Fish et al v. Kobach et al
ORDER granting in part and denying in part #343 Motion for Sanctions. Signed by Magistrate Judge James P. O'Hara on 6/23/2017. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN WAYNE FISH, et al.,
Case No. 16-2105-JAR
KRIS KOBACH, in his official capacity
as Secretary of State for the State of Kansas,
In this voting-rights case challenging the Kansas documentary proof of citizenship
(“DPOC”) law,1 plaintiffs have moved for the entry of sanctions against defendant, Kansas
Secretary of State Kris Kobach, for his conduct surrounding a dispute over the production
of two documents (ECF No. 343). Plaintiffs seek three specific forms of relief: (1) their
attorneys’ fees incurred in connection with filing a motion to compel the documents, (2)
removal of defendant’s “confidential” designation on the documents, and (3) the re-opening
of discovery for the limited purpose of deposing defendant about the documents. For the
reasons discussed herein, the court grants plaintiffs’ request for sanctions, albeit not in the
form plaintiffs seek, grants the request for a limited deposition of defendant, and denies the
request to remove the confidentiality designations.
Kan. Stat. Ann. § 25-2309(l) (requiring voter applicants to provide proof of United
States citizenship when they simultaneously apply for or renew a driver’s license).
Plaintiffs allege Kansas’s DPOC law, as enforced, violates § 5 of the National Voter
Registration Act (“NVRA”).2
In May 2016, the presiding U.S. District Judge, Julie A.
Robinson, entered a preliminary injunction barring defendant’s enforcement of the law until
this case can be decided on the merits.3 Defendant challenged the injunction in an
interlocutory appeal to the Court of Appeals for the Tenth Circuit. In an opinion affirming
Judge Robinson’s ruling, the Tenth Circuit clarified the standards applicable to § 5 claims.4
This clarification led the court to permit limited additional discovery.5
Plaintiffs then served a discovery request for “all documents and communications
regarding potential amendments or changes to the National Voter Registration Act affecting
how officials may assess the eligibility of a voter registration applicant.”6 The parties
identified two documents arguably responsive to the request: (1) a draft of a possible future
amendment to the NVRA that was created by defendant and shared by him with members
52 U.S.C. § 20504.
Fish v. Kobach, 189 F. Supp. 3d 1107 (D. Kan. 2016).
Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016).
ECF Nos. 254 at 2-4; 258 at 2-3.
ECF No. 273 at 4; ECF No. 273-6 at 2. The request as originally written sought, “All
documents and communications related to draft amendments to the NVRA, including but not
limited to any amendments related to the purported purposes of preventing, deterring and/or
identifying noncitizen registrations and/or attempted registrations, registration fraud, and/or
voter fraud.” ECF No. 273-2. But the request was modified in the course of counsel’s
of the Office of the Kansas Secretary of State (“the draft amendment”); and (2) a document
created by defendant to share with then President-Elect Donald Trump, referencing a possible
amendment to the NVRA, which was photographed by the Associated Press as defendant
was walking into a meeting with Mr. Trump (“the photographed document”). Defendant
refused to produce these documents, asserting that they are beyond the scope of re-opened
discovery, do not seek relevant information, and are protected by the attorney-client,
deliberative-process, and executive privileges. Plaintiffs filed a motion to compel.7
On April 5, 2017, the undersigned U.S. Magistrate Judge, James P. O’Hara, issued
an order overruling defendant’s scope-based objection and requiring in camera submission
of the documents to facilitate the court’s rulings on the remaining objections.8 After
reviewing the documents, the undersigned issued a second order on April 17, 2017, ruling
that parts of the documents are unquestionably relevant and that defendant had not
demonstrated a privilege protects their disclosure.9 Defendant was directed to produce
redacted versions of the draft amendment and the photographed document to plaintiffs.
Defendant filed a motion to stay production of the documents pending review of the
undersigned’s order by Judge Robinson. On April 23, 2017, the undersigned granted the stay
request.10 Thereafter, Judge Robinson denied defendant’s motion for review and ordered
ECF No. 272.
ECF No. 318.
ECF No. 320.
ECF No. 325.
defendant produce the documents in compliance with the undersigned’s order.11 When
defendant produced the documents to plaintiffs, the documents bore the designation
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”
defendant reproduce the documents with the designation removed, but defendant refused.
In the instant motion, plaintiffs argue defendant should be sanctioned “for his failure
to comply with his discovery obligations.”12 Plaintiffs assert defendant delayed production
of the documents by asserting frivolous arguments and taking unsupportable positions. They
seek their attorneys’ fees underlying their motion to compel and related filings. They also
ask the court to order defendant to produce the documents without the confidentiality
designation. Finally, they seek the reopening of discovery so that they may depose defendant
about the two documents.
