AKH Company, Inc. v. Universal Underwriters Insurance Company
MEMORANDUM AND ORDER granting in part 290 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 8/4/15. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AKH COMPANY, INC.,
Case No. 13-2003-JAR-KGG
MEMORANDUM & ORDER ON
DEFENDANT UNIVERSAL’S MOTION TO COMPEL
Now before the Court is Defendant Universal’s “Motion to Compel and for
Sanctions” (Doc. 290), regarding Plaintiff AKH’s alleged failure to comply with
prior Order from this Court (Doc. 276, text entry). For the reasons set forth below,
the Court GRANTS in part this motion
The above-captioned matter is a declaratory judgment action based on a
dispute concerning insurance coverage and the settlement of a trademark dispute
involving Plaintiff AKH and a third party. (See Doc. 1; Doc. 75, sealed, at 5-6
(underlying litigation hereinafter referred to as “RT litigation” or “RT case).) The
facts of the case have been summarized by District Court and the undersigned
Magistrate Judge on numerous occasions. (See e.g., Docs. 75, 300.) The Court
incorporates those factual summaries herein. The Court has previously lamented
the long and unnecessarily contentious history of this case. (See Doc. 300, at 2.)
The present motion is in furtherance of that pattern.
One of the numerous discovery motions filed herein, Defendant previously
sought an order compelling Plaintiff to provide five categories of materials:
(1) a detailed index outlining the documents contained on the DTI Database; (2)
bank statements Defendant contends were promised by Plaintiff in the meet and
confer discussions; (3) invoices described in Plaintiff's December 2, 2014,
Supplemental Discovery Responses; (4) reissue documents included with its
discovery responses to include Bates numbers; and (5) an updated privilege log
containing Bates numbers for all listed documents. (Doc. 270, at 1-2.)
Defendant’s motion was granted as uncontested with a text entry from the
undersigned Magistrate Judge on March 11, 2015, because Plaintiff failed to
respond to Defendant's motion in the time allotted by D.Kan. Rule 6.1(d)(1).
Plaintiff was given until April 10, 2015, to provide all five categories of
documents. (See Doc. 276, text entry.)
Issues Raised in Present Motion.
Defendant brings the present motion, arguing that Plaintiff “has still failed to
produce two categories of discovery addressed” in the Court’s text Order: “(1) a
detailed index outlining the documents contained on the DTI Database; and (2) an
updated privilege log containing Bates numbers for all listed documents.” (Doc.
291, at 3.) Defendant also complains that Plaintiff “improperly withheld a number
of documents that are not subject to any applicable privilege and should be
Defendant contends, and the Court agrees, that Plaintiff’s response to the
present motion was “meandering and confusing . . . .” (Doc. 297, at 1.) Plaintiff’s
response contains untimely and unresponsive arguments that, in the Court’s view,
should have been raised in response to issues contained in Defendant’s prior
uncontested motion (Doc. 269). Arguments regarding those issues have been
waived and are foreclosed by Plaintiff’s failure to respond to Defendant’s prior
motion in a timely manner. Further, to the extent Plaintiff is arguing as to the
difficulty of complying with the Court’s prior Order, the time to raise concerns
about an Order entered in April has long since expired. Fed.R.Civ.P. 72(a); D.
Kan. Rule 72.1.4.
The Court’s prior Order unambiguously required, in part, Plaintiff to
produce a detailed index outlining the documents contained on the DTI Database,
and to provide an updated privilege log containing Bates numbers for all listed
documents. Defendant’s motion is GRANTED in this regard and Plaintiff is again
instructed to provide the required index and updated privilege log.
Defendant also argues that Plaintiff has failed to produce communications
with “consultant” Rich Leibfried and an e-mail identified as document
AKH003548. (Doc. 291, at 8-12.) Plaintiff’s response thoroughly ignores any
substantive discussion of these documents. Instead, Plaintiff merely enumerates
them in a list of “new issues” raised in Universal’s May 29, 2015, meet and confer,
“which have not been the subject of any prior meet and confer.” (Doc. 294, at 1112.)
The Court is unsure as to the number of different meet and confer sessions in
which an issue must be raised before Plaintiff would feel it had an adequate
opportunity to respond. In the Court’s opinion, however, Defendant adequately
met its conferring requirements in this instance. Although it may have been ideal
for Plaintiff to have had more than a week to respond to the issues before the
present motion was filed on June 5, 2015, this does not absolve Plaintiff from
raising relevant substantive arguments in response to Defendant’s motion.
Plaintiff’s objections to producing document AKH003548 and the communications
with Mr. Leibfried are waived. Defendant’s motion is GRANTED in regard to
Even assuming Plaintiff’s objections regarding Leibfried had not been
waived, the Court finds that communications with him are not privileged because
he is a fact witness, not an expert witness. Citing ZCT Sys. Grp., Inc. v.
FlightSafety Int’l, 2010 WL 1257824, at *4 (N.D. Okla. March 26, 2010),
Defendant argues that Plaintiff’s “effort to shield this fact witness from discovery
by identifying him as a ‘consultant,’ with no supporting evidence, is
impermissible, especially because Mr. Leibfried has already testified as a fact
witness by deposition and has been identified repeatedly by [Plaintiff] as a ‘person
with knowledge.’” (Doc. 291, at 8.) The Court agrees.
Further, Plaintiff’s response brief fails to address the issues surrounding
Leibfried and his status as a consultant versus fact witness. “The party seeking to
assert the attorney-client privilege . . . as a bar to discovery has the burden of
establishing that [the privilege] is applicable.” Barclaysamerican Corp. v. Kane,
746 F.2d 653, 656 (10th Cir. 1984). By failing to address this issue in its
responsive brief, Plaintiff has waived this argument. AKH Co., Inc. v. Universal
Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2014 WL 2991130, at *2 (D. Kan.
July 3, 2014) (citations omitted).
This brings the Court to Defendant’s request for sanctions. Fed.R.Civ.P.
37(b)(2) states that “[i]f a party . . . fails to obey an order to provide or permit
discovery . . . the court where the action is pending may issue further just orders.”
Sanctions enumerated by Rule 37(b) include:
directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party
prohibiting the disobedient party from supporting
or opposing designated claims or defenses, or from
introducing designated matters in evidence;
striking pleadings in whole or in part;
staying further proceedings until the order is
dismissing the action or proceeding in whole or in
rendering a default judgment against the
disobedient party . . . .
Subsection (b)(2)(C) of Rule 37 also allows the Court to Order the “disobedient
party” to pay reasonable expenses relating to the underlying motion.
Defendant’s motion requests “an imposed waiver of the privilege on the
documents withheld by [Plaintiff] as privileged, as well as any other sanctions
deemed appropriate by the Court.” (Doc. 291, at 12.) The Court has found
Plaintiff’s claims of privilege to be waived in part as discussed above. The Court
reserves a ruling regarding the imposition of additional sanctions, if any, pending
Plaintiff’s compliance with the current Order.
IT IS THEREFORE ORDERED that Universal’s Motion to Compel and
for Sanctions (Doc. 290 ) is GRANTED in part as more fully set forth herein.
Plaintiff shall provide the information as directed herein within thirty (30) days of
the date of this Order.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 4th day of August, 2015.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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