Hall v. Life Care Centers of America, Inc. et al

Filing 115

MEMORANDUM AND ORDER denying 92 Motion for Discovery. Signed by Magistrate Judge Kenneth G. Gale on 7/18/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAMELA HALL,

)
)
Plaintiff,
)
)
v.
)
)
LIFE CARE CENTERS OF
)
AMERICA, INC., et al.,
)
)
Defendant. )
_______________________________)

Case No.: 16-2729-JWB-KGG

MEMORANDUM & ORDER ON MOTION TO COMPEL
Now before the Court is Plaintiff Pamela Hall’s “Motion for an Order as to
Defendant’s Claims of ‘Privilege.’” (Doc. 92.) Having reviewed the submissions
of the parties, Plaintiff’s motion is DENIED as more fully set forth below.
BACKGROUND
Plaintiff alleges she was subject to employment discrimination and
retaliation in violation of the Family Medical and Leave Act, the Americans with
Disabilities Act, and the Age Discrimination in Employment Act. (Doc. 1.)
Plaintiff contends she was forced to terminate her employment, while Defendants
Life Care Centers of America (“Defendant LCCA” or “LCCA”) and Michelle
Yosick (“Defendant Yosick” or “Yosick”) contend Plaintiff did so voluntarily.

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The present motion concerns Plaintiff’s First Document Requests, which it
served on July 20, 2017. (Doc. 92, at 2.) Responses were served by Defendant
LCCA on September 5, 2017, but no documents were produced. (Doc. 92-2.) In
response to 15 of the requests, Defendant indicated that “privileged” documents
would not be produced. No privilege log was provided, however. Certain
documents were served on September 21, 2017, but no privilege log was included.
Thereafter, Plaintiff’s counsel requested a telephone conference with the Court on,
which occurred on September 29, 2017. (Doc. 47, text entry; 9/29/17 text entry.)
During the conference, Plaintiff raised the issue of Defendants’ raising the
privilege objections without providing a privilege log. (See Doc. 92-3.)
According to Plaintiff,
Five months later (on February 2, 2018 - the same day
Defendants’ response [Doc.63] to Plaintiff’s Motion for
Enforcement [Doc. 58] was due, and one month before
the discovery deadline), Defendants served supplemental
responses to several of Plaintiff’s First Document
Requests. (See Exhibit D). Specifically, as to seven of
the previous responses served . . . , Defendants
supplemented them but – as to each of them – it was still
indicated that ‘privileged’ documents would not be
produced. The remaining eight responses, which
previously had raised privilege, were not supplemented
and the objections were not withdrawn. No Privilege
Log was produced in connection with Defendants’
supplemental responses served on February 2, 2018, even
though Plaintiff’s Motion for Enforcement again raised
this as an issue and asked that the Court determine the
privilege objections had been waived. (Doc. 58).
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(Doc. 92, at 2.)
Defendants ultimately served a privilege log on February 24, 2018, a week
before the discovery deadline. (Doc. 92, at 2; Doc. 92-5.) The log lists ten items,
but, according to Plaintiff,
fails to differentiate between who authored, received, or
were carbon copied on the documents, fails to identify
what type of documents or how many pages they are,
there are no titles of the ‘Author’(s) listed and many of
the people listed are unknown, there are multiple dates
listed, and the ‘Description’(s) of the documents are too
vague for Plaintiff or the Court to assess whether the
documents are appropriately being withheld as
privileged.
(Doc. 92, at 2-3.) Plaintiff’s counsel emailed defense counsel about the alleged
deficiencies of the privilege log on March 13, 2018, and April 4, 2018. (Doc. 921.) Defendant did, however, serve a supplemental privilege log on April 4, 2018,
after this motion was filed. (Doc. 92-6.) Plaintiff contends the supplemental log is
also deficient. (Doc. 92, at 3.) The present motion was filed two days later.
ANALYSIS
I.

