Cox v. (LNU) et al

Filing 101

MEMORANDUM AND ORDER denying 59 Motion to Compel; granting in part and denying in part 73 Defendants Correct Care Solutions, LLC; Nurse Ann; and Nurse Valerie Rethaford Motion for Protective Order; and granting in part and denying in part 76 D efendants [sic] Motion for Protective Order. The Court will separately enter an appropriate order to protect the confidentiality of certain categories of documents produced in discovery in this case and to reduce the security risks associated with p roviding unrestricted access to jail records, policies, and procedures to inmates and detainees. See Memorandum and Order for additional details. Signed by Magistrate Judge Gerald L. Rushfelt on 6/27/2013. (Mailed to pro se Plaintiff by regular mail.) (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NICHOLAS A. COX,
Plaintiff,
CIVIL ACTION
v.
No: 12-2678-KHV-GLR
ANN (LNU), et al.,
Defendants.
MEMORANDUM AND ORDER
The Court has under consideration (1) a Motion to Compel (ECF No. 59) filed by pro se
Plaintiff Nicholas Cox; (2) Defendants Correct Care Solutions, LLC; Nurse Ann; and Nurse Valerie
Rethaford Motion for Protective Order (ECF No. 73);1 and (3) Defendant’s [sic] Motion for
Protective Order (ECF No. 76) filed by Defendants Denning and Dvorak.2 The motions are fully
briefed and ready for ruling. For the reasons that follow, the Court denies the motion to compel.
It grants in part and denies in part the motions for protective order.
I. Relevant Factual Background
Plaintiff, a pretrial detainee in the Johnson County Adult Detention Center, commenced this
action by filing a civil complaint in state court. On October 18, 2012, Defendant Denning filed a
notice of removal and paid the filing fee in this case. The Court has issued rulings on several
motions in this action, including denying Defendants Joint Motion to Strike Plaintiff’s First Request
for Production of Documents (ECF No. 50). Plaintiff thereafter filed the motion to compel now
before the Court. The motion to compel prompted the filing of the two motions for protective order.

1

2

The Court will collectively refer to these defendants as “CCS Defendants.”

The Court will collectively refer to Defendants Denning and Dvorak as “County
Defendants.”

II. Motion to Compel
Pursuant to Fed. R. Civ. P. 37(a)(2), Plaintiff moves to compel Defendants to produce
documents responsive to his Request for Production of Documents. The Defendants initially oppose
the motion for failure of Plaintiff to comply with D. Kan. Rule 37.2. The rule provides as follows:
The court will not entertain any motion to resolve a discovery dispute pursuant to
Fed. R. Civ. P. 26 through 37, or a motion to quash or modify a subpoena pursuant
to Fed. R. Civ. P. 45(c), unless the attorney for the moving party has conferred or has
made reasonable effort to confer with opposing counsel concerning the matter in
dispute prior to the filing of the motion. Every certification required by Fed. R. Civ.
P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery
or disclosure disputes must describe with particularity the steps taken by all attorneys
to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to
the opposing party. It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.
Plaintiff concedes his non-compliance and seeks to excuse it as merely a procedural error.
But this Court enforces procedural rules against all parties, whether represented or not.3 Plaintiff has
failed to fulfill the duty to confer, as required by D. Kan. Rule 37.2. He has presented no legitimate
reason for the failure. Accordingly, the Court denies the motion on that basis.
The briefing on the motion to compel and related motions for protective order reveals a discovery dispute that should be easily resolved by the conferring process, so as to reach an appropriate
compromise, acceptable to all parties. The briefing also indicates that the defendants are willing to
produce responsive and non-objectionable documents under the protection of an appropriate order
entered pursuant to Fed. R. Civ. P. 26(c). The denial of the motion to compel should not affect such
agreed production.

