Hale vs. Emporia State University, et al.,

Filing 67

MEMORANDUM AND ORDER granting in part and denying in part 59 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/12/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MELVIN HALE, PH.D.,

)
)
Plaintiff,
)
)
v.
)
)
JACKIE VIETTI, PH.D., et al.,
)
)
Defendants.
)
_______________________________)

Case No. 16-4183-DDC-KGG

ORDER DENYING MOTION TO COMPEL
PRODUCTION OF NON-PARTY LITIGATION FILES
Defendant Jackie Vietti, Ph.D. (hereby referred to as “Defendant”) has filed
a motion to compel Plaintiff to respond, or to respond more fully, to Defendant’s
Requests for Production of Documents under Fed.R.Civ.P. 34 and Interrogatories
under Fed.R.Civ.P. 33. (Doc. 59.) Plaintiff has filed responses to these requests,
including objections, so the Court’s task is to consider the objections and evaluate
the adequacy of the responses. Having reviewed the parties’ submissions,
including the discovery requests and responses at issue, the Court GRANTS in
part and DENIES in part Defendant’s motion (Doc. 59).
A.

Standards for Discovery.
Generally, parties “may obtain discovery regarding any nonprivileged matter

that is relevant to a party’s claim or defense and proportional to the needs of the
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case.” Fed.R.Civ.P. 26(b)(1). Plaintiff has not interposed claims of privilege to
the requests as issue and the Court does not find obvious issues of privilege in the
requests. Thus, the task is, for the most part, for the Court to determine whether
Defendant’s discovery requests are relevant and proportional.
Much of Plaintiff’s Response (Doc. 64) focuses on the conduct of
Defendants during discovery, complaining that that Defendants have not complied
with Plaintiff’s discovery requests. These issues are not relevant to the present
motion. Rather, they must be evaluated on their own merit if and when raised by
Plaintiff by separate motion. Given this general background, the Court thus
analyses the discovery requests at issue.
B.

Requests for Production.
Defendant propounded twelve separate Requests for Production of

Documents to Plaintiff. Plaintiff submitted written responses, but did not actually
produce any documents. Plaintiff is required to produce actual documents
identified in the responses which are within the scope of discovery. For efficiency,
Plaintiff need not produce documents which were produced to him by Defendants
or marked as exhibits in depositions or pleadings, but such responsive documents
must be identified in his response by specific page number or exhibit number.
Plaintiff also need not produce an actual document which is clearly identified if
defense counsel agrees Defendant is already in possession of the document.
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Otherwise, the discovery response is not complete until the document is produced
to Defendant.
Request No. 1 seeks documents Plaintiff “reasonably anticipate[s]
introducing as an exhibit in the trial of this matter.” (Doc. 60-3, at 2.) Plaintiff
objects that the request is overbroad, does not comply with Fed.R.Civ.P. 34, and
calls for irrelevant information.1 Plaintiff’s unsupported objections are overruled.
A party objecting to discovery requests has the burden to substantiate those
objections unless the request is facially objectionable. See Goodyear Tire &
Rubber Co. v. Kirk's Tire & Auto Serv. Cntr., 211 F.R.D. 658, 663 (D. Kan. 2003)
(holding that a party objecting to undue burden or relevancy has the burden to
establish the objection). Plaintiff is ORDERED to respond to Request No. 1.
In addition to the objections, Plaintiff provided an extensive list of
documents in response to this request. He did not, however, provide Defendant
with the requested documents. Plaintiff is, therefore, ORDERED to provide copies
of the actual documents within the parameters described in the initial paragraph of
this section, supra. Defendant’s motion is GRANTED as to this request.

