Gipson v. Southwestern Bell Telephone Company

Filing 538

MEMORANDUM AND ORDER granting in part and denying in part 184 Motion to Compel. Signed by Magistrate Judge David J. Waxse on 3/24/09. (mh)

DJW/1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS WILLIAM GIPSON, individually and on behalf of a class of others similarly situated, et al., Plaintiffs, v. SOUTHWESTERN BELL TELEPHONE COMPANY, f/k/a/ SWBT, Inc., f/k/a Southwestern Bell Telephone, L.P., Defendant. MEMORANDUM AND ORDER William Gipson brings suit against Southwestern Bell Telephone Company ("SWBT" or "Defendant") on behalf of himself and others similarly situated, seeking recovery of unpaid wages and overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Pending before the Court is Defendant's Motion to Compel (doc. 184). Defendant seeks an order requiring Plaintiffs to amend their allegedly confusing discovery responses and disclosures to clarify if they have discoverable documents and, if so, to produce those documents. Defendant also seeks an order overruling Plaintiffs' various objections and assertions of privilege to certain interrogatories and requests for production and compelling Plaintiffs to respond fully to those discovery requests. For the reasons set forth below, the Motion is denied in part and granted in part. I. Nature of the Matter Before the Court and Background Information This is a putative collective action brought under the FLSA. Plaintiff William Gipson alleges that he previously worked at Defendant's call center facility in Wichita, Kansas, and that "Defendant's practice and policy is to deny wages and overtime pay to its hourly paid, telephone Civil Action No. 08-2017-EFM-DJW

dedicated service employees at its call center facilities."1 The Amended Complaint states that the action "is brought as a collective action under the FLSA to recover unpaid wages owed to Plaintiff and all other similarly situated employees employed in Defendant's call centers."2 The Amended Complaint alleges that Defendant operates call centers in a region known as "MOKAT," which includes Missouri, Oklahoma, Kansas, Arkansas and Texas.3 William Gipson is the named Plaintiff in the action. Beginning April 4, 2008, numerous individuals have filed consents to join into the action ("Opt-In Plaintiffs").4 As of the date of this Order there are 159 Opt-In Plaintiffs. II. Plaintiffs' Disclosures and Responses to Defendant's Discovery Requests Defendant asserts that Plaintiffs have provided confusing and inconsistent Rule 26(a)(1) document disclosures and answers to Defendant's First Request for Production, making it impossible for Defendant to tell whether all responsive documents have been produced. Defendant also contends that Plaintiffs have failed to comply with Rule 34 by jointly, rather than individually, responding to Defendant's First Request for Production. Defendant contends that the joint responses make it impossible to determine which particular Plaintiff is responding to each request and to determine which particular Plaintiff has or had the requested documents in his/her possession, custody, or control. Finally, Defendant complains that Plaintiffs' individual written responses to

1

Am. Compl. (doc. 214) ¶ 1. Id. ¶ 2. Id. ¶ 14. Mr. Gipson and the Opt-In Plaintiffs will be referred to collectively as "Plaintiffs." 2

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3

4

Interrogatory No. 1's request that they identify certain documents is confusing and does not comply with Rule 33. A. Background Facts

The parties agreed in their Rule 26(f) Planning Conference that they would exchange or make available for inspection the documents listed in their Rule 26(a)(1) disclosures without the need for formal requests for production. That agreement was memorialized in the Court's May 19, 2008 Scheduling Order as follows: "[T]he parties have agreed that, without any need for formal requests for production, copies of the various documents described in the parties' respective Rule 26(a)(1) disclosures shall be exchanged or made available for inspection and copying."5 Plaintiff Gipson, along with the first Opt-In Plaintiff, Donna Plummer, served Rule 26(a)(1) disclosures on May 16, 2008.6 They provided the following information with respect to documents: Description of Relevant Documents 1. 2. Payroll records Job-related materials received from Southwestern Bell7

Plaintiffs served First Supplemental Rule 26 Disclosures on June 25, 20088 and Second Supplemental Rule 26 Disclosures on August 14, 2008.9 The document disclosures contained therein were identical to the document disclosures contained in the initial Disclosures Mr. Gipson and Ms. Plummer served on May 16, 2008.
5

Scheduling Order (doc 31) ¶ 2.a. See Plf. Gipson and Plummer's Rule 26(a)(1) Disclosures (doc. 30). Id. at 5. See doc. 48. See doc. 166. 3

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Defendant contends that Plaintiffs have not produced any "job-related materials received from Southwestern Bell" despite the fact that their Rule 26(a)(1) disclosures indicated they had such documents in their possession and despite the fact that the parties had expressly agreed to exchange or make them available. On May 23, 2008, Defendant began serving identical sets of interrogatories on each Plaintiff and continued to do so as individuals filed their consents to join in. First Interrogatory No. 1 asked each Plaintiff to "[i]dentify all persons you believe have knowledge, information or documents that [sic] regarding this Action and describe the . . . documents you believe such persons have."10 Plaintiffs began serving their responses as early as July 21, 2008. Each Plaintiff responded individually and stated, inter alia: "I am producing any requested documents in my possession, and I therefore refer to those documents in response to the interrogatory's request to describe them."11 Beginning May 23, 2008, Defendant also began serving identical, individual sets of requests for production on Plaintiffs and has continued to do so as individuals have filed their consents to join in the lawsuit. While some Plaintiffs have served individual responses, many have served joint responses. B. The Parties' Arguments

Defendant has a number of complaints regarding Plaintiffs' discovery responses. First, it contends that Plaintiffs' joint responses to the First Request for Production are confusing because they do not identify which particular Plaintiffs or Plaintiffs out of the group of responding Plaintiffs has the documents in his/her custody, control, or possession. Defendant also contends that the First Interrog. No. 1, Ex. C. attached to Def.'s Mem. in Support of Mot. to Compel (doc. 185) (emphasis in original).
11 10

Id. 4

responses are confusing because not only are the responses internally inconsistent, they are inconsistent with Plaintiffs' Rule 26(a)(1) document disclosures and Plaintiffs' responses to First Interrogatory No. 1. As an example, Defendant points to the joint response of Plaintiffs Gipson, Morales, Esparza and Stoddard to the First Request for Production. Their joint response contains an introduction, which states: "Plaintiff is producing documents as ordinarily maintained in the respondent's possession. Plaintiff Williams [sic] Gipson's documents are bates stamped PLTF 000001-000086. Plaintiffs Barbara Morales, Margarita Esparza, and Tina Stoddard have no responsive documents in their possession, custody or control."12 Then in response to First Request Nos. 1-15 and 20, Plaintiffs Gipson, Morales, Esparza, and Stoddard jointly respond that "[a]ny responsive documents will be produced."13 In response to First Request Nos. 16-17 and 21-22, said Plaintiffs jointly respond that documents will be produced subject to the stated objections.14 The joint responses of Plaintiffs Plummer, Ramirez, Bueno, Betancourt and Cisneros are similar. The introductory portion of the joint response states: "Plaintiff is producing documents as ordinarily maintained in the respondent's possession. Plaintiff Donna Plummer's documents are bates stamped PLTF 0000087-000089. Plaintiffs Ramirez, Bueno, Betancourt, and Cisneros have located no non-privileged, responsive documents in their possession, custody, or control."15 Then

Plf. Gipson, Morales, Esparza and Stoddard's (Joint) Answers to First Req. for Produc. of Docs., Ex. D to Def.'s Mem. in Support of Mot. to Compel (doc. 185).
13

12

Id., Answers to First Req. Nos. 1-15 & 20. See id., Answers to First Req. Nos. 16-17 & 21-22.