Plaintiffs ask the court to sanction defendant for his conduct in challenging production
of the two documents that were the subject of plaintiffs’ motion to compel. Plaintiffs argue,
“Defendant’s misleading conduct has not only unnecessarily prolonged this discovery dispute
past the close of discovery,  it has raised basic questions about the integrity of Defendant’s
representations to Plaintiffs and to the Court, and merits sanctions.”13 The court agrees that
defendant’s deceptive conduct and lack of candor warrant the imposition of sanctions.
ECF No. 338.
ECF No. 343 at 1.
Id. at 8.
As plaintiffs note, the court has the “inherent power to impose a variety of sanctions
to regulate its docket, promote judicial efficiency and deter frivolous filings.”14 “That
authority includes ‘the ability to fashion an appropriate sanction for conduct which abuses
the judicial process.’”15 Under this authority, a court may assess a sanction “when a party
has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.’”16 The court’s
“inherent power to impose sanctions for . . . bad-faith conduct” exists even when that conduct
could also be sanctioned by the Federal Rules of Civil Procedure, and it further exists “to fill
in the interstices” left by those rules.17
As mentioned above, plaintiffs served defendant a discovery request for “all
documents and communications regarding potential amendments or changes to the National
Resolution Trust Co. v. Dabney, 73 F.3d 262, 267 (10th Cir. 1995), citing Chambers
v. NASCO, Inc., 501 U.S. 32, 50 (1991) (recognizing the inherent power of courts to sanction
conduct abusive of the judicial process and rejecting arguments that statutory sanctioning
powers displace this inherent power); see also Farmer v. Banco Popular of N. Am., 791 F.3d
1246, 1255 (10th Cir. 2015) (“In the words of Justice Scalia, ‘[s]ome elements of [an Article
III court’s] inherent authority are so essential to the judicial Power ... that they are
indefeasible, among which is a court’s ability to enter orders protecting the integrity of its
proceedings.’” (internal citations omitted)); Braley v. Campbell, 832 F.2d 1504, 1510 (10th
Cir. 1987) (“To deter frivolous and abusive litigation and promote justice and judicial
efficiency, the federal courts are empowered to impose monetary sanctions, by statutes and
the rules of civil and appellate procedure as well as their inherent right to manage their own
Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186 (2017) (quoting
Chambers, 501 U.S. at 44-45).
Chambers, 501 U.S. at 45 (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240, 258-59 (1975)).
Id. at 46-47.
Voter Registration Act affecting how officials may assess the eligibility of a voter
registration applicant.”18 In an email accompanying the request, plaintiffs’ counsel noted,
“a document is responsive whether or not it is connected with an actual draft NVRA
amendment. Documents that simply discuss the option or possibility of amending the NVRA
should be produced.”19 In multiple meet-and-confer discussions, the parties identified both
the draft amendment and the photographed document, and discussed plaintiffs’ demand that
defendant produce them in response to this request. Defendant ultimately informed plaintiffs
that he would not produce the documents because the request was beyond the scope of reopened discovery and, with respect to the photographed document, was “designed to harass”
rather than obtain relevant documents.20 Defendant further asserted the photographed
document was subject to the executive privilege, and not in the custody or control of the
Office of the Kansas Secretary of State.21
Up to this point, the court finds nothing unscrupulous in defendant’s positions.22
Indeed, the court has recognized that whether the request was within the scope of reopened
ECF No. 273-6 at 2.
ECF No. 273-7 at 2.
The court rejects plaintiffs’ suggestion that defendant should have added the
photographed document to his privilege log. This would have been an unnecessary technical
step when both sides were well aware of the document being withheld and the circumstances
discovery was a “very close call.”23 And, although the court ultimately rejected defendant’s
relevance and privilege arguments, defendant’s objections on those grounds were
substantially justified.24 A discovery response or objection is “substantially justified” “if it
is ‘justified to a degree that could satisfy a reasonable person’ or if ‘reasonable people could
differ as to [its] appropriateness’”25 Here, defendant had a reasonable basis in law and fact
to object that the documents were not relevant to the limited issues for which discovery was
reopened, a question related to the issue of scope. Likewise, defendant raised plausible
privilege arguments that the court did not dismiss out of hand, but instead spent ten pages
analyzing.26 Because defendant’s objections were substantially justified, the court will not
(and may not) impose sanctions under Fed. R. Civ. P. 37(a)(5).27
Defendant’s positions began to go awry, however, after plaintiffs filed a motion to
compel production of the two documents.28 In response to the motion, defendant made
patently misleading representations to the court about the documents, which at the time had
ECF No. 318 at 8.
