AKH Company, Inc. v. Universal Underwriters Insurance Company

Filing 102

MEMORANDUM AND ORDER denying 82 Motion for Protective Order Limiting Initial Discovery. Signed by Magistrate Judge Kenneth G. Gale on 10/25/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AKH COMPANY, INC.,

)
)
Plaintiff,
)
)
v.
)
)
UNIVERSAL UNDERWRITERS
)
INSURANCE COMPANY,
)
)
Defendant,
)
______________________________ )

Case No. 13-2003-JAR-KGG

ORDER ON MOTION FOR PROTECTIVE ORDER
LIMITING INITIAL DISCOVERY
Now before the Court is the “Motion for Protective Order Limiting Initial
Discovery” filed by Plaintiff AKH Company, Inc. (Doc. 82.) Having reviewed the
submissions of the parties, this motion is DENIED.
The above-captioned matter is a declaratory judgment action based on a
dispute concerning insurance coverage. (See Doc. 1.) The facts of the case were
summarized by District Court in its Order (Doc. 75, sealed) denying Plaintiff’s
Motion for Partial Summary Judgment (Doc. 7) and Defendant’s Motion to
Bifurcate (Doc. 68). The Court incorporates that factual summary herein.
(See Doc. 75, sealed, at 4-7.)

In the present motion, Plaintiff requests the Court employ a phased
discovery plan. Plaintiff argues it would be beneficial to have an initial phase
focusing on “the issues for [District] Judge Robinson to determine whether Kansas
or California law will apply in this case.” (Doc. 84, at 6.)
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.”
“‘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).
Protective Orders are governed by Federal Rule of Civil Procedure 26(c),
which states in relevant part that “[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 party seeking a protective order has the burden to
demonstrate good cause.” Reed v. Bennett, 193 F.R.D. 689, 691 (D.Kan.2000).
To do so, the moving party must make “ ‘a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.’” Aikens v.
2

Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 534 (D.Kan.2003) (quoting Gulf Oil Co.
v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)). This
particular showing must demonstrate that the basis for the protective order falls
within one of the categories enumerated in Rule 26(c). Further, the moving party
must clearly define the potential injury to be caused by the discovery at issue.
Zhour v. Pittsburg State Univ., No. 01–2493–KHV, 2002 WL 1932538, *2
(D.Kan. July 25, 2002).
Defendant’s previous Motion to Bifurcate asked the District Court to
“engage in choice of law analysis before considering any other issues in this case.”
(Doc. 75, sealed, at 14.) In the context of the motion to bifurcate,
UUIC contends that separating this issue for discovery
and trial will greatly expedite and economize future
proceedings. AKH opposes the motion, arguing that
UUIC has not demonstrated that an actual conflict exists
which would require a choice of law analysis. In its
reply, UUIC points out that its motion is limited to
seeking a choice of law decision on the making and
performance of the policy.
(Id.)
Interestingly, for the present motion, the parties have now traded positions
on the necessity of an initial determination of the choice of law issue. Plaintiff is
now pressing the Court to employ a phased discovery plan, with the first phase
limited to discovery relating to choice of law, to “avoid unnecessary time and
3

expense on irrelevant discovery.” (See Doc. 84, at 7.) Defendant now opposes
such an approach. (See Doc. 89.)
Plaintiff’s brief infers that the District Court’s prior Order encourages initial
discovery on the choice of law issue. This Court does not read Judge Robinson’s
decision in that manner. The District Court held
that UUIC has not demonstrated that bifurcation would
create convenience, avoid prejudice, expedite, or
economize the proceedings in this case. As the Court has
discussed throughout this order, the issue of whether
UUIC has a right of reimbursement is not easily
separated from other issues. Moreover, the Court
observes that the parties have taken inconsistent positions
at various points throughout their multiple motions and
lengthy briefs, seemingly tailoring their positions for the
sake of expediency. The Court is therefore reluctant to
shape these proceedings in a manner that could allow for
even more selective posturing.
(Doc. 75, sealed, at 14-15.)
The Court agrees with the District Court that separating the issues would not
be easy. The Court also finds that it would not be particularly useful. As such, the
Court DENIES Plaintiff’s request for a phased discovery plan.1
IT IS SO ORDERED.
Dated this 25th day of October, 2013.

1

Plaintiff’s challenge to the general relevance of discovery Defendant has not yet
issued is premature and will not be addressed by the Court at this time.
4

S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

5