3

See Brown v. Brotherton, No. 07-CV-2192-JAR-GLR, 2007 WL 4144958, at *3 (D. Kan.
Nov. 20, 2007).
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III. Motions for Protective Order
CCS Defendants seek a protective order to restrict the reproduction of documents produced
by them and to prevent Plaintiff from providing copies of produced documents to other inmates or
detainees at the Johnson County Adult Detention Center. County Defendants seek a protective order
to protect the confidentiality of documents produced in discovery. Both sets of defendants have
submitted the same proposed protective order for entry by the Court. They contend that unrestricted
production of requested documents creates a significant security risk. They argue that security risk
is avoided by limiting disclosure of their policies and procedures only to Plaintiff and any experts
or professional consultants.
Although they have agreed to produce non-objectionable documents under a protective order,
Plaintiff has not agreed to entry of such protective order. Among other things, Plaintiff has sought
production of his medical records, “Log reports” for his cell module, and policies and procedures
of the defendants. He opposes the motions to the extent defendants seek to protect their policies and
procedures from disclosure. He does not otherwise oppose an appropriate order to protect documents concerning individuals, such as deputies, medical personnel, or inmates.
Under Fed. R. Civ. P. 26(c)(1), “[t]he court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The
movant must show good cause for a protective order.4 If the party opposing the discovery provides
a sufficient basis for the Court to find good cause, the Court also considers other factors that were
or could have been presented by the party seeking the discovery to determine whether the totality of

4

Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010).
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the circumstances justifies the entry of a protective order.5
Courts have broad discretion to decide when a protective order is warranted, and if warranted,
the scope of protection required given the situation at hand.6 Through Rule 26(c), the courts have
“substantial latitude to fashion” an appropriate protective order after fairly weighing “the competing
needs and interests of the parties affected by discovery.”7 Despite the broad grant of discretion given
the courts, a protective order is only warranted when the movant demonstrates that protection is
necessary under a specific category set out in Rule 26(c).8 To establish good cause, a party must
make “a particular and specific demonstration of fact, as distinguished from stereotyped and
conclusory statements.”9
Movants have shown good cause for an order to protect the confidentiality of documents
produced through discovery in this action. They have also shown good cause to preclude unrestricted access to documents produced in discovery, including the policies and procedures of the defendants. Providing unrestricted access to the policies, procedures, and jail records (including log reports
or books) creates an unnecessary security risk at the housing facility. To reduce the security risk

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See, e.g., Thomas v. IBM, 48 F.3d 478, 483 (10th Cir. 1995) (noting factors demonstrating
good cause for the court’s protective order and then further considering that the party seeking the
deposition made no attempt to demonstrate that the sought information could not be gathered from
other sources, for whom a deposition might have been less burdensome); Gazaway v. Makita U.S.A.,
Inc., No. 97-2287-JWL, 1998 WL 219771, at *3 (D. Kan. Apr. 16, 1998) (after finding an adequate
showing of good cause, the court considered that “Plaintiff has shown no crucial need for the
deposition” and that the plaintiff had not shown why discovery from others “has not or could not be
obtained”).
6

Layne Christensen Co., 271 F.R.D. at 244.

7

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

8

Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 534 (D. Kan. 2003).

9

Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981).
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inherent in providing unrestricted access to such materials and to protect the confidentiality of
documents produced in discovery, the Court will separately enter an appropriate order that is
modified from the order submitted by the defendants.
IV. Conclusion
For the foregoing reasons, the Court DENIES the Motion to Compel (ECF No. 59) filed by
pro se Plaintiff Nicholas Cox and GRANTS in part and DENIES in part Defendants Correct Care
Solutions, LLC; Nurse Ann; and Nurse Valerie Rethaford Motion for Protective Order (ECF No. 73)
and Defendant’s [sic] Motion for Protective Order (ECF No. 76). The Court will separately enter
an appropriate order to protect the confidentiality of certain categories of documents produced in
discovery in this case and to reduce the security risks associated with providing unrestricted access
to jail records, policies, and procedures to inmates and detainees.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 27th day of June, 2013.

S/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge

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