Meyer v. United States of America
MEMORANDUM AND ORDER granting 23 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 2/24/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WAYNE W. A. MEYER,
UNITED STATES OF AMERICA,
ORDER ON DEFENDANT’S MOTION TO COMPEL
Now before the Court is Plaintiff’s Motion to Compel. (Doc. 23.) For the
reasons set forth below, Plaintiff’s motion is GRANTED.
The present lawsuit results from an automobile collision in which a driver
for the United States Postal Service, Anthony Pippins, is alleged to have rear-ended
the vehicle operated by Plaintiff, causing injury to Plaintiff. (See generally, Doc.
1.) Pippins is alleged to have been issued a citation for failing to control speed to
avoid a collision. (Id., at 3.) The present motion relates to Defendant’s objections
to certain of Plaintiff’s discovery responses.
Fed.R.Civ.P. 26(b) states that
[p]arties 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 state 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. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
As such, the requested information must be both nonprivileged and relevant to be
discoverable. Within this framework, the Court will review the contested
Plaintiff argues that Defendant’s objections to Interrogatories Nos. 3-11, 14,
and 16,1 and Requests Nos. 4 and 5 are conditional in nature and, therefore,
waived. Defendant objected to Plaintiff’s Request No. 4 “to the extent it seeks
information that is protected by the provisions of the Privacy Act, 5 U.S.C. § 552a,
disclosure of which could be determined to be violative of the right to privacy by
individuals who are not a party hereto.” Defendant then identified certain
documents “[s]ubject to the foregoing objection, without waiving same . . . .”
Plaintiff mistakenly numbered two interrogatories as “6.” (See Doc. 25, at 5-6.)
For purposes of this motion, the Court’s analysis relates to the second of these two
interrogatories (requesting identifying information as to Anthony Pippins).
(Doc. 25, at 11-12.) Defendant’s response to Request No. 5 is similar, although
Defendant indicates it has no responsive documents, subject to the stated objection.
(Id., at 12.) Defendant’s responses to Interrogatories Nos. 3-11, 14, and 16 all
include (or incorporate prior) objections followed by a response that is “[s]ubject
to the foregoing objections, without waiving the same . . . .” (Doc. 25, at 3-9.)
This Court has specifically indicated its disapproval of “conditional”
Such responses occur when ‘a party asserts objections,
but then provides a response ‘subject to’ or ‘without
waiving’ the stated objections.’ Westlake v. BMO
Harris Bank N.A., 2014 WL 1012669, *3 (D.Kan.
March 17, 2014) (citing Sprint Comm'n Co., L.P. v.
Comcast Cable Comm'n, LLC, Nos. 11–2684–JWL,
11–2685–JWL, 11–2686–JWL, 2014 WL 54544, *2, 3
(D.Kan. Feb. 11, 2014). The Court is in agreement with
the Sprint decision that found such conditional responses
to be ‘invalid,’ ‘unsustainable,’ and to ‘violate common
sense.’ 2014 WL 54544, *2, 3.
Everlast World’s Boxing Headquarters Corp. v. Ringside, Inc., No. 13-2150-CMKGG, 2014 WL 2815515, at *3 (D. Kan. June 23, 2014).
In Everlast, the undersigned Magistrate Judge found all such conditional
responses to be improper and directed the responding party to provide
supplemental responses without such language. Id. The same is ordered of
Defendants herein. Defendant’s conditional objections are overruled. Defendant
is directed to provide supplemental responses removing the conditional objections.
Further, any documents withheld on the basis of a privilege or the work product
doctrine must be included in a privilege log.
Waiver of the Work Product Doctrine and Attorney-Client Privilege.
Plaintiff next argues that it is inappropriate for Defendant to rely on work
product doctrine and/or attorney-client privilege objections as to Interrogatories 36. The Court will review each of these interrogatories individually.
Interrogatory No. 3 asks Defendant to “[i]dentify all statements . . . obtained
from any party to this action . . . .” (Doc. 25, at 3-4.) As Plaintiff contends, “[t]he
interrogatory does not inquire into the content of the statement, but seeks to
determine whether such a statement exists.” (Doc. 24, at 3.) The Court agrees and
overrules the objection as to Interrogatory No. 3.
Similarly, Interrogatory No. 4 ask that “each photograph, motion picture, or
videotape” regarding the lawsuit be identified. (Doc. 25, at 4.) The interrogatory
only seeks to determine the existence of the documents. Such information is not
privileged or protected from disclosure. Further, “Defendant did not produce a
privilege log or describe the nature of the documents, communications, or tangible
things not produced or disclosed in a manner that enables plaintiff to assess the
claim, as required by Fed.R.Civ.P. 26(b)(5)(A).” (Doc. 24, at 3.) As such, the
objection is overruled as to Interrogatory No. 4.
