Adkins et al v. TFI Family Services, Inc. et al

Filing 226

MEMORANDUM AND ORDER granting 125 Motion to Strike Plaintiff's Retained Expert Spence Shumway and granting in part and denying in part 207 Motion to Compel Plaintiffs to Provide Responses to Defendant's Second Requests for Production of Documents. Defendants' motion is granted in part and denied in part as to Requests One and Sixteen as described above, denied as moot as to Requests Two through Seven, Nine, and Eleven through Twelve, granted in part and denied in part as to Requests Thirteen, Fourteen, Seventeen, and Eighteen, and denied as to Request Ten, as explained more fully above. Plaintiffs shall produce all documents ordered to be produced by no later than thirty (30) days after the date of this Order Signed by Magistrate Judge Gerald L. Rushfelt on 7/24/17. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DON ADKINS, ELLEN ADKINS, and
DON ADKINS o/b/o T.A., a minor,
Plaintiffs,
Case No. 13-CV-2579-DDC-GLR
v.
TFI FAMILY SERVICES, INC., et. al,
Defendants.

MEMORANDUM AND ORDER
Plaintiffs have brought this action against TFI Family Services, Inc. and six other
Defendants. The complaint alleges various claims, arising from an adoption. The case has
presented significant discovery issues, and the Court has ruled on motions related to these
issues.1 The matter comes before the Court on two additional, discovery-related motions,
Defendants’ Motion to Strike Plaintiffs’ Retained Expert Spence Shumway (ECF 125) and
Defendants’ Motion to Compel Plaintiffs to Provide Responses to Defendants’ Second Requests
for Production of Documents (ECF 207). The motions are fully briefed, and the Court is
prepared to rule. For the reasons stated below, the Court grants Defendants’ motion to strike,
and grants in part and denies in part Defendants’ motion to compel.
I.

Background
Plaintiffs designated their experts, including Spence Shumway, on February 17, 2017.

Plaintiffs retained Mr. Shumway, an accountant, to provide testimony regarding their damages.
He submitted an expert witness report, pursuant to Fed. R. Civ. P. 26(a)(2)(B). It includes
schedules to summarize medical costs incurred by Plaintiffs, sources of information for these
1

See ECF 222 and 223.

costs, a summary of “anticipated amendments” to the report, information regarding Mr.
Shumway’s compensation, and an “abbreviated CV.” 2 Mr. Shumway proposed to testify about
Plaintiffs’ damages, and he relied largely on interviews with Plaintiffs—which in turn were
based on their conversations with their children’s physicians—to inform his calculations. Mr.
Shumway also stated in his report that he had not made certain calculations about which he
intends to testify, but that he would make them before trial. He also stated he would supplement
his “abbreviated CV” at a later time.
Defendants served their Second Requests for Production of Documents on Plaintiffs on
February 28, 2017. Defendants sought documents related to damages and attorney’s fees,
projections Mr. Shumway made in his report, as well as his complete CV. Defendants also
requested documents that relate to medical and psychotherapy treatment of Plaintiffs’ children
and correspondence between Plaintiffs and their insurance provider. Plaintiffs responded that
some of these documents had already been provided to Defendants in an email of March 21,
2017. Plaintiffs objected to production of other documents upon grounds the requests for them
were not reasonably calculated to lead to the discovery of admissible evidence.
II.

Motion to Strike
Defendants move to strike Mr. Shumway as an expert. They argue that his report fails to

comply with Fed. R. Civ. P. 26(a)(2)(B). The rule requires the following information for
retained expert witnesses, such as Mr. Shumway:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written report-prepared and signed by the witness--if the witness is one retained or specially
employed to provide expert testimony in the case or one whose duties as the
party's employee regularly involve giving expert testimony. The report must
contain:
2

ECF 125, Ex. B.

