Kemp et al v. Hudgins

Filing 83

MEMORANDUM AND ORDER granting in part, denying in part, and striking in part 64 Motion to Compel; granting in part, denying in part, and striking in part 66 Motion to Compel; granting in part, denying in part, and striking in part 68 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 3/2/15. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN KEMP, Individually, and as a
Special Administrator of the ESTATE
OF TERESA LEANN KEMP,

)
)
)
)
Plaintiff/Judgment Creditor,
)
)
v.
)
)
KASTON HUDGINS,
)
)
Defendant/Judgment Debtor, )
)
and
)
)
DAIRYLAND INSURANCE COMPANY, )
)
Garnishee.
)
___________________________________ )

Case No. 12-2739-JAR-KGG

ORDER ON PLAINTIFF’S MOTIONS TO COMPEL AND
STRIKING PORTIONS OF PLAINTIFF’S MOTIONS
Before the Court are Plaintiff’s three motions to compel and supporting
memoranda, filed on December 15 and 18, 2014. (Docs. 64, 66, 68.) After
reviewing the submissions of the parties, and striking certain pleadings for being in
violation of District of Kansas local rules, the Court GRANTS in part and
DENIES in part Plaintiff’s motions as more fully set forth below.

BACKGROUND
The above-captioned matter is a garnishment action filed by Plaintiff who is
seeking to collect from Garnishee Dairyland Insurance Company (“Garnishee”).
(Doc. 1.) Garnishee insured Defendant, who was in an automobile accident that
resulted in the death of Plaintiff’s wife and daughter. (Doc. 27, at 2.) That
automobile accident lead to a wrongful death lawsuit filed by Plaintiff against
Defendant (hereinafter “the underlying lawsuit”). (See Doc. 1-1.) Plaintiff also
alleges that Garnishee acted in bad faith or negligently in failing to settle the
underlying lawsuit against Defendant, which resulted in a judgment against
Defendant in excess of $5 million, well beyond the policy limits. (Id., at 9-20.)
Defendant filed a timely appeal with the Kansas Court of Appeals in the
underlying lawsuit, which remains pending and is set for oral argument on
September 17, 2013. (Doc. 27, at 2.)
Plaintiff brings the three subject motions seeking to compel Garnishee to
respond to Plaintiff’s Interrogatories (Doc. 64), Requests for Production (Doc. 66),
and Requests for Admission (Doc. 68.) Plaintiff served 13 Interrogatories, 129
Requests for Production, and 541 Requests for Admission. The sheer volume of
discovery requests involved, in addition to the manner in which Plaintiff has
chosen to brief the various legal issues, has complicated this process.
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DISCUSSION
A.

Order Striking Improper Portions of Plaintiff’s Motions.
In the matter presently before the Court, Plaintiff has filed three separate

discovery motions. The motions themselves (not the memoranda) are,
respectively, 35 pages (Doc. 64, relating to Interrogatories), 193 pages (Doc. 66,
relating to Requests for Production), and 864 pages (Doc. 68, relating to Requests
for Admission).
In each motion, Plaintiff sets out verbatim the discovery request,
Garnishee’s response and then, as to each discovery request, Plaintiff offers, in
italicized single-spaced print, his opposition to Garnishee’s responses and
objections. In the motion at Doc. 64 (relating to Interrogatories), this occupies
more than 30 pages. In Doc. 66 (regarding Requests for Production), it occupies
more than 190 pages. In Doc. 68 (regarding Requests for Admission), it
encompasses more than 850 pages. The memoranda in support, on the other
hand, are concise and of reasonable length.
The sections in the motions setting out Plaintiff’s opposition to the
objections are simply legal analyses which belong in the argument sections of the
corresponding memoranda, which are limited by rule to 30 pages. D. Kan. Rule
7.1(e). A party cannot avoid the operation of this District Court rule by moving
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legal argument to the motion. The Court thus STRIKES and disregards these
improper sections of Plaintiff’s motions.
THEREFORE, the portions of Documents 64, 66 and 68 containing
argument, as described herein, are hereby STRICKEN. The Court will, however,
review the merits of Plaintiff’s legal arguments as contained solely in the
accompanying briefs.
B.

Standards for Discovery.
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
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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). 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).
C.

