Monroe v. City of Lawrence, Kansas et al

Filing 118

MEMORANDUM AND ORDER denying in part and granting in part 89 Defendants' Motion for Protective Order. The motion is denied in all respects except that it is granted as to limiting the temporal scope of certain discovery. The Scheduling Order is hereby amended to reflect the limits on the temporal scope of certain discovery. Signed by Magistrate Judge Teresa J. James on 05/13/2014. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL MONROE,
Plaintiff,
v.
CITY OF LAWRENCE, KANSAS,
et al.,
Defendants.

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Civil Action
No. 13-2086-EFM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Protective Order,1 which
seeks an order placing restrictions on discovery to: (1) limit discovery regarding the conduct and
discipline of non-party employees to individuals who are similarly situated to Plaintiff; (2) limit
discovery regarding the alleged conduct and discipline of non-party employees to conduct which
is similar to that for which Plaintiff was discharged; (3) limit the temporal scope of discovery
regarding the conduct and discipline of non-party employees to a period of March 1, 2007
through July 23, 2013; and (4) prohibit deposition questions based upon rumor or innuendo.
The Court finds that Defendants have failed to show good cause for their request except as to
limiting the temporal scope of discovery.

Accordingly, for reasons set forth below the Court

denies the motion in part and grants it in part.
I.

Legal Standards
Pursuant to Federal Rule of Civil Procedure 26(c), a “court may, for good cause, issue

1

ECF No. 89.
1

an order to protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense[.]”2 The decision to enter a protective order is within the Court's broad
discretion.3 Despite this broad discretion, “a protective order is only warranted when the
movant demonstrates that protection is necessary under a specific category set out in Rule
26(c).”4 In addition, the party seeking a protective order bears the burden of establishing good
cause.5 The moving party must make “a particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory statements.”6
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery. It provides
that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any
party's claim or defense.”7 Relevant information need not be admissible at trial if the discovery
“appears reasonably calculated to lead to the discovery of admissible evidence.”8 Relevancy is
broadly construed, and a request for discovery should be considered relevant if there is “any
possibility” that the information sought may be relevant to the claim or defense of any party.9

2

Fed. R. Civ. P. 26(c)(1).

3

Thomas v. Int'l Bus. Machs., 48 F.3d 478, 482 (10th Cir.1995); Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984).
4

Herrera v. Easygates, LLC, No. 11–CV–2558–EFM–GLR, 2012 WL 5289663, at *2 (D.
Kan. Oct. 23, 2012) (citing Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 534 (D. Kan.2003)).
5

Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan.2010).

6

Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981).

7

Fed. R. Civ. P. 26(b)(1).

8

Id.

9

Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382 (D. Kan. 2005) (citing Owens
v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 652 (D. Kan. 2004); Sheldon v. Vermonty, 204 F.R.D.
2

Consequently, a request for discovery should be allowed “unless it is clear that the information
sought can have no possible bearing” on the claim or defense of a party.10
II.

Background Information
Plaintiff asserts claims against the City of Lawrence, Kansas (“the City”) and Tarik

Khatib, the City’s Police Chief, for denial of due process and race discrimination arising from
Plaintiff’s termination from employment with the City’s Police Department (“LPD”). The
discovery period as to Defendants resumed on January 27, 2014, after having been stayed for
two months pending presiding District Court Judge Eric F. Melgren’s ruling on Defendants’
Motion to Dismiss.11 In a letter dated February 18, 2014, Defendants advised Plaintiff that their
review of Plaintiff’s Second Supplemental Rule 26(a) Disclosures and recently propounded
discovery requests led Defendants to conclude that Plaintiff wished to perform discovery on
irrelevant matters and in a manner that would embarrass, harass, oppress, and cause undue
burden and expense to parties and non-parties.12 Defendants advised Plaintiff that unless he
agreed to limit the scope of discovery to relevant issues, Defendants would seek a protective
order. The parties then requested that the undersigned Magistrate Judge conduct a telephone
conference in an effort to forgo litigating the issue, and that conference took place on March 14,
2014.13 Plaintiff indicated during the conference that he actually intends to depose far fewer

679, 689-90 (D. Kan. 2001)).
10

Cardenas, 232 F.R.D. at 382 (citations omitted).