Interrogatory No. 5 asks if Defendant claims “that the cause or negligence or
fault of any other person caused or contributed” to the subject accident. (Id., at 5.)
Defendant objects to this interrogatory “to the extent it seeks disclosure of the
mental impressions, conclusions, opinions, legal research and legal theories of
counsel, and to the extent it seeks the manner or method of proof at trial.” (Doc.
25, at 5.) Although it is not specifically stated as such, the Court will treat this as a
work product objection for the purposes of this motion.
Even so, as Plaintiff correctly argues, Defendant “has failed to show how
answering this interrogatory would reveal the mental impressions, conclusions,
opinions, or legal theories of its counsel.” (Doc. 24, at 3.)
Fed.R.Civ.P. 33(a)(2) specifically allows for contention
interrogatories and provides that an interrogatory ‘may
relate to any matter that may be inquired into under
Fed.R.Civ.P. 26(b). An interrogatory is not objectionable
merely because it asks for an opinion or contention that
relates to fact or the application of law to fact....’ This
has been the law in federal court for forty-five years now,
i.e., the 1970 Advisory Committee Notes make clear that
an interrogatory ‘is not objectionable merely because it
calls for an opinion or contention that relates to fact or
the application of law to fact.’
Alexander v. BF Labs Inc., No. 14-2159-KHV, 2015 WL 4463634, at *3 (D. Kan.
July 21, 2015). The Court overrules Defendant’s objection as to Interrogatory No.
Interrogatory No. 6 asks for general identifying information regarding
Anthony Pippins (full name, date of birth, license number, issuing state, and last
four digits of his Social Security number).2 (Id., at 6.) The Court is at a loss to see
how this information could possibly be “protected from disclosure under the
attorney-client privilege” as alleged by Defendant. This objection is overruled.
The portion of Plaintiff’s motion relating to the waiver of the work product
doctrine and/or attorney-client privilege as to Interrogatories Nos. 3, 4, 5, and 6 is
GRANTED as the Court has overruled all of these objections. Defendant is
ordered to provide a supplemental responses, without such objections.
Privacy Act Objection.
In response to Interrogatory No. 6 (seeking identifying information
regarding Anthony Pippins),3 Request No. 4 (complaints and discipline of Pippins
Plaintiff’s discovery requests include two interrogatories designated “6.” (See
Doc. 25, at 5-6.) The second of these interrogatories contains the objection at issue.
The parties’ briefing regarding the Privacy Act objection is confusing, to say the
least. Plaintiff’s motion refers to Interrogatory No. 7, which the Court assumes is a
clerical error as Defendant’s response to Interrogatory No. 7 contains no Privacy Act
objection. Defendant’s response to the second of the interrogatories designated by
Plaintiff as “6.” does, however, include such an objection. (See Doc. 25, at 6.) Also,
Defendant’s responsive memoranda state that ‘[t]he information requested by Plaintiff in
Interrogatories 6, 7, 9, and 16, as well as . . . Request for Production 4 is information
covered by the Privacy Act.’ (Doc. 28, at 5.) That stated, Defendant did not raise a
Privacy Act objection in its initial responses to Interrogatories Nos. 7, 9, or 16. (See Doc.
by the Postal Service), and Request No. 5 (Pippins certificates of physical
qualifications and reports of physical examinations), Defendant objects “to the
extent it seeks information protected from disclosure under the provisions of the
Privacy Act, 5 U.S.C. § 552a, disclosure of which could be determined to be
violative of the right to privacy by individuals who are not a party hereto.”
The “Privacy Act” cited by Defendant is part of the Freedom of Information
Act (“the FOIA”), which is found at 5 U.S.C. §552. The FOIA “requires federal
agencies to make Government records available to the public, subject to nine
exemptions for specific categories of material.” Milner v. Dep't of Navy, 562 U.S.
562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). The Privacy Act provides for a
private cause of action by an individual against a government agency when the
agency has improperly disclosed records pertaining to that individual. 5 U.S.C. §
552a; Georgacarakos v. Wiley, 07-1712-MSK-MEH, 2009 WL 1194155, at *5 (D.
Colo. April 30, 2009); Lee v. Dep't of Justice, 413 F.3d 53, 55 (D.C.Cir.2005).
Exemption 6 to the FOIA protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. §552(b)(6). The FOIA
25, at 6, 7, 9.) As such, the Privacy Act objection is waived as to Interrogatories Nos. 7,
9, and 16. (Doc. 25, at 6, 11-12.) The objections are also overruled on substantive
grounds, as discussed herein.
