Brown v. Panhandle Eastern Pipeline Co. L.P. et al

Filing 80

MEMORANDUM AND ORDER granting in part and denying in part 66 Plaintiffs' Motion to Compel Discovery. See order for further detail. Signed by Magistrate Judge Teresa J. James on 1/2/2018. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JUANITA BROWN, et al.,
Plaintiffs,
v.
PANHANDLE EASTERN PIPELINE
COMPANY L.P.,
Defendant.

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Case No. 16-cv-2428-JAR-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel Discovery (ECF No. 66).
Plaintiffs ask the Court to overrule Defendant’s objections, order Defendant to supplement its
discovery responses, and award sanctions in connection with Defendant Panhandle Eastern
Pipeline, L.P.’s (1) Responses and Objections and Supplemental Responses and Objections to
Plaintiffs’ First Requests for Production of Documents, and (2) Answers and Objections and
Supplemental Answers and Objections to Plaintiffs’ First Interrogatories. Defendant opposes the
motion. For the reasons set forth below, the Court denies the motion in part and grants it in part.
I.

Relevant Background
On July 4, 2017, Plaintiffs served their First Interrogatories and First Requests for

Production of Documents on Defendant. Plaintiffs agreed to Defendant’s two requests for
additional time, and on September 5, 2017, Defendant served responses and objections but
produced no documents or a privilege log. The next day, Plaintiffs’ counsel sent a letter
inquiring when Defendant intended to deliver the responsive documents it had agreed to produce,
a privilege log for the documents it was withholding, and an affidavit supporting its claimed
burden in responding. Defendant did not respond before Plaintiffs’ counsel sent a golden rule

letter that addressed specific issues in Defendant’s responses. On October 2, 2017, Defendant’s
counsel responded to both letters. The Court conducted a telephone conference on October 4,
2017, and after hearing argument and providing guidance on the discovery issues, encouraged
the parties to exchange narrowed requests and supplemental responses. The Court also extended
until October 13, 2017, Plaintiffs’ deadline to file a motion to compel related to this discovery.1
During the next week, counsel continued to confer by telephone and exchange written
communications. While they were able to narrow the issues, they were unable to fully resolve
their disagreements. On October 13, 2017, the deadline for Plaintiffs to file a motion to compel,
the parties agreed that Plaintiffs should seek a further extension. Plaintiffs did so, and attached
to their motion for extension of time a draft of their motion to compel.2 The Court granted
Plaintiffs’ motion, extending the motion to compel deadline to October 18, 2017.3 On the
morning of October 17, 2017, counsel telephoned the undersigned Magistrate Judge’s chambers
to request another telephone conference, which the Court held that afternoon after reviewing
additional submissions from counsel. During the conference, the Court confirmed that counsel
had agreed on both the geographic scope and temporal limits of the discovery requests. The
Court set additional deadlines for production and an October 20, 2017 deadline for Plaintiffs to
file a motion to compel regarding the sufficiency of Defendant’s responses.4 Counsel further

1

See ECF No. 61.

2

See ECF No. 62. The Court viewed the attachment as Plaintiffs’ indication of their good faith
in continuing to confer with Defendant and their readiness to proceed if the Court were to deny
their motion for extension of time.

3

See ECF N. 63.

4

See ECF No. 65 at 2. The Court also ordered Defendant to produce all responsive documents
and a privilege log no later than October 25, 2017. With Plaintiffs’ consent, the Court shortened
2

conferred but did not resolve the matter.
Plaintiffs timely filed the instant motion and assert that counsel complied with the
requirements of D. Kan. Rule 37.2. Defendant disagrees. The Court finds that 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.
II.

Legal Standards
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.5
Considerations of both relevance and proportionality now govern the scope of discovery.6
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.7
Information still “need not be admissible in evidence to be discoverable.”8 The amendment
deleted the “reasonably calculated to lead to the discovery of admissible evidence” phrase,

to 21 days their deadline to challenge the sufficiency of Defendant’s production, amended
interrogatory answers, and privilege log.
5

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

6

See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment.

7

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

8

Fed. R. Civ. P. 26(b)(1).
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however, because it was often misused to define the scope of discovery and had the potential to
“swallow any other limitation.”9
The consideration of proportionality is not new, as it has been part of the federal rules
since 1983.10 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.11 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.12
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.13 Relevancy
determinations are generally made on a case-by-case basis.14
III.

Analysis
Plaintiffs’ motion, coming 45 days after Defendant’s first responses but only two days

9

See Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment.

10

Id.

11

Id.

12

Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).

13

McBride v. Medicalodges, Inc., 250 F.R.D 581, 586 (D. Kan. 2008).