11

See ECF No. 71 (granting Defendants’ motion to stay discovery pending ruling); ECF No.
76 (Memorandum and Order granting in part and denying in part Defendants’ motion to dismiss).
12

ECF No. 89-3.

13

ECF Nos. 86, 87.
3

witnesses than identified in his Rule 26 disclosures.14
The parties did not reach agreement. In an email dated March 24, 2014, Plaintiff
referred to ongoing discussions between the parties on this issue and repeated his expectation
that he would take 25 or fewer depositions. He set forth a list of 16 areas of inquiry and 31
deposition witnesses, four of whom he listed as “tentative” and ten as “unlikely.”15 Defendants
replied by email three days later, (1) asking for clarification as to whether Plaintiff intended to
conduct discovery on topics listed in his Rule 26 Disclosures but not in his March 24 email,
such as alcohol abuse, improper transport of an explosive device, bias against women, and
sexual harassment allegations, (2) opining that Plaintiff’s discovery on his discrimination claims
should be limited to similarly situated individuals and/or conduct, and (3) stating that they
would be filing the instant motion.16 Referring to unnoticed possible depositions of potential
witnesses but addressing only one actual pending discovery request (and that limited to two
requests in Plaintiff’s Fourth Request for Production of Documents), Defendants filed the instant
motion for protective order.
III.

Defendants’ Burden to Satisfy Duty to Confer
Were the Court to consider only Defendants’ motion and attachments, the Court would

find that Defendants have failed to provide certification that they have in good faith conferred or
attempted to confer with Plaintiff in an effort to resolve the dispute, as required by Federal Rule

14

Likewise, in his sur-reply, Plaintiff indicates that he intends to depose a total of 13 to 18
witnesses. The Scheduling Order in this case limits Plaintiff to 30 depositions, with each non-party
lay witness deposition to last no longer than four hours. See Scheduling Order, ECF No. 9 at 5.
15

ECF No. 89-5 at 1-4.

16

ECF No. 89-5 at 1.
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of Civil Procedure 26(c) and D. Kan. Rule 37.2. Defendants attach a copy of one letter and one
set of email communications, neither of which describes with particularity the steps taken by the
parties to avoid this dispute. Because the parties requested and the Court conducted a telephone
conference on this issue, however, the Court considers the parties’ representations and
participation therein to have satisfied Defendants’ burden.
IV.

Analysis
As noted above, the Court has broad discretion with respect to protective orders. The

Court may not issue such an order, however, unless the moving party “demonstrates that the
basis for the protective order falls within one of the categories enumerated in [Rule] 26(c).”17 In
other words, the moving party must show that the requested order is necessary to protect the
party from annoyance, embarrassment, oppression, or undue burden or expense.18 “Rule 26(c)
does not provide for any type of order to protect a party from having to provide discovery on
topics merely because those topics are overly broad or irrelevant, or because the requested
discovery is not reasonably calculated to lead to the discovery of admissible evidence.”19
A.

Relevancy as Basis for Protective Order

Defendants seek a protective order which limits discovery regarding the conduct and
discipline of non-party employees to individuals who are similarly situated to Plaintiff and
whose conduct is similar to that for which Plaintiff was discharged. Defendants argue that
17

ICE Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR-KGS, 2007 WL 1652056, at
*3 (D. Kan. June 6, 2007); Kan. Waste Water, Inc. v. Alliant Techsystems, Inc., No. 02-2605-JWLDJW, 2005 WL 327144, at *2 (D. Kan. Feb. 3, 2005); Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D.
533, 534 (D. Kan. 2003).
18

See Fed. R. Civ. P. 26(c)(1).

