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

Filing 298

MEMORANDUM AND ORDER granting in part and denying in part 229 Motion to Compel Defendant's Responses to Discovery. Signed by Magistrate Judge David J. Waxse on 9/23/2013. (do)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KICKAPOO TRIBE OF INDIANS OF THE
KICKAPOO RESERVATION IN KANSAS,
Plaintiff,
vs.

Case No. 06-CV-2248-CM-DJW

NEMAHA BROWN WATERSHED JOINT
DISTRICT NO. 7, et al.,
Defendants.
MEMORANDUM AND ORDER
Pending before the Court is the Motion to Compel Defendant’s Responses to Discovery
(ECF No. 229). Plaintiff, Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas
(“Tribe”), requests an order compelling Defendant, Nemaha Brown Watershed Joint District No.
7 (“District”), to produce documents responsive to the Tribe’s Rule 34 Request for Production of
Documents on Counts Five and Six of the Tribe’s Second Amended Complaint and compelling
the District to produce and permit inspection of all computers by technical forensic recovery
experts as requested in the Tribe’s Rule 34 Request for Inspection of Computers or Other
Electronic Equipment. For the following reasons, the Court concludes that the Motion should be
granted in part and denied in part.
I.

Background
In this matter, the Tribe filed its original Complaint against multiple defendants in 2006

seeking declaratory relief, injunctive relief, compensatory damages, and specific performance
regarding its water rights as to the Upper Delaware River and Tributaries Watershed in Kansas.
The Tribe’s original claims against the District are based on the 1994 Watershed Agreement,
which the Tribe alleges obligated the District to exercise its eminent domain power to condemn
1

lands.1 The Tribe would then purchase the condemned lands to build a dam and reservoir called
the Plum Creek Project.2
From February of 2007 through January of 2012, prior to the service of the discovery
requests at issue here, the Tribe served five separate requests for production of documents and
ESI on the District and/or its Board members.3 The District and/or its Board members served
responses and supplemental responses to all of these discovery requests from March of 2007
through April of 2012.4 No motions to compel discovery were filed by the Tribe as to any of
these discovery responses. As a result, by failing to timely move to compel under D. Kan. Rule
37.1(b), the Tribe waived its objections to the discovery responses served by the District and/or
its Board members through April of 2012.
On June 22, 2012, the Tribe filed its Second Amended Complaint (ECF No. 199), adding
Counts 5 and 6 to its action. In Count 5, the Tribe alleges the District violated the Tribe’s
constitutional rights.5 Specifically, the Tribe contends that the “adoption of illegal policy under
color of state law” by the District has impaired the Tribe’s contract rights in violation of Article
1 § 10 of the U.S. Constitution.6 Count 6 alleges violation of the Tribe’s rights under 42 U.S.C.
§ 1981 by the District’s adoption of an “illegal and discriminatory policy motivated by racial
animus under color of state law” which impairs the Tribe’s rights to make and enforce contracts
and to enjoy the benefits of a contractual relationship.7

1

Second Am. Compl. (ECF No. 199) at 13-14; Def.’s Mem. Supp. (ECF No. 206) at 2.
Id.
3
Notices of Service (ECF Nos. 77, 84, 87, 96, and 156).
4
Notices of Service (ECF Nos. 81, 90, 92, 95, 99, 165, 177, and 179).
5
Second Am. Compl. (ECF No. 199) at 43.
6
Id.
7
Id. at 43- 44.
2

2

At the time the Tribe filed its Second Amended Complaint, the deadline for the
completion of all discovery was June 30, 2012.8 Thereafter, on August 22, 2012, on the Tribe’s
motion, the Court extended the deadline for discovery “on issues relating to the two new counts”
to March 29, 2013.9 As a result, discovery was extended as to the new Counts 5 and 6, but
remained closed on issues related to all other claims as of the original deadline of June 30, 2012.
On August 6, 2012, the Tribe served on the District its Rule 34 Request for Production of
Documents on Counts Five and Six of the Tribe’s Second Amended Complaint, as well as its
Rule 34 Request for Inspection of Computers or Other Electronic Equipment Containing
Electronically Stored Information on Counts Five and Six of the Tribe’s Second Amended
Complaint.10 The District served its responses to those requests via email on September 10,
2012.11 This was followed by the exchange of letters between the parties on September 14,
September 20, and October 5, 2012 in an effort to resolve their disputes pursuant to D. Kan. Rule
37.2.12 The Tribe asserts that the District’s responses do not comply with the Federal Rules of
Civil Procedure, and asks the Court to overrule the District’s objections. The Tribe alleges that
the District has not produced all responsive documents, despite the District’s assertions to the
contrary. Thus, the Tribe requests an order compelling the District to produce documents
responsive to Requests for Production (“RFPs”) 131-145 and 147-149. The Tribe also seeks an
order compelling the District to produce and permit the inspection by technical forensic recovery
experts of all computers or other electronic equipment containing ESI.

