Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Knight et al

Filing 216

MEMORANDUM AND ORDER granting 205 the District's Motion to Compel, subject to an agreed protective order as to Interrogatory Nos. 21, 22, 23 and 24, and granted as to Interrogatory Nos. 30, 31, and 32. IT IS FURTHER ORDERED that the parties s hall, within ten (10) days of the filing of this Order, submit to the Court an agreed protective order, subject to compliance with the District of Kansas Local Rules for protective orders. IT IS FURTHER ORDERED that the Tribe, within ten (10) days o f the filing of the protective order, shall supplement its answers and produce responsive documents to Interrogatory Nos. 21, 22, 23, and 24. The District shall have thirty (30) days from the date of filing of the supplemental answers and responsive documents to depose any witnesses to the facts therein it deems necessary. IT IS FURTHER ORDERED that the Tribe, within twenty (20) days of the filing of this Order, shall supplement its answers and produce responsive documents to Interrogatory Nos. 30, 31, and 32. The District shall have thirty (30) days from the date of filing of the supplemental answers and responsive documents to depose any witnesses to the facts therein it deems necessary. Signed by Magistrate Judge David J. Waxse on 8/15/2012. (aam)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KICKAPOO TRIBE OF INDIANS OF THE
KICKAPOO RESERVATION IN KANSAS,
Plaintiff,
v.

Civil Action No.06-2248-CM-DJW

MICHAEL BLACK, in his official capacity as Director,
BUREAU OF INDIAN AFFAIRS,
UNITED STATES DEPARTMENT OF INTERIOR,
et al.,
Defendants.
MEMORANDUM AND ORDER
Pending before the Court is Defendant Nemaha Brown Joint Watershed District No. 7’s
Motion to Compel (ECF No. 205). Defendant seeks an order from the Court compelling
Plaintiffs to provide complete answers to Interrogatory Nos. 21, 22, 23, 24, 30, 31, and 32.
Defendant also requests documents associated with these interrogatories. For the reasons set
forth below, the Court grants Defendant’s Motion to Compel as to Interrogatory Nos. 21, 22, 23,
and 24 and related documents subject to the protections of a protective order. The Court also
grants Defendant’s Motion to Compel as to Interrogatory Nos. 30, 31, and 32 and related
documents.
I.

Background
The Plaintiff in this case is the Kickapoo Tribe of Indians of the Kickapoo Reservation in

Kansas (“Tribe”). The Tribe initiated this action seeking declaratory relief, injunctive relief,
compensatory damages, and specific performance in 2006. In 1994, the Tribe and the Nemaha
Brown Joint Watershed District No. 7 (“District or Defendant”) entered into a contractual
1

agreement (“1994 Agreement”) whereby the Tribe was to acquire land at its own expense in
order to build a dam project called the Plum Creek Project.1 Relevant to this motion, the Tribe
asserts that it fulfilled its obligations by rendering a good faith effort to acquire the necessary
land, which effort ultimately failed.2 Because the Tribe fulfilled its obligations, but failed to
acquire all the necessary land, the Tribe alleges it became the duty of the District to use its power
of eminent domain to condemn the land for the Tribe.3
The Defendant, on the other hand, disagrees that it had the duty to use its power of
eminent domain if the Tribe failed to acquire the land on its own. The Defendant also seems to
believe that even if it did have an obligation to use its power of eminent domain, that obligation
was voided because the Tribe lacked the ability to actually purchase the land in question.4
The instant motion arises out of the Tribe’s responses to the District’s requests for
answers to interrogatories. The District asks the Court to compel the Tribe to give answers and
related documents to Interrogatory Nos. 21, 22, 23, 24, 30, 31, and 32. The District also seeks
leave to depose any witnesses with knowledge of the facts contained in the responses to the
interrogatories. For the reasons set forth below, the Court grants the District’s motion as to
Interrogatory Nos. 21, 22, 23, and 24 subject to a protective order to be negotiated by the parties.
The Court also grants the District’s motion as to Interrogatory Nos. 30, 31, and 32.
II.

Analysis
A. Interrogatory Nos. 21, 22, 23, and 24

1

See Pl.’s Second Am. Compl. (ECF No. 199) at 13-14. See also Defs.’ Mem. Supp. Mot.
Compel (ECF No. 206) at 2.
2

Pl.’s Resp. to Defs.’ Mot. Compel (ECF No. 210) at 3-4.