19

Kan. Waste Water, Inc., 2005 WL 327144, at *2.
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Plaintiff cannot demonstrate pretext in his disparate treatment discrimination claims unless he
can show that similarly situated employees were treated differently. Defendants assert that
discovery regarding non-supervisory employees, employees with different supervisors or
decision-makers, and employees who did not engage in similar conduct is irrelevant and should
be precluded by a protective order.
Defendants’ argument is misplaced in a motion for a protective order, which is not an
avenue to prevent discovery on the basis of relevancy. Instead, a party may object to providing
discovery on the basis that the request is not calculated to lead to the discovery of admissible
evidence. The Court may rule on the validity of such an objection only in the context of a
motion to compel; a relevancy objection is not a basis upon which the Court may enter a
protective order under Rule 26(c).20 For that reason alone, Defendants’ motion with respect to
similarly situated employees and employees with similar conduct is without merit.
Moreover, the Court notes that discovery in employment cases is not to be narrowly
circumscribed and is particularly broad in a Title VII case.21 This case is in its earliest stages.
Discovery is necessary to identify similarly situated employees, and ultimately that
determination will be for the Court. Defendants present no authority and the Court is aware of
none which supports their right to define “similarly situated” or to limit Plaintiff’s discovery to
individuals of Defendants’ choosing through a protective order.22
20

Aikens, 217 F.R.D. at 534-35.

21

Owens v. Spring/United Mgmt. Co., 221 F.R.D. 649, 652 (D. Kan. 2004).

22

Defendants would have the Court determine that “similarly situated” employees are those
who also held supervisory positions and who shared the same decision-maker and supervisor.
Defendants’ definition flies in the face of its proffered reason for having terminated Plaintiff’s
employment. Defendants asserted that Plaintiff’s conduct – specifically his pattern of biased
6

B.

Embarrassment, Harassment, Undue Burden and Expense as Basis

Defendants next argue that Plaintiff’s Rule 26(a) disclosures represent an attempt to
conduct significant discovery, through depositions and written discovery requests, on areas
outside the scope of appropriate discovery that will embarrass, harass, and cause undue burden
and expense to parties and non-parties. Defendants cite no noticed depositions; they point to
two requests in Plaintiff’s Fourth Request for Production of Documents which seek documents
relating to (1) racial profiling incidents involving two LPD officers and (2) allegations and
disciplinary action concerning LPD officer alcohol abuse.23 In addition, Defendants state that
Plaintiff indicates in his Rule 26(a) disclosures that he intends to conduct discovery on topics
such as sexual harassment, bias toward women, improper transportation of explosive devices,
and other supposed misconduct by LPD employees. As to these topics, Defendants assert that
Plaintiff has no need for such information and that vast potential exists for embarrassment and
harassment.
Plaintiff responds that insofar as discovery on these issues would relate to his
discrimination claims, similar conduct is not the appropriate comparator because Tenth Circuit
law holds that violations by minority and non-minority employees need only be of comparable

behavior – had made it necessary for the LPD to disclose such conduct as potential impeachment
evidence to all prosecuting authorities in any criminal investigation involving Plaintiff. All
members of LPD would appear subject to the same mandatory disclosures in any criminal matters in
which they are involved, whether as a patrol officer, detective, or supervisor. Moreover, even if
Defendants were otherwise entitled to a protective order, Defendants have not demonstrated a
measurable basis on which to fashion it.
23

ECF No. 89-2 at 4.
7

seriousness, not based on identical violations of identical work rules.24 Determining which
employees are similarly situated has no place in a due process analysis, and Plaintiff’s statement
of the law is correct. Further, Plaintiff notes that discovery on these issues also relates to his due
process claim.
As to the issues relevant to due process, Plaintiff argues that he is entitled to conduct
discovery into the grievance process afforded to other employees and whether public statements
were made during that process. Accordingly, the infractions involved in other employee
discipline are not the common denominator; rather, it is the City’s conduct with respect to those
employees’ grievance process. Of more importance, however, is Plaintiff’s representation that
he does not intend to depose any of the witnesses identified in his Second Supplemental Rule
26(a) Disclosures who have knowledge of sexual harassment, bias toward women, and other
supposed misconduct by LPD employees.25
Defendants have not presented information from which the Court can conclude that
Plaintiff intends to conduct discovery in which a witness is likely to be embarrassed or harassed.
Defendants have thus failed to show good cause why a protective order should be entered on
that basis.
Finally, Defendants contend that Plaintiff wishes to conduct discovery from

