Helget v. Hays, Kansas, City of et al
Filing
134
MEMORANDUM AND ORDER granting 119 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/24/14. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FIRMA HEGLET,
)
)
Plaintiff,
)
)
v.
) Case No. 13-2228-KHV/KGG
)
CITY OF HAYS, KANSAS, et al.,
)
)
Defendants.
)
____________________________________)
MEMORANDUM & ORDER ON
DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO FULLY
RESPOND TO DEFENDANTS’ INTERROGATORY NO. 7
Before the Court is Defendants’ Motion to Compel and supporting
memorandum (Doc. 119, 120).1 The dispute centers on an interrogatory and
request for production that seek information regarding e-mail maintained by
Plaintiff regarding this lawsuit and the efforts she undertook to search for such
information. Defendants’ motion is GRANTED in part and DENIED in part for
the reasons set forth below.
BACKGROUND
Plaintiff brings this lawsuit against her former employer, Defendant City of
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Defendants’ motion (Doc. 119) was titled and filed as a motion to compel while
it’s supporting memorandum is entitled “ Motion for Sanctions for Spoliation of
Evidence” (Doc. 120). As there is no request for sanctions or discussion of the standards
for spoliation, the Court will treat Defendants’ submission as a motion to compel.
Hays, Kansas (Defendant City), as well as individual Defendants Toby Dougherty,
the City Manager for Defendant City, and Donald Scheibler, Chief of Police for
Defendant City. (See generally Doc. 1.) Plaintiff brings various claims against
Defendants for the allegedly wrongful termination of her employment.
Specifically, she contends that she was improperly fired after submitting an
affidavit in a lawsuit (hereinafter “Dryden lawsuit”) brought by former Hays,
Kansas Police Department Officer Blaine Dryden against Defendant City,
Defendant Dougherty, and the former Chief of Police “alleging interference with
his constitutional rights . . . .” (Id., at 3-4.) Plaintiff contends, in part, that her
termination constituted an unlawful interference with her right to testify at trial in
violation of the First Amendment, an unlawful interference with her right to speak
on a matter of public concern, and a violation of public policy. Defendants deny
Plaintiff’s claims and contend that her employment was terminated “because she
could not maintain confidentiality . . . misused city computers . . . and could not
effectively work with her superiors.” (Doc. 42, at 1.)
At issue is Interrogatory No. 7, which seeks information regarding e-mail
maintained by Plaintiff regarding this lawsuit and the efforts she undertook to
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search for such information.2 (Doc. 120-1, at 7; Doc. 120-2, at 3.) Defendants
argue that Plaintiff improperly refuses to “identify ‘the search conducted’ to
identify relevant emails . . . .” (Doc. 120, at 1.) Plaintiff responds that
Interrogatory No. 7 does not request the information that is the subject of
Defendants’ motion. (Doc. 121.) Plaintiff also argues that Defendants did not
sufficiently meet and confer prior to filing the present motion, in violation of D.
Kan. Rule 37.2.
ANALYSIS
A.
Duty to Confer.
A motion to compel “must include a certification that the movant has in
good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P.
37 (a)(1) (emphasis added). The local rules further state that a court “will not
entertain any motion to resolve a discovery dispute” unless a reasonable effort has
been made to confer regarding the motion’s underlying issue(s) prior to the filing
of the motion. D.Kan. Rule 37.2 (emphasis added). The local rule also requires
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Initially, there was some confusion regarding the discovery requests as the
Interrogatory at issue referenced the wrong Request for Production. (Doc. 120, 2-3.)
Apparently, that confusion has been resolved and the Court will focus on Interrogatory
No. 7 and its reliance on Request for Production No. 3.
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the certification to describe with particularity the steps taken by all counsel to
resolve the issue in dispute. These requirements encourage parties to resolve
discovery disputes “without judicial intervention.” Cotracom Commodity Trading
Co. v. Seaboard Corporations, 189 F.R.D. 456, 459 (D.Kan. 1999); see also VNA
Plus, Inc. v. Apria Healthcare Group, Inc., No. 98-2138-KHV,1999 WL 386949,
at *1 (D.Kan. June 8, 1999).