Motions to Compel (Docs. 64, 66, and 68).
Many of the arguments contained in the memorandum in support of

Plaintiff’s motion to compel Interrogatory responses (Doc. 65) are repeated in the
memoranda supporting his motions to compel responses to his Requests for
Production (Doc. 67) and to his Requests for Admissions (Doc. 69). For example,
Plaintiff addresses the issues of attorney-client privilege, the work product
doctrine, the “insurer-insured privilege,” and conditional responses in the context
of Garnishee’s responses to more than one type of discovery. (See
generally Docs. 65, 67, and 69.) Frequently, the argument is repeated verbatim in
all three memoranda – often with no discussion of how the discussion relates to the
specific, underlying discovery requests. To the extent an argument is contained in
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more than one memorandum, the Court will address the various types of discovery
responses simultaneously.
1.

Whether the attorney-client privilege and work product doctrine
are implicated by Plaintiff’s discovery requests.

Plaintiff’s contends is that the information sought by his 13 interrogatories
does not implicate the attorney-client privilege and work product doctrines
“because they do not seek the production or content of any document or
communication, nor [sic] do they seek the mental impressions of counsel.” (Doc.
65, at 4.) In other words, Plaintiff merely asks Garnishee “to identify various
documents and communications regarding Defendant [sic] Dairyland’s handling of
the underlying claims . . . .” (Id., emphasis in original.) The Court agrees that
attorney-client privilege “does not apply to the fact of communication between a
client and attorney.” Burton v. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 484
(D. Kan. 1997). Rather, “[i]t is the substance of the communication which is
protected, not the fact that there has been communication.” Id. To the extent
Plaintiff is merely requesting that Garnishee identify such communications,
Plaintiff’s motion is GRANTED.
Plaintiff makes the same argument in regard to his Requests for Admissions.
(Doc. 69, at 4-5.) Plaintiff’s memorandum does not, however, refer to any specific
requests. (Id.) “It is not the province of the Court to review the discovery
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responses in their entirety and attempt to guess as to why Plaintiff found them to be
improper” or objectionable. Lynn v. Maddox, No. 12-3104-MLB-KGG, 2014 WL
129340, at *2 (D. Kan. Jan. 14, 2014). As noted above, Plaintiff’s “motion” to
compel regarding the Requests for Admissions is 864 pages long and discusses
literally hundreds of Requests for Admission and the various ways Plaintiff finds
Garnishee’s responses to be improper. Even had the contents of the underlying
motion not been stricken for failing to comply with the relevant District Court rule,
the Court would not be inclined to review hundreds of Requests for Admission in
an attempt to surmise which of the multitude of Requests, in Plaintiff’s opinion,
seek to verify the authenticity of documents, identify documents and/or
communications, admit certain occurrences during the claims handling process,
and/or admit Garnishee’s awareness of certain facts. (Doc. 69, at 4-5.) See Lynn,
2014 WL 129340, at *2.
Plaintiff next argues that Garnishee has failed to establish attorney-client
privilege or the protections of the work product privilege because it has “failed to
meet its burden of proving each and every element” of the privilege and doctrine.
(Doc. 65, at 5-9, Doc. 67, at 4-8, Doc. 69, at 5-9.1) The Court notes that any such

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Plaintiff does not refer to any specific Requests for Production or Requests for
Admission.
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tangible documents being withheld in response to Plaintiff’s discovery requests on
the basis of the attorney-client privilege or work product doctrine should be
contained, and adequately described, in an appropriate privilege log.
To the extent Garnishee has not provided the requisite privilege log, it is
hereby instructed to do so or the asserted privileges and protections will be deemed
waived. Garnishee is directed to this Court's prior decisions of Helget v. City of
Hays, No. 13-2228-KHV-KGG, 2014 WL 1308890 (D.Kan. March 28, 2014) and
Kear v. Kohl's Dept. Stores, Inc., No. 12–1235–JAR–KGG, 2013 WL 3088922,
*3 (D.Kan. June 18, 2013) for discussions as to what constitutes an adequate
privilege log providing sufficient information to allow the other party assess the
claimed to privilege.2
2.

Whether privilege waived because documents have been “placed
at issue.”

