Brown v. University of Kansas, The et al

Filing 80

MEMORANDUM AND ORDER granting in part and denying in part 51 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 2/3/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBERT M. BROWN,

)
)
Plaintiff,
)
)
v.
)
)
UNIVERSITY OF KANSAS, et al., )
)
Defendants. )
)

Case No. 10-2606-EFM-KGG

MEMORANDUM AND ORDER
Before the Court is Plaintiff’s “Motion to Compel Discovery.” (Doc. 51.)
For the reasons set forth below, Plaintiff’s motion is GRANTED in part and
DENIED in part.
FACTS
The facts of this case were summarized in the Court’s previous Order (Doc.
23) of May 4, 2011, granting Defendants’ Motion for Leave to File Out of Time
(Doc. 12). Those facts are incorporated herein by reference, although certain facts
will be repeated here for the sake of clarity.
Plaintiff filed his Complaint on November 9, 2010, against numerous
Defendants, alleging various claims relating to his dismissal from Defendant Law
School, including deprivation of due process and disparate treatment as well as

claims for certain injunctive relief. (Doc. 1.) Defendant Law School was served
with process via U.S. Certified Mail on November 10, 2010, but, do to a clerical
error, failed to timely answer or otherwise plead by the deadline of December 1,
2010. (Doc. 12, at 1-2.) By order from this Court, Defendant Law School was
allowed to file its Answer and Motion to Dismiss out-of-time.
Defendant Law School filed its Motion to Dismiss on May 4, 2011. (Doc.
25.) In that motion, Defendant argued that it was not an independent entity from
Defendant University and thus lacked the capacity to be sued. The District Court
granted the Motion to Dismiss on January 6, 2012, removing Defendant Law
School as a party to this action. (Doc. 69.)
Prior to the Law School being dismissed, Plaintiff served various sets of
discovery to all of the Defendants in this case, encompassing Interrogatories,
Requests for Admissions, and Requests for Production of Documents. (See Docs.
45, 46; see also Doc. 65-1 through Doc. 65-18.) Included therein were separate
sets of discovery requests served on certain Defendants who have been sued solely
in their official capacities.1 (See id.) Defendants have responded to the discovery

1

These individuals sued in their official capacities will be collectively referred to
as the “Official Capacity Defendants”: Andy Tompkins, Gary Sherrer, Ed McKechnie,
Jarold Boettcher, Christine Downey-Schmidt, Mildred Edwards, Tim Emert, Richard
Hedges, Dan Lykins, Janie Perkins, and Bernadette Gray-Little. (See Doc. 51, at 7.)
2

requests, often providing only objections without substantive information. (See
generally Doc. 51.) These objections form the basis of Plaintiff’s motion and are
discussed in turn below.
DISCUSSION
A.

Discovery Standards.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.
“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University,
932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “Relevance is
broadly construed at the discovery stage of the litigation and a request for
discovery should be considered relevant if there is any possibility the information
sought may be relevant to the subject matter of the action.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
3

“discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
Courts look “with disfavor on conclusory or boilerplate objections that
discovery requests are irrelevant, immaterial, unduly burdensome, or overly
broad.” Gheesling v. Chater, 162 F.R.D. 649, 650 (D. Kan. 1995). “Unless a
request is overly broad, irrelevant, or unduly burdensome on its face, the party
asserting the objection has the duty to support its objections.” Sonnino v.
University of Kansas Hosp. Authority, 221 F.R.D. 661, n.36 (D.Kan. 2004) (citing
Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 670 (D.Kan.2003)). Thus,
“the objecting party must specifically show in its response to the motion to compel,
despite the broad and liberal construction afforded by the federal discovery rules,
how each request for production or interrogatory is objectionable.” Sonnino, 221
F.R.D. at 670-71 (internal citation omitted).
B.

Failure to Respond by “Official Capacity” Defendants.
The first issue raised in Plaintiff’s motion to compel is in regard to discovery

requests he served on the Defendants who were sued in their official capacities.
According to Plaintiff,
4

