc. No. 43.
Raytheon propounded interrogatories and requests for production of documents to Kalch.
In the present motion, Raytheon asks the Court to compel Kalch to provide complete answers to
interrogatories 4, 5, 6, 10, 18 and to produce documents responsive to requests 7, 19, 20, 23, 24, 33,

35, and 36. Raytheon also asks for an award of attorney’s fees and costs and additional relief.
Kalch responded to the motion. Doc. No. 63. Therefore, the motion is ripe for review.
Waiver of Objections.
Raytheon argues that Kalch waived all objections to discovery requests by failing to respond
to them within the time allowed by the Federal Rules of Civil Procedure.
Turning first to Raytheon’s first set of interrogatories and requests for production, this
discovery was served on October 14, 2016. Doc. No. 60-1, at 24. Under the rules, Kalch’s
response was due on or before November 16, 2017.1 Kalch served his responses to this discovery
request on November 23, 2016. Doc. No. 60-2, at 19. In the response to the motion, counsel for
Kalch does not address the argument that the answers to these interrogatories were untimely. The
Court finds that because the answers to this discovery request were untimely served, all objections
to these interrogatories except privilege and protection claims have been waived. See, e.g., Siddiq v.
Saudi Arabian Airlines Corp., No. 6:11-cv-69-Orl-19GJK, 2011 WL 6936485, at * 3 (M.D. Fla.
Dec. 7, 2011).
Raytheon served its second set of interrogatories on December 7, 2016. Doc. No. 60-4, at
20. Under the December 1, 2016 amendments to the Federal Rules of Civil Procedure, Kalch’s
response to this discovery request was due on or before January 6, 2017.2 Kalch responded to this
discovery request on January 9, 2017. Doc. No. 60-9. Because the answers to this discovery

1
Before the amendments to the Federal Rules of Civil Procedure effective December 1, 2016, responses to
interrogatories were due 30 days after service plus 3 additional days for electronic mailing. Fed. R. Civ. P. 6(d),
33(b)(2), 34(b)(2)(A).
2
Effective December 1, 2016, 3 additional days for electronic mailing were no longer added to the 30-day
period to respond to interrogatories. Fed. R. Civ. P. 6(d).

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request were untimely served, all objections to this discovery request except privilege and protection
claims have been waived.
Interrogatories in Dispute.
Interrogatory 4. In interrogatory 4, Raytheon asks whether, in the past, Kalch had
suffered any personal injury or been involved in any accident. Doc. No. 60, at 9. In the response
to the motion, Kalch’s counsel states that she agreed with counsel for Raytheon to request medical
records from the Department of Veterans Affairs (“VA”) limited to issues regarding Kalch’s claim
for emotional pain and suffering. Doc. No. 63, at 3; see also Doc. No. 60-10.3 Counsel for
Kalch states that she has obtained these medical records and will produce them in redacted form
on or before March 20, 2017. Based on the agreement between counsel, the motion to compel a
further response to interrogatory 4 is DENIED without prejudice to renewing it, before the close
of discovery, if production of documents containing all information responsive to this
interrogatory (as narrowed by agreement of counsel) is not completed by March 20, 2017.
Interrogatory 5. In this interrogatory, Raytheon asks Kalch for all diagnoses and
treatment for any mental condition. Doc. No. 60, at 10. In the response to the motion, counsel
for Kalch suggests that the agreement to produce medical records extends to this interrogatory.
Doc. No. 63, at 4. Accordingly, based on the agreement between counsel, the motion to compel a
further response to interrogatory 5 is DENIED without prejudice to renewing it, before the close
of discovery, if production of documents containing all the information responsive to this
interrogatory is not completed by March 20, 2017.4

3

Federal Rule of Civil Procedure 33(d) permits a party to produce documents in lieu of answering an
interrogatory in limited circumstances.
4

If a renewed motion to compel is filed, counsel for the parties shall provide a joint stipulation regarding the

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Interrogatory 6. In this interrogatory, Raytheon asks for all damages claimed by Kalch.
Kalch provided a sufficient response to this interrogatory. Therefore, the motion to compel a
further response to interrogatory 6 is DENIED.
Interrogatory 10. In this interrogatory, Raytheon asks for any statements Kalch made
concerning any claims he has against Raytheon. Kalch produced a tape recording and email
correspondence. Doc. No. 60, at 12. Raytheon complains that the tape recording is of poor
quality, but counsel for Kalch responds that the tape recording has now been transcribed. Kalch
also provided an additional audio recording on February 9, 2017, and his counsel acknowledges
that Kalch destroyed a third tape recording. It appears from this response that Kalch has now
produced all responsive recordings in his possession, custody or control.
As for emails, Raytheon complains that Kalch did not identify which emails that have been
produced are responsive to this interrogatory. This is an issue that could and should have been
resolved in a meeting between counsel for the parties in a good faith effort to resolve this issue.
For these reasons, the motion to compel a further response to interrogatory 10 is DENIED
without prejudice to filing a renewed motion before the close of discovery, after an in-person
conference between counsel to resolve the email production dispute.
Interrogatory 18.

In this interrogatory, Raytheon asks for pharmacy information for

the past five years. Counsel for Kalch responds that counsel agreed to produce pharmacy records,
but she does not indicate the progress being made in this production. Because discovery closes

terms of their agreement and the discovery requests to which it applied. If the terms of the agreement are in dispute,
each attorney who participated in the telephone call in which the agreement was reached shall file a sworn statement
stating the extent and scope of the agreement and the discovery requests to which the agreement applied. If the Court
must resolve disputed issues of fact, counsel shall be prepared to appear at an evidentiary hearing on short notice.