‘. . . is to be broadly construed in favor of disclosure, and
its exemptions are to be narrowly construed.’ Audubon
Soc'y v. U.S. Forest Serv., 104 F.3d 1201, 1203 (10th
Cir. 1997). ‘The government bears the burden of
demonstrating the requested records fall within one of
FOIA's enumerated exemptions....’ Prison Legal News
v. Executive Office for U.S. Attorneys, 628 F.3d 1243,
1247 (10th Cir. 2011).
Brown v. Perez, 835 F.3d 1223, 1229 (10th Cir. 2016)
Unfortunately for Defendant, however, the Privacy Act does not serve as a
valid basis for an objection to the production of information requested in
While some courts have found that the applicability of
the Privacy Act to certain discovery materials is a
relevant factor for the court to consider when evaluating
whether to permit discovery, it is also clear that ‘the
Privacy Act was not intended to serve as a limiting
amendment . . . to the Federal Rules of Civil Procedure.’
In fact, this court typically approves protective orders
directing the release of information coming within the
protections of the Privacy Act.
S.E.C. v. Kovzan, No. 11-2017-JWL, 2013 WL 647300, at *5 (D. Kan. Feb. 21,
2013) (internal citations omitted). To the extent Defendant “is concerned about the
privacy rights of its employees, it may designate this information as ‘confidential’”
under a protective order. (Id.)
Defendant argues that “[p]ermitting discovery of personal information
simply because a person may be a witness in a case does not meet the standard set
out in the Privacy Act for disclosure.” (Doc. 28, at 6.) Even assuming arguendo
that the documents at issue fall
under the provisions of the Privacy Act, this does not
require [the requesting party] to present a higher showing
than that required by the Federal Rules of Civil
Procedure. See Bosaw v. National Treasury Employees'
Union, 887 F.Supp. 1199, 1216 (S.D. Ind.1995). Rather,
‘a party can invoke discovery of materials protected by
the Privacy Act through the normal discovery process
and according to the usual discovery standards, and the
test of discoverability is the relevance standard of Rule
26(b)(1) of the FRCP.’ Bosaw v. Nat. Treas. Emp.
Union, 887 F.Supp. 1199, 1216 (quoting Laxalt v.
McClatchy, 809 F.2d 885, 889 (D.C.Cir. 1987)).
Estate of Collins v. United States, 2010 WL 11431844, at *2 (D. Wyo. Dec. 8,
Further, although not a named Defendant in this case, Pippins is more than a
mere witness. His actions are imputed to the Defendant for purposes of Plaintiff’s
claims. The information requested is not only relevant to this action, it is
potentially essential. As such, Defendant’s Privacy Act objections are overruled
and this portion of Plaintiff’s motion is GRANTED. The parties are, however,
encouraged to address any such privacy concerns through a Protective Order.
Interrogatory No. 7 asks whether Pippins has pled guilty to or been
convicted of a misdemeanor or felony. (Doc. 25, at 6.) Interrogatory No. 11 asks
whether Pippins consumed “any alcoholic beverage of any type” or took certain
types of drugs or medications within 12 hours preceding the accident at issue. (Id.,
at 7.) Defendant argues that this information is irrelevant because Plaintiff “did not
file a negligent hiring claim or negligent retention claim or a claim of negligence in
driving.” (Doc. 28, at 6-7.) Defendant is clearly mistaken.
Plaintiff’s Complaint includes specific allegations that Defendant, via
Pippin’s actions, “fail[ed] to control speed to avoid a collision,” engaged in
“inattentive driving,” and was “driving at a speed excessive for the conditions.”
(Doc. 1, at 3.) These allegations are unequivocally those of “negligence in
driving.” Given the broad scope of discovery, the Court overrules Defendant’s
relevance objection as to Interrogatories Nos. 7 and 11 and GRANTS Plaintiff’s
motion as to Interrogatories Nos. 7 and 11.
Fed.R.Civ.P. 37(a) provides that if a motion to compel is granted, or if the
discovery is provided after the motion is filed,
the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated
the motion, the party or attorney advising that conduct, or
both to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees. But the
court must not order this payment if:
(I) the movant filed the motion before attempting
in good faith to obtain the disclosure or discovery
without court action;
(ii) the opposing party's nondisclosure, response,
or objection was substantially justified; or
(iii) other circumstances make an award of
This rule applies here. Given the analysis of Defendant’s objections contained
herein, the Court finds that Defendant’s “nondisclosure, response or objection” to
virtually all of the discovery requests at issue herein to be without justification.
The Court orders Defendant to pay Plaintiff the “reasonable expenses incurred” in
prosecuting this motion to compel, “including attorney's fees.” Fed.R.Civ.P.
37(a)(5). The parties will confer concerning that amount consistent with this
Court’s procedure for awarding statutory fees specified in D. Kan. Rule 54.2.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
23) is GRANTED. Supplemental responses shall be served on or before March ,
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 24th day of February, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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