14

See Plf. Plummer, Ramirez, Bueno, Betancourt, and Cisneros' (Joint) Answers to First Req. for Produc. of Docs., Ex. E to doc. 185. 5

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in response to First Request Nos. 1-15, said Plaintiffs state that "[a]ny responsive documents will be produced."16 In response to First Request Nos. 16-17 and 21-22, they jointly respond that documents will be produced subject to the stated objections.17 Defendant contends that these responses to the First Request for Production are not only internally inconsistent, but inconsistent with Plaintiffs' Rule 26(a)(1) disclosures in which Plaintiffs indicate they possess "job-related materials received from Southwestern Bell." Defendant states that to date, Plaintiffs have not produced or made available for inspection any such "job-related materials." Defendant also contends that these responses to the First Request are inconsistent with Plaintiffs' individual answers to Interrogatory No. 1, which, as noted above, state: "I am producing any requested documents in my possession . . . ." Defendant argues that Plaintiffs' joint responses to the First Request for Production, which were served individually on each Plaintiff, are improper under Federal Rule of Civil Procedure 34. Finally, Defendant argues that each Plaintiff's individual response to Interrogatory No.1, which asks Plaintiffs to describe certain documents, adds to the confusion. Rather than describing the documents or referring Defendant to particular documents, each Plaintiff merely states: "I am producing any requested documents in my possession, and I therefore refer to those documents in response to the interrogatory's request to describe them."18 Defendant argues that this response does not comply with Federal Rule of Civil Procedure 33(d).

16

Id., Answers to First Req. Nos. 1- 15 & 20. Id., Answers to First Req. Nos. 16-17 & 21-22. First Interrog. No. 1, Ex. C. attached to Def.'s Mem. in Support of Mot. to Compel (doc. 6

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185).

With respect to the relief requested, Defendant asks the Court in its opening brief to order Plaintiffs "to amend their discovery responses and disclosures to (i) clarify, once and for all, if they have discoverable documents, and (ii) if so, [order that] the documents . . . be produced."19 In addition, Defendant asks the Court to require "Plaintiffs to separately respond to SWBT's document requests."20 In its Reply, Defendant expands the relief it requests, and asks the Court to compel "each of the Plaintiffs to supplement their current discovery responses by (i) clarifying if they have requested documents, (ii) certifying their efforts to find responsive documents, and (iii) adequately describing the outcome of their searches."21 Plaintiffs argue that Defendant's characterization of their responses is inaccurate and that Defendant has sufficient information to determine which Plaintiffs have produced which documents. They assert that "unless new documents are located in the future, the Plaintiffs whose responses are at issue have completed their production."22 They also state that "for Plaintiffs whose responses to document requests have been served, all documents have already been produced."23 Moreover, they represent that all of the documents they have produced were Bates Stamped with the producing Plaintiff's surname next to the Bates Stamp number.24 Plaintiffs maintain that Defendant therefore knows, or should know, which documents have been produced by which Plaintiff. Plaintiffs argue that as long as they have sufficiently identified and labeled the documents produced with the

19 20 21

Def.'s Mem. in Support of Mot. to Compel (doc. 185) at 7. Id. Def.'s Reply (doc. 248) at 2. Pls.' Resp. to Mot. to Compel (doc. 226) at 3. Id. Id. 7

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producing party's surname, they have complied with Rule 34, and nothing in Rule 34 prohibited them from serving joint written responses. Plaintiffs defend their practice of responding to discovery requests by stating that "all responsive documents will be produced" even though the responding Plaintiff has no responsive documents in his/her possession, custody, or control. Plaintiffs explain: [E]xperience has proven that the response "all responsive documents will be produced" is a better response than stating that the party has no responsive documents because documents may be located after the response is made that are responsive and they can be produced without an amendment of a prior answer. The response conveys the necessary information ­­ if a responsive documents exists, it will be produced.25 In addition, Plaintiffs assert that Defendant is incorrect in stating that Plaintiffs have failed to produce the SWBT "job-related documents" listed in Plaintiff's Rule 26(a)(1) Disclosures. Plaintiffs explain that Opt-In Plaintiffs Jennifer Pritchard and Linda Hall each produced "job-related documents received from SWBT" on August 12 and 13, 2008, respectively,26 and Defendant received those documents prior to filing its Motion to Compel. Finally, Plaintiffs maintain that their individual responses to First Interrogatory No. 1 do not violate Rule 33(d). Plaintiffs argue that their responses "do[] not invoke Rule 33(d); rather, Plaintiffs' response is a categorical response to an absurd request to `describe' every document in

25 26

Id.

Ms. Pritchard's documents were stamped "Pritchard 000121-375," and Ms. Hall's documents were stamped "Hall 000376-1285." 8

this case."27 They maintain they "reasonably" responded to this "absurd" interrogatory by stating they will produce the documents they have.28 C. Discussion 1. Plaintiffs' Responses to the First Request for Production of Documents

The Court understands Defendant's frustration in deciphering Plaintiffs' ambiguous written responses to its First Request for Production. However, Plaintiffs have clarified in their response to the Motion to Compel that (1) all of the Plaintiffs who have served written responses to the First Request have produced all documents they have, and (2) all documents produced have been labeled with the producing Plaintiff's surname and numbered with a Bates Stamp. In light of this information, Defendant should be able to determine which Plaintiffs have produced documents and which particular Plaintiff has produced which particular set of documents.29 The Court therefore finds no basis to order the Plaintiffs who have already served written responses and/or produced documents to amend their answers to the First Request. Moreover, the Court finds no basis, at this time, to direct Plaintiffs to produce any additional documents. Plaintiffs indicate in their response that two of the Opt-In Plaintiffs have produced "jobrelated documents received from SWBT," and, thus, the Court finds Plaintiffs have satisfied their duty to produce the "job-related" documents they identified in their Rule 26(a)(1) Disclosures.

27 28 29

Id. at 4. Id.