8

Sched. Order (ECF No. 153) at 4.
Sched. Order (ECF No. 217) at 3.
10
Notice of Service (ECF No. 215).
11
Notice of Service (ECF No. 222).
12
Pl.’s Mem. Supp. (ECF No. 230) at 2, 26.
9

3

II.

The District’s Global Objections to the Tribe’s Discovery Requests
In its Response to the Motion to Compel, the District reasserts four objections as to all or

most of the RFPs at issue. First, the District objects that it “cannot compel former members of
the Board of Directors, former staff, or former employees to produce documents that are in their
possession but that are not in the possession of the Watershed District itself.”13 Second, the
District objects that the present RFPs are duplicative of the Tribe’s discovery requests as to
Counts 1-4 of the Tribe’s original complaint, for which discovery is closed. Third, the District
objects that the RFPs are “broadly worded and could include communications between attorneys
and clients and attorney work product.”14 Lastly, the District asserts that all documents have
already been produced. The Court shall address these four objections as follows as to all RFPs to
which they are raised.
A.

Objection as to Former Board Members, Staff, and Employees

The District objects to RFPs 131-137, 139-140, 141, 142, 143-145, 147, and 148-149 on
the basis that it “cannot compel former members of the Board of Directors, former staff, or
former employees to produce documents that are in their possession but that are not in the
possession of the Watershed District itself.”15 The District argues that it does not have the duty
or ability to compel production of documents from persons no longer associated with the District
that are not parties to this action. The District believes that this is an attempt to shift the burden
of discovery as to third parties from the Tribe to the District. The Tribe asserts that the Kansas
Government Records Preservation Act (GRPA)16 obligates the District to maintain records

13

Def.’s Resp. Req. Produc. Docs. (ECF No. 237-1) at 2.
Id. at 3.
15
Id. at 2.
16
K.S.A. §§ 45-401--45-414 (2012).
14

4

produced by its employees. The Tribe also asserts that the Kansas Open Records Act (KORA)17
obligates the District to make its records available to the public. Further, the Tribe argues that if
the District failed to meet these obligations, then it must take steps to obtain the documents that it
failed to maintain and make available.
The Court rejects the Tribe’s argument. The relevant question here is not whether the
District has a duty under GRPA and/or KORA to retrieve responsive documents that may be in
the possession of former Board members, staff, or employees. Rather, the relevant question is
whether the District has “possession, custody, or control” of the documents requested by the
Tribe under Fed. R. Civ. P. 34(a)(1). Documents are deemed to be within the possession,
custody or control under Rule 34 “if the party has actual possession, custody or control or has the
legal right to obtain the documents on demand.”18
The party seeking the production of documents bears the burden of proving that the
opposing party has the control required under Rule 34.19 Here, the Court finds the Tribe has not
met its burden of proving the District has the necessary control of the documents requested. The
Tribe has not shown that the District has the legal right to obtain the documents requested on
demand from former District Board members, staff, or employees. Neither GRPA nor KORA
contain any provision granting government agencies, such as the District, the authority to
retrieve documents not in their possession, custody or control. Also, the Tribe has cited no
authority holding that GRPA or KORA obligate a government agency to retrieve items that are
not in their possession, custody or control pursuant to a request for production under Rule 34.
The fact that Kansas state law requires the District to maintain certain records and make those
17

K.S.A. §§ 45-215--45-223 (2012).
Wardrip v. Hart, 934 F. Supp. 1282, 1286 (D. Kan. 1996)(citing Nat’l Union Fire Ins. Co., P.A. v.
Midland Bancor, 159 F.R.D. 562, 566 (D. Kan. 1992)).
19
Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649, 653 (D. Kan. 2004)(citing Norman v.
Young, 422 F.2d 470, 472 (10th Cir. 1970)).
18

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records available to the public does not render the District’s objection that it does not have the
requisite possession, custody, or control invalid. Furthermore, the Court notes that the District
states that it is attempting to respond to the Tribe’s RFPs by asking its former Board members,
staff, and employees to voluntarily produce any responsive items they may have in their
possession. The District’s objection that it cannot compel former members of its Board of
Directors, former staff, or former employees to produce documents that are in their possession
but are not in the possession of the District itself is therefore sustained.
B.