Plaintiffs’ statement in their motion that the court found the objections “were not
substantially justified” is materially inaccurate. ECF No. 343 at 9.
Linnebur v. United Tele. Ass’n, No. 10-1379, 2012 WL 1183073, at *1 (D. Kan. Apr.
9, 2012) (citing cases); see also Hamner v. Assoc. Wholesale Grocers, Inc., No. 07-2314,
2008 WL 917900, at *2 (D. Kan. March 31, 2008) (internal citations omitted).
Plaintiffs concede, “Defendant may have been entitled to object to producing
documents on the grounds of relevance and privilege.” ECF No. 343 at 10.
Plaintiffs mentioned Rule 37 as one basis for sanctions.
ECF No. 272.
not been produced to either the court or plaintiffs, such that the court was required to take
defendant at his word. For example, in discussing the text of the draft amendment, defendant
stated, “that text does not propose to ‘amend or alter’ an ‘eligibility-assessment procedures
[sic] mandated by the NVRA.’”29 A review of the draft amendment, however, indicates that
the text proposed amending the NVRA’s provisions governing the type of information a state
could require voter-registration applicants provide to enable the state to assess the applicant’s
In another example, defendant’s response brief states,
Plaintiffs theorize that ‘[A]ny alternative methods proposed by Defendant to
alter the assessment of voter eligibility under the NVRA go directly to the
second prong of the Tenth Circuit’s analysis.’ Pls. Memo. at 7. Plaintiffs
suppose that, ‘efforts by Defendant to seek alternative means of assessing
voter qualifications by amending the NVRA would suggest that a DPOC
requirement is not the least restrictive method of verifying eligibility.’ Pls.
Memo. at 7. First, had Plaintiffs actually sought the documents that they now
claim they are seeking, Defendant would have responded that no such
This paragraph gives the strong impression that neither of the two at-issue documents relate
to proposals by defendant to amend the NVRA’s eligibility-assessment provisions. Upon in
camera review of the documents, the undersigned learned this is clearly not the case.
The court cannot say that defendant flat-out lied in representing the content of the
disputed documents. In his response to the motion for sanctions, defendant attempts to
ECF doc. 288 at 18.
Id. at 17 (emphasis added).
defend his representations by thinly parsing the wording plaintiffs allegedly used. He states
that the NVRA did not “mandate” attestation (but, actually, plaintiffs never said it did) and
that he did not make “efforts” to amend the NVRA (which is certainly debatable). The fact
remains, however, as the court noted in its order granting plaintiffs’ motion to compel, that
defendant’s statements “can be construed as word-play meant to present a materially
inaccurate picture of the documents.”31 The court agrees with plaintiffs that it would have
been obvious to any reasonable attorney that a request for “all documents and
communications regarding potential amendments or changes to the [NVRA] affecting how
officials may assess the eligibility of a voter registration applicant” would encompass draft
language intended to alter core provisions of the NVRA and bear on defendant’s efforts to
alter those provisions.
As officers of the court, defense counsel have a duty of candor to the court and to
opposing counsel. Justice requires that all involved in our legal system work to ensure that
a true and accurate picture of the facts is presented to the court. This means that parties and
their attorneys must respond to discovery fairly and accurately, and that counsel assert only
arguments that are supported by facts. “Most attorneys, of course, try to convey evidence
in the best possible light for their clients. But there is a difference between putting evidence
in the best possible light and blatantly misstating the evidence.”32 When counsel’s false
ECF No. 320 at 7 n.22.
Maiteki v. Marten Transp., Ltd., No. 12-cv-2021, 2016 WL 3878502, at *4 (D. Colo.
July 18, 2016) (awarding sanctions against attorney under 28 U.S.C. § 1927).
references in a brief indicate “that he has been either cavalier in regard to his approach to this
case or bent upon misleading the court,” sanctions are appropriate.33
To deter defense counsel and other members of the bar from deliberately attempting
to mislead the court in the future, and to somewhat compensate the court for the “costs
imposed on the judicial system” through the undersigned’s time spent discovering
defendant’s misrepresentations and bringing the same to light,34 the court fines defendant
$1,000, to be payable to the court.35 Defense counsel shall submit the fine by July 21, 2017.
On a final note, the undersigned reiterates the sentiment expressed in his April 17,
2017 order. Although conduct resulting in the imposition of sanctions typically has a
negative, but short-term, financial impact on counsel or his client, it usually has a much more
sustained impact on the reputation of counsel—both among judicial officers and the
practicing bar. The court urges defense counsel to garner good reputations for themselves
by taking care in the future to act honestly and graciously towards the court and opposing
Herzfeld & Stern v. Blair, 769 F.2d 645, 647 (10th Cir. 1985).
Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir. 1995) (upholding
sanction of fine paid to the court for “time [court] spent on the discovery dispute, . . . under
the court’s inherent power to impose a variety of sanctions to regulate its docket, promote
judicial efficiency and deter frivolous filings”).
See Mellot v. MSN Commc’ns, Inc., 492 F. App’x 887, 889 (10th Cir. 2012) (ruling,
“an inherent-power sanction may be payable to the court, and it may take account of the
court’s inconvenience and the waste of judicial resources”); In re Baker, 744 F.2d 1438,
1441 (10th Cir. 1984) (en banc) (“As a sanction message to the lawyers involved, as well as
to the bar generally, $175 imposed on each lawyer is certainly modest enough to fall well
within the realm of the trial court’s broad discretion.”). When defendant submits this
payment to the Clerk’s Office, any check shall be made payable to “Clerk, U.S. District
Next, plaintiffs object that defendant designated the two produced documents
“confidential” under the protective order, and ask the court to order defendant to re-produce
the documents with the designation removed. The protective order states, in relevant part,
2. Definition of Confidential Information. As used in this Order,
“Confidential Information” is defined as information that the producing party
designated in good faith has been previously maintained in a confidential
manner and should be protected from disclosure and use outside the litigation
because its disclosure and use is restricted by statute or could potentially cause
harm to the interests of the disclosing party or nonparties. For purposes of
this Order,  the Parties will limit their designation of “Confidential
Information” to the following categories of information or documents . . .
(c) Information that is exempt from disclosure under the Kansas Open
Thus, to support his confidentiality designation on each document, defendant must prove37
the document’s disclosure is either restricted by statute or could potentially cause harm, and,
in this instance, that the document is exempt from disclosure under the Kansas Open Records
Act (“KORA”).38 Because defendant has satisfied this burden, the court finds the documents
subject to the protective order and denies plaintiffs’ request to order the confidentiality
ECF No. 55 at 2-3 (emphasis added).
See id. at 7-8 (“The burden of proving the necessity of a confidentiality designation
remains with the party asserting confidentiality.”).
Plaintiffs do not dispute the documents were maintained in a confidential manner,
as required by the main paragraph; and defendant does not suggest the documents fall under
any sub-section other than (c).
Defendant asserts disclosure of the two documents is restricted by Kansas statute
because they are exempt from disclosure under KORA. KORA provides that records in the
possession of a public agency, such as the Office of the Kansas Secretary of State,40 are
subject to public disclosure unless they fall under an exception set forth in the Act.41
The court squarely rejects plaintiffs’ assertion that the undersigned already deemed
the documents not protected by the protective order when the undersigned issued a short stay
of his order granting plaintiffs’ motion to compel while review of that order was pending
before Judge Robinson. ECF No. 343 at 12-13 (citing ECF No. 325 at 3). In the stay order,
the undersigned found that immediate disclosure of the documents to plaintiffs would
effectively waive defendant’s privilege arguments pending review because, “Unlike in In re
Syngenta, a case plaintiffs cite, there is no protective order in this case that would limit
disclosure of defendant’s documents to plaintiffs’ ‘outside legal counsel only.’” ECF No. 325
at 3. The undersigned did not, as plaintiffs state, rule that there was no protective order in
this case under which the documents could be produced to plaintiffs with a confidentiality
designation to protect them from disclosure beyond the parties in this case. This separate
issue has not previously been litigated or decided by the court, and plaintiffs’ argument that
it is “law of the case” is frivolous.
The court rejects any attempt by plaintiffs to argue the photographed document is
not in the possession of the Office of the Kansas Secretary of State. Plaintiffs sought, and
obtained, the photographed document from that office; they did not subpoena the
photographed document directly from Secretary Kobach in his capacity as something other
than a party to this case and a representative of the Office. In any event, at this juncture, the
document certainly is in the possession of the Office if the Kansas Secretary of State, as that
office produced it to the court for in camera review.
See Kan. Stat. Ann. 45-216(a) (“It is declared to be the public policy of the state that
public records shall be open for inspection by any person unless otherwise provided by this
act, and this act shall be liberally construed and applied to promote such policy.”); Kan. Stat.
Ann. 45-217(f)(1) (“‘Public agency’ means the state or any political or taxing subdivision
of the state or any office, agency or instrumentality thereof, or any other entity receiving or
expending and supported in whole or in part by the public funds appropriated by the state or
by public funds of any political or taxing subdivision of the state.”); Kan. Stat. Ann.