It is not clear whether Plaintiffs have complied with Rule 34(B)(2)(E)(i) by organizing or labeling their documents to correspond to the individual requests. Defendant, however, does not complain that Plaintiffs' production is lacking in this respect, and, thus, the Court need not address this issue. 9

Finally, the Court finds no basis to require Plaintiffs to "certify their efforts to find responsive documents" as Defendant requests. In short, the Court declines to order any of the particular relief sought by Defendant in its Motion to Compel relating to Plaintiffs' production of documents in connection with their Rule 26(a)(1) Disclosures or their responses to the First Request for Production.30 To avoid any further confusion, however, the Court makes the following rulings with respect to any request for production that Defendant serves on an individual Plaintiff to which a response is served after the date of this Order. First, the responding Plaintiff shall serve an individual response. Second, the responding Plaintiff shall respond based on the information known at the time of the response. If a responding Plaintiff has no responsive documents within his/her possession, custody, or control at the time he/she serves the written response to a particular request, Plaintiff shall so indicate that fact in his/her written response. In the event the responding Plaintiff later discovers or acquires any responsive documents, he/she shall serve a supplemental response and produce the newly discovered/acquired document.31 2. Plaintiffs' Responses to First Interrogatory No. 1

As noted above, Defendant also asks that each Plaintiff be required to serve an amended response to that portion of First Interrogatory No. 1 which asks Plaintiffs to describe certain documents. First Interrogatory No. 1 asks each Plaintiff to "[i]dentify all persons you believe have knowledge, information or documents that [sic] regarding this Action and describe the knowledge, The parties should note, however, that the Court makes specific rulings as to certain objections to the First Request for Production below in Part III. Fed. R. Civ. P. 26(e)(1) requires a party to supplement discovery responses if it learns the response is somehow incomplete or incorrect, unless the additional or corrective information has already "been made known to the other parties during the discovery process or in writing." 10
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information or documents you believe such persons have."32 Each Plaintiff individually responded by stating, inter alia: "I am producing any requested documents in my possession, and I therefore refer to those documents in response to the interrogatory's request to describe them."33 The Court holds that this response does not comply with Rule 33. Under Rule 33(b)(3), a party responding to an interrogatory must, to the extent the interrogatory is not objected to, answer each interrogatory "fully in writing under oath."34 As a general rule, a responding party may not answer an interrogatory by simply referring the requesting party to other documents.35 An answering party may, however, produce its business records in accordance with Rule 33 in lieu of providing a written response, but only if it makes an "affirmative election" to do so.36 It may also "refer to specific documents that are attached to its answer to the interrogatories."37 If a party affirmatively elects to produce its business records, it is required to "specify[] the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as

32

First Interrog. No. 1, attached as Ex. C to Def.'s Mem. in Support of Mot. to Compel (doc.

185). Id. Plaintiffs also referred Defendant to documents that Plaintiffs presume Defendant has in its possession. That portion of Plaintiffs' response is not addressed by Defendant in its opening brief, and thus, the Court finds that portion of the response is not at issue, despite the fact that Plaintiffs address it in their response and Defendant addresses it in its Reply. U.S. Fire Ins. Co. v. Bunge N. Am., Inc., No. 05-2192-JWL-DJW, 2008 WL 2222022, at *6 (D. Kan. May 28, 2008) (citing Fed. R. Civ. P. 33(b)). Id. (citing DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 680 (D. Kan. 2004 ; Zapata v. IBP, Inc., No. 93-2366-EEO, 1997 WL 50474 (D. Kan. Feb. 4, 1997)); see also Audiotext Commc'ns Network, Inc. v. U.S. Telecom, Inc., No. Civ. A. 94-2395-GTV, 1995 WL 625953, at *6 (D. Kan. Oct. 5, 1995) ("Under the guise of Fed. R. Civ. P. 33(d) [a party] may not simply refer generically to past or future production of documents.").
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U.S. Fire Ins., 2008 WL 2222022, at *6 Id. (quoting Zapata, 1997 WL 50474, at *1); accord DIRECTV, 224 F.R.D. at 680. 11

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readily as the responding party."38 Furthermore, the party may rely on its business records only "if the burden of driving or ascertaining the answer will be substantially the same for either party."39 In this case, Plaintiffs made no specific, affirmative election under Rule 33(d) to produce business records.40 Nor did Plaintiffs attach documents to their interrogatory answers. Instead, Plaintiffs merely referred Defendant to an unspecified group of documents that he/she was producing. This was clearly insufficient to meet Plaintiffs' duty under Rule 33.41 The Court notes that Plaintiffs characterize Defendant's interrogatory as an "absurd request to describe all documents."42 Plaintiffs may have had a valid basis to object to the interrogatory; however, they failed to object and chose instead to respond to it. This Court has, on numerous occasions held that any objections not asserted in a party's initial response to a discovery request are waived and cannot be raised for the first time in opposition to a motion to compel.43 Consequently, any objections Plaintiffs may have had to First Interrogatory No. 1 were waived when

38

Fed. R. Civ. P. 33(d)(1). Fed. R. Civ. P. 33(d).

39

It is questionable whether Plaintiffs could even make such an election, since Plaintiffs are individuals who would not possess "business" records within the meaning of Rule 33(d). The Rule is construed narrowly to apply only to answers that can be derived from the answering party's own "business records." Wagner v. Fishing Co. of Alaska., Inc., No. C06-1634RSL, 2008 WL 2813333, at *1 (W.D. Wash. July 18, 2008) (citations omitted). If the answering party is not engaged in a business, it would appear unlikely that it would have "business records." See Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 305 (D. Kan. 1996) ("Under the guise of Fed.R.Civ.P. 33(d) defendants may not simply refer generically to past or future production of documents.").
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40

Pl.'s Resp. to Mot. to Compel (doc. 226), p.4.

See, e.g., Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 621 (D. Kan. 2005); Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 657 (D. Kan. 2004). 12

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they responded to it. The Court will therefore grant the Motion to Compel as to this portion of First Interrogatory No. 1. Within thirty (30) days of the date of this Order, Plaintiffs shall serve amended responses to that portion of First Interrogatory No. 1 which asks them to describe documents. III. Plaintiffs' Objections to Specific Requests for Production and Interrogatories Defendant asks the Court to overrule Plaintiffs' objections, including any attorney-client privilege and work product objections, to various First Interrogatories and First Requests for Production. Each of the discovery requests at issue, and Plaintiffs' responses and objections thereto are discussed in detail below. A. First Request No. 16

This request seeks "[a]ll written or tape recorded statements of any current or former SWBT officer, director, agent, representative, or employee."44 In their responses, Plaintiffs state as follows: Objection. The request fails to describe with reasonable particularity any item or category of items to be inspected, as required by Rule 34(b)(1)(A). The request is overbroad because it contains no limitation as to time or subject matter, and purports to request documents regardless of their bearing in any way on any issue in this litigation. Subject to these objections, Plaintiff will produce any written or tape recorded statements of any current of former SWBT officer, director, agent, representative, or employee concerning the issues in this lawsuit.45 Defendant states in its opening brief that it agrees to Plaintiffs' limiting language, i.e., it agrees to limit this request to statements "concerning the issues in this lawsuit."46 Furthermore,

44

First Req. No. 16, Ex. D & E. attached to Def.'s Mem. in Support of Mot. to Compel (doc. Id. (emphasis added).

