Gilmore v. L.D. Drilling, Inc. et al
MEMORANDUM AND ORDER granting in part and denying in part 58 Plaintiff Jeffrey T. Gilmore's First Motion to Compel Discovery. Signed by Magistrate Judge Teresa J. James on 6/6/2017. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEFFREY T. GILMORE,
L.D. DRILLING, INC., et al.,
Case No. 16-cv-2416-JAR-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Jeffrey T. Gilmore’s First Motion to Compel
Discovery (ECF No. 58). Plaintiff asks the Court to overrule certain objections to requests for
production to each Defendant and to an interrogatory posed to Defendant L.D. Drilling, require
L.D. Drilling to provide an answer to the interrogatory at issue, and require both Defendants to
produce documents responsive to the respective document requests. Defendants oppose the
motion. For the reasons set forth below, the Court denies the motion in part and grants it in part.
On February 7, 2017, Plaintiff served each Defendant with his Opening Set of
Interrogatories and First Requests for Production of Documents.1 Defendants served their
answers, responses, and objections on March 14, 2017. Three days later, Plaintiff’s counsel sent
a letter to Defendants’ counsel regarding the discovery responses and requesting dates for
counsel to meet and confer. Defendants’ counsel sent a substantive reply three weeks later, and
on April 11, 2017 counsel conferred by telephone. The parties continued to work towards
See ECF No. 32.
resolving their differences and in the process Defendants supplemented their responses and
Plaintiff sought and was granted extensions of time to file the instant motion. While their
disputes have been resolved in part, the objections discussed below remain at issue.
Plaintiff timely filed the instant motion and contends that counsel complied with the
requirements of D. Kan. Rule 37.2. Defendant does not disagree. The Court finds that
Plaintiff’s counsel made a reasonable attempt to resolve the issues in dispute without court
action, as required by Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2.
Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery. As
amended in 2015, it provides as follows:
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. Information within this scope of discovery need not
be admissible in evidence to be discoverable.2
Considerations of both relevance and proportionality now govern the scope of discovery.3
Relevance is still to be “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on” any party’s claim or defense.4
Information still “need not be admissible in evidence to be discoverable.”5 The amendment
Fed. R. Civ. P. 26(b)(1).
See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment.
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
Fed. R. Civ. P. 26(b)(1).
deleted the “reasonably calculated to lead to the discovery of admissible evidence” phrase,
however, because it was often misused to define the scope of discovery and had the potential to
“swallow any other limitation.”6
The consideration of proportionality is not new, as it has been part of the federal rules
since 1983.7 Moving the proportionality provisions to Rule 26 does not place on the party
seeking discovery the burden of addressing all proportionality considerations. If a discovery
dispute arises that requires court intervention, the parties’ responsibilities remain the same as
under the pre-amendment Rule.8 In other words, when the discovery sought appears relevant,
the party resisting discovery has the burden to establish the lack of relevancy by demonstrating
that the requested discovery (1) does not come within the scope of relevancy as defined under
Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the potential harm occasioned
by discovery would outweigh the ordinary presumption in favor of broad disclosure.9
Conversely, when the relevancy of the discovery request is not readily apparent on its face, the
party seeking the discovery has the burden to show the relevancy of the request.10 Relevancy
determinations are generally made on a case-by-case basis.11
See Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment.
Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).
McBride v. Medicalodges, Inc., 250 F.R.D 581, 586 (D. Kan. 2008).
Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR, 2011 WL
765882, at *3 (D. Kan. Feb. 25, 2011).
Plaintiff raises issues with respect to each Defendant’s objections to certain
interrogatories and document requests. The Court considers each in turn. 12
RFP No. 26 to Defendant L.D. Drilling
Plaintiff requests in his motion that the Court require Defendant L.D. Drilling to produce
the documents requested in RFP No. 26. Defendant L.D. Drilling contends the information
contained in the documents at issue is not relevant to any claim or defense in this action, and that
Plaintiff misconstrues Defendant’s contentions with respect to the costs it allegedly incurred as a
result of Plaintiff’s conduct. The RFP and Defendant’s response are as follows:
Each document explaining, outlining, or summarizing the cost and
expenses related to each oil or gas well Defendant L.D. Drilling drilled between
January 1, 2016 and June 1, 2016.
Objection. Relevance. A statement of the costs and expenses
related to each oil or gas well drilled by L.D. Drilling between January 1, 2016
and June 1, 2016 is unrelated to any claim or defense stated in this action.