Objection as Duplicative

The District also objects to RFPs 131-137, 147, and 148-149 as needlessly duplicative.
The District argues that these RFPs are identical to the Tribe’s previous discovery requests made
regarding Counts 1-4 of the original Complaint. The Tribe asserts that the RFPs properly seek
information on the new Counts 5-6.
Fed. R. Civ. P. 26(b)(2)(C) places limits on discovery when “the discovery sought is
unreasonably cumulative or duplicative.”20 As the party resisting the discovery based on such an
assertion, the District has the burden to show facts justifying its objection.21 Here, the District
asserts the RFPs are not related to Counts 5-6 as added by the Second Amended Complaint, but
instead are related to Counts 1-4, which were in the original Complaint and were the subject of
the Tribe’s earlier discovery requests. The District further asserts it has already produced all
responsive documents pursuant to the Tribe’s previous discovery requests as to Counts 1-4.
The District has failed to show how RFPs 131-137, 147, and 148-149 are unreasonably
cumulative or duplicative. Without the specific prior discovery requests which the District

20

Fed. R. Civ. P. 26(b)(2)(C)(i).
P.S. & C.S. v. Farm, Inc., No. 07-CV-2210-JWL, 2009 U.S. Dist. LEXIS 30290, at *19 (D. Kan. Apr.
6, 2009)(citing Spieker v. Quest Cherokee, LLC, No. 07-1225-EFM, 2008 U.S. Dist. LEXIS 88103 at *12
(D. Kan. Oct. 30, 2008)).
21

6

believes the present RFPs duplicate, the Court cannot determine whether the present RFPs are, in
fact, unreasonably duplicative of prior discovery requests. The District’s objection to the RFPs
as unreasonably duplicative is therefore overruled. The Court will not require the District to
reproduce documents already produced to the Tribe in this matter, as such a reproduction would
be unnecessarily duplicative.

The District shall produce any new or additional responsive

documents in its possession, custody, or control as yet unproduced which are not privileged or
protected, but may refer to its previous responses to the Tribe’s earlier discovery requests
regarding documents already produced, so as to respond comprehensively to the present RFPs.
C.

Objection that RFPs Could Include Attorney-Client
Communications and Attorney Work Product

Privileged

The District objects to RFPs 131-137, 138, 139, 143-145, and 148-149 on the basis that
they are “broadly worded and could include communications between attorneys and clients and
attorney work product.”22 The Tribe argues that this objection is insufficient, as a detailed
privilege log is required to show the documents are either privileged or protected.

In its

Response to the Motion, the District states that it was not asserting a privilege as to new
responsive documents withheld, but rather reserving its right to assert the privilege in the future,
should any new responsive privileged documents be discovered.
The party resisting discovery bears the burden of establishing all the essential
elements of the asserted privileges to the individual documents it has withheld under a claim of
privilege.23 Pursuant to Fed. R. Civ. P. 26(b)(5)(A), a party claiming that documents are either
privileged or protected as trial-preparation material must do so expressly and must describe the

22

Def.’s Resp. Req. Produc. Docs. (ECF No. 237-1) at 3-5.
Peat Marwick, Mitchell & Co. v. West, 748 F.2d 540, 541-42 (10th Cir. 1984); Nat’l Union Fire Ins. Co.
v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994).
23

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documents in a manner that allows the court “to assess the claim.”24 This District has held that
“if a party fails to make the required showing, by not producing a privilege log or by providing
an inadequate one, the court may deem the privilege waived.”25
Here, the District did not produce any privilege log. In its Response, it asserts that it
objected to the RFPs as possibly including attorney-client privileged communications not
because it was claiming privilege as to new documents it had reviewed and withheld from
production, but rather because it was merely reserving its right to assert privilege if it discovered
responsive but privileged documents in the future. By “new” documents, it appears the District
means documents created or discovered subsequent to the District’s responses served from 2007
through April of 2012 to the Tribe’s previous discovery requests. Thus, to the extent that the
District has located “new” documents but is withholding those documents as privileged or
protected, the District must produce a privilege log listing all responsive documents withheld as
either attorney-client privileged or attorney work product. The privilege log should include all
“new” responsive documents in the possession, custody, or control of the District that were
reviewed but withheld as privileged or protected as of September 10, 2012, the date the District
served its responses and objections, and were not previously addressed by the District in its
previous responses to the Tribe’s earlier discovery.
D.