3

Id. at 4.

4

See Defs.’ Mem. Supp. Mot. Compel. (ECF. No. 206) at 3.
2

As an initial matter, it should be noted that the Tribe has not timely objected to these
interrogatories. As the District points out, and the Tribe does not refute, the Tribe failed to offer
objections to these discovery requests in its initial answers. The Tribe did, however, object to
these interrogatories as seeking proprietary and confidential financial records.5
Instead of objecting in a traditional way (such as objecting to the information requested
as irrelevant or overly broad), the Tribe argues the merits of its claim that it fulfilled its duty of a
good faith effort to acquire the necessary property for the Plum Creek Project. Specifically, the
Tribe argues that because it attempted to purchase the necessary property from various owners in
good faith, it should not have to disclose the requested financial records.6 This argument misses
the point of the instant motion. It is not for this Court to decide whether the Tribe fulfilled its
obligation under the 1994 Agreement. Further, the Tribe’s argument that cash on hand is not
necessary to prove it was ready, willing, and able to purchase the necessary property also misses
the point and was waived.7 Because the Tribe has not objected to the District’s requests for
discovery, the District’s requests as to Interrogatory Nos. 21, 22, 23, and 24 are granted.
Even though the Tribe failed to offer legitimate and timely objections to these requests
for discovery, this Court is unwilling to require a sovereign entity to disclose financial records it
considers governmental in nature without the protections of a protective order. The Court may
order the issuance of a protective order after a showing of good cause in order to protect a party

5

Defs.’ Mem. Supp. Mot. Compel (ECF No. 206) at 6. The Tribe also considered these records
to be governmental in nature, and therefore confidential. Pl.’s Resp. to Defs.’ Mot. Compel (ECF
No. 210) at Ex. B, p. 2.
6

Pl.’s Resp. to Defs.’ Mot. Compel (ECF No. 210) at 4-5.

7

Moses v. Halstead, 236 F.R.D. 667, 673 n. 15 (D. Kan. 2006).
3

from abuse, which includes intrusions on privacy interests.8 “The issuance of protective orders
lies within the discretion of the district court, and the Supreme Court has directed that judges
should not hesitate to exercise appropriate control over the discovery process.”9
The Court observes that, in its response to the instant motion, the Tribe conceded it is
willing to negotiate a protective order in the event this Court granted the District’s requests for
discovery.10 Moreover, the District has conceded that the parties have, for the most part,
cooperated with each other.11 In this context, the Court has no trouble believing that the parties
will be able to negotiate a mutually beneficial protective order. Accordingly, the parties are
hereby ordered to submit an agreed protective order for this Court’s review within ten (10)
days.12 The Tribe is further ordered to supplement their answers to these interrogatories and
produce responsive documents within ten (10) days of the filing of the agreed protective order.13
B. Interrogatory Nos. 30, 31, and 32
Interrogatory Nos. 30, 31, and 32 seek information and documents itemizing the damages
claimed by the Tribe from the District’s alleged failure to perform its contractual obligation.
Again, as an initial matter, the Court recognizes that the Tribe failed to object to these requests
8

In re Urethane Antitrust Litigation, No. 04-1616, 2010 WL 4226214, at *2 (D. Kan. Oct. 21,
2010).
9

Id. at *3 (internal quotations omitted).

10

Pl.’s Resp. to Defs.’ Mot. Compel (ECF No. 210) at 6-7.

11

Defs.’ Mem. Supp. Mot. Compel (ECF No. 206) at 7.

12

The parties should review this Court’s guidelines on agreed protective orders to assure
compliance with local rules. The guidelines are available in the Guidelines option under the
Rules drop-down menu at http://www.ksd.uscourts.gov/.