Furthermore, the documents contain confidential and private information which,
if disclosed, could cause L.D. Drilling, Mr. Davis, and others annoyance,
embarrassment, oppression, or undue burden or expense. Accordingly, defendant
L.D. Drilling objects to disclosing these documents. If Mr. Gilmore could
articulate the relevance of this information and focus the scope of this request,
L.D. Drilling would reconsider its objection.
In counsel’s golden rule letter, Plaintiff provided the same explanation of relevance as is
contained in his motion. According to Plaintiff, he is entitled to prove that L.D. Drilling’s
assertion that Plaintiff was late in delivering pipe to a well is pretext, and that because L.D.
Drilling asserts Plaintiff’s conduct resulted in increased costs, Plaintiff is entitled to discover the
In his motion, Plaintiff also asks the Court to find that Defendants waived their objections by
failing to serve them within 30 days as required by Fed. R. Civ. P. 33 and 34. Defendants
explain the delay was caused by a calendaring error and retroactively seek leave to serve their
discovery responses out of time. Plaintiff does not object. The Court grants Defendants’ request
and considers Plaintiff’s request for waiver withdrawn.
costs associated with the well in question and other wells.13 In response, Defendant agreed to
and did supplement its response by producing the billing records L.D. Drilling submitted for
January 2016 for the well in question, Riebel #1-9, but declined to provide costs and expenses
for other wells.14
Plaintiff argues he is entitled to discover L.D. Drilling’s costs for other wells (1) to see if
the costs are in line with other wells drilled by L.D. Drilling in a six-month time period, and (2)
to demonstrate what costs are generally associated with the drilling of a well “so as to enable the
parties, and a jury, to determine whether or not Defendants’ justifications were authentic or an
after-the-fact rationalization to conceal its true discriminatory motivations.”15 The Court does
not find Plaintiff’s argument compelling. As Defendant points out, the fact that pipe was
delivered late to the well is not material. Many legitimate reasons exist for late delivery of
materials to a drilling site (such as the availability of materials, mechanical issues with delivery
trucks, distance of travel and road conditions), but Defendants contend Plaintiff initially refused
to deliver the materials because he had been consuming alcoholic beverages while he was on call
for deliveries. Thus, the reason for the late delivery, not the costs associated with it, is material
to Defendant’s defense. The relative cost of other drilling operations sheds no light on whether
Plaintiff’s reason for a late delivery was legitimate.
Moreover, the Court accepts Defendant’s argument that costs associated with drilling
wells vary widely because of factors other than delayed delivery of materials, such as the depth
of the well, the sub-surface strata to be penetrated by drilling operations, the remoteness of the
See ECF No. 59-3 at 2.
See ECF No. 59-4 at 2.
ECF No. 59 at 5.
drill site, the different types and amounts of materials required, and the competing demands for
materials by other drilling operations.16 Plaintiff offers nothing more than a conclusory assertion
that information concerning costs to drill other wells is likely to lead to the discovery of
The relevancy of RFP No. 26 is not apparent on its face, nor does Plaintiff meet his
burden to demonstrate how information related to other wells is relevant to the claims or
defenses in this case. Accordingly, the Court denies Plaintiff’s motion with respect to RFP No.
26 to Defendant L.D. Drilling.
Interrogatory No. 2 to Defendant L.D. Drilling
In response to Interrogatory No. 2, L.D. Drilling initially posed an objection and offered
no answer. Following counsel’s exchanges regarding the objection, Plaintiff agreed to narrow
the scope of the interrogatory. As originally written, Interrogatory No. 2 seeks and L.D. Drilling
responded as follows:
Identify each individual, other than Defendant L.D. Drilling’s attorneys,
with whom any agent or employee of Defendant L.D. Drilling has communicated
. . . regarding Plaintiff’s termination from employment [by] Defendant L.D.
Objection. It would be impossible for L.D. Drilling to identify
every conversation by “any agent or employee” of L.D. Drilling regarding L.D.
Drilling’s termination of Mr. Gilmore’s employment. The discovery request, as
stated, would cause L.D. Drilling undue burden or expense. Accordingly, L.D.
Drilling objects to this request. If Mr. Gilmore would reconsider and restate the
scope of his request, L.D. Drilling would reconsider its objection.17
ECF No. 63 at 3.
ECF No. 59-2 at 2.