Assertion that All Documents Have Been Produced

The District states in response to RFPs 131-137, 138, and 143-145 that “all documents . .
. in the possession of the Watershed District or its current Board Members have already been
produced.”26

Ordinarily, “a response that a party has no additional responsive documents

24

Fed. R. Civ. P. 26(b)(5)(A).
In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 671 (D. Kan. 2005)(citing
Emplrs. Reinsurance Corp. v. Clarendon Nat'l Ins. Co., 213 F.R.D. 422, 428 (D. Kan. 2003)).
26
Def.’s Resp. Req. Produc. Docs. (ECF No. 237-1) at 3.
25

8

suggests judicial involvement is unnecessary.”27 The Tribe argues, however, that the District has
not produced all responsive documents. In support, the Tribe points to documents produced by a
third party that the Tribe claims the District should have produced. Specifically, it refers to
documents produced by the Kansas Farm Bureau (KFB) in response to a Rule 45 subpoena. The
Tribe asserts that these subpoenaed documents include copies of four email strands between
KFB staff and the District’s board members or their family members, as well as portions of the
KFB’s privilege log dated April 4, 2012, which lists several e-mails and notes of telephone calls
with the District’s board members. Further, the Tribe states that the District did not produce
these documents in response to the current RFPs, nor has the District provided a privilege log
covering said documents.
The District argues that, contrary to the Tribe’s claim that it has not produced all
responsive documents, the KFB documents do not show that the District has failed to produce or
withheld any responsive documents. First, the District explains that the four email strands
attached to the Tribe’s Motion are neither to nor from a District Board member, Rodney Lierz,
but instead are either to or from his wife, Linda Lierz, who is not a Board member, staff, or
employee of the District. The District also explains that some, but not all, of the documents from
2006 or earlier in the KFB privilege log were emails to or from Board member Lierz’s wife, and
as such, were not produced in the District’s Rule 26 disclosures. Further, the District explains
that the five log entries from 2011 addressed to or from the email address
“[e-mail]” were all emails either to or from Board member Lierz’s wife. Lastly,
the District asserts that Roger Ploeger, the only other Board member referred to in the KFB
privilege log, has already produced all responsive KFB documents in his possession.
27

Shoemake v. McCormick, No. 10-2514-RDR, 2011 U.S. Dist. LEXIS 131736, at *5 (D. Kan. Nov. 15,
2011).

9

The Court finds that the four email strands attached to the Tribe’s Motion are either to or
from the personal email account of Linda Lierz, not Board member Rodney Lierz. As a result,
the email strands are not responsive to the Tribe’s RFPs. As for the KFB privilege log, the Tribe
has provided eleven pages of the log containing forty-six entries dated from 2003 to 2012, which
refer to documents, electronic documents, and emails involving either Roger Ploeger or either
Rodney or Linda Lierz. The Tribe has not identified which specific items in the log it believes
are responsive to the current RFPs but were not produced. It does state that “documents relevant
to this point are highlighted thereon,”28 but no such highlighting is visible. The District again
explains that the relevant items in the log related to the “[e-mail]” email address
were determined to be emails either to or from Linda Lierz, and as a result were not produced as
they were non-responsive. The Court accepts this explanation that the emails at issue were from
Linda Lierz and not Board member Rodney Lierz, which explains why they were not produced.
The District further states that all relevant items in the possession of Roger Ploeger have been
obtained and will be produced if responsive. This Court finds that this is consistent with the
entries in the log related to Mr. Ploeger, the bulk of which appear to be “Irvin handwritten notes
memorializing conversation with Roger Ploeger.”29

As these are KFB attorney Irvin’s

handwritten notes of his conversations with Mr. Ploeger, the Court does not see how Mr. Ploeger
would have these notes in his possession for production. The Court therefore finds that none of
the documents subpoenaed from third parties offered by the Tribe refute the District’s assertion
that all documents have been produced.