2

(i) a complete statement of all opinions the witness will express and the basis
and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in
the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in
the case.3
“The purpose of Rule 26(a)(2) is to require disclosure of expert testimony sufficiently in advance
of trial so that opposing parties have a reasonable opportunity to prepare for effective cross
examination and perhaps arrange for expert testimony from other witnesses.” 4 “An incomplete
or preliminary report does not comply with Rule 26(a)(2).” 5 “If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” 6 Courts can impose a wide range of sanctions,
authorized by Fed. R. Civ. P. 37(c)(1), for failure to meet the disclosure requirements for
retained expert witnesses, including exclusion of testimony. 7 But “[i]n ruling on a motion to
exclude expert testimony or strike an expert witness under Rule 37(c)(1), the court should bear in
mind that it is a ‘drastic sanction.’” 8
Defendants do not frame their motion as one for sanctions under Rule 37(c). They
instead argue that Mr. Shumway should be stricken as an expert, because his report fails to meet
3

Fed. R. Civ. P. 26(a)(2)(B).

4

Mounger v. Goodyear Tire & Rubber Co., No. 99-2230-JWL, 2000 WL 1466198, at *2 (D. Kan. 2000)
(citations omitted).
5

Paliwoda v. Showman, No. 12-2740-KGS, 2013 WL 5938027, at *1 (D. Kan. Nov. 6, 2013).

6

Fed. R. Civ. P. 37(c)(1); Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002).

7

Mounger, 2000 WL 1466198, at *4.

8

Paliwoda, 2013 WL 5938027, at *7 (citing A.H. v. Knowledge Learning Corp., No. 09-2517-DJW, 2010
WL 4272844, at *5 (D. Kan. Oct. 25, 2010)).

3

the requirements of Rule 26(a)(2)(B). Accordingly, neither party addresses the relevant
standards under Rule 37(c), including whether any failure of Plaintiffs or Mr. Shumway to
disclose was substantially justified or harmless. The Court will construe Defendants’ motion,
however, as one seeking to strike Mr. Shumway’s testimony as a Rule 37(c) sanction. Courts
have previously construed motions to strike expert testimony for failure to comply with Rule
26(a)(2)(B) in this way, and the Court is unaware of any other mechanism that permits striking
of expert testimony for failure to comply with Rule 26(a)(2)(B). 9 Accordingly, in considering
Defendants’ motion as a motion to strike under Rule 37(c), the Court will first consider whether
Mr. Shumway’s report complied with Rule 26(a)(2)(B), and if it did not, whether that failure to
comply was substantially justified or harmless.
A.

Rule 26(a)(2)(B) Requirements

Defendants argue that Mr. Shumway’s report fails to meet the requirements of Rule
26(a)(2)(B) in that it fails to include the following: (1) a complete statement of all opinions Mr.
Shumway will express and the basis and reasons for them; (2) the facts or data considered by Mr.
Shumway in forming the opinions; (3) any exhibits that will be used to summarize or support
them; (4) a list of all publications authored by him in the previous 10 years; and (5) a list of all
other cases in which, during the previous 4 years, he testified as an expert at trial or by
deposition. Defendants also argue, in their Reply, that his report relies largely on inadmissible
hearsay, and that he cannot opine on Plaintiffs’ alleged real estate losses, because the Federal
Rules of Evidence consider testimony as to property valuation to be expert opinion.

9

See, e.g., Jacobsen v. Deseret Book Co., 287 F.3d 936, 952 (10th Cir. 2002) (analyzing failure to comply
with Rule 26(a)(2)(B) under Rule 37(c), even though district court did not mention Rule 26(a) or Rule 37(c));
Nguyen v. IBP, Inc., 162 F.R.D. 675, 679 (D. Kan. 1995) (“Fed. R. Civ. P. 37(c)(1) supplies the sanctions to be
imposed in the event that a party fails to make the required disclosures.”).

