Helget v. Hays, Kansas, City of et al

Filing 136

MEMORANDUM AND ORDER granting in part and denying in part 89 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/25/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FIRMA HELGET,
Plaintiff,
v.
CITY OF HAYS, KANSAS, et al.,
Defendants.
___________________________________)

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MEMORANDUM & ORDER ON PLAINTIFF’S MOTION TO COMPEL
Before the Court is Plaintiff’s “Motion to Compel Responses to Plaintiff’s
5th and 6th Discovery Requests, to Deem Requests for Admission Admitted, and for
Sanctions.” (Doc. 89.) Plaintiff’s document requests focus on telecommunications
data (TD) and electronically stored information (ESI). Plaintiff’s request for
admission pertains to an individual Defendant’s conversations. Plaintiff contends
Defendants’ responses are incomplete or improper and asks the Court to sanction
Defendants. (Id., at 15.) Plaintiff’s motion is GRANTED in part and DENIED
in part.
I.

BACKGROUND

Plaintiff brings this lawsuit against her former employer, Defendant City of
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, for allegedly wrongfully terminating her employment. (See
generally Doc. 1.)
Plaintiff contends she was improperly fired after submitting an affidavit in a
lawsuit (hereinafter “Dryden lawsuit”) brought by a former Defendant City Police
Department Officer against Defendant City and Defendants Dougherty and
Scheibler “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.)
Plaintiff claims Defendant City incompletely responded to Plaintiff’s
Production Requests 83 and 84 and Request for Admission 41 (each from
Plaintiff’s fifth set of discovery requests). (Doc. 89-1, at 4-10.) Plaintiff also
claims “[d]isputes remain regarding” Defendant City’s responses to Plaintiff’s
Production Requests 92, 101, 102 and 103 (each from Plaintiff’s sixth set of

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discovery requests). (Id., at 5, 10-14.) Plaintiff claims Defendant City refuses “to
meaningfully participate in responding to [Plaintiff’s] requests” and asks the Court
to sanction Defendant City therefor. (Id., at 15.)
II.
A.

ANALYSIS

Standards on Motions to Compel.
1.

Discovery Requests.

Fed.R.Civ.P. 26(b)(1) 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
sought may be relevant to the subject matter of the action.” Smith v. MCI

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Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
“discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
Thus, discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). 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).
Although the scope of discovery is broad, it is not unlimited. If the
proponent fails to specify how the information is relevant the Court will not require
the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D.
Kan.1995). See also Fed.R.Civ.P. 26(b)(2)(C)(i)-(iii) (stating that “the court must
limit the frequency or extent of discovery” if, for instance, it is “unreasonably
cumulative or duplicative,” “the party seeking discovery has had ample

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opportunity to obtain the information” or “the burden or expense of the proposed
discovery outweighs its likely benefit.”).
“[A]n evasive or incomplete disclosure, answer, or response must be treated
as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). However,
“[t]he party moving to compel discovery must prove that the opposing party's
answers are incomplete.” Bayview Loan Servicing, LLC v. Boland, 259 F.R.D.
516, 518 (D. Colo. 2009) (internal citations omitted).
2.

Requests for Admission.

“Rule 36 imposes a duty on the [party responding to a request for admission]
to make a reasonable inquiry to determine his ability to admit or deny.” Harris v.
Oil Reclaiming Co., Ltd., 190 F.R.D. 674, 679 (D. Kan. 1999). An answer’s
sufficiency under Rule 36 may be challenged. Fed.R.Civ.P. 36(a)(6). “On finding
that an answer does not comply with this rule, the [C]ourt may order either that the
matter is admitted or that an amended answer be served.” Id.
However, “a denial is a sufficient answer,” Harris, 190 F.R.D. at 678, and
“where a request contains interdependent, compound issues, a party may deny the
entire statement if it is premised upon a fact which is denied.” Id. (internal
citations omitted). Moreover, “the Court will not require the answering party to
determine all of the possible interpretations of an ambiguous request and respond

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to each of them.” Id.; see also Ash Grove Cement v. Employers Ins. of Wausau,
05-2339-JWL, 2007 WL 2333350 at 3 (D. Kan. Aug. 16, 2007) (stating that
“[w]hen ruling on a motion to determine the sufficiency of answers or objections to
requests for admission, the court must consider the phraseology of the requests as
carefully as that of the answers or objections.”).
3.