45-217(g)(1) (“‘Public record’ means any recorded information, regardless of form,
characteristics or location, which is made, maintained or kept by or is in the possession of:
KORA’s exceptions are to be “narrowly interpreted,” with the public agency opposing
disclosure bearing the burden of proving the applicability of an exception.42 But where an
exception is not ambiguous, courts should not “resort to the rule of liberal construction.”43
Defendant contends the documents fall under the “preliminary working papers
exception,”44 KORA section (a)(20), which exempts from disclosure “[n]otes, preliminary
drafts, research data in the process of analysis, unfunded grant proposals, memoranda,
recommendations or other records in which opinions are expressed or policies or actions are
proposed.”45 The Supreme Court of Kansas has described this exception as “selfexplanatory.”46 Under it, “records expressing opinions or containing proposed policies or
actions need not be disclosed.”47
Defendant aptly proves the applicability of the section (a)(20) exception to the two
(A) Any public agency.”).
Telegram Publ’g Co. v. Kan. Dep’t of Transp., 69 P.3d 578, 583 (Kan. 2003).
Salina Journal v. Brownback, 394 P.3d 134, 144 (Kan. Ct. App. 2017).
See id. at 138 (referring to Kan. Stat. Ann. 45-221(a)(20) as the “preliminary
working papers exception”).
Kan. Stat. Ann. 45-221(a)(20) (“Except to the extent disclosure is otherwise required
by law, a public agency shall not be required to disclose: . . . Notes, preliminary drafts,
research data in the process of analysis, unfunded grant proposals, memoranda,
recommendations or other records in which opinions are expressed or policies or actions are
proposed, except that this exemption shall not apply when such records are publicly cited or
identified in an open meeting or in an agenda of an open meeting.”).
Wichita Eagle and Beacon Pub. Co. v. Simmons, 50 P.3d 66, 83 (Kan. 2002).
documents at issue. First, the draft amendment has been shown to be a preliminary, non-final
draft of amendments the Office of the Secretary of State was discussing internally with the
intent of potentially suggesting the changes to Congress.48 As such, it falls under the
“preliminary draft” or “recommendations” language of section (a)(20).
photographed document is similarly a memorandum containing a proposed policy or action,
and it likewise falls under the plain language of section (a)(20). It is of no matter that the
document was created by Secretary of State Kobach in his capacity as an advisor to the
President-Elect and was not created by the Office of the Kansas Secretary of State because,
as noted above, it falls under KORA’s reach as “information . . . in the possession of” a state
The court rejects plaintiffs’ argument that the documents cannot meet the section
(a)(20) exception because defendant does not have authority to introduce legislation as a
member of Congress. Quite simply, section (a)(20), by its terms, encompasses records
beyond those involved in the formal “legislative process.”50 The court also flatly rejects
plaintiffs’ statement that the undersigned “confirmed” in the orders ruling on plaintiffs’
See ECF No. 320 at 12-13.
Supra notes 40 & 41.
ECF No. 343 at 16. See Kan Att’y Gen. Op. 2013-5, 2013 WL 633937 (2013)
(advising draft minutes of agency meetings fall under the section (a)(20) exception).
Plaintiffs’ argument, improperly raised for the first time in their reply brief, that the section
(a)(2) exception applies only to internal agency discussions of policy that “pertain to the
agency’s core function,” ECF No. 354 at 16, is not supported by the language of the statute
or the attorney general opinions plaintiffs cite, and the court declines to adopt that position.
motion to compel that the two documents are not “predecisional or deliberative.”51 The
orders did nothing of the sort. Rather, the court held defendant failed to meet his burden of
demonstrating the applicability of the federal deliberative process privilege, and expressly
noted the court was “not ruling that some manner of deliberative-process privilege” did not
apply, as “[d]efendant never directly asserted a state-agency privilege.”52
Plaintiffs next argue that even if the two documents are exempt from disclosure under
KORA, defendant may not designate them “confidential” unless he also makes a
particularized showing that public disclosure of the documents, now in their redacted form,
would harm the interests of the disclosing party or nonparties as required by paragraph 2 of
the protective order.53 But plaintiffs misstate the order’s standard. Paragraph 2 actually
states that the producing party may designate a document confidential “because its disclosure
and use . . . could potentially cause harm to the interests of the disclosing party or
nonparties.”54 And, as noted above, this basis for asserting confidentiality is in the
alternative to showing that disclosure is restricted by statute, which the court has found
satisfied. Were defendant required to satisfy this additional standard, however, the court
would find he met his burden. The court accepts defendant’s reasoning that his interests
could potentially be harmed by the “chilling effect” public disclosure of the documents could
ECF No. 343 at 15.