In his golden rule letter, Plaintiff agreed to replace “any agent or employee” with the
names of eight employees plus “all other employees who work in an administrative role.”18 In
response, Defendant offered to supplement its answer if the interrogatory were limited to (1) the
eight named employees and (2) conversations those employees had in their capacity as
employees or agents of L.D. Drilling.19 Counsel further discussed the issue and L.D. Drilling
provided a supplemental response which identified four persons who had authority to speak to
third parties on the company’s behalf regarding the termination of Plaintiff’s employment, and
identified the third parties with whom they spoke.20 Neither counsel’s correspondence nor the
briefing on this motion reveals why L.D. Drilling’s supplemental response included only four
persons, when defense counsel earlier offered to provide information with respect to eight
Plaintiff explains that in agreeing to modify the interrogatory, he narrowed it to include
individuals identified by L.D. Drilling in its position statement to the Equal Employment
Opportunity Commission as well as all other individuals who work for L.D. Drilling in an
See ECF No. 59-3 at 3. In defending his original interrogatory which demanded information
about every employee of L.D. Drilling, Plaintiff challenged Defendant’s assertion that it would
be impossible to ascertain which employees had conversations about Plaintiff’s termination.
Plaintiff argued it would not be impossible because “Defendant only employs 25-50 people.”
Plaintiff’s argument displays a lack of reasonableness and proportionality, which Plaintiff
effectively concedes by modifying the interrogatory as set forth in his golden rule letter.
See ECF No. 59-4 at 1.
See id. at 4-5.
The Court notes that L.D. Drilling provided the information in the form of a supplemental
response email from its counsel, which does not comply with the requirements of Fed. R. Civ. P.
33(b)(1) or (b)(3).
administrative role.22 The Court finds that, as narrowed, Plaintiff seeks relevant information.
Defendant offers no explanation to support its objection that answering would cause L.D.
Drilling to incur undue burden or expense. Accordingly, the Court overrules the objection and
grants Plaintiff’s motion with respect to Interrogatory No. 2 to L.D. Drilling as modified.
RFP No. 3 to Defendant Mark Davis
Plaintiff seeks to compel Defendant Mark Davis to produce his cellular phone records
from January 1, 2016 to the present, including “statistics and details for voice, text messaging,
and data usage.”23 Mr. Davis objected, arguing the records have no relevance to the parties’
claims and defenses, and further stating that “the scope of the inquiry would include many
private and personal contacts unrelated to this lawsuit which, if disclosed, could cause Mr. Davis
annoyance, embarrassment, oppression, or undue burden or expense.”24
In his golden rule letter, Plaintiff did not offer to narrow the request. Instead, he
explained that because his complaint alleges L.D. Drilling hired Randy Mitchell as his
replacement and Messrs. Mitchell and Davis were friends, communications between the pair are
directly relevant to his claims. He also contends he is entitled to know to whom Mr. Davis spoke
from January 1, 2016 to present because his complaint includes a claim for defamation against
Mr. Davis.25 In emails responsive to the golden rule letter, counsel maintains Mr. Davis’s
ECF No. 59 at 6 (Plaintiff’s golden rule letter).
ECF No. 59-5 at 2.
Id. Mr. Davis also offered to reconsider his objection if Plaintiff would modify the scope of
the request in time and subject.
ECF No. 59-3 at 2.
objection to this RFP and adds an additional objection of overbreadth.26
Plaintiff’s motion merely repeats the explanation provided in his golden rule letter,
asserts the time frame is reasonable and the information is reasonably accessible to Mr. Davis,
and asserts any confidential or sensitive information would be protected by the Protective Order
entered in this case. The Court rejects Plaintiff’s assertions. On its face, the RFP is overbroad in
time and in scope. It seeks all of Mr. Davis’s personal communications with every person,
which clearly would encompass wholly irrelevant information. Finally, the request is not
proportional to the needs of the case. The Court denies Plaintiff’s motion with respect to RFP
No. 3 to Defendant Mark Davis.
IT IS THEREFORE ORDERED THAT Plaintiff Jeffrey T. Gilmore’s First Motion to
Compel Discovery (ECF No. 58) is DENIED IN PART and GRANTED IN PART. The
motion is DENIED with respect to Request for Production No. 26 to Defendant L.D. Drilling
and Request for Production No. 3 to Defendant Mark Davis. The motion is GRANTED with
respect to Interrogatory No. 2 to Defendant L.D. Drilling, as narrowed. Within seven days of
the date of this order, Defendant L.D. Drilling shall serve on Plaintiff its answer to
Interrogatory No. 2.
IT IS SO ORDERED.
Dated this 6th day of June, 2017, at Kansas City, Kansas.
s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge
See ECF No. 59-4 at 2, 5.
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