4

In their Response Plaintiffs do not contend that they have met all the requirements of
Rule 26(a)(2)(B). 10 Instead they contend that Defendants have failed “to articulate how they are
now unable to examine the Accountant prior to trial, including serving a subpoena duces tecum
on the Accountant or inquiring of certain matters of the Accountant at a deposition.” 11
Plaintiffs also rely heavily on Ryan Development Co. v. Indiana Lumbermans Mutual
Insurance Co.12 In Ryan the plaintiff intended to present at trial testimony from several
accountants as to the amount of damages.13 The Court made an in limine ruling that the
accountants could not testify as experts, but could testify as fact witnesses, because they had
personal knowledge of the plaintiffs’ accounts. 14 After trial the defendant moved for judgment
as a matter of law or for new trial. They argued that, although the accountants’ testimony was
couched as lay testimony, it was in fact expert opinion testimony. 15 In denying the defendant’s
motion, the Court held that the accountants’ testimony was lay testimony, rather than improper
expert testimony, because (1) the accountants testified based on their personal knowledge of
plaintiff’s books, documents and tax returns; and (2) “they did not testify as to special accounting
procedures or complicated, specialized methods used to calculate the loss,” but instead testified
about loss figures using “simple mathematical equations” and “straightforward calculations.” 16
Plaintiffs argue that “the similarity between the instant case and the Ryan case is uncanny”
because like the accountants in Ryan, Mr. Shumway used no specialized formulas or

10

In fact, Plaintiffs make only one mention of Rule 26(a)(2)(B) or its requirements, when they summarize
Defendants’ argument that Plaintiffs have not complied with Rule 26(a)(2)(B). ECF 182 at 1.
11

Id. at 2.

12

No. 09-1264-EFM, 2011 WL 5080309 (D. Kan. Oct. 25, 2011).

13

Id. at *4.

14

Id.

15

Id.

16

Id. at 5.

5

techniques.17 Thus, Plaintiffs appear to argue that the Rule 26(a)(2)(B) requirements need not be
met because, like the accountants at issue in Ryan, Mr. Shumway will offer lay testimony that
does not depend on “specialized formulas or techniques.” 18
Before addressing whether Mr. Shumway’s report complied with Rule 26(a)(2)(B), the
Court first considers what Plaintiffs argue, based on Ryan, that Mr. Shumway’s report need not
comply with the rule. Ryan is readily distinguishable from this case, however, for a variety of
reasons. But most importantly, the Court in Ryan found that the accountants there were
presenting lay testimony, which is not subject to the requirements of Rule 26(a)(2)(B). 19 In the
instant case, however, Plaintiffs propose Mr. Shumway for expert testimony. They have listed
him in their expert designations. And he has provided what they contend to be an expert report,
pursuant to Rule 26(a)(2)(B). 20 Accordingly, the Court finds his report is governed by and must
comply with Rule 26(a)(2)(B).
Defendants correctly note that Mr. Shumway’s report lacks several components that Rule
26(a)(2)(B) requires. First, it does not contain a summary of “all opinions [Mr. Shumway] will
express and the basis and reasons for them.” 21 For example, he states he will testify as to future
costs and explains that the figures are “not calculated at this time, but will for trial.” 22 Similarly,

17

ECF 182 at 3.

18

ECF 182 at 3. It is not entirely clear what argument Plaintiffs are making in attempting to analogize the
instant case to Ryan. Plaintiffs simply state that “[t]he similarity between the instant case and the Ryan case is
uncanny,” without offering any analysis as to why the supposed similarity is material to the instant motion.
However, the only reasonable inference the Court can draw is that Plaintiffs are suggesting that, like the accountants
in Ryan, Mr. Shumway is simply offering lay testimony, not expert opinion, and therefore need not comply with
Rule 26(a)(2)(B).
19

See Fed. R. Civ. P. 26(a)(2)(B) (stating that witnesses “specifically employed to provide expert
testimony” must meet the listed requirements) (emphasis added).
20

ECF 25, Exs. A and B.