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on April 3, 2017, further delay in producing the records is not warranted. Accordingly, the
motion to compel a response to interrogatory 18 is GRANTED. It is ORDERED that, on or
before March 24, 2017, Kalch shall produce pharmacy records containing all the information
responsive to interrogatory 18 or a complete sworn response to interrogatory 18 if the pharmacy
records are not then available. No further objections may be asserted to interrogatory 18.
Request for Production in Dispute.
Request 7. In this request, Raytheon asks for all diaries, journals, calendars or similar
documents that relate to the period at issue. Kalch produced documents except for a timeline he
created for his attorney, which he contends is protected by the attorney-client privilege. In
response to the motion, Kalch did not produce a privilege log. Kalch also did not present any
evidence to support his counsel’s unsworn assertion that this timeline was created by Kalch to
provide information to his attorney for the purpose of receiving legal advice. This is insufficient
to support the privilege claim. Accordingly, it is ORDERED that the motion to compel a further
response to request 7 is GRANTED to the extent that, on or before March 24, 2017, Kalch shall
produce to counsel for Raytheon a privilege log in the form required by my Standing Order on
Privilege Logs, www.flmd.uscourts.gov – Judicial Info – Magistrate Judge Spaulding – Standing
Orders, and a sworn statement establishing each element of the attorney-client privilege as to the
timeline. No additional objections, privileges or protections may be asserted.
Request 19.

In this request, Raytheon asks for all documents that relate to Kalch’s

medical, psychological and/or counseling reports from January 1, 2010 or, in lieu thereof,
completion of a release form. In a supplemental response, Kalch stated that he would provide a
release for medical care after his termination. Doc. No. 60, at 14. As discussed above, counsel
agreed that counsel for Kalch would obtain certain medical records, and those records are to be
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produced by March 20, 2017. In the response, Kalch does not address why he has not signed the
requested release he agreed to produce. Accordingly, it is ORDERED that the motion to compel
production of a release to permit counsel for Raytheon to obtain the requested documents is
GRANTED as to records that are not produced by March 20, 2017. It is further ORDERED that
Kalch shall produce this signed and, if necessary, sworn release to counsel for Raytheon on or
before March 24, 2017. No additional objections may be asserted.
Request 20. In this request, Raytheon asks for Kalch’s tax returns and accompanying
documents from January 1, 2010 to the date of the request. In a supplemental response, Kalch
agreed to produce responsive documents that are in his possession custody or control. Doc. No.
60, at 15. Counsel for Kalch responds that Kalch is out of the United States and does not have
access to his tax records. Doc. No. 63, at 6. Kalch filed this case and it is his obligation to
gather records within his possession, custody or control, even if that requires him to return to the
United States to do so.5 Therefore, the motion to compel production of documents responsive to
request 20 is GRANTED. It is ORDERED that Kalch shall produce responsive documents on or
before March 24, 2017. No additional objections may be asserted to this request.
Requests 23 and 24. In these requests, Raytheon asks for applications for employment
from January 1, 2014 and resumes Kalch has used after his employment with Raytheon ended. In
supplemental responses, Kalch states that he has no responsive documents in his possession,
custody or control. Doc. No. 60, at 16-17. Counsel for Raytheon’s argument that these
responses “cannot possibly be true” is not supported by any evidence that Kalch has responsive

5
I note that Kalch was in the United States for his deposition on February 28, 2017, and he has agreed to
return for the continuation of his deposition later this month. Doc. No. 60, at 6.

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documents. Counsel’s mere speculation is insufficient to override Kalch’s responses. Therefore,
the motion to compel production of documents responsive to requests 23 and 24 is DENIED.
Request 33. In request 33, Raytheon asks for all documents not previously produced that
Kalch may introduce at a deposition or a hearing. Kalch responds that he has not withheld any
responsive documents. This response is sufficient. Accordingly, the motion to compel
production of documents responsive to request 33 is DENIED.
Request 35. In this request, Raytheon asks for pharmacy records and a release form.
Doc. No. 60, at 17-18. In response to the motion, counsel for Kalch refers to counsel’s agreement
that Kalch would obtain his records and produce them. Doc. No. 63, at 7. Counsel does not
state, however, when the pharmacy records will be produced. Accordingly, it is ORDERED that
the motion to compel production of documents responsive to request 35 is GRANTED. Based
on the agreement of counsel, Kalch shall produce all documents responsive to this request on or
before March 24, 2017, and because the documents have not yet been produced Kalch shall also
produce the signed, and sworn release form, by that date.
Request 36. In this request, Raytheon asks for a signed Military Records release form.
Doc. No. 60, at 18. In response to the motion, counsel for Kalch states that Kalch has requested
his military records but he has not received them. Doc. No. 63, at 7. Because the close of
discovery is rapidly approaching, the motion is GRANTED. It is ORDERED that Kalch shall
produce the signed, and sworn if necessary, Request for Military Records release form on or
before March 24, 2017.

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Additional Relief Requested.
Raytheon asks that the Court require Kalch to pay the reasonable expenses, including
attorney’s fees, it incurred in filing the motion. Because the motion has been granted in part and
denied in part, the request to award such expenses is DENIED. Fed. R. Civ. P. 37(a)(5)(C).
Raytheon also asks that the Court give it 30 days after complete responses to its discovery
requests are served to re-depose Kalch and to conduct follow-up discovery. Doc. No. 60, at 2.
Raytheon could have filed its motion to compel more promptly to allow it sufficient time in the
discovery period to complete follow-up discovery. The delay in filing a motion to compel does
not provide good cause for allowing discovery to continue after the discovery deadline set by the
Court. Therefore, the request to extend the discovery period is DENIED.
DONE and ORDERED in Orlando, Florida on March 20, 2017.

Karla R. Spaulding
KARLA R. SPAULDING
UNITED STATES MAGISTRATE JUDGE

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