185).
45

Defendant states: "Since the Plaintiffs have ostensibly agreed to produce responsive things regarding the `issues in this lawsuit,' SWBT does not challenge these objections." Def.'s Mem. in Support of Mot. to Compel (doc. 185) at 13 n.11. 13

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Defendant states that it "does not challenge" Plaintiffs' objections,47 but merely asks that Plaintiffs produce the statements they indicated they would produce. In the event Plaintiffs have no statements responsive to this request, Defendant requests that the Court order Plaintiffs to serve amended answers in which they affirmatively state that they do not have any such statements. In their response to the Motion to Compel, Plaintiffs fail to acknowledge that Defendant has agreed to limit this request to statements "concerning the issues in this lawsuit," and they ignore the fact that Defendant is no longer challenging Plaintiffs' objections. Plaintiffs argue the merits of their objections and assert that Defendant is not entitled "to documents with no bearing on any issue in this suit."48 In its reply, Defendant responds to Plaintiffs' arguments and attempts to show why its request is neither overbroad nor irrelevant. It argues that Plaintiffs should not be allowed to arbitrarily decide to produce "only the documents they believe involve `issues in this lawsuit.'"49 Like Plaintiffs, Defendant also appears to have forgotten that it stated in its opening brief that it is not challenging Plaintiffs' objections and that it only wants Plaintiffs to produce statements "concerning the issues in this lawsuit," or to state that they have no such statements. As Defendant clearly stated in its opening brief that it was not challenging Plaintiffs' objections to this request, the Court need not address those objections. The only outstanding issue with respect to this request is whether Plaintiffs have produced all of the requested statements "concerning the issues in this lawsuit." Plaintiffs do not expressly state whether all such statements have been produced. They do, however, make several general representations that all responsive

47

Id. Pls.' Resp. to Mot. to Compel (doc. 226) at 14. Def.s' Reply (doc. 248) at 17. 14

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documents have been produced. They state in their general discussion of the requests for production that "for Plaintiffs whose responses to document requests have been served, all documents have already been produced."50 They also state that "unless new documents are located in the future, the Plaintiffs whose responses are at issue have completed their production."51 In light of these statements, the Court finds no basis to compel Plaintiffs to produce any statements or to serve amended answers in which they affirmatively state that they do not have any such statements. The Motion to Compel is therefore denied as to First Request No. 16. B. First Requests No. 17 and 22

First Request No. 17 seeks "[a]ll correspondence and communications between you and any current or former SWBT officer, director, agent representative, or employee."52 Plaintiffs responded as follows: Objection. The request fails to describe with reasonable particularity any item or category of items to be inspected, as required by Rule 34(b)(1)(A). The request is overbroad because it contains no limitation as to time or subject matter, and purports to request documents regardless of their bearing in any way on any issue in this litigation. Subject to these objections, Plaintiff will produce any correspondence and communications between Plaintiff and any current or former SWBT officer, director, agent, representative, or employee concerning the issues in this lawsuit.53

50 51 52

Pls.' Resp. to Mot. to Compel (doc. 226) at 3. Id. First Req. No. 17, Ex. D & E, attached to Def.'s Mot. to Compel (doc. 185). Id. (emphasis added). 15

53

First Request No. 22 asks Plaintiffs to produce "[a]ll of your calendars, diaries, and journals with entries made by you, or on your behalf, while you were employed by SWBT during the last five years."54 Plaintiffs objected as follows: The request is overbroad because it contains no limitation as to subject matter, and purports to request documents regardless of their bearing in any way on any issue in this litigation. Subject to this objection, Plaintiff will produce any calendars, diaries, and journals with entries made by Plaintiff concerning the issues in this lawsuit.55 Defendant states in its Motion to Compel that the parties have agreed to limit the temporal scope of First Request No.17 to the last five years. Thus, both of these requests are limited to that five-year period. Defendant, however, takes issue with Plaintiffs' decision to unilaterally limit their responses to correspondence, communications (Request No. 17) and calendars, diaries, and journals (Request No. 22) "concerning the issues in this lawsuit." Defendant argues that the requested documents are relevant to Plaintiffs' claims that they were required to work "off the clock" and Defendant's defense that Plaintiffs were properly paid for all hours worked. More specifically, Defendant argues that the communications and correspondence (including e-mail messages) requested in First Request No. 17 may lead to the discovery of admissible evidence because they may reveal when Plaintiffs were working or when they were engaged in non-work related activities. Defendant points out that Plaintiffs allege in their Complaint that their "off the clock" work included reading e-mails.56 In a similar vein, Defendant argues that the calendars, diaries, and journals requested in First Request No. 22 will "logically reflect time at

54

First Req. No. 22, Ex. D & E, attached to Def.'s Mot. to Compel (doc. 185). Id. (emphasis added).

55

Am. Compl. (doc. 214) ¶ 20 ("off the clock" work included "reviewing memoranda and e-mail relating to Defendant's promotions and other services"). 16

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work, as well as time away from work."57 Thus, Defendant argues that they, too, may lead to the discovery of admissible evidence. Plaintiffs argue that by limiting their responses to only those documents that "concern the issues is this lawsuit" Plaintiffs are providing Defendant with all documents that are relevant to this lawsuit. Plaintiffs argue that if this limitation is not imposed, they will have to produce notes and calendars about totally irrelevant events, such as lunch plans, family gatherings, and dentist appointments. Federal Rule of Civil Procedure 26(b)(1) provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ­­ including the existence . . . of any documents . . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."58 Relevancy is broadly construed during the discovery phase, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party.59 When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish that the requested discovery does not come within the scope of relevance as defined under Rule 26(b)(1), or is of such marginal relevance that the potential harm occasioned by

57

Def.'s Mem. in Support of Mot. to Compel (doc. 185) at 18. Fed. R. Civ. P. 26(b)(1).

58

Jones v. Wet Seal Retail, Inc., 245 F.R.D. 724, 725 (D. Kan. 2007); Cardenas, 232 F.R.D. at 382; Owens v. Sprint/United Mgmt. Co, 221 F.R.D. 649, 652 (D. Kan. 2004). 17

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discovery would outweigh the ordinary presumption in favor of broad disclosure.60 Conversely, when the request is overly broad on its face or when the relevancy of the requested document or information is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.61 The Court finds that these requests are overly broad on their face and the relevancy of the requested documents is not readily apparent on the face of the requests. Moreover, the Court finds that Defendant has failed to meet its burden to show the relevancy of these materials. Plaintiffs have agreed to give Defendant the requested documents to the extent they "concern the issues in this lawsuit," which is certainly as broad as ­­ if not broader ­­ than Rule 26(b)(1)'s requirement that the information be "relevant to any party's claim or defense." While Plaintiffs will have to be the final arbiters of what documents "concern the issues in this lawsuit," Defendant has little room to complain, as it chose to word these requests in such a broad manner. If Defendant was seeking specific documents, it should have more narrowly tailored its requests to obtain the documents it is seeking. The Court will deny the Motion to Compel as to First Requests No. 17 and 22. C. First Request No. 18

This request asks Plaintiffs to produce "[a]ll documents urging current or former employees to, or describing how current or former employees may, become parties to this action."62 Plaintiff Gipson objected as follows:

Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648, 653 (D. Kan. 2006); Cardenas, 232 F.R.D. at 382; Owens, 221 F.R.D. at 652.
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60

Johnson, 238 F.R.D. at 653; Cardenas, 232 F.R.D. at 382; Owens, 221 F.R.D. at 652. First Req. No. 18, Ex. D & E, attached to Def.'s Mem. in Support of Mot. to Compel (doc. 18

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185).