Electronically Stored Information (ESI), Data and Metadata

ESI includes “data or data compilations . . . stored in any medium from
which information can be obtained either directly or . . . after translation by the
responding party.” Fed.R.Civ.P. 34(a)(1)(A). See Advisory Committee Notes on
the 2006 Amendment to Rule 34(a) (stating that ESI “may exist in dynamic
databases and other forms far different from fixed expression on paper.” Rule
34(a)’s amendment confirms “that discovery of [ESI] stands on equal footing with
discovery of paper documents.”). Metadata can be extracted from data. Metadata,
or “‘data about data,’” can be defined as either “‘information describing the
history, tracking, or management of an electronic document’ or ‘information about
a particular data set which describes how, when and by whom it was collected,
created, accessed, or modified and how it is formatted.’” Williams v.
Sprint/United Mgmt. Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (internal citations
omitted). “[M]etadata can come from a variety of sources; it can be created

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automatically by a computer, supplied by a user, or inferred through a relationship
to another document.” Id. at 646-647. Data or database metadata could be “the
key to showing the relationships between data.” Id. at 647.
B.

The Disputed Discovery Requests.
1.

Request 83.

In Request for Production No. 83, Plaintiff sought “[t]he billing statements
from Nex-Tech Wireless LLC for text messaging services for the City of Hays,
Kansas from May 1, 2012 to present.” (Doc. 89-1, at 4.) Plaintiff contends
Defendant City failed to preserve both text and instant messages and actively
removed both text and instant messages from Defendant City’s phones. (Id. at 56.) Plaintiff thus seeks all billing statements for Defendant City’s cellular phone
text and instant messages and claims that the billing statements will demonstrate
that the relevant text or instant messages exist. (Id. at 6.) Defendant City objects
to Plaintiff’s request and contends that (1) the billing statements cannot show the
actual messages, (2) the billing statements will not provide useful information and
(3) messages regarding Plaintiff and her termination do not exist and thus were not
deleted by Defendant City. (Doc. 101, at 4-5.)
Defendant City’s objections are overruled. The Court finds that the billing
records have sufficient discovery relevance, Teichgraeber, 932 F.Supp. at 1265,

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because the records could show that text or instant messages were in fact sent by
and between the individual Defendants before, during or after Plaintiff’s
termination. These records, with additional information, could possibly show that
the individual Defendants were texting or instant messaging about the Plaintiff or
Plaintiff’s termination. Further, issues of cost and burdensomeness have been
resolved. Plaintiff agreed to narrow the Request’s scope to the billing records of
two Defendant City officials, Erin Giebler and Brian Dawson. (Doc. 89-1, at 6.)
Also, because the Court finds that the timeframe contemplated by Plaintiff’s
Request (extending over a year and a half after Plaintiff’s May 16, 2012,
termination) encompasses periods of time not relevant to Plaintiff’s termination,
the Court limits the timeframe of Plaintiff’s Request 83 to three months before and
after Plaintiff’s termination. (Id. at 10.) The Court therefore GRANTS Plaintiff’s
motion to compel Request 83 and orders Defendant City to produce the Nex-Tech
Wireless records for text and instant messages made by individual Defendants
Giebler and Dawson between February 16, 2012, and August 16, 2012.
2.

Request 84.

Plaintiff seeks
[a]ny logs or records reflecting data about text messages sent to
or received from the City of Hays, Kansas cellular phones
assigned to Scheibler, Dougherty, Dawson, Niehaus, or Briseno
from May 1, 2012 to the present, including number of text
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messages sent, number of text messages received, and phone
numbers of recipients.
(Doc. 89-1, at 4.) Plaintiff mentioned two types of records that would satisfy the
Request -- (1) “face sheets,” or records or logs that “identify which calls and text
messages were for official business and which were personal” and (2) Nex-Tech
Wireless and Verizon Wireless text message logs or records. (Id. at 7-8.) Plaintiff
cited Flagg v. City of Detroit, 252 F.R.D. 346, 352-58 (E.D. Mich. 2008), as
authority that Defendant City should be compelled to obtain additional records or
logs from the aforementioned wireless providers. (Doc. 89-1, at 8.)
Defendant City objects to Plaintiff’s Request and claims that while it
requires employees “to review their monthly bill” and “highlight personal minutes
on phone calls,” it does not require employees to do so for text messages. (Doc.
101, at 7.) Defendant City, seeming to overlook Verizon Wireless, claims that
message records are controlled by Nex-Tech Wireless, not Defendant City, and
that Nex-Tech refuses to release the records despite Plaintiff’s subpoena,
Defendant City’s “consent for release” and Defendant City’s overall efforts to
secure release of records held by Nex-Tech. (Id. at 6.) Finally, Defendant City
claims Plaintiff’s Request “will not produce any relevant or discoverable
information.” (Id. at 7.)
a.