[e]ach discovery document served upon [the Official
Capacity Defendants] was answered with the basic
statement that the defendant objected to the Requests in
that the Defendant had been named only in his or her
official capacity, not as an individual, and that therefore,
the requests were overly broad, unduly burdensome,
harassing and not reasonably calculated to lead to the
discovery of admissible evidence with respect to any
claim or defense asserted in this litigation.
(Doc. 51, at 7.) Plaintiff contends that he has been “unable to find any precedent
which supports such a position.” (Id.)
In their responsive brief, Defendants do not address the issue of whether the
Defendants sued solely in their official capacities are required to respond to
discovery. (See generally, Doc. 61.) Rather, they rely on the argument that
because Plaintiff failed to “attach the subject discovery responses he challenges” as
exhibits to his motion, only those discovery requests specifically “incorporate[d]
into the body of his motion” are properly at issue before the Court. (Id., at 12-13.)
Plaintiff has submitted the discovery requests at issue as exhibits to his reply
brief (see Docs. 65-1 - 65-18). Plaintiff has not, however, submitted the actual
discovery responses from the Official Capacity Defendants (or any other
Defendants), either in their entirety as exhibits or as quoted excerpts in either of his
briefs (see Docs. 51, 65; see also D. Kan. Rule 37.1).
The Court acknowledges Defendants’ reliance on D. Kan. Rule 37.1, which
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provides that motions directed at discovery or responses thereto, “must be
accompanied by . . . the portions of the interrogatories, requests or responses in
dispute.” Technically, however, this section of Plaintiff’s motion does not relate to
“portions” of the Official Capacity Defendants’ discovery responses (as referenced
in Rule 37.1). Rather, this particular issue would appear to encompass the
responses of the Official Capacity Defendants in their entirely as they apparently
provided no substantive discovery responses beyond the general “official capacity”
objection. (Doc. 51, at 7.) Defendants do not dispute this in their responsive brief.
(See generally, Doc. 61.)
The Court finds this objection to be improper under the present
circumstances. Discovery requests made to the Official Capacity Defendants must,
at a minimum, be considered requests made of the entity the individual Defendants
represent in their official capacities – in this case the Kansas Board of Regents (as
to Defendants Andy Tompkins, Gary Sherrer, Ed McKechnie, Jarold Boettcher,
Christine Downey-Schmidt, Mildred Edwards, Tim Emert, Richard Hedges, Dan
Lykins, and Janie Perkins) and the University of Kansas (as to Defendant
Bernadette Gray-Little, Chancellor of the University of Kansas). Defendant has
cited, and the Court has found, no authority supporting the claim that officialcapacity defendants cannot be served with separate discovery requests. To the
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extent Defendants have objected to the discovery requests on this basis, this
objection is overruled.
C.

Failure to Respond by University of Kansas School of Law.
Plaintiff objected that Defendant Law School treated its discovery responses

“as subsumed within the responses by the University of Kansas” even though the
District Court had not ruled on Defendant Law School’s motion to dismiss as of
the time Plaintiff filed the present motion. (Doc. 51, at 9.) Defendants argued that
the Law School “is a subordinate academic unit within the University of Kansas”
with “no independent legal status separate and apart from” the University. (Doc.
61, at 13.) As such, Defendants contend that the discovery propounded on the Law
School was “duplicative,” served no legitimate purpose, and “is all the more
unreasonable given the School of Law’s pending Motion to Dismiss.” (Id., at 14.)
Plaintiff argues that “[a] pending [dispositive] motion does not entitle a
defendant to simply choose not to file responses [to discovery requests].” (Doc.
51, at 9.) The Court agrees. There was no stay placed on discovery in this case in
conjunction with Defendant Law School’s motion to dismiss. As such, it was
improper and unreasonable for Defendant Law School to refuse to respond to
discovery on this basis.
Since the filing of Plaintiff’s motion, however, the District Court entered an
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Order granting Defendant Law School’s motion to dismiss. (Doc. 69.) As such,
this portion of Plaintiff’s motion to compel is DENIED as moot.
D.

Responses to Specific Discovery Requests Identified.
1.

Factual basis for not admitting Requests for Admission or
allegations in Complaint (Interrogatory No. 3).

This interrogatory asked each of the Defendants to state in detail the “good
faith factual basis for not admitting any Request for Admissions . . . or any other
allegation in Plaintiff Brown’s Complaint which you denied for any reason other
than its complete and total untruth . . . .” (Doc. 51, at 10.) Defendants’ response to
the interrogatory was in the form of an objection, without further explanation, that
the discovery request was “overly broad, burdensome, and harassing and exceeds
the bounds of discovery.” (Doc. 61, at 15.)
In their responsive brief, Defendants argue that Plaintiff has “failed to
articulate how the propounded interrogatory is relevant” or how the information
sought would “materially advance any claim or defense asserted in this litigation.”
(Doc. 61, at 15.) This argument incorrectly places the burden on Plaintiff to prove
the relevance of his discovery requests. Because Interrogatory No. 3 is relevant on
its face – it relates to the denial of specific allegations contained in Plaintiff’s
Complaint – the Court finds Defendants’ response to encompass the type of
“conclusory or boilerplate objections” that are looked at with disfavor by the courts
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of this District. See Gheesling, 162 F.R.D. at 650. The relevant portion of
Defendants’ responsive brief merely focuses on Plaintiff’s alleged failure to
establish the relevance of the interrogatory, when Defendants should have been
explaining why their objections were appropriate. (See Doc. 61, at 14-15.) As
such, Plaintiff’s motion is GRANTED in regard to Interrogatory No. 3.
2.