Objection: The request invades the attorney-client privilege and work product doctrine because it calls for the production of communication between Plaintiff and counsel, as well as efforts taken by either Plaintiff or counsel in support of the prosecution of this case. This includes pre-filing communications between Plaintiff William Gipson and his counsel at Stueve Siegel Hanson LLP, concerning Mr. Gipson's complaint against Southwestern Bell.63 The Opt-In Plaintiffs asserted the same objection, but without the last sentence regarding prefiling communications between Mr. Gipson and counsel.64 1. The parties' arguments

Defendant contends that Plaintiffs have waived their attorney-client privilege and work product objections to this request with respect to any "pre-suit" documents, i.e., documents that were created before the lawsuit was filed on January 8, 2008. Defendant asks the Court to find waiver because Plaintiffs failed to provide a privilege log identifying the allegedly privileged and protected pre-suit documents, as required by Rule 26(b)(5)(A). Defendant asks the Court to compel Plaintiffs to "produce all responsive, pre-suit documents withheld on the basis of the attorney-client privilege and the work product doctrine."65 Defendant explains that "[t]he parties stipulated that post-suit documents do not need to be logged."66 Thus, Defendant has limited the Motion to Compel to presuit documents.67
63

Id., Ex. D. Id., Ex. E. Def.'s Mem. in Support of Mot. to Compel (doc. 185) at 10 (emphasis added). Id. at n. 9 (emphasis added).

64

65

66

The Court notes that Defendant contends in its reply brief that post-suit documents should also be produced pursuant to Paragraph 4 of the Stipulation Regarding Privilege Logs (doc. 93), which requires a party to provide a privilege log for any post-suit documents when the requesting party disputes the party's assertion of privilege as to those post-suit documents. Defendant's (continued...) 19

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The Opt-In Plaintiffs argue that they were not required to provide a privilege log in response to this request because they did not join the lawsuit until after January 8, 2008 and therefore have no responsive pre-suit documents. Plaintiff Gipson, who was the party who filed this lawsuit, concedes that he was required to provide the privilege log information as to his responsive documents. He maintains, however, that he provided the requisite information in his written response to the request by stating: "This includes pre-filing communications between Plaintiff William Gipson and his counsel . . . concerning Mr. Gipson's complaint against Southwestern Bell."68 Mr. Gipson argues that this description is sufficient to make "the requisite `clear showing' that the communications are privileged."69 Furthermore, Mr. Gipson asserts that his attorney informed Defendant's counsel that the privileged documents he withheld "were created approximately December 28, 2007."70 2. Law regarding privilege logs

Federal Rule of Civil Procedure 26(b)(5)(A) sets forth the proper procedure for a party withholding privileged or work product information to advance a claim that such material is privileged or protected by the work product doctrine. The Rule provides as follows:

(...continued) contention, however, runs directly counter to the assertions and arguments Defendant made in its opening brief. This Court does not ordinarily address issues or arguments raised for the first time in a reply brief. See, e.g., Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Nor will the Court allow a party to seek in its reply brief drastically different relief than what it sought in its opening brief. Consequently, the Court will disregard Defendant's reply brief request that Plaintiffs be compelled to provide privilege logs for any post-suit documents.
68

67

First Req. No. 18, Ex. D, attached to Def.'s Mem. in Support of Mot. to Compel (doc. 185)/ Pls.' Resp. to Def.'s Mot. to Compel (doc. 226) at 7. Id. 20

69 70

When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed ­­ and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.71 In applying Rule 26(b)(5)(A), this Court has held that the party asserting the privilege or protection bears the burden of making a "clear showing" that the asserted privilege or protection applies.72 A "blanket claim" as to the applicability of the privilege/work product protection does not satisfy the burden of proof.73 To carry its burden, the asserting party must "describe in detail" the documents or information sought to be protected and provide "precise reasons" for the objection to discovery.74 This information is typically provided in a "privilege log" and must be sufficiently detailed to enable the requesting party, and, if necessary, the court, to evaluate the applicability of the claimed privilege or protection and to determine whether each element of the asserted privilege

71

Fed. R. Civ. P. 26(b)(5)(A).

White v. Graceland Coll. Ctr. for Prof. Dev. & Lifelong Learning, Inc., 586 F. Supp. 2d 1250, 12667-68 (D. Kan. 2008); Williams v. Sprint/United Mgmt. Co., 245 F.R.D. 660, 667 (D. Kan. 2007); White, 586 F. Supp. 2d at 1268; Williams, 245 F.R.D. at 667; McCoo v. Denny's Inc., 192 F.R.D. 675, 680. (D. Kan. 2000).
74 73

72

White, 586 F. Supp. 2d at 1268; Williams, 245 F.R.D. at 667; McCoo, 192 F.R.D. at 680. 21

or protection is satisfied.75 Failure to follow these rules may result in waiver of the attorney-client privilege and/or work-product protection.76 3. Application to this case

The Court finds that the Opt-In Plaintiffs were not required to provide any privilege logs in response to this request, as they state in their briefing that they have no responsive pre-suit documents. Their written responses to this request, however, do not make that clear; the written responses merely assert an objection based on attorney-client privilege and work product immunity. The Opt-In Plaintiffs are therefore directed to serve amended responses to First Request No. 18 indicating that they have no responsive pre-suit documents in their possession, custody, or control. To minimize the burden on these Opt-In Plaintiffs, the Court will allow them to file a single, joint amended response, so long as it clearly identifies each Opt-In Plaintiff who is responding. The amended response shall be served within thirty (30) days of the date of this Order. With respect to the documents withheld by Mr. Gipson, the Court finds his description of the documents insufficient to establish that the documents are privileged and/or protected by work product immunity. Mr. Gipson's description is lacking in several respects. First, he fails to indicate how many documents are being withheld, and for each, he fails to describe the type of document (e.g., correspondence, e-mail, memorandum).77 Second, he fails to identify the number of pages of
75

White, 586 F. Supp. 2d at 1268; Williams, 245 F.R.D. at 667; McCoo, 192 F.R.D. at 680.