21

See ECF 125, Ex. B; Fed. R. Civ. P. 26(a)(2)(B)(i).

22

ECF125, Ex. B. at 3.

6

he fails to provide all “facts or data considered by the witness in forming his opinions.” 23
Although he provides various figures for out-of-pocket “Medical” costs for the years 2013
through 2016, he provides no supporting facts about these expenses or how they originate.
Mr. Shumway also fails to provide any “exhibits that will be used to summarize or
support” his opinion. 24 He simply states that the source of his figures is Mr. and Mrs. Adkins
and their conversations with physicians, but he provides no supporting documentation or analysis
for his conclusions. But the Court is not convinced that he did not rely on any documentation of
costs to reach the highly detailed figures he provides in his report, or that he will not rely on such
documentation at trial to support his opinion. Indeed, contrary to his suggestion that he relied
only on conversations with Plaintiffs to reach his calculations, they themselves assert in their
Reply that “[t]he Schedule Report clearly states that [Mr. Shumway] summarized the costs based
on information and documents provided by Plaintiffs.”25 These purported documents were not
included in Mr. Shumway’s report. Finally, Mr. Shumway’s report—specifically, the
“abbreviated CV” he included—does not include “a list of all publications authored in the
previous 10 years.” Nor does it list “all other cases in which, during the previous 4 years, the
witness has testified as an expert at trial or by deposition.” 26
The Court again notes that Plaintiffs do not argue that these Rule 26(a)(2)(B)
requirements have been meet. They instead propose that Defendants can obtain additional
23

Fed. R. Civ. P. 26(a)(2)(B)(ii).

24

Fed. R. Civ. P. 26(a)(2)(B)(iii).

25

ECF 182 at 3 (emphasis added); see also ECF 208 (arguing in response to Defendants’ motion to compel
that all documents have been provided).
26

ECF 125, Ex. B at 8; Fed. R. Civ. P. 26(a)(2)(B)(iv), (v). It is certainly possible that Mr. Shumway has
not authored any publications in the past 10 years, and that he has not testified in any cases in the previous 4 years.
But it is impossible to determine this based on an “abbreviated CV” that Mr. Shumway states he will supplement.
ECF 125, Ex. B at 2. Additionally, his ability to estimate the amount of hours he will spend “investigating, report
drafting, and testifying by both deposition and before the Court” in the event this case goes to trial suggests he has
recent experience testifying in other cases. See id.

7

information by subpoena and deposing Mr. Shumway. Their proposal suggests that he has not
disclosed all information relevant to the Rule 26(a)(2)(B) requirements. For these reasons and
those explained above, the Court finds that Mr. Shumway’s report does not comply with Rule
26(a)(2)(B).
B.

Substantial Justification or Harmlessness

Having found that Mr. Shumway’s report fails to comply with Rule 26(a)(2)(B), the
Court turns to whether that failure was substantially justified or harmless. “The determination of
whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the
district court.”27 While a court “need not make explicit findings concerning the existence of a
substantial justification or the harmlessness of a failure to disclose,” the court should be guided
by the following factors: (1) the prejudice or surprise to the party against whom the testimony is
offered; (2) the ability to cure any prejudice; (3) the potential for trial disruption if the testimony
is allowed; and (4) the erring party’s bad faith or willfulness.” 28 “The burden to demonstrate
substantial justification and the lack of harm is on the party who failed to make the required
disclosure.” 29 “The substantial justification requirement is satisfied where there exists a genuine
dispute concerning compliance.” 30
The Court finds that Plaintiffs have not met their burden to demonstrate substantial
justification or harmlessness of their failure to meet the Rule 26(a)(2)(B) requirements. First, the
potential prejudice or surprise to Defendants because of the non-compliance is substantial. Mr.
Shumway did not provide in his report all of the opinions and projections of damages that he
27

Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002); Paliwoda v. Showman, No. 12-2740KGS, 2013 WL 5938027, at *7 (D. Kan. Nov. 6, 2013).
28

Jacobsen, 287 F.3d at 953; Paliwoda, 2013 WL 5938027, at *7.