Documents identified in, or relied upon in responding to,
discovery (RFP No. 1).

Request for Production Nos. 1 seeks “[a]ll documents or ESI identified” in
response to Interrogatories or Requests for Admission. Defendants responded in
the form of an objection that “the request is overly broad, vague and ambiguous.”
(Doc. 61, at 16.)
Defendants’ brief begins by criticizing Plaintiff’s use of “the omnibus term
‘all,’ which has been recognized as making unduly arduous the task of trying to
discern which of many documents may conceivably fall within the scope of the
request.” (Id., citing Audiotext Commun. Network, Inc. v. U.S. Telecom, Inc.,
No. 94-2395-GTV, 1995 WL 625962, at *6 (D.Kan. Oct. 5, 1995). The Court is
confused by Defendants’ reliance on Audiotext as that opinion specifically held
that the discovery requests at issue therein – which sought “all documents” relating
to certain categories of information – were “reasonably precise” and were not
objectionable. Id.
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Further, Defendants seem to argue that Plaintiff’s document request is
somehow overly broad and unduly burdensome merely because Defendants allege
to have provided “the entirety of the files relating to the University’s actions in
regard to [Plaintiff’s] dismissal from the School of Law.” (See Doc. 61, at 16-17.)
To the extent Defendants are advancing this argument, it is improper. While it
may be an appropriate answer to a discovery request that any responsive
documents have been produced, it is not an appropriate objection.
Finally, based on the portions of Defendants’ discovery responses quoted in
the parties’ briefs, Defendants did not raise any objection to the use of the term
“all” in their actual responses to any of Plaintiff’s discovery requests. Therefore,
any such objection raised for the first time in Defendants’ responsive brief was
previously waived and will not be considered by the Court in the context of this
motion. Defendants’ objection to the term “all” in the context of Requests Nos. 1
is overruled. Plaintiff’s motion is GRANTED in regard to Request No. 1.
3.

Documents referencing Plaintiff (RFP Nos. 2 and 3).

Requests for Production Nos. 2 and 3 generally seek “[a]ll documents or ESI
expressly or implicitly referencing” Plaintiff. Defendants discovery responses
were again in the form of objections, this time that the requests were “overly broad,
unduly burdensome, vague and ambiguous as to what is meant by ‘expressly or
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implicitly referencing’” Plaintiff.2 (See Doc. 61, at 16, 17.) The Court does not
agree. Rather, the Court finds that the meaning of the phrase “expressly or
implicitly referencing” can be easily ascertained by employing the generally
accepted meaning of these words within the context of these discovery requests.
Defendant’s objection is, therefore, overruled. Plaintiff’s motion is GRANTED
in regard to Requests for Production Nos. 2 and 3.
4.

University policies and manuals (RFP Nos. 4 and 5).

Defendants again object that these requests seek “all” such documents,
which they contend makes the requests “overly broad, unduly burdensome, vague
and ambiguous.” (Doc. 61, at 18.) As stated previously, Defendants’ argument
regarding the use of the term “all” is misplaced. Plaintiff has adequately qualified
his request by limiting the request for “all” such documents to those categories
relating to Plaintiff’s dismissal (Request No. 4) and law school admissions policies
(Request No. 5). Defendants’ objections are overruled. Plaintiff’s motion is
GRANTED in regard to Requests Nos. 4 and 5.
5.

Presentations to entering law school classes (RFP No. 7).

2

To the extent Defendants object regarding Plaintiff’s use of the phrase “all,”
such objection is overruled for the same reasons set forth in section D.2., supra. The
same is true for Defendants’ objection that it has already produced the entirety of the files
regarding Plaintiff’s dismissal.
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Without explaining the basis for their objections, Defendants merely argue
that Plaintiff’s motion fails to articulate how the request is relevant to the claims or
defenses in this case.3 (Doc. 61, at 19.) The Court does not agree. Plaintiff
specifically referenced “speeches to [his] entering class, at which he was present,
in which they suggested willingness to work with amending applicants and stated
that the thrust was to help the students avoid difficulties when it was time to take
the bar.” (Doc. 51, at 15.) The Court finds this request to meet the low threshold
of discovery relevance. As such, Defendants have failed to “specifically show in
its response to the motion to compel, despite the broad and liberal construction
afforded by the federal discovery rules, how [this] request for production . . . is
objectionable.” Sonnino, 221 F.R.D. at 670-71 (internal citation omitted).
Plaintiff’s motion is GRANTED in regard to Request No. 7.
6.

Documents relating to the “Jana Mackey” distinguished lecture
series (RFP Nos. 8 and 9).