Plaintiff also argues that Garnishee “has placed documents from the claims
files at issue by using some of its claims documentation in its Motion for Summary
Judgment, and, as such, has waived its claim of privilege and work product
immunity for its claims documentation by placing those documents at issue.”
(Doc. 65, at 10; see also Doc. 67, at 10-11, Doc. 69, at 9-14.) Plaintiff continues

2

By providing the requisite privilege log, Garnishee is instructed to address
Plaintiff’s concerns contained in Doc. 65, at 5-9, Doc. 67, at 4-8, and Doc. 69, at 5-9.
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that it would be “manifestly unfair to allow [Garnishee] to use only the beneficial
documents in its claims files to defend against Plaintiff’s claims of bad faith and
negligence, while also allowing [Garnishee] to refuse to disclose remaining
portions of its claims files by claiming privilege or work-product.” (Doc. 65, at 10;
see also Doc. 67, at 11.)
Plaintiff’s argument is not persuasive. Parties in litigation routinely
withhold portions of files or larger document collections – or even passages within
a single, specific document – on the basis of attorney-client privilege or workproduct protection. Further, Plaintiff’s counsel previously stated in writing that
production of these documents from the claims file would not constitute a waiver
of privilege. (Doc. 75-3.) The Court finds no waiver of the privilege and
Plaintiff’s motions are DENIED in this regard.
3.

Whether Plaintiff has established “substantial need” for the
claims file.

Plaintiff also contends that he should be allowed to overcome Garnishee’s
work product protection because he has “substantial need” for the claims file
materials at issue. (Doc. 65, at 10-11; Doc. 67, at 13-14; Doc. 69, at 14-15.) In
support of this position, Plaintiff relies almost entirely on a statement in the Report
of Parties’ Planning Meeting that Defendant and Garnishee “do not necessarily
disagree” with Plaintiff’s assertion that he has “substantial need for the documents”
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in the underlying state court action. (Doc. 65, at 11; Doc. 67, at 14; Doc. 69, at
14.)
The Court is not persuaded that this single reference by Garnishee to not
necessarily disagreeing with Plaintiff, taken in conjunction with the state court
action being resolved, establishes sufficient need to waive the protections of the
attorney-client privilege and work product doctrine.
[T]he requesting party may still discover work product if
it can show that it has substantial need for the material,
and cannot, without undue hardship, obtain their
substantial equivalent by other means; however, the
Court is to protect against disclosures of the mental
impressions, conclusions, opinions, or legal theories of a
party's attorney. Fed.R.Civ.P. 26(b)(3)(A) and (B).
S.E.C. v. McNaul, 271 F.R.D. 661, 665 (D. Kan. Dec. 22, 2010). The Court finds
that Plaintiff’s limited analysis of this issue establishes neither the requisite
substantial need nor the inability to obtain the material by other means without
undue hardship. Plaintiff’s motions are DENIED in this regard.
4.

Insurer-insured privilege.

Plaintiff’s memoranda all include a section, that is basically repeated
verbatim in each memoranda, regarding Garnishee’s apparent use of the “insurerinsured privilege.” (See Doc. 65, at 11-12, Doc. 67, at 14-15, and Doc. 69, at 1516.) Plaintiff does not indicate, however, which of Garnishee’s responses invoke
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this privilege. The Court will not review the entirety of the voluminous discovery
responses excerpted in Plaintiff’s stricken motions to make this identification for
Plaintiff.
That stated, the Court is unable to find a single decision from a Kansas
court, state or federal, recognizing the insurer-insured privilege. The Court sees no
reason, based on the limited argument and discussion submitted by the parties, to
create such a privilege at the present time. The Court, therefore, overrules
Garnishee’s objections based on this privilege.
Garnishee is instructed to provide supplemental responses to Plaintiff’s
Interrogatories, Requests for Production, and Requests for Admission removing all
such objections on the basis of the insurer-insured privilege.3 In particular, the
Court refers Garnishee to discovery requests relating to the statements of Ashley
Kelley and Defendant Hudgins (see Doc. 67, at 18) as well as to those requests
relating to the engagement letter(s) between Garnishee and the law firm.
5.

Conditional responses.

Finally, Plaintiff argues that Garnishee’s responses to Interrogatories Nos. 2,
7, and 8 include improper conditional responses. (Doc. 65, at 13.) This Court has