29

Paliwoda, 2013 WL 5938027, at *7 (citation omitted).

30

Mounger v. Goodyear Tire & Rubber Co., No. 99-2230-JWL, 2000 WL 1466198, at *2 (D. Kan. Sept. 22,

2000).

8

proposes to express at trial or the facts and data he will use to support those opinions. 31 Indeed,
his report lacks key information that he simply offers to include “if this matter continues to jury
[t]rial,” such as adjustments for inflation, damages beyond 2024, projected damages related to
Plaintiffs’ move from Georgia to Florida, and additional information to be included in his CV. 32
Rule 26(a) provides no justification for a proffered expert witness simply to defer his disclosures
to the time of trial. If Defendants must wait until trial to obtain Mr. Shumway’s complete
damages projections, the documents upon which he relies, a complete CV that identifies past
publications and previous testimony, or other information required for him to provide in a Rule
26(a)(2)(B) expert report, they may not be able to effectively prepare for trial. Neither Plaintiffs
nor Mr. Shumway provide good reason for the incompleteness of his report. 33 And there is no
indication that the missing information, which the report states will be provided at trial, was not
reasonably available to Mr. Shumway at the time he prepared his report. The Court finds no
difficulty in concluding that Defendants would be unnecessarily prejudiced or surprised by their
failure to provide the proposed amendments to Mr. Shumway’s report and testimony at trial.
Second, although Plaintiffs may have an opportunity to cure their non-compliance
because trial has not yet been scheduled, the Court finds that this factor does not weigh in favor
of either granting or denying the motion. Neither Plaintiffs nor Mr. Shumway have made any
suggestion that they intend to provide the supplemental information at any particular time before
trial. Thus, the Court is skeptical that Plaintiffs will timely cure the non-compliance, if the
instant motion is denied.
31

See ECF 125, Ex. B at 2–3, 4–5, 7–8 (setting forth categories of damages projections about which Mr.
Shumway intends to testify at trial, but stating that he has “not attempted to calculate” certain projections for his
report).
32

Id. at 2–3, 5.

33

Again, Plaintiffs simply appear to argue that Mr. Shumway’s report need not meet the requirements of
Rule 26(a)(2)(B). See generally ECF 182.

9

Third, the Court is concerned that the potential for trial disruption is great, if Mr.
Shumway’s testimony is allowed with his report in its current form. As already noted, his report
is lacking in key information about the opinions he will express, the facts he will use to support
those opinions, and background information about him. As already noted, he states he will
provide this information at trial. 34 Without this information sufficiently in advance of trial,
however, Defendants cannot effectively prepare their cross-examination of Mr. Shumway. Nor
can they adequately and timely designate their opposing experts. In fact, the failure of Plaintiffs
and Mr. Shumway to provide an adequate report in compliance with Rule 26(a)(2)(B) has
already led to extensions of deadlines and expense of Court resources to address motions related
to the report.35 The Court has little difficulty in recognizing the possibility of yet more
extensions of time, delays, and expense of Court resources, if Mr. Shumway is allowed to
proceed with the understanding that his report will be supplemented only at trial.
At this point the Court does not find that either Plaintiffs or Mr. Shumway acted in bad
faith or willfully exercised non-compliance with Rule 26(a)(2)(B). Additionally, although the
Court is concerned with Plaintiffs’ response to the motion, suggesting that Mr. Shumway’s
report need not comply with Rule 26(a)(2)(B), it is not at this point prepared to find that the
inadequate response was made in bad faith.
To summarize, two factors, the potential prejudice to Defendants and the potential for
trial disruption, weigh heavily in favor of striking Mr. Shumway’s testimony. Although neither
Plaintiffs’ nor Mr. Shumway’s conduct appear to have been willful or in bad faith, and although
the Court is certainly mindful that striking what is proposed to be expert testimony is a “drastic

34

See ECF 125, Ex. B at 3 (“Not calculated at this time, but will for Trial.”).