14

Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR, 2011 WL
765882, at *3 (D. Kan. Feb. 25, 2011).
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after Defendant served its supplemental responses, addresses objections Defendant made in both
its original and supplemental responses. The Court will rule only on the objections that
Defendant asserted in its original responses and has not subsequently withdrawn.15 Defendant
waived its later objections by asserting them beyond the deadline to which Plaintiffs agreed and
without the Court having excused Defendant’s failure to timely respond.16
Neither does the Court need to rule on the general objections Defendant included in its
original responses, as counsel withdrew those objections in its supplemental responses.
The Court considers in turn each of Plaintiffs’ challenges to Defendant’s timely-asserted
objections.
A.

Objections that requests are vague and ambiguous.

There is no question that Defendant’s initial objections to certain words as being vague
and ambiguous were not valid. Defendant made no attempt to describe the alleged inadequacies,
and the words to which Defendant objected (e.g., “chemicals,” “real and personal properties,”
“spills,” “tests”) are perfectly clear in the context of this case. In its supplemental responses,
Defendant added an explanation of how some words are allegedly vague and ambiguous. In
response to RFP 16, in which Plaintiffs seek documents provided to Defendant by third-party
inspectors investigating the subject release, Defendant objects that the term “third-party
inspector” is vague and ambiguous and its intended scope is uncertain. Defendant further
15

Plaintiffs argue that Defendant waived the objections stated in its initial discovery responses.
The Court has rejected that argument. See ECF No. 65 at 2. Defendant was not permitted to
make new objections, but was allowed to further explain its original objections as part of the
parties’ ongoing efforts to resolve their disagreements.

16

See Fed. R. Civ. P. 33(b)(4); Pulsecard, Inc. v. Discover Card Svcs., Inc., 168 F.R.D. 295, 303
(D. Kan. 1996) (“Although Fed. R. Civ. P. 34, governing production of documents and things,
provides no similar language with respect to specificity and waiver of objections, no reason
exists to distinguish between interrogatories and requests for production.”).
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responded by saying it will construe the term as referring to third-party inspector Jim Hagemann.
Plaintiffs’ response indicates no dissatisfaction with Defendant’s construction of “third-party
inspector.” The Court finds the construction reasonable and denies Plaintiffs’ motion on this
point.
In response to RFP 28, which asks Defendant to identify brands of chemicals in the Olpe
100 line, Defendant objects that the words “chemicals in the Olpe 100 line” are vague and
ambiguous. Defendant states that it construes the phrase as excluding natural gas. Plaintiffs do
not argue against Defendant’s construction. The Court also finds this construction reasonable
and denies Plaintiffs’ motion on this point.
The Court’s review of the remaining RFPs and the one Interrogatory in which Defendant
alleges certain words are vague and ambiguous yields the same result.17 In each instance,
Defendant indicates its construction and/or what responsive documents it will produce. The
Court finds each reasonable, and Plaintiffs do not further challenge Defendant’s objections of
vagueness and ambiguity in its supplemental responses. The Court therefore denies Plaintiffs’
motion insofar as it asks the Court to overrule Defendant’s objections on the basis that portions
of certain discovery requests are vague and ambiguous.
B.

Objections of overbreadth and disproportionality

Defendant objects that eight RFPs are overbroad and disproportionate to the likely benefit
because those requests seek documents that fall outside the temporal and geographic limits set by
the Court for collecting or producing ESI or hardcopy documents.18 Each individual RFP does
not contain language limiting the request to the scope the Court allowed, i.e. documents dated
17

RFP Nos. 29, 31, 38, 44, 46, 52, and 58; Interrogatory No. 3.

18

RFP Nos. 13, 14, 25, 44, 46, 49, 53, and 57.
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January 1, 2009 to June 18, 2016 that relate to the Panhandle system within the State of
Kansas.19 But as Plaintiffs point out, both their Interrogatories and Requests for Production
include the following direction: “Each request should be construed only to the extent that it
complies with the scope of the Court's Order regarding discovery.”20 Accordingly, the temporal
and geographic limitations are implicit in each request, making Defendant’s objections moot.
The Court therefore grants Plaintiffs’ motion insofar as it asks the Court to overrule Defendant’s
objections on the basis that portions of certain discovery requests are overbroad and
disproportionate as going beyond the temporal and geographic limitations the Court has
imposed.
C.

Objection on basis that Interrogatories assume facts not in evidence

Defendant poses an objection to Interrogatories 4 and 6 on the ground that each assumes
facts not in evidence. Specifically, Defendant contends the interrogatories presuppose injuries
that no Plaintiff has claimed. Because the discovery is in the form of an interrogatory,
Defendant’s designee should explain the lack of responsive information and/or knowledge. An
objection on this basis is not well-founded in response to a discovery request. The Court
therefore grants Plaintiffs’ motion insofar as it asks the Court to overrule Defendant’s objections
on the basis that Interrogatories 4 and 6 assume facts not in evidence.
D.

