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

Filing 123

MEMORANDUM AND ORDER granting in part 117 Motion for Reconsideration re 115 Order on Motion for Discovery. Signed by Magistrate Judge Kenneth G. Gale on 10/25/18. (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’s Motion for Reconsideration (Doc. 117)
of the Court’s Order (Doc. 115) on her “Motion for an Order as to Defendant’s
Claims of ‘Privilege’” (Doc. 92). Having reviewed the submissions of the parties,
Plaintiff’s motion (Doc. 117) is GRANTED in part 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 underlying discovery motion concerns Plaintiff’s First Document
Requests, which were 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 LCCA
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.)
On January 12, 2018, Plaintiff filed her “Motion to Enforce Discovery,”
relating to Defendant’s responses to Plaintiff’s First and Second Requests for
Production. (Doc. 58.) Therein, Plaintiff contended that Defendant had “yet to file
any responses or objections at all as to Plaintiff’s First Requests for Production”
and that no privilege log had been served. (Doc. 58, at 2.) Plaintiff specifically
raised the privilege log issue as to drafts of the separation agreement she was
presented by Defendant. (Id., at 8.)
Thereafter, on February 2, 2018 (the same day Defendant’s response to
Plaintiff’s Motion to Enforce Discovery was due),
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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).
(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 served a supplemental privilege log on April 4, 2018. (Doc. 92-6.)
Plaintiff contends the supplemental log is also deficient. (Doc. 92, at 3.)
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According to Plaintiff, the log does not comply with the requirements of this
District because
emails strings and attachments to emails are not listed
separately, people listed are not described by title or
whether they are employees of LCCA, all people listed
are under a heading for ‘Author’ even though it is clear
all of them are not, there is no indication of who the
documents were prepared for, who the recipients are, or
who was carbon copied, and the ‘Description’(s) remain
too vague for making a determination as to whether the
documents come within the privilege.
(Id.)
The underlying discovery motion (Doc. 92) was filed two days later, on
April 6, 2018. The motion sought an Order compelling Defendants to conduct
searches for certain documents and ESI responsive to Plaintiff’s First Document
requests that were “created by, in the possession of, and/or were exchanged with,
lawyers or legal staff working on behalf of Defendant [LCCA]” and ruling that
Defendants’ privilege objections had been waived, ordering Defendant to produce
all documents listed on their privilege log and/or responsive to ordered searches.
(Id., at 1.) In the alternative, Plaintiff asked that Defendants “be ordered to
immediately produce a Privilege Log for all documents withheld, or redactions
made, on the basis of privilege . . . .” (Id.)
Before that motion was fully briefed, the Court entered its April 27, 2018,
Order (Doc. 99) granting in part and denying in part Plaintiff’s previous “Motion
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to Enforce Discovery” (Doc. 58), which had been filed in January, discussed
supra. Therein, the Court specifically instructed Defendants to provide a
compliant privilege log as to any documents responsive to Plaintiff’s Request No.
31 (documents regarding communications Yosick had regarding Plaintiff) that
were being withheld based on the attorney-client privilege. (Doc. 99, at 10.)
Thereafter, the Court denied the underlying motion (Doc. 92) by Order dated
July 18, 2018, finding that the motion was untimely pursuant to D. Kan. Rule 37.1
and that Plaintiff failed establish excusable neglect for its late filing. (Doc. 115.)
Plaintiff brings the present motion to reconsider that Order, arguing that the
untimeliness finding was “based on clear error and is manifestly unjust to
Plaintiff.” Doc. 117, at 1.)

ANALYSIS
I.