3

This ruling is limited to the “insurer-insured privilege” and does not implicate
other privilege or protection objections raised by Garnishee.
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consistently found that such conditional responses are improper.
Conditional responses ‘occur when ‘a party asserts
objections, but then provides a response ‘subject to’ or
‘without waiving’ the stated objections.’’ Westlake v.
BMO Harris Bank N.A., No. 13–2300–CM–KGG, 2014
WL 1012669, *3 (D.Kan. March 17, 2014) (citing Sprint
Comm'n Co., L.P. v. Comcast Cable Comm'n, LLC,
Nos. 11–2684–JWL, 11–2685–JWL, 11–2686–JWL,
2014 WL 54544, *2, 3 (D.Kan. Feb. 11, 2014). See also,
Everlast World's Boxing Headquarters Co. V. Ringside,
Inc., et al., No. 13–2150–CM–KGG, 2014 WL 2815515,
at *3 (D.Kan. June 23, 2014). This Court reiterates its
agreement with the Sprint decision that found such
conditional responses to be ‘invalid,’ ‘unsustainable,’ and
to ‘violate common sense.’ 2014 WL 54544, *2, 3.
EEOC v. BNSF Ry. Co., No. 12-2634-JWL-KGG, 2015 WL 161192, n.1 (D. Kan.
Jan. 13, 2015).
Garnishee contends that it has merely stated “an ‘objection to part of [the]
request’ provided that the response specifies the part objected to and responds to
the non-objectionable portion.” (Doc. 75, at 15 (quoting Sprint, supra., at *3).) A
review of the actual Interrogatory responses, however, satisfies the Court that
Garnishee’s responses are text book examples of conditional responses – replete
with multiple “to the extent” objections in each response, while providing
“responses” that are made “without waiving” such objections. (Doc. 64, at 2-3, 1820.) The Court finds all such conditional responses to Plaintiff’s Interrogatories to
be improper and GRANTS this portion of Plaintiff’s motion (Doc. 64). Garnishee
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is instructed to provide supplemental responses without such language. As to any
documents withheld on the basis of the attorney-client privilege and/or work
product doctrine, the same shall be identified in a privilege log.
Plaintiff also raises this issue in regard to “multiple conditional responses”
by Garnishee to Plaintiff's Requests for Production and Requests for Admission.
(Doc. 67, at 15; Doc. 69, at 16-17.) Plaintiff does not, however, indicate which of
the responses to these discovery requests he believes to contain such conditional
responses. “It is not the province of the Court to review the discovery responses in
their entirety and attempt to guess as to why Plaintiff found them to be improper”
or objectionable. Lynn, 2014 WL 129340, at *2. Plaintiff's motions are DENIED
in regard to any such conditional responses to his Requests for Production and
Requests for Admission (Docs. 66, 68).
6.

Production of documents supporting Garnishee’s contentions.

According to Plaintiff, “[s]everal of [his] Second Request for Production are
contention requests that ask [Garnishee] to produce documents supporting specific
allegations or denials [Garnishee] has made during the course of this garnishment
action.” (Doc. 67, at 16.) Again, however, Plaintiff has failed to identify the
specific document requests at issue. As such, the Court will not review the
Garnishee’s responses to the entirety of Plaintiff’s discovery responses and attempt
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to determine which responses Plaintiff finds to be improper. Lynn, supra. The
Court will generally state, however, that such document requests are not premature.
A party is entitled to discover another party’s contentions and to engage in
discovery related to those contentions. If a request assumes a contention which the
responding party is not asserting or maintaining in the case, a valid objection to
that effect may be imposed by the responding party disclaiming the contention.
The responding party would then be considered bound by such disclaimer, unless
through additional discovery or development the party changes its position and
adopts the contention. In such a situation, a duty to update its discovery responses
would arise under Fed.R.Civ.P. 26(e).
7.

Discoverability of attorney-fee agreements, engagement letters,
and billing records.