35

See ECF 222 (Order amending Scheduling Order, including extension of expert deadlines).

10

sanction,” 36 the Court is not convinced that the non-compliance will be cured without striking the
proposed testimony. Accordingly, the Court grants Defendants’ motion to strike Mr. Shumway’s
report and testimony. 37
III.

Motion to Compel
A.

Legal Standard

Federal Rule of Civil Procedure 26(b)(1) provides, in relevant part, that
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. 38
When the discovery sought appears relevant, the party resisting the discovery has the
burden to establish the lack of relevance by demonstrating that the requested discovery (1) does
not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of
such marginal relevance that the potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure. 39 Conversely, when the request is overly
broad on its face or when relevancy is not readily apparent, the party seeking discovery has the
burden to show the relevancy of the request. 40

36

Paliwoda v. Showman, No. 12-2740-KGS, 2013 WL 5938027, at *7 (D. Kan. Nov. 6, 2013) (citing A.H.
v. Knowledge Learning Corp., No. 09-2517-DJW, 2010 WL 4272844, at *5 (D. Kan. Oct. 25, 2010)).
37

Because the Court grants Defendants’ motion for failure to comply with Rule 26(a)(2)(B) pursuant to
Rule 36(c), the Court does not address Defendants’ arguments that the report contains inadmissible hearsay and
improper opinions regarding Plaintiffs’ alleged real estate losses.
38

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

39

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

40

Id. (citation omitted).

11

This Court “looks with disfavor on conclusory or boilerplate objections that discovery
requests are irrelevant, immaterial, unduly burdensome, or overly broad.” 41 The party filing a
motion to compel has the initial burden of addressing each boilerplate objection in its motion,
and by doing so, that party brings the objection “into play” and places the burden on the
objecting party to support its objections. 42 “[T]he objecting party must specifically show in its
response to the motion to compel, despite the broad and liberal construction afforded by the
federal discovery rules, how each request for production or interrogatory is objectionable.” 43
B.

Discussion

Defendants move to compel Plaintiffs to produce all documents relevant to Defendants’
Second Requests for Production (“Requests”). Defendants’ Requests seek documents related to
Plaintiffs’ taxes, Mr. Shumway’s report, Plaintiffs’ communications with medical and
psychotherapy treatment providers, and Plaintiffs’ communications with insurers.
1.

Tax Documents

In Requests One and Sixteen, Defendants seek tax documents from 2011 through 2016,
which Defendants argue would show Plaintiffs’ real estate holdings and would reflect on
Plaintiffs’ claimed losses of income. Plaintiffs respond that the tax documents are not relevant
and that they would contain a substantial amount of private financial information.
Public policy protects against the production of tax returns, and thus courts do not favor
compelling production of tax returns. 44 However, no absolute privilege precludes their
41

Sonnino v. Univ. of Kan. Hosp. Auth., 221 F.R.D. 661, 670 (D. Kan. 2004) (quoting Miner v. Kendall, No.
96-1126-MLB, 1997 WL 695587, at *1 (D. Kan. Sept. 17, 1997)).
42

Id. at 671 n.37.

43

Id. at 670–71.