Legal Standards.
The Court’s prior Order relied on D. Kan. Rule 37.1(b) to hold that

Plaintiff’s motion was filed beyond the time allowed for discovery motions.
Pursuant to the rule,
[a]ny motion to compel discovery in compliance with D.
Kan. Rules 7.1 and 37.2 must be filed and served
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.
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(Emphasis added.) The Court notes that Local Rule 37.1 is not solely triggered by
the service of a deficient “response, answer, or objection” – it is also triggered by a
party defaulting in a discovery obligation. If the motion is not filed within 30 days
of the default or offending response, “the objection to the default, response,
answer, or objection is waived.” Id. 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)).
In its prior Order, this Court held that 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. 115, at 5 (citing Doc. 92-2).) The Court also
acknowledged Defendant’s service of supplemental discovery responses on
February 2, 2018. (Id. (citing Doc. 62).) Again, “[n]o Privilege Log was produced
in connection with Defendants’ supplemental responses served on February 2,
2018.” (Id., (citing Doc. 92, at 2).) The Court thus held that “[e]ven 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.”
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(Id.) The Court held that Plaintiff failed to prove “excusable neglect” for the
untimely filing considering 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.” (See
generally Doc. 115; Grider v. Shawnee Mission Med. Cntr., Inc., NO. 16-2750DDC-GLR, 2018 WL 2225011 (D. Kan. May 15, 2018) (internal citation
omitted).)
The Court thus inferred that the deadline to file a discovery motion
regarding Defendants’ responses passed 30 days after they served their initial
discovery responses in September 2017. (Doc. 115, at 5.) The Court then
indicated that the latest the deadline arguably could have expired was March 5,
2018 – 30 days after Defendants’ supplemental discovery responses, which were
served on February 2, 2018. (Id.)
In her reply to the underlying motion, however, Plaintiff argued that her 30day period to file the present motion did not begin to run until Defendants served
their supplemental privilege log on February 24, 2018. (Doc. 108, at 1-2.) As
such, Plaintiff contends that the 30-day period in which to file the present motion
would have run on March 26, 2018, rather than March 5, 2018. (Doc. 108, at 1-2.)

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The Court acknowledges Plaintiff’s reliance on the case of Neonatal Prod.
Grp., Inc., v. Shields, No. 13-2601-DDC, 2015 WL 7078796 (D. Kan. Nov. 13,
2015) for the proposition that a supplemental production serves as a new
“triggering event” for the running of the 30-day deadline to file a motion to
compel. (Doc. 117, at 7-8.) Further, Plaintiff argues – and the Court notes – that
its Order Continuing Pretrial Conference acknowledged various discovery issues
remaining between the parties and set an April 6, 2018, deadline for discovery
motions. (Doc. 86, at 4; see also Doc. 117, at 12.) All things considered, the
Court agrees that it erred in finding that Plaintiff had waived her right to file the
present discovery motion. The production of the February 24, 2018, privilege log
coupled with the Court’s designation of the April 6, 2018, deadline to file
discovery motions makes Plaintiff’s underlying motion (Doc. 92) timely.
Plaintiff argued in the underlying motion that both the initial and
supplemental privilege logs
are significantly deficient in that they do not comply with
clear directives set forth by this Court, and they clearly
do not include all responsive documents because
Defendants have excluded their in-house attorneys and
legal staff from being custodians subject to ESI searches.
(Id., at 15.) The Court agrees. Plaintiff’s Motion to Reconsider (Doc. 117) is,
therefore, GRANTED in part. The Court thus orders that Defendants conduct a
search for the requested documents and ESI that includes the LCCA legal
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department and “immediately produce a Privilege Log for all documents withheld,
or redactions made, on the basis of privilege . . . .” (Doc. 92, at 1.) The Court
instructs Defendants that the log shall be conformance with the requirements of
Leftwich v. City of Pittsburg, Kansas, No. 16-2112-JWL-GLR, 2017 WL
1338838, at *2 (D. Kan. April 12, 2017).

IT IS THEREFORE ORDERED that Motion to Reconsider (Doc. 117) is
GRANTED in part as more fully set forth above. Defendants are instructed to
provide a supplemental privilege log to Plaintiff on or before November 26, 2018.
Thereafter, the parties are instructed to meet & confer as to additional issues
resulting from the privilege log, if any, and inform the Court, within 2 weeks of
receipt of the privilege log, whether additional discovery issues relating to the
privilege log remain. Plaintiff is instructed that she must request an informal
conference with the Court prior to filing any additional discovery motions.
IT IS SO ORDERED.
Dated this 25th day of October, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

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

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