13

Because the Tribe did not oppose the District’s request to depose any witnesses with
knowledge of the facts produced, the District shall have fifteen (15) days after the
supplementation of answers and production of documents responsive to these requests for
production to depose those witnesses the District deems necessary.
4

for discovery in a traditional matter. Instead, the Tribe asks the Court to stay discovery relating
to the damages associated with Count Four, citing Rule 26(c) of the Federal Rules of Civil
Procedure.14 The Tribe argues that the Court’s final ruling on the matter of the District’s liability
under the 1994 Agreement is a “gateway” issue to damages. As such, the Tribe states that the
Court should stay discovery on damages because, to summarize, it will promote judicial
economy.
The District, however, argues that Rule 26(c) governs only protective orders, and not
stays of discovery. Contrary to the District’s interpretation, Rule 26(c) does in fact govern stays
of discovery.15 Stays or limitations of discovery are within the discretion of the Court.16 In
general, the pendency of a dispositive motion is not sufficient to stay discovery.17 The Tribe
correctly states that in this district, discovery may be stayed pending a dispositive motion where:
“the case is likely to be finally concluded as a result of the ruling thereon; where the facts sought
through uncompleted discovery would not affect the resolution of the motion; or where
discovery on all issues of the broad complaint would be wasteful and burdensome.”18 The
moving party has the burden of clearly showing a compelling reason for the stay.19
In this case, the Tribe argues that the ruling on the District’s liability under the 1994
Agreement will have the effect of a dispositive motion. On the other hand, the District argues
14

Pl.’s Resp. to Defs.’ Mot. Compel (ECF No. 210) at 7-9.

15

Dickman v. Department of Transp., No. 11-2523-JTM-GLR, 2012 WL 940779 at *1 (D. Kan.
Mar. 20, 2012).
16

Id.

17

Id.

18

Id. (internal quotations omitted).

19

Id.
5

that damages are a required element to prove a breach of contract claim.20 The District is correct
in its interpretation of the law. 21 In light of this, reviewing the factors used in this District for
staying discovery, the Court finds that the factors weigh in favor of not staying discovery. First,
the Court finds that at this stage in the litigation, it is just as likely as not that the case will be
“finally concluded as a result of the ruling” on the District’s liability under the 1994 Agreement.
Second, because damages are an essential element to a breach of contract claim, the information
sought by the District during discovery22 on this issue will certainly affect its outcome. Third,
allowing discovery to continue on the Count Four damages issues will not be wasteful and
burdensome since damages are an essential element to prove a breach of contract.
Because damages are an essential element of the Tribe’s breach of contract claim, and
given that the Tribe failed to demonstrate the three factors relating to a stay of discovery, the
Court finds that the Tribe did not carry its burden of clearly showing a compelling reason to stay
discovery. Further, because the Tribe failed to raise any other objections, the District’s motion to
compel as to Interrogatory Nos. 30, 31, and 32 is granted. The Tribe shall have twenty (20) days
to supplement its answers to these interrogatories and provide responsive documents as requested
therein.23

20

Defs.’ Reply to Motion to Compel (ECF No. 213) at 13 (citing Weatherby v. Burlington
Northern and Santa Fe Railway Co., 209 F. Supp. 2d 1155, 1163 (D. Kan. 2002)).

21

Weatherby v. Burlington Northern and Santa Fe Railway, Co., 209 F. Supp. 2d 1155 (D. Kan.
2002).

22

Discovery is incomplete because the Court has vacated the original Scheduling Order (ECF
No. 212).
23

Because the Tribe did not oppose the District’s request to depose any witnesses with
knowledge of the facts produced, the District shall have thirty (30) days after the
supplementation of answers and production of documents responsive to these requests for
production to depose those witnesses the District deems necessary.
6

IT IS THEREFORE ORDERED that the District’s Motion to Compel (ECF No. 205)
is granted subject to an agreed protective order as to Interrogatory Nos. 21, 22, 23 and 24, and
granted as to Interrogatory Nos. 30, 31, and 32.
IT IS FURTHER ORDERED that the parties shall, within ten (10) days of the filing of
this Order, submit to the Court an agreed protective order, subject to compliance with the District
of Kansas Local Rules for protective orders.
IT IS FURTHER ORDERED that the Tribe, within ten (10) days of the filing of the
protective order, shall supplement its answers and produce responsive documents to
Interrogatory Nos. 21, 22, 23, and 24. The District shall have thirty (30) days from the date of
filing of the supplemental answers and responsive documents to depose any witnesses to the
facts therein it deems necessary.
IT IS FURTHER ORDERED that the Tribe, within twenty (20) days of the filing of
this Order, shall supplement its answers and produce responsive documents to Interrogatory Nos.
30, 31, and 32.

The District shall have thirty (30) days from the date of filing of the

supplemental answers and responsive documents to depose any witnesses to the facts therein it
deems necessary.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 15th day of August, 2012.

s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

cc:

All counsel

7

8