Plaintiff cites several cases for the proposition that Garnishee’s attorney-fee
agreements, engagement letters, and billing records with the firm defending the
underlying action are discoverable. (See Doc. 67, at 19.) The Court agrees, and
Garnishee concedes, that, under Kansas law, “the general rule is that information
regarding clients’ fees is not protected by the attorney-client privilege because
payment of fees is not a confidential communication between attorney and client.”
Cypress Media Inc. v. City of Overland Park, 997 P.2d 681, 692 (Kan. 2000)
(internal citation omitted).
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Garnishee argues, however, that Plaintiff
has not met his burden of proving [the fee agreement and
bills] are within the scope of discovery as being relevant
to any disputed issue or likely to lead to the discovery of
admissible evidence. [Plaintiff] says he needs those
materials to establish who [the law firm] represented in
the underlying action and who paid that firm’s bills.
Those issues are not in dispute, however. [The law firm]
represented [Defendant] Hudgins, and [Plaintiff] knows
that as he litigated the underlying claim against
[Defendant] for several years. [Garnishee] retained [the
law firm] to defend [Defendant], which [Plaintiff] also
knows. There is no dispute in this regard.
(Doc. 75, at 19.) Garnishee has misstated the standard for discovery. The standard
is not whether the information is relevant to any “disputed issue.” As discussed
above, “‘[d]iscovery relevance is minimal relevance,’ which means it is possible
and reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber, 932 F.Supp. at 1265 (internal citation omitted).
While the Court acknowledges Garnishee’s admission regarding the
retention of the law firm, this does not mean that Plaintiff is foreclosed from
seeking discovery to confirm this, or any other, admission. For instance, just
because a party has admitted a material fact in deposition testimony does not mean
the opposing party is foreclosed from using Requests for Production to compile
documents confirming such a fact. Similarly, Plaintiff is within his rights granted
by the Rules of Civil Procedure to seek documentation regarding this legal
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representation.
The Court also agrees with Garnishee, however, that certain information,
such as narrative entries contained within billing records or fee invoices, “could
reveal work product in the form of strategic considerations and the like.” (Doc. 75,
at 18-19.) Therefore, certain information may need to be redacted to preserve
those privileges. As such, it is possible that Plaintiff will not receive all the
information he seeks “to demonstrate what actions were and were not taken by [the
law firm] in defending the underlying claim and in communicating with
[Defendant]” (Doc. 67, at 19) as this may “invade [Defendant’s] attorney-client
and work-product” protections (Doc. 75, at 19).
8.

Discoverability of claims manual, training manuals, and standard
claim forms.

Plaintiff next contends that
[a]n insurer’s claim handling materials are relevant and
subject to production in a suit in which an insured asserts
bad faith claims against the insurer, notwithstanding an
insurer’s objection that it should be required to produce
such documents only to the extent that they were in force
during the periods when claims were made and when
policies were in effect, as timing and extent of any
changes to insurers procedures regarding claims handling
could lead to discovery of admissible evidence relating to
insurer’s bad faith.
(Doc. 67, at 20 (citation omitted).) Garnishee responds that, based on the Court
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entering a Protective Order, it “is producing claim handling manuals and training
materials that were in effect for claims fo the type [Plaintiff] asserted against
[Defendant] from the time [Plaintiff] first asserted his claim until final resolution of
the underlying lawsuit.” (Doc. 75, at 20.) Plaintiff argues that “manuals and forms
which were not applicable during the time period in which the underlying claims
was being handled” may be relevant. (Doc. 67, at 20.)
The Court acknowledges the possible relevance of such documents. Plaintiff
has, however, wholly failed to address how or why such materials (from outside
the time frame the underlying claims were handled) could even possibly be
relevant. Simply saying that the documents could be relevant does not make them
so, nor does it make them discoverable. The Court finds that Garnishee’s proffered
production with the corresponding time limitation is appropriate. Plaintiff’s
motion is DENIED in this regard.
9.

Garnishee’s bad faith analysis and research.

Without providing any legal authority, Plaintiff seeks production of
Garnishee’s “bad faith analysis and research generally, and for the claims arising
out of the subject collision.” (Doc. 67, at 21.) Plaintiff argues that Garnishee’s
work product objections should be overruled because Garnishee “has failed to
prove each and every element of work product.” (Id.) The Court finds this
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argument to be unpersuasive as “analysis and research” by their very nature go to
the heart of work product.
Plaintiff also argues that Garnishee has waived work product protection for
its
bad faith research and analysis by utilizing in support of
its Motion for Summary Judgment correspondence from
its attorneys which contains not only bad faith analysis
and research, but also legal opinions about whether or not
[Garnishee’s] conduct ‘establishes bad faith’ and
strategies for [Garnishee] to employ regarding bad faith
issues in this case.
(Id.) Garnishee responds that none of the correspondence at issue
consists of any internal analysis or analysis held
confidential; rather, they are all letters among counsel in
the case. To adopt [Plaintiff’s] argument would
eliminate the ability of adverse attorneys to in any way
discuss the merits of the claim they are litigating: under
Kemp’s theory, merely stating an analysis or opinion
regarding a claim to opposing counsel or exchanging
opposing viewpoints concerning the merits would waive
the work-product privilege for all analyses and opinions,
even those held confidential and not disclosed, such that
any discussion of the merits of a case would waive each
party’s privilege. Obviously, that would be an untenable
and unacceptable rule, and it has not support in the law.
(Doc. 75, at 21-22.)
The Court agrees with Garnishee. The Court is aware, as counsel should be,
that attorneys representing adverse parties frequently send correspondence to
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opposing counsel containing analysis of the strength and/or weaknesses of claims
and/or defenses in dispute. This is a vital part of the litigation process and can
frequently be used to facilitate settlement negotiations. Doing so does not waive
attorney-client privilege or work product protection for the underlying legal
research and analysis. A finding by the Court consistent with Plaintiff’s position
would set a dangerous and entirely unproductive precedent. This portion of
Plaintiff’s motion to compel (Doc. 67) is DENIED.
10.