24

See Elmore v. Capstan, Inc., 58 F.3d 525, 529-30 (10th Cir. 1995); see also Ramirez v.
Haughton, No. 12-4020-EFM, 2013 WL 1113963, at *3 (D. Kan. March 18, 2013).
25

The Court has compared Plaintiff’s Second Supplemental Rule 26(a) Disclosures (ECF No.
89-1) with Plaintiff’s email to Defendants listing likely deponents (ECF No. 89-5). Plaintiff
indicates that he does intend to depose one witness he has identified as having information regarding
the improper transport and disposal of an explosive device, among other issues. The Court assumes
that Plaintiff believes that witness has information relevant to Plaintiff’s due process claim.
8

approximately 70 witnesses and that, a fortiori, discovery will result in increased burden and
expense to parties and non-parties. However, under the terms of the Court’s Scheduling Order,
Plaintiff is limited to 30 depositions,26 and Plaintiff represents that he intends to take only 13-18
depositions in this case.27
Defendants provide no affidavit or other evidentiary proof to establish undue burden
under Rule 26(c), nor do they offer a detailed explanation of the nature and extent of the claimed
burden or expense.28 Without such evidence or explanation, Defendants have not demonstrated
good cause why the Court should enter a protective order on the basis of undue burden or
expense.
C.

Limit on Temporal Scope of Discovery

Defendants urge the Court to issue a protective order which limits discovery to a
reasonable period preceding and following the alleged discriminatory conduct. The parties have
agreed to limit the temporal scope of discovery to the period March 1, 2007 to July 23, 2013.29
The Court therefore grants Defendant’s motion as unopposed . The Scheduling Order’s
Discovery provisions are hereby amended to reflect the parties’ agreement.
26

See ECF No. 9 at 5.

27

See ECF No. 105-1 at 1.

28

See Kan. Waste Water, Inc., 2005 WL 327144, at *3. If Plaintiff were to attempt to depose
more than 18 witnesses, contrary to his representation, then an undue burden analysis might yield a
different result.
29

The Court observes that the time frame the parties have agreed to extends beyond the time
in which Khatib has served as acting Police Chief and Police Chief. The agreement undermines
Defendants’ argument that, to be similarly situated, other employees must have been supervised by
both Khatib and City Manager Corliss. Defendants’ argument would exclude events before
February of 2011 when Khatib became acting Chief, but the parties’ agreement recognizes that
discoverable information may exist as much as four years earlier.
9

D.

Deposition Questioning Based Upon Rumor and Innuendo

Finally, Defendants urge the Court to enter a protective order to circumvent Plaintiff’s
efforts to ask deposition questions based on rumor and innuendo. Defendants do not identify the
rumor and innuendo from which they seek protection, and the Court finds that Defendants have
failed to offer more than conclusory statements that fail to adequately support their request for a
protective order. Indeed, deposition questioning is oftentimes based on rumors or innuendo, and
Defendants offer no guidance or suggestion for a workable constraint on such deposition
questions.
IT IS THEREFORE ORDERED that Defendants’ Motion for Protective Order (ECF
No. 89) is denied in part and granted in part. The Court denies Defendants’ requests to: (1)
limit discovery regarding the conduct and discipline of non-party employees to individuals who
are similarly situated to Plaintiff; (2) limit discovery regarding the alleged conduct and
discipline of non-party employees to conduct which is similar to that for which Plaintiff was
discharged; and (3) prohibit deposition questions based upon rumor or innuendo. The Court
grants as unopposed Defendants’ request to limit the temporal scope of discovery regarding the
conduct and discipline of non-party employees to a period of March 1, 2007 through July 23,
2013.
IT IS FURTHER ORDERED that the Scheduling Order provisions regarding
Discovery are hereby amended to reflect the parties’ agreement and the Court’s order to limit
the temporal scope of discovery regarding the conduct and discipline of non-party employees to
a period of March 1, 2007 through July 23, 2013.
IT IS SO ORDERED.

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Dated May 13, 2014.
s/ Teresa J. James
Teresa J. James
United States Magistrate Judge

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