28
29

Pl’s Mot. To Compel (ECF No. 230) at 11.
Id. at 48-52.

10

III.

The District’s Objections as to Specific RFPs
As to RFPs 138, 139-140, 141, and 142, the District raises a specific objection to each

RFP, which the Court shall address as follows:
A.

RFP 138: Objection as Beyond the Scope of Allowed Discovery

RFP 138 seeks documents “relating in any manner to the testimony of the possible
witnesses identified in the District’s Preliminary Witness and Exhibit Disclosures, filed on May
30, 2012.”30 The District objects to this RFP as beyond the scope of allowed discovery, arguing
that it seeks documents related to Counts 1-4 and not Counts 5-6. The Tribe responds that the
RFP seeks information related to Counts 5-6 and not 1-4.
The Court finds that the District’s objection should be sustained.

RFP 138 seeks

documents specifically related to the testimony of witnesses identified by the District in its
Preliminary Witness and Exhibit Disclosures as of May 30, 2012. On that date, the Tribe’s
Second Amended Complaint adding Counts 5-6 had not yet been filed. Thus, the District’s
identified witnesses and their testimony as of May 30, 2012 were relevant to Counts 1-4 only.
Further, discovery as to Counts 1-4 closed on June 30, 2012. As a result this RFP falls outside
the scope of discovery as extended for Counts 5-6 only. The Court concludes that the Motion to
Compel should therefore be denied as to RFP 138.
B.

RFPs 139-140: Objection as to Characterization of Public Comments as
Testimony

RFP 139 seeks documents “relating to the decision of the District Board to hold the
Board’s March 22, 2011 public meeting at which public testimony was taken on the proposed
Interim Settlement Agreement.”31 RFP No. 140 seeks documents “relating to the decision of the

30
31

Def.’s Resp. Req. Produc. Docs. (ECF No. 237-1) at 5.
Id. at 7.

11

District Board to have law enforcement present at the Board’s March 22, 2011 public meeting at
which public testimony was taken on the proposed Interim Settlement Agreement.”32
The District objects to both RFPs’ characterization of the public comments made at the
public meeting as “testimony” to the extent that this term implies that the public comments were
made under oath. In its Motion, the Tribe responds that it used the term “testimony” as a
synonym for public comment and was not implying that any comments were made under oath.
Based on the Tribe’s clarification, the Court finds that the term “testimony” as used in RFPs 139
and 140 does not mean that any public comments at issue were made under oath. The District’s
objection is therefore sustained as to the meaning of the word “testimony” as used in RFPs 139
and 140.
C.

RFP 141: Assertion that the District is Unaware of Its Decisions to Have Law
Enforcement Present at Board Meetings

The Tribe’s RFP 141 requests that the District produce documents “relating to the
decision of the District Board to have law enforcement at any of the Board’s meetings between
January 2003 and the present date.”33 To this RFP, the District states that it is unaware of any
such decisions. The Tribe responds that the District’s statement that it is unaware of any such
decisions is non-responsive and not made in good faith.
The Court finds that the District’s assertion that it is unaware of any decisions to have
law enforcement present at Board meetings is non-responsive. The Court notes that the District
now states in its Response that no such materials have been located but that it will revisit this
RFP with its Board members in search of responsive materials. As a result, the Court concludes
that as to responsive documents in its possession, custody, or control, the Motion should be
granted as to RFP 141.
32
33

Id. at 9.
Id. at 10.

12

D.

RFP 142: Objection to Use of the Word “Quell”

The Tribe’s RFP 142 requests that the District produce documents “relating to Mr.
Domina’s attempt to ‘quell’ any racially motivated comments at the outset of the March 22, 2011
public meeting.”34

The District objects to the RFP’s “characterization of Mr. Domina’s

comments as an attempt to quell any racially motivated comments” and also questions why the
word is in quotation marks in the RFP. The Tribe asserts that the District previously used the
word “quell” in this context in its Brief in Opposition to the Tribe’s Motion to File its Second
Amended Complaint, and the Tribe is using the word in the same manner.
The District further states that there are no documents responsive to this RFP, and the
Tribe did not address this assertion in its Motion. As a result, the Court finds that it need not
address the District’s objection to the use of the word quell, as there are no responsive
documents in any event.
IV.