Cont’l Coal, Inc. v. Cunningham, No. 06-2122-KHV, 2007 WL 4241848, at *3 (D. Kan. Nov.
28, 2007) (citations omitted); Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 539 (D. Kan. 2006)
(citations omitted).
44

12

discovery.45 Accordingly, this Court has employed the following two-pronged test to determine
the discoverability of tax returns:
First, the court must find that the returns are relevant to the subject matter of the
action. Second, the court must find that there is a compelling need for the returns
because the information contained therein is not otherwise readily obtainable. The
party seeking production has the burden of showing relevancy, and once that
burden is met, the burden shifts to the party opposing production to show that
other sources exist from which the information is readily obtainable. 46
“Courts have often held that income tax returns are relevant when a plaintiff places its
income at issue by seeking compensatory damages.” 47 Plaintiffs seek compensatory damages in
this case for real estate loses and lost income as a result of Ms. Adkins’ having to leave her
teaching position in Georgia, losing her tenure and retirement, and having to obtain a new
position in Florida at a lower pay. Plaintiffs have therefore placed their income at issue, and the
tax returns are presumably relevant to this issue. Plaintiffs contend that their real estate losses
and lost income were incurred in 2015 and 2016, however, and thus tax returns from 2011
through 2014 are not relevant. The Court agrees. Although tax returns from 2015 and 2016 may
reflect Plaintiffs’ real estate losses and lost income in those years, Defendants’ have not met their
burden to demonstrate that tax returns from prior years are relevant.
Having found that tax returns from 2015 and 2016 are relevant, the burden shifts to
Plaintiffs to demonstrate that information within the tax returns relevant to Plaintiffs’ losses is
available from other sources. Plaintiffs do not address this prong in their Response to
Defendants’ motion. They simply argue that tax returns from years other than 2015 and 2016 are
not relevant. The Court is unable to determine whether information relevant to Plaintiffs’
45

Cont’l Coal, 2007 WL 4241848, at *3.

46

Hilt v. SFC, Inc., 170 F.R.D. 182, 189 (D. Kan. 1997) (citing Audiotext Comm’ns Network, Inc. v. U.S.
Telecom, Inc., No. 94-2395, 1995 WL 625962, at *11 (D. Kan. Oct. 5, 1995)) (internal quotations omitted).
47

Cont’l Coal, 2007 WL 4241848, at *3 (citations omitted).

13

claimed losses would be obtainable from other sources. Thus, because Plaintiffs have not met
their burden on this issue, the Court finds that their tax returns from 2015 and 2016 are
discoverable. Accordingly, it grants the motion to compel as to Request One as it relates to
Plaintiffs’ tax returns from 2015 and 2016, and denies Defendants’ motion to compel as it relates
to tax returns from 2011 through 2014. Additionally, the Court grants Defendants’ motion to
compel as to Request Sixteen as it relates to tax and other real estate documents from the years
2015 and 2016.
2.

Documents Related to Mr. Shumway’s Report

In Requests Two through Seven, Nine, Eleven and Twelve, Defendants seek a variety of
documents related to Mr. Shumway’s report, including all documents upon which Plaintiffs
relied in providing information to Mr. Shumway, documents related to his “out-of-pocket costs”
projections, documents related to attorney’s fees and projections of other litigation costs,
documents that would support projections as to real estate losses, and Mr. Shumway’s complete
CV. The only relevancy these Requests have is in relation to Mr. Shumway’s report. Because
the Court has granted Defendants’ motion to strike Mr. Shumway’s report, it finds these
Requests moot. Accordingly, the Court denies Defendants’ motion to compel as it relates to
Requests Two through Seven, Nine, Eleven and Twelve.
3.

Documents Related to Communications with Treatment Providers

Defendants also seek various documents related to communications between Plaintiffs
and medical or psychotherapy treatment providers. Specifically, they seek “all correspondence”
and “all documents” from certain providers. Plaintiffs respond that they had an agreement with
Defendants that these documents would be provided after the execution of certain authorizations
for release of the documents, and that the parties would collaborate to obtain them. Defendants