discovery relevance of Request 84 logs or records

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The Court finds that logs or records pertaining to text messages about
Plaintiff or Plaintiff’s termination, created or maintained either by specified City
personnel or wireless providers, have sufficient discovery relevance and could
produce discoverable information. Teichgraeber, 932 F.Supp. at 1265. Text
message logs or records could provide Plaintiff with information pertaining to her
termination and the decision making process behind it, especially if the original
text messages were deleted from, or no longer exist on, City cellular phones used
by specified Defendant City personnel. Text message logs or records could
disclose whether messages were sent or received, message recipients or senders
and, possibly, details about message content, if any, pertaining to Plaintiff or
Plaintiff’s termination.
Further, the personnel specified by Plaintiff’s Request were (or are) City
personnel who were empowered to make or recommend City hiring and firing
decisions, have (or had) supervisory or other authority over Plaintiff, were
implicated in statements pertaining to Plaintiff made by one or more of the
specified personnel or admitted to creating a type of log or record detailing text
message information, or had some other interest in Plaintiff’s disposition as a City
employee. Also, the wireless providers specified by Plaintiff were (or are)
Defendant City’s telecommunication providers. The Court, however, finds that the

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Request’s timeframe (extending over a year and a half after Plaintiff’s May 16,
2012, termination) encompasses periods of time not relevant to Plaintiff or
Plaintiff’s termination. (Doc. 89-1, at 4, 10.) The Court therefore limits the
timeframe of Plaintiff’s Request 84 to three months before and after Plaintiff’s
termination. (Doc. 89-1, at 10.)
b.

face sheets

Any text message face sheets made by Defendant City employees using City
cellular phones are either under Defendant City’s control or in its possession.
Brian Dawson, Defendant City employee and one of the personnel specified by
Request 84, testified during a deposition to filling out a face sheet, possibly on a
monthly basis, to distinguish between official or personal phone calls or text
messages. (Doc. 89-1, at 7, 89-12, at 2-3.) Defendant City claimed it does not
require employees to do this for text messages and asserts that “face sheets would
not provide” either a log or substance of text messages sent or received. (Doc.
101, at 7.) Defendant City, however, neither disputed Plaintiff’s assertions about
Dawson’s deposition testimony nor established that face sheets do not exist. (Id.)
Further, for the reasons discussed above, the Court finds that face sheets have
sufficient discovery relevance. The Court therefore GRANTS Plaintiff’s motion
to compel Request 84 as to any face sheets created or maintained by the specified

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Defendant City personnel between February 16, 2012, and August 16, 2012, that
pertain to Plaintiff or Plaintiff’s termination.
c.

Nex-Tech logs or records and Flagg v. City of Detroit

In Flagg v. City of Detroit, the defendant City sought to prevent the
plaintiff’s discovery of stored electronic communications possessed by Detroit’s
“non-party service provider.” 252 F.R.D., at 347. The City claimed that under the
Stored Communications Act, 18 U.S.C. § 2701 et seq., text message
communications between Detroit employees possessed by Detroit’s former
wireless provider were not discoverable. Id., at 348-49. Here, however, Defendant
City claimed that despite working to acquire Nex-Tech records for Plaintiff to the
extent of providing Nex-Tech consent via email to a release of records, Nex-Tech
nonetheless expressly refused to produce text message records without a court
Order. (Docs. 101, at 6, and 101-6, at 1-4.) Plaintiff neither denied nor challenged
these claims. (Doc. 89-1, at 8.) Plaintiff’s argument that Defendant City “should
be required to obtain records responsive to” Plaintiff’s Request No. 84 (Doc. 89-1,
at 8) and Defendant City’s response that it cannot provide Nex-Tech records
because they are not in Defendant City’s control (Doc. 101, at 6) are therefore
misdirected.

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Plaintiff, by moving to compel Defendant City to produce Nex-Tech
Wireless or Verizon Wireless logs or records, thus did not request the proper
remedy to this situation. Defendant City cannot be compelled to produce NexTech records if Nex-Tech refuses to release them. This portion of Plaintiff’s
motion is, therefore, DENIED. If Plaintiff still wishes to obtain the documents
sought by Request 84 from Nex-Tech Wireless, which were the subject of a third
party business subpoena to Nex-Tech (see Doc. 101, at 6), Plaintiff must file a
motion to compel production of the subpoenaed documents. Plaintiff shall have
thirty (30) days from the date of this Order to file any such motion compelling
Nex-Tech.
3.