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Plaintiff also objects that this and other Requests seeks information “not reasonably
calculated to lead to the discovery of admissible evidence.” The Court notes that the
“reasonably calculated” standard has been replaced by the “proportional to the needs of
the case” standard. See Fed.R.Civ.P. 26(b).
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Request No. 2 asks for documents “reflecting any remuneration for work . . .
and/or benefits . . . Plaintiff has received since leaving employment with
Defendant.” (Doc. 60-3, at 5.) Plaintiff responds that he has not worked and is
living on Social Security. (Id.) Plaintiff has, however, failed to provide supporting
documentation. The motion is GRANTED. Plaintiff is ORDERED to produce
any documents reflecting remuneration from Social Security. Plaintiff is directed
to redact (black out) his Social Security Number from any such responsive
document(s) produced.
Request No. 3 asks for Plaintiff’s tax records for the past five years. (Doc.
60-3, at 5.) Plaintiff’s relevance objection is sustained in part because the request
is facially irrelevant, in part. Holick v. Burkart, No. 16-1188-JTM-KGG, 2017
WL 5904033, at *3 (D. Kan. Nov. 30, 2017). Plaintiff is ORDERED to provide
his Federal Tax Returns beginning with the year he last worked for Emporia State
University. This should include any form W-2, 1099, or other tax form(s)
reflecting income or payments for work or government benefits. He need not
produce any attachments relating only to his spouse or relating to income from
interest or investments. He is directed to redact his Social Security number. The
Motion is GRANTED in part.
Request No. 4 seeks documents related to Plaintiff’s job search. (Doc. 60-3,
at 5.) Plaintiff objects that the request is overbroad, unduly burdensome, and does
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not comply with Fed.R.Civ.P. 34. Plaintiff’s unsupported objections are overruled.
See Goodyear Tire, 211 F.R.D. at 663. Defendant’s Motion is GRANTED as to
Request No. 4. Plaintiff is ORDERED to respond to Request No. 4.
Request No. 5 seeks documents “on which you base your claim and/or
which you contend support your allegations in the Complaint.” (Doc. 60-3, at 6.)
Plaintiff’s unsupported objections to this request are overruled. Goodyear Tire,
211 F.R.D. at 663. It is likely, however, that this request is mostly, perhaps
entirely, redundant with Request No. 1. Plaintiff is thus ORDERED to identify
and produce any documents not identified and produced in response to Request
No. 1. Defendant’s Motion is GRANTED in part as to this request.
Request No. 6 asks for documents relating to statements by any Defendant
or their representatives concerning the allegations in the Complaint. (Doc. 60-3, at
6.) Plaintiff objects that the request is overbroad, fails to comply with
Fed.R.Civ.P. 34, and calls for irrelevant information. (Id.) Plaintiff’s unsupported
objections are overruled. See Goodyear Tire, 211 F.R.D. at 663. Plaintiff will
respond by identifying documents responsive to this request, even if the documents
have been identified or produced in response to another request. The Motion is
GRANTED as to Request No. 6.
Request No. 7 seeks documents relevant to Plaintiff’s damages claims.
(Doc. 60-3, at 6.) Plaintiff objects that the request is overbroad, fails to comply
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with Fed.R.Civ.P. 34, and calls for irrelevant information. (Id.) Plaintiff’s
unsupported objections are overruled. See Goodyear Tire, 211 F.R.D. at 663.
Defendant’s motion is GRANTED as to Request No. 7 and Plaintiff is ORDERED
to produce any documents relevant to his alleged damages.
Request No. 9 instructs Plaintiff to “execute the attached forms: (1)
Employment Records Release, (2) Authorization for Release of Education
Records, and (3) HIPAA Compliant Authorization for the Release of Patient
Information Pursuant to 45 CFR 164.508.” (Doc. 60-3, at 6.) The Motion
regarding this Request is DENIED. No provision in the Rules requires a party to
create a document in response to a document request and no provision compels a
party to sign a release.
C.

Interrogatories.
Interrogatory No. 1 asks for the name, title, and address of the person