Attorney-client privilege and work product objections

Plaintiffs argue that Defendant’s failure to produce a privilege log, describing in detail
the precise reasons for its objections based on attorney-client privilege and work product,

19

ECF No. 47 at 1. The Court entered the April 21, 2017 order proposed by and consented to by
all parties. The temporal and geographic limitation in the order applies to all discovery “absent
agreement of the parties or further order of the court.” Id.
20

ECF No. 66-2 (Interrogatories); 66-3 (Requests for Production).
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resulted in waiver of the objections. Defendant represents that consistent with the Court’s
direction, counsel provided a privilege log on October 25, 2017 along with its supplemental
document production. In their reply, Plaintiffs do not challenge any of the privilege log entries.
Accordingly, there is no pending issue to resolve regarding Defendant’s privilege objections.
E.

Objections that requests are inconsistent with Court’s discovery limitations

Plaintiffs contend that Defendant’s objections on the basis that certain RFPs are
inconsistent with the Court’s geographic and temporal limitations should be overruled because
Plaintiffs specifically incorporated those limitations in the RFP directions. Defendant
acknowledges the direction, but points to two RFPs which seek documents from the previous ten
years. During the October 17, 2017 discovery conference during which the Court made clear
that Defendant had not waived its original objections, the Court also confirmed that the parties
acknowledge and agree upon the same geographic and temporal limitations. Accordingly,
Plaintiffs’ RFPs are to be read in light of the Court’s order and the parties’ agreement, making
Defendant’s objection unnecessary.21
F.

Specific Objections to Interrogatories

Plaintiffs contend that the following five Defendant’s interrogatory answers are nonresponsive in a variety of respects.22
1.

Interrogatory No. 1

Plaintiffs seek the name and address of every person “who may have any direct

21

The Court notes that Defendant first raised an objection to the temporal limits of RFP Nos. 1,
2, 3, 9, 11, 32, and 66 in its supplemental responses. Those objections would be waived if not
for the Court’s determination that they are unnecessary.

22

Plaintiffs also point out that the answers are unsigned. The Court reminds Defendant of the
requirements of Federal Rule of Civil Procedure 33(b)(5).
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knowledge of any fact or record relating to the incident,” along with a summary of “the
substance and extent of their knowledge.” Defendant’s original answer did not name a single
individual, but instead objected on grounds that (1) “incident” is vague, ambiguous and
undefined, and (2) other words and phrases are overly broad, unduly burdensome, irrelevant, not
reasonably calculated to lead to the discovery of admissible evidence, and disproportionate.
Defendant’s supplemental answer identified more than 40 witnesses. For those witnesses who
are Defendant’s employees, the answer also provided one- to ten-word descriptions of the subject
matter of each person’s knowledge. For those witnesses who are employed by other entities, the
answer identified the entity’s role in relation to the incident. Finally, Defendant listed
“[i]ndividuals and entities owning land adjacent to the property owned by the Plaintiffs in this
case – information available to Plaintiffs through public records.”
Plaintiffs assert the answer is non-responsive because it fails to “summarize the substance
and extent” of each person’s knowledge, particularly the neighboring landowners.
The Court overrules Defendant’s boilerplate objections listed above, as they fail to show
specifically why the interrogatory is improper.23 Defendant has not complied with the
interrogatory because its answer fails to summarize the substance and extent of each identified
person’s knowledge. The Court grants Plaintiffs’ motion to compel with respect to Interrogatory
No. 1.
2.

Interrogatory No. 2

In Interrogatory No. 2, Plaintiffs seek to learn what evidence Defendant has to support its
affirmative defenses. Plaintiffs ask for detailed descriptions, the identification of persons with
knowledge, and how Defendant obtained the information for “each and every such fact,
23

See Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL, 2005 WL 731070, at *4 (D. Kan.
Mar. 30, 2005).
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observation, document, and item of evidence.” Defendant objects on a number of grounds, but
in response to the instant motion advances the single objection that an interrogatory seeking
“every fact” is overly broad and unduly burdensome on its face.
Defendant’s position is consistent with the law in this district.24 However, contrary to
Defendant’s assertion, the supplemental answer provides virtually no facts, nor does it state that
Defendant currently possesses no responsive information. Defendant is obligated to answer the
interrogatory insofar as it is not objectionable by providing the requested information for the
principal and material facts Defendant relies on to support its affirmative defenses.25 Defendant
must provide the requested information it currently possesses and, to the extent Defendant is still
learning those facts and gathering information, Defendant shall timely supplement its answer.
Accordingly, the Court denies in part and grants in part Plaintiffs’ motion to compel with respect
to Interrogatory No. 2.
3.