Request for Admission 41.

Plaintiff requested that Defendant City admit that
[a]side from conversations with his attorneys or his spouse,
Scheibler has discussed the firing of Ms. Helget with
individuals who are not employees of the City of Hays, Kansas
and whom the City has not specifically permitted to receive
confidential City information.
(Doc. 89-1, at 8.) In response to the Request for Admission, Defendant City
[d]enied to the extent that this request seeks an admission that
telling individuals that Plaintiff was terminated is “confidential
City information.” Admitted that Don Scheibler told
individuals who were not employees of the City of Hays that
Plaintiff was terminated.

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(Doc. 101, at 7.) Plaintiff contends Defendant City’s “response does not comply
with Rule 36 because” Defendant City “reworded [Plaintiff’s] question in [its]
response” (i.e., Defendant City’s use of “told” instead of Plaintiff’s “discussed”).
(Doc. 89-1, at 8-9.) Plaintiff also contends Defendant City answered a question
Plaintiff did not ask (i.e., Defendant City’s denial that telling people about
Plaintiff’s termination is “confidential city information”). (Id. at 9-10.) Plaintiff
argues that this Court should deem its Request admitted and ignore Defendant
City’s answer to the extent it answers a question Plaintiff did not ask. (Id.)
Defendant City contends its response “complies with Rule 36.” (Doc. 101, at 8.)
The Court finds that Defendant City’s response to Plaintiff’s Request for
Admission No. 41 was non-responsive in certain aspects. Initially, Defendant’s
substitution of the word “told” for “discussed” in the response was an improper
alteration of the language of Plaintiff’s Request. (Id. at 7; see also Doc. 89-1, at 8.)
As Plaintiff noted, and as the Court acknowledges, “discussed” and “told” have
different definitions. (Doc. 89-1, at 9.) In responding to this request, Defendant
shall interpret the word “discussed” as defined in Plaintiff’s memorandum. (Doc.
89-1, at 9.) If this response is used as evidence, it shall be presented together with
that definition.
Further, Defendant did not respond to the entire request. The request

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specifically seeks an admission as to a) whether Defendant Scheibler discussed
Defendant City’s termination of Ms. Helget’s employment with persons not
employed by Defendant City and b) whether such persons were authorized by
Defendant City to receive “confidential City information.” (Id. at 4.) Defendant
City’s response, however, did not specifically address the second portion of the
request -- whether the persons Defendant Scheibler conversed with were
authorized by Defendant City to receive confidential information. Rather,
Defendant City merely stated that Defendant Scheibler “told individuals who were
not employees of the City of Hays that Plaintiff was terminated.” (Doc. 101, at 7.)
Defendant City’s response therefore neither admits nor specifically denies the
remainder of Plaintiff’s Request, as required by Fed.R.Civ.P. 36(a)(4), and is thus
non-responsive. The Court therefore ORDERS Defendant City to respond to
Plaintiff’s Request for Admission 41 by either admitting or specifically denying
Plaintiff’s entire Request based on the Request’s exact language. As the Court
reads the request, it must be admitted only if Scheibler has “discussed” Plaintiff’s
firing with at least 2 people (“individuals”) who were both not City employees and
not specifically permitted to receive confidential City information. Otherwise, the
request should be denied.
4.

Request for Production No. 92.

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Plaintiff contends a data entry within a database document she discovered
from Defendant City shows Defendant City remotely accessed Plaintiff’s work
computer prior to a meeting in which Defendant City officials formally approved
termination of Plaintiff’s employment and prior to the day Plaintiff’s employment
was terminated. (Doc. 89-1, at 10.) Plaintiff seeks the database in which the data
entry exists to analyze metadata pertaining to the creation and modification of the
data entry. Id.
Defendant City objects and claims the following: “the database does not
contain” individual entry information, Defendant City already produced sufficient
information, and that database metadata is limited “to the creation date and last
modified date as to the table as a whole.” (Doc. 101, at 9.) Defendant City thus
claims the database “will not provide information as to the specific entries
pertaining to Plaintiff’s computer.” Id.
Defendant City’s objections are overruled. Any original metadata that can
verify whether, when, and the extent to which Defendant City’s personnel remotely
accessed Plaintiff’s work computer prior to Plaintiff’s termination is
unquestionably of sufficient discovery relevance. Teichgraeber, 932 F.Supp. at
1265. It can be used to establish which of Defendant City’s personnel remotely
accessed Plaintiff’s computer, when they accessed it, or what they did while