responding to the interrogatories. (Doc. 60-3, at 12.) The Court agrees with
Defendant that Plaintiff’s response is incomplete without his updated residential
address. (Doc. 60, at 6.) The Motion is GRANTED and Plaintiff is ORDERED to
provide his current residential address.
Interrogatory No. 2 requests information concerning persons who may have
knowledge of the facts alleged in the Complaint. (Doc. 60-3, at 13.) Interrogatory
No. 3 requests information and details concerning potential trial witnesses. (Id.)
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Interrogatory No. 4 requests a list of potential trial exhibits and details concerning
the relevance of expected use of the exhibits at trial. (Id., at 14.) Plaintiff objects
that the interrogatories are overbroad, fail to comply with Fed.R.Civ.P. 34, and
calls for irrelevant information. (Id., at 13, 14.) The Court finds the interrogatories
to be facially relevant. Plaintiff’s unsupported objections are, therefore,
overruled. See Goodyear Tire, 211 F.R.D. at 663.
In addition to the objections, Plaintiff’s responses to Interrogatories Nos. 2,
3, and 4 refer Defendant to his Complaint and Initial Disclosures. (Doc. 60-3, at
13, 14.) Plaintiff’s reference to previous pleadings does not adequately answer the
questions. Defendant’s Motion is GRANTED as to Interrogatories Nos. 2, 3, and
4. Plaintiff is instructed to provide the name, address, and telephone number of all
persons who may have knowledge of the facts alleged in his Complaint (No. 2),
information regarding potential trial witnesses (No. 3), and information regarding
trial exhibits (No. 4).
Interrogatory No. 6 requests details concerning the Plaintiff’s efforts to
mitigate his damages by replacing his employment. (Doc. 60-3, at 15.) Plaintiff
objects that the interrogatory is overbroad, unduly burdensome, and fails to comply
with Fed.R.Civ.P. 34. (Id.) The interrogatory is relevant and not unduly
burdensome considering Plaintiff’s claims. These unsupported objections are
overruled. See Goodyear Tire, 211 F.R.D. at 663. Plaintiff’s reference to
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responses to production requests does not adequately answer the question,
particularly because Plaintiff never provided responsive documents to those
requests, never indicated he would permit inspection. The response is incomplete.
Defendant’s Motion is GRANTED as to Interrogatory No. 6. Plaintiff is
instructed to respond to each subpart of the Interrogatory in full and without
objection.
Interrogatory No. 7 seeks information concerning all of Plaintiff’s heath care
providers from the beginning of his employment with Emporia State University to
the present. (Doc. 60-3, at 19.) Plaintiff’s objections include that this request is
irrelevant. (Id.) The Court agrees that the request for medical information is
facially irrelevant given the nature of Plaintiff’s claims for retaliation based on
race. In response to Plaintiff’s objection, Defendant has made no effort to
demonstrate the relevance of this interrogatory. Plaintiff’s objection is sustained
and this portion of Defendant’s motion is DENIED.
Interrogatory No. 8 requests details concerning any claimed admissions
against interest by the Defendant or its agents. (Doc. 60-3, at 19.) Plaintiff objects
that the interrogatory is overbroad and unduly burdensome. (Id., at 20.) The Court
finds the interrogatory to be relevant and these unsupported objections are
overruled. See Goodyear Tire, 211 F.R.D. at 663. Further, Plaintiff’s reference to
previous pleadings does not adequately answer the question. (Doc. 60-3, at 20.)
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Defendant’s Motion is GRANTED as to Interrogatory No. 8. Plaintiff is
instructed to respond in full and without objection.
Interrogatory No. 9 requests information concerning Plaintiff’s history with
civil and criminal litigation and administrative proceedings. (Doc. 60-3, at 20.)
Plaintiff objects that this request is irrelevant. (Id.) The Court finds this discovery
request to be facially irrelevant and/or overbroad given the nature of Plaintiff’s
claims and the breadth of the inquiry. Further, Defendant has made no effort to
demonstrate the relevance of this interrogatory. Plaintiff’s objection is sustained
and Defendant’s motion is DENIED as to Interrogatory No. 9.
Interrogatories Nos. 10 and 11 request details concerning “witnesses
Plaintiff intends to have testify on his behalf in this case, whether in person or by
deposition.” (Doc. 60-3, at 20.) Plaintiff objects that the interrogatories are
overbroad and fail to comply with Fed.R.Civ.P. 34, then refers Defendant to prior
filings. (Id.) These unsupported objections are overruled. See Goodyear Tire,
211 F.R.D. at 663. The interrogatories are facially relevant and the reference to
previous pleadings does not adequately answer the questions. The Motion is
GRANTED as to Interrogatories Nos. 10 and 11. Plaintiff is instructed to respond
fully and without objection.
D.

Request for Sanctions.

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The Court has considered Defendant’s request for sanctions pursuant to Rule
37(a)(5). The award of sanctions is not appropriate in this instance where the
Plaintiff, acting pro se, made a good faith effort to respond to the discovery within
the rules. This portion of Defendant’s motion is DENIED.

Defendant’s Motion to Compel (Doc. 59) is, therefore, GRANTED in part
and DENIED in part as more fully set forth above. Defendant’s request for
sanctions is DENIED. Plaintiff shall supplement his discovery responses and
provide responsive documents on or before August 31, 2018.
Dated this 12th day of June, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

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