The Request for Inspection of Computers
The Tribe has also moved the Court to order forensic mirror imaging of computers and

other electronic devices personally owned by current and former District Board members,
employees, and staff. More specifically, the Tribe requests all personal notes, emails, text
messages, meeting records, phone logs, documents, and all other materials of any kind requested
in RFPs 131-145 and 147-149 or related to the 1994 Watershed Agreement, the Plum Creek
Project, eminent domain, and the Tribe or its members, in native electronic format and available
for copying from computer hard drives, including computers owned personally, from the
District, its current or former Board members, and its current and former staff and/or employees.
The Tribe believes that this relief is necessary, arguing that the District’s previous responses to

34

Id. at 11.

13

earlier discovery are incomplete and inconsistent, suggesting that responsive materials are being
withheld.
The District responds that it has already obtained and produced forensic mirror images of
the hard drives of the two computers owned by the District. The District argues that the forensic
mirror imaging of computers personally owned by current and former District Board members,
employees, and staff would constitute a significant invasion of privacy unlikely to result in the
discovery of responsive or relevant items. Also, the District argues that the request lacks
proportionality between the burden to the District and the benefit to be gained by the Tribe.
In its Reply, the Tribe argues that the privacy concerns can be addressed through search
protocol and, if necessary, protective orders.

Further, the Tribe states the request is not

disproportionate or unduly burdensome and the potential benefit to the Tribe is large.
Rule 34(a) allows a party to request that another party “produce and permit the requesting
party . . . to inspect, copy, test, or sample . . . electronically stored information.”35 The advisory
committee notes to the 2006 amendment to Rule 34(a) state that inspection of a responding
party’s hard drive is not routine, but might be justified in some circumstances:
Inspection or testing of certain types of electronically stored information
or of a responding party's electronic information system may raise issues
of confidentiality or privacy. The addition of testing and sampling to Rule
34(a) with regard to documents and electronically stored information is
not meant to create a routine right of direct access to a party's electronic
information system, although such access might be justified in some
circumstances. Courts should guard against undue intrusiveness resulting
from inspecting or testing such systems. 36

35
36

Fed. R. Civ. P. 34(a)(1)(A).
Fed. R. Civ. P. 34(a) advisory committee notes to 2006 amendment.

14

This District has previously allowed the forensic imaging of computer hard drives during
civil discovery.37 In none of these cases, however, did the court allow the inspection of the
personally owned computers of employees of the responding party. In addition, in each of these
cases, the court found very specific circumstances to justify the inspection. In Graceland, the
court did not actually order mirror imaging, but instead ordered a limited inspection of
specifically identified work computers owned by the responding party that were used to create a
specific document, for the limited purpose of determining the exact creation date of the
document.38 In Monarch, a wrongful disclosure case, the court ordered mirror imaging of a
specific computer owned but discarded by the defendant, which contained confidential medical
information and formed the basis for the plaintiffs’ claims.39

In Balboa, a copyright

infringement case, the court ordered mirror imaging of all of the computers owned by the
defendants, finding that the computers were at the heart of the plaintiff’s claims that the
defendants illegally downloaded copyrighted material, and that both defendants were engaged in
the business at issue and used their computers for specifically-identified business purposes.40 In
Jacobson, an employment discrimination case, the court ordered the mirror imaging of the work
computer of plaintiff’s immediate supervisor, as he was the main decision-maker in plaintiff’s
termination and his work computer was not initially searched for documents responsive to earlier
discovery requests.41 A similar situation was presented in Robinson, another employment case,

37

See White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc., No. 07-2319-CM, 2009
U.S. Dist. LEXIS 22068, at *25-26 (D. Kan., Mar. 18, 2009); G.D. v. Monarch Plastic Surgery, P.A., 239
F.R.D. 641, 648 (D. Kan. 2007); Balboa Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 U.S.
Dist. LEXIS 29265, at *12 (D. Kan., Mar. 24, 2006); Jacobson v. Starbucks Coffee Co., No. 05-1338JTM, 2006 U.S. Dist. LEXIS 98174, at *21-22 (D. Kan. Oct. 31, 2006); Robinson v. City of Arkansas
City, No. 10-1431-JAR-GLR, 2012 U.S. Dist. LEXIS 23806, at *64; (D. Kan. Feb. 24, 2012).
38
Graceland, 2009 U.S. Dist. LEXIS 22068, at *25-26.
39
Monarch, 239 F.R.D. at 643.
40
Balboa, 2006 U.S. Dist. LEXIS 29265, at *12.
41
Jacobson, 2006 U.S. Dist. LEXIS 98174, at *5.