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remotely logged-in to Plaintiff’s computer. Williams, 230 F.R.D. at 646.
One of Defendant City’s justifications for terminating Plaintiff’s
employment was Plaintiff’s alleged misuse (what Defendant City describes as
excessive personal use) of her City computer. (Doc. 42, at 1.) Any original
database metadata pertaining to instances of Defendant City personnel remotely
accessing Plaintiff’s computer, therefore, could be “key” to establishing a
relationship between the alleged evidence of misuse found by Defendant City and
any metadata arising from the activities of Defendant City IT personnel while
remotely logged-in to Plaintiff’s computer. Williams, 230 F.R.D. at 647. The
Court therefore GRANTS Plaintiff’s motion as to Request 92. However, to ensure
Plaintiff’s Request is not overly broad, unduly burdensome or irrelevant, the Court
ORDERS Defendant City to produce the original IT Services database log, with
all original database metadata, only as to service of or access to Plaintiff’s City
computer occurring within fourteen (14) days before and after Plaintiff’s May 16,
2012, termination. (Doc. 89-1, at 10.)
5.

Requests for Production Nos. 101 and 102.

Plaintiff contends an e-mail between Huber & Associates (H&A) employees
shows Defendant City deleted e-mails pertaining to Plaintiff and that H&A,
Defendant City’s IT service provider, “might” have copies of those emails. (Doc.

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89-1, at 12.) Plaintiff furthermore contends Defendant City refused to produce the
contract between existing between Defendant City and H&A at the time Plaintiff
made this Request, deleted Plaintiff’s Lotus Notes work email account, and
produced a blank CD copy of Plaintiff’s Lotus Notes account. (Id.) Plaintiff’s
Request No. 101 therefore seeks “any documents and ESI relating to the City’s
contract with” H&A, “including . . . the most recent contract and any other
documents and ESI related [to] the City’s relationship with” H&A. (Id. at 5.)
Plaintiff argues this information is relevant to determining the nature of services
provided by the H&A to Defendant City. (Id. at 12-13.) Plaintiff’s Request No.
102 therefore seeks “[a]ll billing and payment records . . . made by the City to”
H&A and argues that they may disclose “whether [H&A] was ever asked to restore
deleted documents” to include Plaintiff’s “Lotus Notes account” and emails
pertaining to Plaintiff. (Id. at 5, 13.)
Defendant City did not dispute Plaintiff’s Requests Nos. 101 and 102 under
the federal discovery rules, other procedural law, or substantive law. (Doc. 101, at
9.) Defendant City, however, claimed it received additional pertinent documents
from H&A and has subsequently produced them to Plaintiff. Id.
Plaintiff responded to this assertion and claimed, particularly as to Request
101, that the subsequently produced documents “still did not include any of the

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City’s past contracts with” H&A. (Doc. 116, at 9.) Plaintiff’s Request 101,
though, does not expressly seek documents and ESI relating to Defendant City’s
past contracts with H&A.2 (Doc. 89-1, at 5.) Instead, Plaintiff’s Request 101
seems only to seek Defendant City’s current or most recent contract with H&A.
(Id.) In light of the ambiguity of Plaintiffs Request and the admonition contained
in Fed.R.Civ.P. 1, the Court finds Plaintiff’s Request 101 also contemplates past
contracts between Defendant City and H&A. The Court GRANTS Plaintiff’s
Motion as to Requests 101 and 102 and ORDERS Defendant City to fully comply
with Requests Nos. 101 and 102. Defendant City is further ORDERED to
interpret Plaintiff’s Request 101 to include a request for past contacts between
Defendant City and H&A. The Court, however, limits the scope of Plaintiff’s
Requests to documents and ESI dated between May 1, 2012, and January 1, 2014.
6.

Request for Production No. 103.

Plaintiff believes multiple individual Defendants corresponded with former
Defendant City employee Desiree Rome about Plaintiff’s termination. (Doc 89-1,
at 5, 14.) Plaintiff thus sought, and received from individual Defendants,
correspondence between them and Rome. Id. Plaintiff, however, claims

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Plaintiff only asked for “[a]ny documents and ESI relating to the City’s contract with” H&A,
“including a copy of the most recent contract . . . .” (Doc. 89-1, at 5.)