Legal Standards.
Defendant points out that Plaintiff’s motion was filed beyond the time

allowed for discovery motions enumerated by D. Kan. Rule 37.1. Pursuant to D.
Kan. Rule 37.1(b),
[a]ny motion to compel discovery in compliance with D.
Kan. Rules 7.1 and 37.2 must be filed and served
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within 30 days of the default or service of the
response, answer, or objection that is the subject of
the motion, unless the court extends the time for filing
such motion for good cause. Otherwise, the objection to
the default, response, answer, or objection is waived.
(Emphasis added.) The purpose of the rule “is to ensure the court can address
discovery disputes while they are still fresh, and in turn expedite litigation.”
Hartford Fire Ins. Co. v. P & H Cattle Co., Inc., No. 05-2001-DJW, 2008 WL
5046345, at *1 (D. Kan. Nov. 24, 2008) (citing Continental Cas. Co. v.
Multiservice Corp., No. 06-2256-CM, 2008 WL 73345, at *4 (D. Kan. Jan. 7,
2008)).
When a discovery motion is filed after the time allowed by D. Kan. Rule
37.1(b), the Court will determine if there is “excusable neglect” for the untimely
filing. To do so, the Court considers the following factors: “(1) whether the
movant acted in good faith; (2) reason for the delay, including whether it was
within the reasonable control of the movant; (3) danger of prejudice to the
nonmoving party; and (4) length of the delay and its potential impact on judicial
proceedings.” Grider v. Shawnee Mission Med. Cntr., Inc., NO. 16-2750-DDCGLR, 2018 WL 2225011 (D. Kan. May 15, 2018) (internal citation omitted).
The Court finds Plaintiff’s motion to be untimely and does not establish
excusable neglect. Plaintiff argues her 30-day period to file the present motion did
not begin to run until Defendants served their supplemental privilege log February
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24, 2018, thus the 30-day period in which to file the present motion would have
run on March 26, 2018. (Doc. 108, at 1-2.) Local Rule 37.1 is not solely triggered
by the service of a deficient “response, answer, or objection,” however. It is also
triggered by a party defaulting in a discovery obligation. If the motion is not filed
within 30 days, “the objection to the default, response, answer, or objection is
waived.”
Plaintiff’s 30-day window to file the present motion began to run when
Defendant served their discovery responses that included the privilege objection –
but did not include a privilege log – on September 5, 2017. (Doc. 92-2.) Defendant
also served supplemental discovery responses on February 2, 2018. (Doc. 62.)
Again, “[n]o Privilege Log was produced in connection with Defendants’
supplemental responses served on February 2, 2018.” (Doc. 92, at 2.) Even
assuming this default reset the 30-day window to file the present motion, that the
motion should have been filed on or before March 5, 2018 – a month before
Plaintiff did so. The 30-day rule in D. Kan. 37.1 is intended to promote the timely
an efficient completion of discovery. See Fed.R.Civ.P. 1. This object is frustrated
by an attempt to litigate issues relating to the same discovery response in seriatim.
The Court is aware that the parties had certain communication regarding the
discovery responses and privilege log in the intervening months. The Court is also
sympathetic with Plaintiff’s contention that his attempts to confer “were largely
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ignored by Defendants . . .” (Doc. 108, at 2.) In this District, however, “although
some courts have found an untimely motion to compel excusable in certain
circumstances, the Court finds nothing to suggest that the time limitation in D.
Kan. Rule 37.1(b) is tolled while the parties attempt to resolve their disputes
without court intervention.” Layne Christensen Co. v. Purolite Co., No. 09-2391JWL-GLR, 2011 WL 124538, at *3 (D. Kan. Jan. 14, 2011). Rather, the proper
procedure “is for a party to request, prior to expiration, an extension of the
deadline to file a motion to compel with respect to any discovery dispute upon
which the parties are still conferring.” Black & Veatch Corp. v. Aspen Ins. (UK)
Ltd., No. 12-2350-SAC, 2014 WL 12595196, at *2 (D. Kan. Sept. 8, 2014)
(internal citations omitted).
Plaintiff has not demonstrated good cause for filing this motion out of time.
As such, Plaintiff’s motion (Doc. 92) is DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion (Doc. 92) is
DENIED.
IT IS SO ORDERED.
Dated this 18th day of July, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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