ECF No. 320 at 13 n.39 (emphasis in original).
ECF No. 343 at 16–17.
ECF No. 55 at 2–3.
bring. Specifically, their public disclosure would make it less likely that defendant would,
in the future, seek or give candid advice on matters of public importance.55
Finally, plaintiffs argue that even if the documents are exempt from disclosure under
Kansas state law, “that would not render them confidential for purposes of the Protective
Order” in this federal question case. This argument is odd for two reasons. First, in support,
plaintiffs quote caselaw discussing privilege assertions in federal courts—an issue that
considers whether a document is discoverable at all, not the wholly separate issue of whether
a discoverable document is shielded by a protective order from disclosure beyond the
confines of the litigation. Second, the protective order in this case specifically looks to
Kansas state law in defining the limits on confidentiality. Plaintiffs’ argument in this regard
The court concludes that the protective order governs the dissemination of the
documents at issue. The protective order appears to have been fairly negotiated by the
parties over multiple discussions.56 Plaintiffs do not suggest otherwise. Nor do plaintiffs
suggest any prejudice they would suffer if the protective order is enforced. The court will
not now permit plaintiffs to change the terms to which they agreed, simply to satisfy
For this reason, the court also rejects plaintiffs’ argument, inappropriately advanced
for the first time in their reply brief, that the Fed. R. Civ. P. 26(c) “good cause” standard has
not been met.
See ECF Nos. 52 at 1, 53 at 46-53, 55.
whatever political interests plaintiffs may have in broad dissemination of the documents.57
To be clear, however, as the undersigned explained in detail at the status conference
on the protective order, documents designated confidential under the protective order are not
necessarily (or even likely) subject to filing under seal when a party relies upon them in
support of a motion (such as the upcoming summary judgment motions the parties anticipate
filing).58 “The fact that the exhibits are ‘confidential’ within the meaning of the parties’
protective order has no bearing on whether those exhibits should be sealed in the record.”59
The disclosure analysis applicable to protective orders “generally balances the need for
discovery against the need for confidentiality. But once such discovery material is filed with
the court, it becomes a judicial record and the standard that applies when a party wants to
keep such material under seal is much higher.”60
“Courts have long recognized a
See ECF No. 53 at 90 (“First, the basic purpose of entering a protective order is to
facilitate, not hinder, discovery. So it would allow folks who may have legitimate concerns
about the sensitivity or confidentiality of certain documents to designate them as confidential
and still produce them to the other side under the order, mindful that they’re not going to be
widely disseminated later on.”).
See id. at 91 (“[O]ur general operating premise is that anything that is relevant to a
filing with the court is open to the public. The public has a right to see this stuff absent
somebody being able to clearly demonstrate why it shouldn’t be in public view and why the
public’s right to know is outweighed. And, hence, stipulations to seal or conclusionary
statements about the need to seal are not going to cut it. So be mindful of that as you stamp
things as confidential and certainly when you seek to submit something to the Court under
seal.”); see also ECF No. 60 (ruling that marking documents “confidential” under the
protective order is “insufficient” to justify filing them under seal).
New Jersey v. Sprint Corp., No. 03-2071, 2010 WL 5416837, at *2 (D. Kan. Dec.
Id. (internal quotations omitted).
common-law right of access to judicial records.”61 “This right derives from the public’s
interest in understanding disputes that are presented to a public forum for resolution and is
intended to assure that the courts are fairly run and judges are honest.”62 Thus, a “strong
presumption” exists that judicial records will not be sealed.63 A party seeking to overcome
this presumption “must articulate a real and substantial interest that justifies depriving the
public of access to the records that inform our decision-making process.”64 In weighing the
interests, the court “works from the premise that the public’s interests ‘are presumptively
paramount against those advanced by the parties.’”65 The parties are urged to keep these
standards in mind should they seek to file a one of the documents at issue (or, for that matter,
any document) under seal as an exhibit to the upcoming dispositive-motion briefings.
Finally, plaintiffs ask the court to reopen discovery for the limited purpose of allowing
them to depose defendant about the draft amendment and the photographed document.
Specifically, plaintiffs state they would like to depose Secretary Kobach about “when and
Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citations omitted).
Gambrell v. Weber Carpet, Inc., No. 10-2131, 2011 WL 3518172, at *1 (D. Kan.
Aug. 11, 2011) (quotations and citations omitted).
Mann, 477 F.3d at 1149.
Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011).
Alewel v. Dex One Serv., Inc., No. 13-2312, 2013 WL 6858504, at *4 (D. Kan. Dec.