Interrogatory No. 3

Plaintiffs seek information regarding all conversations about the incident among
Defendant’s employees, agents, and representatives, including whether the conversation was
recorded, who was present, where and when the conversation took place, and the substance of
the conversation. Defendant objects that the request for “any conversation relating in any way”
to the incident is overbroad and unduly burdensome. Just as with Interrogatory No. 2, the Court
sustains Defendant’s objection, but Defendant remains obligated to answer the interrogatory
insofar as it is not objectionable by providing the requested information for the principal and
24

E.g., Williams v. Sprint/United Mgmt. Co., 235 F.R.D. 494, 502 (D. Kan. 2006) (“As a general
rule in this District, the court will find interrogatories overly broad and unduly burdensome to the
extent that they ask for ‘every fact’ which supports identified allegations or defenses.”).

25

Id.
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material conversations of which Defendant is aware. Accordingly, the Court denies in part and
grants in part Plaintiffs’ motion to compel with respect to Interrogatory No. 3.
4.

Interrogatory No. 6

Plaintiffs seek to identify each substance released, the date the substance was introduced
into the pipeline and/or compressor station, the reason it was introduced, and to identify potential
health effects on humans exposed to the substance. Plaintiffs also direct Defendant to describe
the methods used to determine the answer to this interrogatory. Defendant objects that
information regarding its method of preparing its answer invades work-product and attorneyclient privileges, but it is unclear whether Defendant’s subsequently produced privilege log
contains entries for this interrogatory. Plaintiffs do not challenge this objection in their response,
which followed Defendant’s privilege log production, so the Court will not rule on privilege.
Defendant explains that its supplemental answer provides known and available
substantive information for diesel oil and lube oil, the only substances it currently knows were in
the pipeline. Defendant’s supplemental answer refers to a log it was producing which would list
the dates of each injection of diesel fuel into the pipeline. Finally, Defendant points out its
supplemental answer states that to the extent Defendant discovers additional information relating
to the content and quantity of the materials introduced into the pipeline, Defendant will further
supplement its answer and its responses to the correlated RFPs. Plaintiffs’ response does not
take issue with Defendant’s explanation regarding the substances in the pipeline, which the Court
finds reasonable.
With respect to the identity of potential health effects on humans exposed to the
substances, however, the Court has overruled Defendant’s objection that the interrogatory
assumes facts not in evidence. Defendant shall timely supplement its answer to Interrogatory

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No. 6 insofar as the interrogatory asks Defendant to identify potential health effects on humans
exposed to the substance and the methods Defendant used to determine its answer. In sum, the
Court grants Plaintiffs’ motion with respect to Interrogatory No. 6 regarding the identity of
health effects and the method Defendant used to prepare the answer, but denies the motion as it
relates to the remainder of Interrogatory No. 6.
5.

Interrogatory No. 7

Plaintiffs seek information regarding the disposal of the substances that were released on
Defendant’s, local residents’, commercial, and public property. Plaintiffs assert that Defendant’s
answer is non-responsive because it does not directly address certain requested information but
instead refers to previously produced documents. Defendant contends it complied with its
obligation by producing business records as permitted by Federal Rule of Civil Procedure 33(d),
and that it will produce an updated log.
Plaintiffs do not dispute Defendant’s description of the documents they have produced,
nor do they take issue with the timing or content of the updated log. The Court finds that
Defendant’s answer was sufficiently responsive. Accordingly, the Court denies Plaintiffs’
motion with respect to Interrogatory No. 7.
IV.

Sanctions Request
Plaintiffs ask the Court to impose sanctions on Defendant. Federal Rule of Civil

Procedure 37(a)(5)(C) leaves to the Court’s discretion the decision to apportion expenses when
the Court grants in part and denies in part a motion to compel. Although the Court is aware that
Defendant provided essentially no discovery responses until two months or more after its
response deadline, the Court has not found Plaintiffs’ motion warrants granting in its entirety.
The Court will not award sanctions.

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IT IS THEREFORE ORDERED THAT Plaintiffs’ Motion to Compel Discovery (ECF
No. 66) is DENIED IN PART and GRANTED IN PART as set forth herein. Within ten
days of the date of this order, Defendant shall serve on Plaintiffs its supplemental answer to
Interrogatory Nos. 1, 2, 3, and 6.
IT IS SO ORDERED.
Dated this 2nd day of January, 2018, at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

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