Pouncil v. Branch Law Firm et al

Filing 110

MEMORANDUM AND ORDER granting 74 Plaintiff's Motion to Compel Defendants to Fully Comply with Second Set of Interrogatories and Second Requests for Production. Within thirty (30) days of this Memorandum and Order, Defendants shall serve, with out objection, their answers to Plaintiff's Second Set of Interrogatories Nos. 26-32 and produce documents responsive to Plaintiff's Second Request for Production Nos. 2-4, and 7. It is further ordered that each party shall bear its own fees and expenses related to this motion. Signed by Magistrate Judge David J. Waxse on 12/13/2011. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALTINA POUNCIL, Administrator of the
ESTATE OF WILLIE SUE CLAY,
Plaintiff,

CIVIL ACTION
Case No. 10-1314-JTM-DJW

v.
BRANCH LAW FIRM,
et al.,
Defendants.
MEMORANDUM AND ORDER
Before the Court is Plaintiff’s Motion to Compel Defendants to Fully Comply with Second
Set of Interrogatories and Second Requests for Production (ECF No. 74). Plaintiff requests an order
under Fed. R. Civ. P. 37(a) compelling Defendants to provide full and complete responses to her
Second Set of Interrogatory Nos. 26-32 and Second Request for Production Nos. 2-4 and 7. The
motion is granted.
I.

Background Facts
Plaintiff Altina Pouncil, Administrator of the Estate of Willie Sue Clay (“Estate”), filed suit

against Defendants Turner Branch and the Branch Law Firm, asserting claims for legal malpractice,
negligence, and breach of fiduciary duty.

After Willie Sue Clay died while taking the

pharmaceutical drug Vioxx, Plaintiff retained Defendants to represent the Estate in its claim against
the drug manufacturer, Merck & Co., Inc. The Estate’s claim against Merck ended when the Estate
was barred from recovery under the Vioxx settlement agreement because the claim failed to meet
the eligibility requirements. Plaintiff’s claims against Defendants arise from the events surrounding
the Estate’s failed claim against Merck.

Plaintiff filed this action on September 15, 2010. She served her First Set of Interrogatories
on Defendants, consisting of interrogatories numbered Nos. 1 through 25, and First Requests for
Production on December 22, 2010. Defendants served their responses and objections to Plaintiff’s
First Set of Interrogatories and First Requests for Production on March 23, 2011.
On May 12, 2011, Plaintiff supplemented her discovery requests and served her Second Set
of Interrogatories (Nos. 26 through 32) and Second Requests for Production (Nos. 1 through 7) on
Defendants. Defendants served their discovery responses on June 27, 2011, after Plaintiff granted
Defendants a two-week extension of time to serve their responses. Defendants objected to the
Second Set of Interrogatories and Second Requests for Production. After attempting to confer to
resolve the discovery disputes as required by Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2,
Plaintiff filed the instant motion to compel.
II.

Objection that Interrogatories Exceed Numerical Limit
Defendants argue that they should not be compelled to respond to Plaintiff’s Second Set of

Interrogatories at all because Plaintiff, in her First Set of Interrogatories, has served more than the
40 interrogatories allowed by the Scheduling Order (ECF No. 12).

Specifically, Defendants

contend that Plaintiff’s First Interrogatory Nos. 6, 16, 18, and 20 should each be counted as multiple
interrogatories.
Federal Rule of Civil Procedure 33(a)(1) imposes a limit on the number of allowable
interrogatories. Under this rule, a party may serve a maximum of 25 written interrogatories upon
any other party, including all discrete subparts, unless the parties otherwise stipulate or the Court
allows more. The advisory committee notes to the 1993 amendments note that parties should not
evade this presumptive limit through using question subparts to seek information about discrete