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Defendant City “indicated” to Plaintiff in a meeting “that the City hadn’t even
searched its email server, the City’s computers, its physical files, or any other
location” for correspondence between Rome and the individual Defendants. (Id. at
14.)
Defendant City responded and seemed to indicate, but did not expressly
state, that it already responded to Plaintiff’s Request 103. (Doc. 101, at 9-11.)
Defendant City claims it searched its email, computer, Lotus notes and other
systems for correspondence between Rome and the individual Defendants and
produced documents (hard-copy and electronic), audio recordings, and other
information to Plaintiff from these systems. (Id. at 9-10.) Additionally, Defendant
City described individual Defendants’ correspondence (or lack thereof) with
Rome. (Id. at 10.) Defendant City claims only Defendant Scheibler corresponded
with Rome about Plaintiff and that, when asked by Rome whether Plaintiff “still
works for the police department,” Defendant “Scheibler responded [Plaintiff] did
not.” (Id.) Defendant City says Plaintiff’s Request 103 is “excessive.” (Id. at 10.)
Plaintiff argues that Defendant City initially certified it “had not identified
any responsive documents” but later “admitted to Plaintiff that the City hadn’t
even searched for documents responsive to this request.” (Doc. 116, at 10.)
Plaintiff believes Defendant City admitted in its Joint Response to Plaintiff’s

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Motion to Compel (Doc. 101) that Defendant City has “never searched for
documents responsive to this request.” (Doc. 116, at 10.) Plaintiff claims
Defendant City’s “response is improper” because Defendant City has neither
“refused to search” for relevant documents nor objected to Plaintiff’s Request 103.
(Id.)
The Court DENIES Plaintiff’s Motion as to Request 103. The Court finds
Defendant City has produced a complete response to Plaintiff’s Request. (See
Doc. 101, 9-10.) The list of items, if indeed produced to Plaintiff as Defendant
City described, encompasses substantial information pertaining to correspondence
with Rome, and Plaintiff does not claim that Defendant City has not produced the
information or that Plaintiff has not received the information. (See Doc. 116, at
10.) Defendant City has provided information sufficient for Plaintiff to determine
the nature of correspondence (or lack thereof) between Rome and the individual
Defendants. (See id. at 10-11.)
Based on Defendant City’s assertions and the information Defendant City
claims to have produced, Defendant City has indeed searched for information
responsive to Plaintiff’s Request. (Id. at 9-11.) Plaintiff has not shown Defendant
City’s response to Plaintiff’s Request 103 is incomplete, Bayview Loan Servicing,
LLC, 259 F.R.D. at 518, and the Court does not want to impose unnecessarily

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costly or unreasonably duplicative discovery on Defendant City. Fed.R.Civ.P.
26(b)(2)(C)(i).
C.

Plaintiff’s Request for Sanctions.
Plaintiff asks the Court to sanction Defendant City under Fed.R.Civ.P. 26(g)

and seeks attorney’s fees and the costs of bringing its Motion to Compel. (Doc.
89-1, at 15; Doc. 116, at 12-13.) Plaintiff contends Defendant City falsely certified
under Fed.R.Civ.P. 26(g)(1)(B)(i), (ii) and (iii) because Defendant City’s responses
to Plaintiff’s requests were (or are) incomplete, improper or nonresponsive. (See
generally Docs. 89-1, at 4-10, 13-15; 116, at 6, 9 and 10.) Generally, Plaintiff
contends Defendant City’s responses have not complied with the discovery rules,
have caused “unnecessary delay” or are “unreasonable” under Fed.R.Civ.P.
26(g)(B). (Doc. 89-1, at 15.)
Based on the Court’s analysis in Section II (C) of this Memorandum and the
decision in Starlight Int'l Inc. v. Herlihy, 186 F.R.D. 626, 646 (D. Kan. 1999),
Defendant City’s responses and objections to Plaintiff’s Requests are substantially
justified, rendering sanctions inappropriate. Further rendering sanctions
inappropriate is the fact that the Court is partly granting and partly denying
Plaintiff’s Motion. Fed.R.Civ.P. 37(a)(5)(C). The Court therefore DENIES
Plaintiff’s Request for sanctions.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Discovery Responses (See Docs. 89 and 89-1) is GRANTED in part and
DENIED in part as more fully set forth above. Any documents or supplemental
responses that have been ordered to be produced shall be provided within thirty
(30) days of the date of this Order.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 25th day of June, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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