White, 586 F. Supp. 2d at 1266; Sprint Commc'ns Co., L.P. v. Vonnage Holdings Corp., No. 05-2433-JWL-DJW, 2007 WL 1347754, at *2 (D. Kan. May 8, 2007) (citing 8 Charles A. Wright, Federal Practice and Procedure § 2016. 1, at 228-29 (2d ed. 1994)). See Heavin v. Owens-Corning Fiberglass, No. 02-2572-KHV-DJW, 2004 WL 316072, at *7-8 (D. Kan. Feb. 3, 2004) (listing information to be provided in privilege log and indicating that for each document withheld, the log should provide a description of the document (e.g. (continued...) 22
77

76

each document.78 Third, he does not specify which of the asserted privileges applies to each particular document.79 While he states his counsel informed Defendant of the date the documents were created, he fails to indicate whether any different date may be stated on the document itself.
80

He also fails to provide the identity of the person(s) who prepared each document, the identity of

the person(s) for whom the document was prepared, and the identity of the person(s) to whom the document and any copies were directed.81 Significantly, Mr. Gipson also fails to identify the purpose of the document and whether the document relates to seeking or giving legal advice, which is essential to establishing a claim of attorney-client privilege.82 With respect to any claimed work product, Mr. Gipson fails to provide any basis for asserting that the documents were prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was "real and imminent."83

(...continued) correspondence, memorandum, attachment)).
78

77

See id. at *8 (log should identify the number of pages of each document).

See id. (log should identify the particular basis for withholding each document, i.e., the specific privilege or protection being asserted). See id. at *7 (log should identify the date the document was prepared as well as the date of document, if different from the date prepared). See id. (log should identify the person who prepared the document, the person for whom the document was prepared, and to whom the document and any copies were directed). See id. (log should state the purpose of preparing the document, including evidence to support the attorney-client privilege). It is well settled that"[n]ot every communication between an attorney and client is privileged, only confidential communications which involve the requesting or giving of legal advice." Id. at *3 (citations omitted).
83 82 81 80

79

Id. at *7. 23

In sum, Mr. Gipson has failed to provide important information required by Rule 26(b)(5)(A), and the Court is unable to determine whether the withheld documents should be protected from disclosure by the attorney-client privilege and/or work product doctrine. Because Mr. Gipson did not provide the requisite information ­­ in the form of a privilege log or otherwise ­­ the Court must decide whether to deem the privileged waived or allow Mr. Gipson to provide a privilege log at this point in time. As noted above, the failure to provide a privilege log or otherwise comply with Rule 26(b)(5)(A) may result in waiver of the attorney-client privilege and/or work-product protection.84 Although this result is not mandated by Rule 26(b)(5)(A) itself, the Advisory Committee clearly contemplated the sanction. It explained as follows: "To withhold materials without [providing the information required by Rule 26(b)(5)(A)] is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege or protection."85 Acknowledging the harshness of a waiver sanction, courts often reserve such a penalty for those cases where the offending party unjustifiably delayed in responding to the discovery requests or acted in bad faith.86 Indeed, the general rule in this Court is that "[m]inor procedural violations, good faith attempts at compliance and other such mitigating circumstances bear against finding waiver."87

White, 586 F. Supp. 2d at 1266; Sprint, 2007 WL 1347754, at *2 (citing 8 Charles A. Wright, Federal Practice and Procedure § 2016. 1, at 228-29 (2d ed.1994)).. White, 586 F. Supp. 2d at 1266 (citing Fed. R. Civ. P. 26(b)(5) advisory committee's notes (1993 amendments); Sprint, 2007 WL 1347754, at *2 (citing same). White, 586 F. Supp. 2d at 1266 (citations omitted); Sprint, 2007 WL 1347754, at *2 (citations omitted).
87 86 85

84

White, 586 F. Supp. 2d at 1266 (citations omitted). 24

The Court finds that, in providing a written response to First Request No. 18, Mr. Gipson made at least an attempt, albeit insufficient, to provide some information required by Rule 26(b)(5)(A). A finding of waiver is therefore unwarranted under the circumstances. The Court directs Mr. Gipson to provide an amended response to Request No. 18 and a privilege log for any documents he is withholding on the basis of privilege or work product immunity. He shall do so within thirty (30) days of the date of this Order. The Motion to Compel is therefore granted as to Mr. Gipson and First Request No. 18. D. First Request No. 19

Request No. 19 asks Plaintiffs to produce "[a]ll documents regarding your agreement to compensate your counsel for attorney fees related to this Action."88 Plaintiff Gipson objected, stating: "The request invades the attorney-client privilege and work product doctrine. This includes Mr. Gipson's representation agreement concerning this case with his counsel at Stueve Siegel Hanson LLP."89 The Opt-In Plaintiffs also objected on the basis of attorney-client privilege and work product, but without referring to any representation agreement or any other documents.90 As in the case of First Request No. 18, Defendant argues that Plaintiffs have waived their attorney-client privilege and work product objections by failing to provide a privilege log of any withheld pre-suit responsive documents. The Opt-In Plaintiffs counter that they were not required to provide privilege logs because they did not join the lawsuit until after January 8, 2008 and they have no responsive pre-suit documents. Plaintiff Gipson argues that he satisfied the privilege log
88

First Req. No. 19, Ex. D & E, attached to Def.'s Mem. in Support of Mot. to Compel (doc. Id., Ex. D. Id., Ex. E. 25

185).
89

90

requirement by identifying the "representation agreement" he entered into with his counsel. In addition, he argues that discovery regarding fee agreements should not even be allowed at this point in time, citing D. Kan. Rule 54.2. That rule provides that "discovery shall not be conducted in connection with motions for awards of attorney's fees unless permitted by the court upon motion and for good cause shown."91 None of the Plaintiffs raised D. Kan. Rule 54.2 as an objection in their initial responses to this request. Plaintiffs therefore waived this objection and cannot raise it for the first time in opposition to Defendant's Motion to Compel.92 It is therefore overruled. The Opt-In Plaintiffs state they have no responsive pre-suit documents responsive to this request. The Court therefore finds there is no basis for Defendant to demand they provide a privilege log in response to this request. For clarity's sake, however, the Court directs the Opt-In Plaintiffs to serve a joint amended response to first Request No 19 indicating that they have no presuit documents responsive to the request. The Opt-In Plaintiffs shall do so within thirty (30) days of the date of this Order. With respect to Mr. Gipson, the Court finds that his identification of the "representation agreement" is insufficient to show that the agreement is protected by the attorney-client privilege or work product doctrine. Moreover, the Court questions whether the attorney-client privilege and work product doctrine apply in the first place. This Court has held on several occasions that fee

91

D. Kan. Rule 54.2.

Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 621 (D. Kan. 2005); Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 657 (D. Kan. 2004). 26