30, 2013) (quoting Helm, 656 F.3d at 1292); see also ECF No. 60 at 1 (“In exercising this
discretion, the court weighs the interests of the public, which are presumptively paramount,
against those advanced by the parties.” (internal modifications and citations omitted)).
why these documents were created, and by whom; the process that led to their creation; with
whom they were shared, if anyone; how they were used or what information they relied
upon; and other issues related to the responsive documents.”66 Under the scheduling order,
the discovery period ended April 26, 2017.67 The court, however, may reopen discovery in
its sound discretion.68
Defendant does not oppose reopening discovery for the limited purpose of allowing
plaintiffs to gain information about the draft amendment and the photographed document
through written interrogatories or requests for admission, but asserts deposing defendant is
inappropriate for two separate reasons: he is counsel of record and is a high-ranking
government official. Because the court finds defendant is the only person with direct
knowledge to answer certain questions about the documents and that a short deposition
would be less intrusive than written discovery in this particular instance, plaintiffs’ request
Defendant correctly notes that, as a general matter, courts disfavor permitting the
deposition of opposing counsel. “This district . . . has recognized the potential for abuse in
deposing an opponent’s attorney by inviting ‘delay, disruption of the case, harassment, and
ECF No. 343 at 18.
ECF No. 353 at 29 (citing Amended Scheduling Order, ECF No. 258).
Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).
unnecessary distractions into collateral matters.’”69 As a result, courts have applied a
heightened standard, set forth in Shelton v. American Motors Corp.,70 in evaluating requests
to depose an opposing party’s attorney.71 Significantly, however, when the attorney whose
deposition is sought is a named party in the lawsuit with personal knowledge of relevant facts
underlying the case, courts have found the Shelton criteria inapplicable and permit the
deposition to go forward on that basis.72 The rationale for the heightened standard simply
does not apply to deposition topics regarding the attorney’s role as a fact witness, rather than
Fugett v. Sec. Transp. Servs., Inc., No. 14-2291, 2015 WL 419716, at *4 (D. Kan.
Feb. 2, 2015) (quoting Mike v. Dymon, Inc., 169 F.R.D. 376, 378 (D. Kan. 1996)).
805 F.2d 1323 (8th Cir. 1986). “The Shelton court held that depositions of opposing
counsel should be limited to where the party seeking to take the deposition has shown that:
(1) no other means exist to obtain the information than to depose opposing counsel; (2) the
information sought is relevant and nonprivileged; and (3) the information is crucial to the
preparation of the case.” Boughton v. Cotter Corp., 65 F.3d 823, 829-30 (10th Cir. 1995).
See DeWitt v. SW Bell Tel. Co., No. 12-2605, 2014 WL 695744, at *6 (D. Kan. Feb.
24, 2014); Buth v. AAA Allied Grp., Inc., No. 12-1223, 2013 WL 1308543, at *1 (D. Kan.
Mar. 28, 2013).
Perez v. Alegria, No. 15-mc-401, 2015 WL 4744487, at * 4 (D. Kan. June 24, 2015)
(rejecting blanket attorney-client privilege objection to deposition of opposing counsel who
was also a member of the LLC operating two restaurants that were the subject of the wageand-hour case); Fugett, 2015 WL 419716, at *4 (permitting deposition of counsel of record
listed as a witness on initial disclosures where description of proposed testimony listed
factual occurrences and not legal advice); Kannaday v. Ball, No 12–2742, 2013 WL
3820013, at *3 (D. Kan. July 24, 2013) (same); United Phosphorus, Ltd. v. Midland
Fumigant, Inc., 164 F.R.D. 245, 249-50 (D. Kan. 1995) (refusing to limit scope of counsel’s
deposition where counsel had “personal knowledge of the underlying facts which are related
to the action,” was “directly involved in events” relevant to the issues in dispute, and who,
“but for his status as an attorney in th[e] action, would in all respects be considered as a
witness from whom discovery would be appropriate”).
the attorney’s role in representing the client.73
Here, the information plaintiffs seek about the documents relates to Secretary
Kobach’s actions as a party to this case, not to his role as an attorney of record. The record
indicates Secretary Kobach is the creator of the documents. Only he can explain his thought
processes concerning their creation and his subsequent related actions—such as with whom
he shared them and why. The factual information sought, then, is not why defendant took
certain steps as counsel of record in this case, but rather as the state’s chief election official
(as pertains to the draft document) and as an advisor to the President-Elect (as pertains to the
photographed document). It cannot be disputed that the information Secretary Kobach may
have about the documents could reasonably lead to the discovery of admissible evidence,
such as evidence bearing on whether defendant “sought to amend the NVRA to alleviate
defendant’s burdens under § 5.”74 Further, plaintiffs have affirmatively represented that they
do not intend to inquire about matters protected by attorney-client privilege or work product.