14

acknowledge the agreement for signed authorizations, but deny any agreement that Defendants
would obtain the documents directly.
The Court entered a Memorandum and Order which, inter alia, addressed Defendants’
first motion to compel. 48 That Order includes a lengthy analysis, supporting its finding that
psychotherapy treatment records from providers in Georgia are privileged and thus not subject to
compelled production. The Court also found, however, that both non-psychotherapy and
psychotherapy records from treatment providers in Florida, were not similarly privileged. And,
consequently, their production could be compelled.
In briefing the instant motion, the parties do not identify the origin of the requested
documents. Nor do they indicate whether they relate to correspondence with psychotherapy or
non-psychotherapy medical providers. For the same reasons as discussed in the previous
Memorandum and Order, the Court finds that the correspondence and documents sought by the
instant motion are discoverable, except to the extent they implicate a psychotherapy treatment
provider in Georgia. Accordingly, the Court grants in part and denies in part Defendants’ motion
to compel documents responsive to Requests Thirteen, Fourteen, Seventeen, and Eighteen.
Plaintiffs are ordered to produce them, except for those that regard psychotherapy treatment from
providers in Georgia.
4.

Documents Related to Communications with Insurers

Request Ten seeks correspondence between Plaintiffs and their insurers. Defendants
argue that it will help determine what type of care will be covered in the future. Plaintiffs invoke
the collateral source rule. They argue that the rule bars evidence of insurance coverage and of
past and anticipated future insurance payments. In cases with diversity jurisdiction, such as this

48

ECF 223.

15

one, the application of the collateral source rule depends upon state law.49 Under Kansas law the
collateral source rule typically “bars admission of evidence stating that the expenses were paid
by a collateral source.” 50 However, because the reasonable value of medical services may
become an issue for the trier of fact when a collateral source pays medical expenses at a
discounted rate, the rule does not bar “the admission of evidence indicating that something less
than the charged amount [from a collateral source] has satisfied, or will satisfy, the amount
billed.” 51 Defendants do not seek correspondence between Plaintiffs and their insurer to
determine the reasonable value of services they have received or plan to receive. Rather they
seek them simply “to determine what type of care will be covered in the future.” 52 Evidence of
Plaintiffs’ correspondence with their insurer would not be admissible for this purpose pursuant to
the collateral source rule.
But the correspondence “need not be admissible in evidence to be discoverable,” so long
as it is relevant and proportional to the needs of this case. 53 In this instance, however, the Court
is not convinced that production of these documents would be proportional to the needs of the
case. Any issue of insurance appears to be collateral and only of marginal, if any, importance to
the issues. Defendants do not seek the documents to determine the reasonable value of the
services Plaintiffs received. The likely burden for searching for these documents outweighs its
likely benefit. Accordingly, the Court denies the motion to compel production of items
responsive to Request Number Ten.
49

See Macsenti v. Becker, 237 F.3d 1223, 1240–41 (10th Cir. 2001) (explaining that law of forum state with
regard to collateral source rule applies in diversity cases).
50

Martinez v. Milburn Enters., 233 P.3d 205, 221 (Kan. 2010); see Wisker v. Hart, 766 P.2d 168, 175
(1988) (recognizing statement from previous case that “evidence that a party received collateral source benefits is
not admissible in a trial”).
51

Martinez, 233 P.3d at 222–23.

52

ECF 207 at 4.

53

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

16

IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to Strike
Plaintiffs’ Retained Expert Spence Shumway (ECF 125) is granted.
IT IS FURTHER ORDERED BY THE COURT that Defendants’ Motion to Compel
Plaintiffs to Provide Responses to Defendants’ Second Requests for Production of Documents
(ECF 207) is granted in part and denied in part. Defendants’ motion is granted in part and
denied in part as to Requests One and Sixteen as described above, denied as moot as to
Requests Two through Seven, Nine, and Eleven through Twelve, granted in part and denied in
part as to Requests Thirteen, Fourteen, Seventeen, and Eighteen, and denied as to Request Ten,
as explained more fully above. Plaintiffs shall produce all documents ordered to be
produced by no later than thirty (30) days after the date of this Order.
IT IS SO ORDERED.
Dated: July 24, 2017

s/ Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate

17