Garnishee’s allegedly improper responses to Requests for
Admission.

Plaintiff next complains of Garnishee’s “inability to admit or deny many
Requests for Admission after allegedly conducting a ‘reasonable inquiry’ (with no
mention of what steps were taken to attempt to obtain information).” (Doc. 69, at
17.) Plaintiff has, however, failed to indicate which of Garnishee’s responses are
improper in this regard. Plaintiff’s motion, which contains over 850 pages of
analysis and discussion of Garnishee’s responses, has been stricken, supra.
Further, even assuming the motion had not been stricken, the Court will not review
the hundreds of Requests for Admissions submitted by Plaintiff in an attempt to
determine which of Garnishee’s responses Plaintiff may find objectionable in this
regard. Lynn, 2014 WL 129340, at *2.
Plaintiff also complains about Garnishee “repeatedly object[ing] and
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refus[ing] to fully answer Plaintiff’s Requests for Admission on the grounds that
the Requests ‘assume[] as true purported facts that have not been admitted or
otherwise established . . .’” (Doc. 69, at 18.) Plaintiff’s brief, however, discusses
only Request for Admission No. 83. (Id.)
Finally, Plaintiff complains of Garnishee’s “attempts to read ambiguity into
otherwise unambiguous terms and phrases in Plaintiff’s Requests for Admission in
a thinly shrouded attempt to avoid answering the Requests for Admission.” (Doc.
69, at 20.) Again, however, Plaintiff has addressed only one such response, that
being Garnishee’s answer to Request for Admission No. 12 and its use of the term
“greatly.” (Id.)
That stated, Garnishee has failed to address these issue in its response brief.
As such, it has waived any argument and this portion of Plaintiff’s motion is
GRANTED as uncontested. Cf. Sonnino v. University of Kansas Hosp. Auth.,
220 F.R.D. 633, 642 (D.Kan. March 31, 2004) (internal citation omitted) (holding
that when an argument is “not relied upon in response to the motion to compel,”
the court will deem it “abandoned”).
Pursuant to Fed.R.Civ.P. 36(a)(4),
[i]f a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond
to the substance of the matter; and when good faith
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requires that a party qualify an answer or deny only a part
of a matter, the answer must specify the part admitted
and qualify or deny the rest. The answering party may
assert lack of knowledge or information as a reason for
failing to admit or deny only if the party states that it has
made reasonable inquiry and that the information it
knows or can readily obtain is insufficient to enable it to
admit or deny.
Garnishee is instructed to review and supplement its responses to Plaintiff’s
Requests for Admissions accordingly. In doing so, Garnishee is instructed to give
common words and phrases their ordinary meanings. “If necessary, [Garnishee]
can admit or deny requests which contain undefined phrases by defining the phrase
themselves.” Audiotext Communs. Network, Inc. v. US Telecom, Inc., No. 942395-GTV, 1995 WL 625744, at *6 (D. Kan. Oct. 5, 1995).

IT IS THEREFORE ORDERED that Plaintiff’s Motions to Compel
(Docs. 64, 66, and 68) are GRANTED in part and DENIED in part as more fully
set forth above. To the extent that supplemental responses and information are
required by this Order, Garnishee shall serve the same on Plaintiff within thirty
(30) days of the date of this Order. The Court acknowledges that certain discovery
issues may not have been resolved in their entirety because of the improper manner
in which Plaintiff has submitted his legal arguments to the Court. The parties are

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admonished, wherever possible, to apply the instruction contained in this Order to
whatever remaining discovery issues may remain. To the extent the parties are
unable to resolve any such issues, they are instructed to contact the undersigned
Magistrate Judge to schedule an informal discussion regarding any such issue prior
to filing any additional motion(s).
Dated at Wichita, Kansas, on this 2nd day of March, 2015.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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