“The court is unwilling to preclude plaintiff[s] from discovery of facts which may be relevant
Fugett, 2015 WL 419716, at *4; Kannaday, 2013 WL 3820013, at *3. See also U.S.
v. Philip Morris Inc., 209 F.R.D. 13, 16-18 (D.D.C. 2002) (holding Shelton did not bar the
deposition of general counsel regarding non-legal, business decisions because such topics
were not privileged and would not reveal litigation strategy in the pending case).
ECF doc. 320 at 7-8 (“[B]oth documents contain exactly the type of information
contemplated by the court as relevant. To be clear, neither of these documents conclusively
proves defendant sought to amend the NVRA to alleviate defendant’s burdens under § 5 as
interpreted by the Tenth Circuit in October 2016. But, at a minimum, both “bear on” (and
reasonably could lead to other information bearing on) that question and, therefore, on
whether defendant can meet the current standards that will be determinative of plaintiffs’
preemption claim in this case.”).
in this case simply because defendant has chosen [Secretary Kobach] to represent it as
counsel in this matter notwithstanding his personal knowledge of the underlying facts which
are related to the action.”75 The court declines to protect defendant from the limited
deposition requested based on his status as attorney of record.
Courts also limit the circumstances under which senior government officials may be
“[A]s a general rule, courts have held that depositions of high-ranking
government officials should not be a routine part of litigation unless the party seeking the
deposition can demonstrate that there is some reason to believe that it will produce or lead
to admissible evidence.”77
When the official is shown to have exclusive first-hand
knowledge directly relevant to the claims being litigated, this standard is met.78 As noted
directly above, plaintiffs have satisfied this standard with respect to Secretary Kobach and
the two particular documents currently at issue.
The next consideration is whether a deposition, rather than written discovery, about
United Phosphorus, 164 F.R.D. at 250.
Plaintiffs “acknowledge that Defendant is a senior state official and that depositions
of agency heads are typically disfavored.” ECF No. 354 at 19.
Estate of Turnbow v. Ogden City, No. 1:07CV114, 2008 WL: 2004328, at *2 (D.
Utah May 9, 2008) (citing Oliveri v. Rodriguez, 122 F.3d 406, 409-10 (7th Cir. 1997) and
In re Office of Inspector Gen. R.R. Ret. Bd., 933 F.2d 276, 278 (5th Cir. 1991)).
See id.; Bogan v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007) (“Depositions of
high ranking officials may be permitted where the official has first-hand knowledge related
to the claim being litigated . . . where it is shown that other persons cannot provide the
the two documents is the most appropriate course of action. Given the posture79 and history
of this litigation, the undersigned concludes that a deposition is the most effective and
efficient means of allowing plaintiffs to get the answers they seek. As opposed to the time
that would be required for the parties to draft and respond to interrogatories, and the potential
motion practice that could arise from the parsing of language and over the validity of
objections, the court believes proceeding with a short deposition of Secretary Kobach is most
consistent with the mandate of Fed. R. Civ. P. 1 that the rules of procedure be construed in
a way that leads to the “just, speedy, and inexpensive determination of every action.” A
deposition also has the advantage of allowing for immediate follow-up questions by
Accordingly, plaintiffs are permitted to take the deposition of Secretary Kobach with
respect to non-privileged information and evidence pertaining to the draft amendment and
the photographed document. The deposition will be held on July 5, 2017, at 10:00 a.m. in
Room 211 of the United States Court House, 500 State Avenue, Kansas City, Kansas.80 The
undersigned will preside over the deposition and contemporaneously resolve any disputes
that arise. The deposition is limited to sixty minutes of testimony on direct examination. As
agreed to by plaintiffs,81 all testimony at the deposition will be subject to the confidentiality
Plaintiffs’ deadline to file a motion for summary judgment is July 7, 2017. ECF
Nos. 350 & 352.
A court reporter will not be provided by the court. The responsibility for ensuring
the recording of the deposition remains with plaintiffs.
ECF No. 354 at 22.
provisions of the protective order (i.e., the deposition will not be open to the public).82
IT IS THEREFORE ORDERED that plaintiffs’ motion for sanctions and other forms
of relief is granted in part and denied in part.
Dated June 23, 2017, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
As discussed above, this protection doesn’t indicate that the testimony is likely to
be sealed if any party later seeks to file it in support of a dispositive motion.
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