Lemaster v. Collins Industries, Inc. et al
Filing
149
MEMORANDUM AND ORDER granting 79 Motion to Compel. The requisite discovery responses shall be provided to Defendant on or before November 5, 2012. Signed by Magistrate Judge Kenneth G. Gale on 10/22/2012. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERRY LEMASTER.
)
)
Plaintiff,
)
)
v.
)
)
COLLINS BUS CORPORATION, )
)
Defendant.
)
_____________________________ )
Case No. 11-CV-2128 JTM/KGG
ORDER ON MULTIPLE MOTIONS
Now before the Court is Defendant’s Motion to Compel Plaintiff’s
Discovery Responses. (Doc. 79.) Having reviewed the submissions of the parties,
Defendant’s motion is GRANTED.
BACKGROUND
Plaintiff contends he was injured when he fell from a bus, manufactured by
Defendant, that he had been hired to transport from Kansas to Pennsylvania. (Doc.
1, at 6-7.) Plaintiff brings various negligence claims against Defendant, including
strict liability failure to warn, negligent design, manufacture and distribution of a
defective product, and supplying a dangerous chattel. (See generally, Id.) Plaintiff
alleges that he sustained serious injuries as a direct and proximate result of
Defendant’s negligence. (Id.) Defendant generally denies Plaintiff’s allegations of
negligence. (Doc. 12.) The case now comes before the Court on Defendant’s
motion to compel Plaintiff to provide responses to certain discovery requests.
(Doc. 79.)
DISCUSSION
A.
Legal Standard.
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,
“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).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the proponent has
failed to specify how the information is relevant, the Court will not require the
respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649
(D.Kan.1995).
Defendant brings the present Motion to Compel (Doc. 69), challenging
objections Plaintiff raised in response to Defendant’s Interrogatories Nos. 8, 10,
and 17, and Request for Production No. 6.1 The discovery requests will be
discussed in turn.
1
The Court has been advised by counsel that the other discovery issues contained in this
motion have been resolved by the parties.
B.
Interrogatories Nos. 8, 10, and 17.
Interrogatory No. 8 sought “the facts upon which plaintiff’s contention is
based that the accident was caused by any conduct on the part of the defendant.”
(Doc. 80, at 5.) Interrogatory No. 17 sought specific information regarding “each
condition or defect” Plaintiff contends caused his injuries. (Id.) Plaintiff objected
that both Interrogatories call for information “subject to expert opinion testimony”
and “protected by the attorney work product doctrine.” (Id.) Thereafter, Plaintiff
merely offered to supplement each discovery response and provide expert opinion
testimony in accordance with the Scheduling Order – without providing a
substantive, factual response to the Interrogatory. (Id.)
Interrogatory No. 10 asked for details regarding each of Plaintiff’s claims
injuries he claims “to have been caused, aggravated or otherwise contributed to by
the fall” at issue. (Id., at 8.) Plaintiff again raises the expert witness testimony
objection, then provides three sentences describing his injuries before stating the
list is “not necessarily exhaustive,” but all he could “recall at the time of answering
his interrogatories.” (Id.)
According to Federal Rule of Civil Procedure 33(a)(2), “[a]n interrogatory is
not objectionable merely because it asks for an opinion or contention that relates to
fact or the application of law to fact , but the court may order that the interrogatory
need not be answered until designated discovery is complete, or until a pretrial
conference or some other time.” The Court finds no valid reason to delay
answering these discovery requests because of the potential for expert witness
opinion. Further, “[b]ecause of the simplicity of notice pleading, Plaintiff should
provide as much information as possible regarding his claims without delay and as
early as required.” Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535,
544 (D. Kan. 2006). Plaintiff is capable of providing a factual response based on
the information currently known to him. The expert witness objection to
Interrogatories Nos. 8, 10, and 17 is overruled.
As stated above, Plaintiff also objected that the Interrogatories Nos. 8 and 17
implicate information protected by the work product doctrine. It is wellestablished in this District that “[b]lanket claims of attorney-client privilege or
work-product protection do not satisfy the objecting party’s burden of proof.”
Linnebur v. United Telephone Ass’n, No. 10-1379-RDR, 2012 WL 1183073,*4
(D. Kan. April 9, 2012) citing White v. Graceland College Ctr. for Prof'l Dev. &
Lifelong Learning, Inc., 586 F.Supp.2d 1250, 1267–68 (D.Kan.2008).
Further, Plaintiff’s objection should be overruled for failure to produce a
privilege log. Hudson v. AIH Mngt. Servs., No. 10-2287-JAR-KGG, 2011 WL
1402224, *3 (D. Kan. April 13, 2011) citing Moses v. Halstead, 236 F.R.D. 667,
676 (D.Kan.2006). In response to Defendant’s motion, Plaintiff simply argues that
Defendant’s objection is “ironic” because Defendant has also failed to provide a
privilege log in regard to Plaintiff’s discovery requests. (Doc. 94, at 2.) The Court
is not inclined to find that “two wrongs make a right” is a valid argument in this, or
any other, instance. Plaintiff has failed to support his work product objection and
has also failed to provide a privilege log. As such, this objection is overruled in
regard to Interrogatories Nos. 8 and 17.
C.
Request for Production No. 6.
This document request seeks documents supporting Plaintiff’s claim for
financial loss, including W-2 forms and tax returns. (Doc. 80, at 9.) Plaintiff did
not object to the request, but responded “[p]lease see the plaintiff’s 1099 tax
forms,” without providing the tax returns. (Id.) In response to Defendant’s motion,
Plaintiff states that he was not a W-2 employee so he has no W-2 forms. He also
indicates he will provide his tax returns “to the extent he can locate them.” (Doc.
94, at 4.) Defendant explains that it requires the tax returns to determine how
Plaintiff’s business income (reflected on his 1099 forms) is reduced by business
expenses, thus resulting in loss of income. Plaintiff has not proposed an alternate
reliable source for this relevant information.
This portion of Defendant’s motion is GRANTED in regard to Defendant’s
request for Plaintiff’s tax returns. To the extent all relevant tax returns have not yet
been provided, Plaintiff is ordered to do so forthwith. Further, to the extent
Plaintiff cannot “locate” certain tax returns, he is ordered to provide Defendant
with the necessary IRS release(s) in order to obtain the documents.
Defendant’s motion (Doc. 79) is GRANTED. Plaintiff shall provide the
requisite discovery responses on or before November 5, 2012.
IT IS SO ORDERED.
Dated this 22nd day of October, 2012.
S/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge
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