92

arrangements and agreements are generally not protected by the attorney-client privilege.93 Fee arrangements and agreements reveal nothing about the advice sought or given and are not normally part of the legal consultation.94 Thus, "disclosure of the fee arrangement does not inhibit the normal communications necessary for the attorney to act effectively in representing the client."95 In addition, fee agreements typically do not fall within the scope of the work product doctrine96 because they are not deemed "unwarranted inquiries into the files and the mental impressions of an attorney."97 If, however, the fee agreement or related document reveals the specific nature of services provided or legal advice given to the client, or discloses the attorney's legal conclusions or opinions, the agreement/document may fall within the scope of the privilege or protection.98 In light of the above, Mr. Gipson might have a valid privilege or work production objection to producing any fee agreement or "representation agreement" if the agreement reveals the specific nature of legal services provided or legal advice given to him by his attorneys or if it reveals the

See, e.g., In re TJX Cos. Inc. Fair and Accurate Credit Transactions Act Litig., No. 071853-KHV-DJW, 2008 WL 2437558, at *4 (D. Kan. June 12, 2008); ERA Franchise Systs., Inc. v. N. Ins. Co of N. Y., 183 F.R.D. 276, 279 (D. Kan. 1998).
94

93

In re Grand Jury Subpoenas, 906 F.2d 1485, 1492 (10th Cir. 1990). ERA Franchise, 183 F.R.D. at 279 (quoting In re Grand Jury Subpoenas, 906 F.2d at

95

1492). Montgomery County v. MicroVote Corp., 175 F.3d. 296, 303 (3d Cir. 1999); Murray v. Stuckey's Inc., 153 F.R.D. 151, 153 (N.D. Ia. 1993); In re Sheffield, 280 Bankr. 719 (Bankr. S. D. Ala. 2001).
97 96

Murray, 153 F.R.D. at 153 n.2 (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)).

See In re Indep. Serv. Org., No. MDL-1021-KHV, 1999 WL 450906, at *2 (D. Kan. May 24, 1999) (recognizing that correspondence and fee agreements disclosing consulting with an attorney and arrangements for payment of the attorney's fees are not protected but also recognizing that document or correspondence that reveals the substance of any confidential information between the attorney and client in addition to the fee agreement could be privileged). 27

98

mental impressions and conclusions of his attorneys. In such a case, Mr. Gipson has the burden to provide the required Rule 26(b)(5)(A) privilege log information to support his assertion of the privilege/protection. His mere description of the document as a "representation agreement" is not sufficient to meet his burden. Rather than impose the harsh sanction of waiver, the Court will allow Mr. Gipson the opportunity to provide a privilege log describing the "representation agreement" and any other documents he may be withholding in response to this request if he has a valid basis for claiming privilege or work product protection.99 To the extent, however, the "representation agreement" or any other document Mr. Gipson is withholding on the basis of privilege or work product protection is merely a fee agreement, it is not protected by the attorney-client privilege or work product doctrine and must be produced. In light of the above, the Court directs Mr. Gipson to provide a privilege log or produce the "representation agreement" and any other responsive documents he may be withholding. He shall do so within thirty (30) days of the date of this Order. E. First Request No. 21

This request asks Plaintiffs to provide "[a]ll written statements from any person regarding your claims in this Action."100 Plaintiff Gipson responded:

Mr. Gipson's written response to First Request No. 19 is unclear as to whether he is withholding any documents other than the "representation agreement." After he asserts his privilege and work product objections, he states: "This includes Mr. Gipson's representation agreement concerning this case with his counsel . . . ." The "this includes" language is ambiguous and leaves the reader to wonder whether Gipson's objection "includes" other documents.
100

99

First Req. No. 21, Ex. D & E, attached to Def.s' Mem. in Supp. of Mot. to Compel (doc. 28

185).

Objection. The request invades the attorney-client privilege and work product doctrine. This includes pre-filing communications between Plaintiff William Gipson and his counsel at Stueve Siegel Hanson LLP, concerning Mr. Gipson's complaint again Southwestern Bell. Subject to this objection, any responsive, non-privileged, non-work product documents will be produced.101 The Opt-In Plaintiffs asserted a similar objection. They responded as follows: "Objection. The request invades the attorney-client privilege and work product doctrine. Subject to this objection, any responsive, non-privileged, non-work product documents will be produced."102 Defendant once again argues that Plaintiffs have failed to provide a privilege log in support of their privilege and work product objections, and urges the Court to find waiver and require Plaintiffs to produce all pre-suit documents responsive to this request that they are withholding on the basis of privilege and/or work product protection. Plaintiff Gipson counters that he is only withholding one document in response to this request. He argues that his initial response to the request for production adequately identifies the document for privilege log purposes, and thus, there is no basis to find waiver. As in the case of First Requests No. 18 and 19, the Opt-In Plaintiffs argue they were not required to provide a privilege log because they did not join the lawsuit until after January 8, 2008 and they have no responsive pre-suit documents. The Court's ruling as to the Opt-In Plaintiffs is the same as its ruling with respect to First Requests No. 18 and 19. Because the Opt-In Plaintiffs state they have no responsive pre-suit documents responsive to this request, there is no basis to require them to provide a privilege log. For clarity's sake, however, the Court directs the Opt-In Plaintiffs to serve a joint amended response

101

Id., Ex. D. Id., Ex. E. 29

102

to Frst Request No 21 indicating that they have no pre-suit documents responsive to the request. The amended response shall be served within thirty (30) days of the date of this Order. The Court finds that Mr. Gipson's identificaion of "pre-filing communications" between himself and his counsel "concerning Mr. Gipson's complaint against Southwestern Bell" to be lacking sufficient detail to satisfy Rule 26(b)(5)(A). Rather than find waiver, however, the Court directs Mr. Gipson to provide a privilege log adequately describing the pre-suit documents he is withholding in response to this request. F. First Interrogatories No. 4 and 8

Defendant's counsel advised the Court in a February 9, 2009 e-mail that the parties have resolved the issues relating to First Interrogatories No. 4 and 8. The Court therefore finds the Motion to Compel to be moot as to First Interrogatories No. 4 and 8. G. First Interrogatory No. 6

This interrogatory asks each Plaintiff to provide the following information: Identify all current or former SWBT employees with whom you have had contact or communication about the claims you make in this Action, and provide the date of each communication, the person initiating the communication, the substance of each communication, and whether each communication was documented.103 Each Plaintiff responded with the following: "OBJECTION: The interrogatory invades the attorney-client privilege and work-product doctrine because it is so broad as to seek information conveyed from counsel to plaintiffs."104 Plaintiffs then provided information about any responsive communications that they contend are non-privileged, but stated that such information was being

103

First Interrog. No. 6, Ex. C attached to Def.'s Mem. in Support of Mot. to Compel (doc. Id. 30

185).
104

provided "subject to and without waiving" their privilege and work product objections.105 For example, Plaintiff Barbara Morales stated: "Subject to and without waving this objection, the respondent states as follows: . . . sometime in April 2008 . . . before I retained counsel to pursue back pay on my behalf, I spoke with [Plaintiff] Tina Stoddard about this suit. The conversation was not documented." 1. The parties' arguments