15

wherein the court ordered mirror imaging of two work computers that were used by plaintiff’s
supervisor but were not searched for responsive documents pursuant to a discovery request.42
Here, the Court finds that Plaintiff has not shown circumstances sufficient to justify the
forensic mirror imaging of computers personally owned by current and former District Board
members, employees, and staff. First, as to the personally-owned computers of former District
Board members, employees, and staff, as discussed previously in Section II(A), the District does
not have possession, custody or control of the computers and electronic equipment of its former
Board members, employees, and staff. As a result, the District cannot be compelled to produce
these items for inspection under Rule 34. Further, as to the personally-owned computers of
current Board members, employees, and staff, the Court finds the same, that the District does not
have possession, custody, or control of these items. In addition, the Tribe has not shown beyond
speculation that any personally-owned computers of current Board members, employees, and
staff were used by those persons for District business. Per the discussion in Section II(D), the
Court does not find that the third-party discovery presented by the Tribe shows that any personal
computers were used for District business.
In addition, the Court has significant concerns regarding the intrusiveness of the request
and the privacy rights of the individuals to be affected. In contrast to the circumstances set forth
in the prior cases in which forensic imaging was permitted in this District, in this case the Tribe
has made a broad, non-specific request to inspect all personally-owned computers of all current
and former Board members, staff and employees of the District. Although the Tribe argues that
the third-party discovery it presented suggests that there may be responsive materials as yet
undisclosed on the personally-owned computers, as discussed previously, the Court finds
otherwise. Absent circumstances rising above the Tribe’s speculation, the Court does not find
42

Robinson, 2012 U.S. Dist. LEXIS 23806, at *59-65.

16

justification for the Tribe’s broad, non-specific request to inspect that outweigh the privacy
concerns of the individuals affected. The Court must therefore deny the request for forensic
mirror imaging of computers and other electronic devices personally owned by current and
former District Board members, employees, and staff.
V.

Expenses
Pursuant to Fed. R. Civ. P. 37(a)(5)(C), when a motion to compel is granted in part and

denied in part, “the court … may, after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.” Neither party has requested an award of expenses, and
under the circumstances, the Court concludes that it is appropriate for the parties to bear their
own expenses related to the Motion.
IT IS THEREFORE ORDERED that the Tribe’s Motion to Compel Defendant’s
Responses to Discovery (ECF No. 229) is granted in part and denied in part.
IT IS FURTHER ORDERED that, as to RFPs 131-137, 147, and 148-149, the District
is ordered to produce any and all responsive items in its possession, custody, or control that were
withheld as duplicative. If an item has already been produced to the Tribe pursuant to a prior
discovery request, however, the District may refer to their previous response to the Tribe’s
earlier discovery request. Due to the stay of discovery entered on July 23, 2013, the District’s
responses are due within thirty days after the District’s Motion for Summary Judgement (ECF
No. 247) is resolved.
IT IS FURTHER ORDERED that, as to RFPs 131-137, 139, 143-145, and 148-149, the
District must produce a privilege log listing all responsive documents withheld as either
attorney-client privileged or attorney work product. The privilege log should include all “new”
responsive documents in the possession, custody, or control of the District that were reviewed

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but withheld as privileged or protected as of September 10, 2012, the date the District served its
responses and objections, and were not previously addressed by the District in its previous
responses to the Tribe’s earlier discovery. Due to the stay of discovery entered on July 23, 2013,
the District’s responses are due within thirty days after the District’s Motion for Summary
Judgement (ECF No. 247) is resolved.
IT IS FURTHER ORDERED that, as to RFP 141, the District is ordered to produce any
and all responsive items in its possession, custody, or control. Due to the stay of discovery
entered on July 23, 2013, the District’s response is due within thirty days after the District’s
Motion for Summary Judgement (ECF No. 247) is resolved.
IT IS FURTHER ORDERED that all remaining relief requested in the Motion to
Compel Defendant’s Responses to Discovery (ECF No. 229) is denied.
IT IS FURTHER ORDERED that the parties shall bear their own expenses related to
the Motion.
IT IS SO ORDERED.
Dated in Kansas City, Kansas this 23rd day of September, 2013.

s/ David J. Waxse
David J. Waxse
United States Magistrate Judge

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