The conference mandate of “reasonable efforts to confer” requires “more
than mailing or faxing a letter to the opposing party.” D. Kan. Rule. 37.2. It
follows, then, that the rule also requires more than exchanging e-mail. Rather, the
parties must “in good faith converse, confer, compare views, and consult and
deliberate or in good faith attempt to do so.” Id.; see also Cotracom, 189 F.R.D. at
459. “[The parties] must make genuine efforts to resolve the dispute by
determining precisely what the requesting party is actually seeking; what
responsive documents or information the discovery party is reasonably capable of
producing, and what specific, genuine objections or other issues, if any, cannot be
resolved without judicial intervention.” Cotracom, 189 F.R.D. at 459. Although
the parties engaged in extensive exchange of e-mail correspondence (Doc. 120-4),
this does not constitute a conversation or conference and does not satisfy the
requirements of D. Kan. Rule 37.2. Simply stated, Defendant did not comply with
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the local rule before filing the present motion.
Despite the unqualified language of the federal and local rules, the Court, in
its discretion, may choose to determine a motion to compel on its merits even when
the duty to confer has not been fulfilled under certain circumstances. Cf. White v.
Graceland College Ctr. for Prof. Dev. & Lifelong Learning, Inc., No. 07-2319CM, 2009 WL 722056, at *2 (D. Kan. March 18, 2009) (holding that a court can
consider the underlying issues when “the interests of justice are best served by
taking up the motion [to compel] on its merits . . . .”). Rather than require
Defendants to confer with Plaintiff and file an additional motion, the Court will
address these discovery issues on the substantive merits in the interest of judicial
economy.
B.
Interrogatory No. 7.
This interrogatory asks Plaintiff to “[i]dentify any efforts you have
undertaken to search for electronic correspondence responsive” to Defendants’
document request that sought “[a]ll e-mails maintained by Plaintiff regarding this
lawsuit or the allegations made in this lawsuit.” (Doc. 120, at 2; see also Doc. 1201, at 11, Doc. 120-2, at 4.) The interrogatory continues by instructing that Plaintiff
is to identify “the search conducted; the database, e-mail account, and/or device
searched; the date the search was conducted; and the results of the search (i.e. – no
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electronic correspondence found).” In her April 18, 2014, supplemental response,
Plaintiff stated that
on or around February 11, 2014, she searched for
electronic correspondence responsive to Request for
Production No. 3 by searching her home computer and
Hotmail e-mail account. Other than correspondence
between Ms. Helget and her trial attorneys, which is
subject to attorney-client privilege and work product
protection, no other responsive electronic correspondence
was located.
(Doc. 120, at 3.)
Defense counsel subsequently sent an e-mail on April 24, 2014, indicating
Defendants’ position that Interrogatory No. 7 requires Plaintiff to provide detail
about the search that was conducted, including, for instance, whether she searched
for key words or reviewed each e-mail individually. (Doc. 120-4, at 2.) The April
24, 2014, responsive e-mail from Plaintiff’s counsel states that the discovery
request “doesn’t ask what keywords [Plaintiff] used, and we won’t be
supplementing our response further.” (Id., at 1.)
The Court finds that Plaintiff’s initial response was sufficient given the
verbiage used in Interrogatory No. 7. Even so, in subsequent communication,
Defendants clarified their position as to the information at which the interrogatory
was directed. Plaintiff’s refusal to provide supplementation because that the
interrogatory does not specifically ask “what keywords” were used, while
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technically correct, is counterproductive to the intentions of D. Kan. Rule 37.2.
The purpose of the parties’ communication was to converse, confer, compare
views, consult and deliberate. Part of that conferral process was for Defendants to
provide a better explanation to Plaintiff as to what they meant by “identify any
efforts . . . to search for electronic correspondence.” Defendants’ expectation that
this identification would include a description of the searches employed or a listing
of keywords used is not unreasonable. Defendants’ motion is GRANTED.
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel
Discovery Responses (Doc. 119) is GRANTED. Plaintiff shall supply the
requested information within fourteen (14) days of the date of this Order.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 24th day of June, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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