Defendant contends that Plaintiffs have waived their attorney-client privilege and work product objections to this interrogatory because they failed to provide a privilege log as to any responsive pre-suit documents. Defendant therefore asks the Court to find waiver and compel Plaintiffs to fully answer the interrogatory and provide all information and all pre-suit documents withheld on the basis of privilege or work product protection. Defendant also asks the Court to compel Plaintiffs to provide any information or documents (regardless of whether the documents are pre- or post-suit) as to any communications between the Plaintiffs themselves, which Defendants maintain would not be subject to attorney-client privilege or work product protection if no attorney were present during the communications. In their response to the Motion to Compel, Plaintiffs represent that they "have responded with their best recollection of all non-privileged, non-work product information," and state that they are not withholding any "non-privileged [or] non-work product information"106 To the extent Plaintiffs are withholding privileged communications and work-product information, they state that no log is required because such communications and information post-date the filing of the lawsuit and need

105 106

Id. Pls.' Resp. to Mot. to Compel (doc. 226) at 11-12. 31

not be disclosed or logged pursuant to the Stipulation Regarding Privilege Logs. Apparently, all of the post-suit information and documents they are withholding on the basis of privilege/work product protection relate to communications between Plaintiffs and other SWBT customer service representatives.107 Plaintiffs argue that such communications are privileged and/or protected by the "common interest" doctrine. Finally, Plaintiffs argue, that in the event the Court determines Plaintiffs should have provided a privilege log, the Court should decline to find waiver and allow them to provide a privilege log at this time. 2. The validity of Plaintiffs' privilege and work product objections

The Court will first assess the validity of Plaintiffs' underlying attorney-client and work product objections. This is crucial, because the parties' Stipulation Regarding Privilege Logs, by its express terms, applies only to those documents that are "protected by the attorney-client privilege and the work product doctrine." If there is no valid basis for claiming the information is privileged or protected work product, then the Stipulation Regarding Privilege Logs does not apply, and any postsuit documents or information would have to be disclosed. a. Work product protection

Rule 26(b)(3) governs work product or "trial preparation materials."108 More specifically, it provides that "[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . . ."109

Plaintiffs state in their response to the Motion to Compel that "Plaintiffs' counsel is aware of no communications between Plaintiffs and any SWBT employees other than customer service representatives with identical legal interests, and is withholding none." Id. at 12.
108

107

See Fed. R. Civ. P. 26(b)(3). Id. 32

109

Consequently, this Court has on several occasions observed that, generally speaking, "the work product doctrine protects only documents and tangible items."110 The Court has noted, however, that under the Supreme Court's decision in Hickman v. Taylor,111 the doctrine "also provides . . . protection for an attorney's mental impressions and conclusions, which is not limited to documents and tangible things that are protected under Fed. R. Civ. P. 26(b)(b)(3)."112 Thus, although Rule 26(b)(3) is confined to the discovery of "documents and tangible things," the doctrine has been expanded to reach information sought through interrogatories when the interrogatory seeks the mental impressions or legal conclusions of an attorney.113 Accordingly, this Court has held that unless an interrogatory (1) specifically inquires into an attorney's mental impressions, conclusions, or legal theories, or (2) asks for the content of a document protectable as work product, it is inappropriate to raise a work product objection to the interrogatory.114 The Court has also held that the work product doctrine provides no protection for

Beach v. City of Olathe, No. Civ. A. 99-2210-GTV-DJW, 2000 WL 090808, at *11 (D. Kan. July 6, 2000); ERA Franchise Sys., Inc. v. N. Ins. Co., 183 F.R.D. 276, 280 (D. Kan. 1998); accord Jones v. Boeing Co., 163 F.R.D. 15, 17 (D. Kan. 1995) ("In order to be protected by the work product rule, the material must . . . be a document or tangible thing . . . .").
111

110

329 U.S. 495 (1947).

Starlight Int'l v. Herlihy, 186 F.R.D. 626, 645 (D. Kan. 1999) (internal quotations and citations omitted). Beach, 2000 WL 960808, at *11; Starlight, 186 F.R.D. at 645; Audiotext Commc'ns v. U.S. Telecom, Inc., No. 94-2395-GTV, 1995 WL 625962, at *9 (D. Kan. Oct. 5, 1995). Beach, 2000 WL 090808, at *11; Starlight, 186 F.R.D. at 645; ERA Franchise, 183 F.R.D. at 280; Mackey v. IPB, Inc., 167 F.R.D. 186, 200 (D. Kan. 1996); Mike v. Dymon, Inc., No. Civ. A. 95-2405-EEO, 1996 WL 674007, at *9 (D. Kan. Nov. 14, 1996). 33
114 113

112

facts concerning the creation of work product or facts contained within work product.115 In a similar vein, it has held that the work product doctrine does not prevent a party from propounding an interrogatory asking about "the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery."116 The Court will now apply these rules to First Interrogatory No. 6. The Court finds that asking Plaintiffs to identify employees with whom Plaintiffs have communicated and who initiated the communication, to provide the date of each communication, and to state whether the communications were documented does not require Plaintiffs to divulge the content of any document or tangible item. Nor do these inquiries require Plaintiffs to disclose their attorneys' mental impressions, strategies, or legal conclusions. At most, these inquiries ask Plaintiffs to divulge facts concerning the creation of possible work product documents and for information as to whether certain documents exist. As noted above, the work product doctrine does not protect against the disclosure of facts concerning the creation of work product nor does it shield from discovery the existence or non-existence of work product documents. Consequently, any work product objection to providing a response to these portions of First Interrogatory No. 6 is not valid. On the other hand, asking Plaintiffs to provide "the substance of each communication" might, under certain circumstances, require disclosure of their attorneys' mental impressions, strategies, or legal opinions. Thus, it is conceivable that Plaintiffs might have a valid work product objection to describing the substance of each such communication.

115

Starlight, 186 F.R.D. at 645 (citing RTC v. Dabney, 73 F.R.D. 262, 266 (10th Cir. 1995)).

Mackey, 167 F.R.D. at 200 (citing Casson Constr. Co. v. Armco Steel Corp., 91 F.R.D. 376, 385 (D. Kan. 1980) (quoting 8 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2023 (1970 & Supp. 1978)). 34

116

In light of the above, the Court finds no basis for Plaintiffs to assert work product immunity in response to First Interrogatory No. 6 to the extent it asks Plaintiffs to identify employees with whom Plaintiffs have communicated, provide the date of each communication, identify the person initiating the communication, and state whether each communication was documented. Plaintiffs' work product objections to those portions of First Interrogatory No 6 are therefore overruled. Plaintiffs might, however, have a valid work product objection to the interrogatory to the extent it asks Plaintiffs to the describe the substance of each communication. Thus, the Court will need to address whether a privilege log was required in response to that portion of the interrogatory. Before turning to the privilege log issue, however, the Court will