Plaintiff contends these requests seek relevant information because it would
“prove defendants were active in causes which were centered around domestic
violence” and, therefore, unable to serve as an “impartial decision maker for due
process purposes” given the subject matter of the criminal charges he withheld

3

To the extent Defendants object regarding Plaintiff’s use of the phrase “all,”
such objection is overruled for the same reasons set forth in section D.2., supra.
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from his law school application. (Doc. 51, at 16.) The Court finds these requests
to strain the boundaries of discovery relevance. Plaintiff’s motion is DENIED in
regard to Requests Nos. 8 and 9.
7.

Documents regarding Plaintiff’s class rank (RFP No. 10).

Defendants did not address this request in their responsive brief. As such,
any objections are waived and Plaintiff’s motion is GRANTED in regard to
Request No. 10. Defendants previously agreed to provide Plaintiff with a copy of
his transcript. (Doc. 51, at 16.) To the extent any other responsive documents
exist, the same should be produced as well.
8.

Documents relating to other amended law school applications and
resulting investigations/disciplinary actions (RFP No. 11).

Defendants object to this discovery request contending that it is “overly
broad, unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence, and invades the privacy and confidentiality of the student
records of the individual students.” (Doc. 61, at 20.) Unfortunately, Defendants
make no effort to explain how the request is overly broad or unduly burdensome.
As such, these objections are overruled on their face. As for Defendants’
argument that the documents would invade the privacy and confidentiality of the
other relevant students, this does not make the documents privileged from

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discovery. Further, Plaintiff’s document request sought redacted documents,
which – along with an appropriate protective order – should alleviate any privacy
issues. This leaves the issue of relevancy.
Plaintiff’s Complaint specifically includes a claim that Plaintiff suffered
disparate treatment as compared to all other “amending applicants.” (See Doc. 1,
at 31-32.) More specifically, he alleges that he “is the first Law Student in the
history of the School of Law to be permanently removed after coming forward and
amending” his application for admission. (Id.) Thus, the document request at
issue, on its face, meets the low threshold of discovery relevance.
Defendants’ relevance objection to the discovery request is entirely
conclusory and contains no explanation as to how the request is irrelevant.
Defendants’ reply brief merely states that “Plaintiff has no reasonable basis for
alleging that he has been singled out and treated differently than another similarly
situated student.” (Doc. 61, at 20.) This does not satisfy Defendants’ duty to
“specifically show in [their] response to the motion to compel, despite the broad
and liberal construction afforded by the federal discovery rules, how [this] request
for production . . . is objectionable.” Sonnino, 221 F.R.D. at 670-71 (internal
citation omitted). Defendants’ objections are overruled. Plaintiff’s motion is
GRANTED in regard to Request No. 11.
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9.

Personnel files of individual Defendants (RFP No. 12).

This document request is not relevant on its face. As such, it is the
proponent’s duty to establish its relevance. Plaintiff argues that he is entitled to
these personnel files in order to determine “both the qualifications and the nature
of the prior acts of the defendants as Employees of the University of Kansas and
the University of Kansas School of Law.” (Doc. 51, at 18.) This does not, in the
Court’s opinion, meet the relevance threshold – particularly when balancing the
probative value against the invasive nature of the information requested.
Plaintiff’s motion is DENIED in regard to Request No. 12.
E.

Application of Opinions to Fact, Law to Fact, and Calling for a Legal
Conclusion.
Plaintiff also raises issue with apparent objections by certain Defendants that

particular discovery requests called for opinion or a legal conclusion. (See Doc.
51, at 18.) Plaintiff does not, however, indicate by number which specific
discovery requests were responded to in this manner, nor does he provide the Court
with a copy of these Defendants’ discovery responses in relevant part or in their
entirety, which would have given the Court the opportunity to at least review the
discovery responses to determine which were implicated (if the Court were so
inclined). This is clearly in contravention of D. Kan. Rule 37.1, which, as
discussed above, states that motions directed at discovery or responses thereto,
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“must be accompanied by . . . the portions of the interrogatories, requests or
responses in dispute.” Without being able to determine the specific requests at
issue and the responses/objections thereto, the Court is wholly unable to address
this issue on a substantive level.4 As such, this portion of Plaintiff’s motion is
DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Discovery (Doc. 51) is GRANTED in part and DENIED in part as more fully set
forth above. To the extent Plaintiff’s motion has been granted, Defendants shall
provide supplemental discovery responses to Plaintiff on or before February 22,
2012.
IT IS SO ORDERED.
Dated at Wichita, Kansas on this 3rd day of February, 2012.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

4

This is distinguishable from the situation addressed in section B of this brief,
wherein discovery was objected to – and not answered – in its entirety. The issue raised
in this section of the Court’s opinion deals with a specific objection to particular
discovery requests. Because Plaintiff has not provided the Court with a way to identify
and review these particular discovery requests (or the objections thereto), the Court
cannot make the necessary substantive evaluation.
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