2

separate subjects.1 This Court has noted the difficulty in identifying discrete subparts in Williams
v. Board of County Commissioners of the Unified Government of Wyandotte County and Kansas
City, Kansas:
Interrogatories often contain subparts. Some are explicit and separately numbered
or lettered, while others are implicit and not separately numbered or lettered.
Extensive use of subparts, whether explicit or implicit, could defeat the purposes of
the numerical limit contained in Rule 33(a), or in a scheduling order, by rendering
it meaningless unless each subpart counts as a separate interrogatory. On the other
hand, if all subparts count as separate interrogatories, the use of interrogatories might
be unduly restricted or requests for increases in the numerical limit might become
automatic.2
As this Court has noted in numerous decisions since Williams,3 the advisory committee provided the
following guidance for when subparts should count as separate interrogatories:
Each party is allowed to serve 25 interrogatories upon any other party, but must
secure leave of the court (or stipulation from the opposing party) to serve a larger
number. Parties cannot evade this presumptive limitation through the device of
joining as “subparts” questions that seek information about discrete separate
subjects. However, a question asking about communications of a particular type
should be treated as a single interrogatory even though it requests that the time,
place, persons present, and contents be stated separately for each such
communication.4
Federal Practice and Procedure commentators Wright, Miller and Marcus have construed the

1

Fed. R. Civ. P. 33(a) advisory committee’s note (1993 Am.)

2

Williams v. Bd. of Cnty. Comm’rs of the Unified Gov’t of Wyandotte Cnty. & Kan. City,
Kan., 192 F.R.D. 698, 701 (D. Kan. 2000).
3

See, e.g., High Point SARL v. Sprint Nextel Corp., No. 09-2269-CM-DJW, 2011 WL
4036424, at *3 (D. Kan. Sept. 12, 2011); Semsroth v. City of Wichita, No. 06-2376-KHV-DJW, 2008
WL 1924945, at *2 (D. Kan. Apr. 28, 2008); Johnson v. Kraft Foods N. Am., Inc., No.
05-2093-JWL-DJW, 2006 WL 3143930, at *1 (D. Kan. Oct. 31, 2006); Swackhammer v. Sprint
Corp. PCS, 225 F.R.D. 658, 664 (D. Kan. 2004); Williams, 192 F.R.D. at 701.
4

Fed. R. Civ. P. 33(a) advisory committee’s note (1993 Am.). See also Advisory Committee
Note, 146 F.R.D. 401, 675-76 (Fed. 1993).
3

advisory committee’s guidance to mean that “an interrogatory containing subparts directed at
eliciting details concerning a common theme should be considered a single question,” while an
interrogatory with “subparts inquiring into discrete areas is likely to be counted as more than one
for purposes of the limitation.”5 The Court has previously applied these “common theme” standards
in determining whether interrogatories exceed the numerical limit.6 With this common theme
standard and its previous applications in mind, this Court makes the following specific findings with
regard to the disputed interrogatories:
A.

First Interrogatory No. 6

Defendants assert that Interrogatory No. 6 of Plaintiff’s First Set of Interrogatories should
be counted as seven interrogatories because it asks for facts supporting seven allegations in the
complaint. Interrogatory No. 6 requests that Defendants “[i]dentify each fact which you claim
supports your denial of the allegation contained in paragraph 32 of the Complaint and identify all
documents relied on to support such denial. Please provide a response for each subsection of
paragraph 32 of the Complaint.” Paragraph 32 of the Complaint alleges the following:
32.
Defendants breached the duty to exercise ordinary care, skill, and knowledge
of a reasonably competent attorney in one or more of the following respects:
a.
Defendants failed to properly prepare Claims Forms including, but not
limited to, providing erroneous information.
b.
Defendants failed to make timely and adequate submissions of documentation
to the Vioxx Settlement Agreement Claims Administrator.

5

8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2168.1 (3d ed. 2010) at 39-40.
6

See High Point SARL, 2011 WL 4036424, at *4-9 (applying common theme test to disputed
interrogatories).
4

c.
Defendants failed to determine the reasons for, or take reasonable actions to
respond to, the Notices of Ineligibility issued by the Vioxx Settlement Agreement
Claims Administrator and Gate Committee.
d.
Defendants failed to provide adequate or timely counsel to [Plaintiff]
regarding the Estate’s claims and decision making throughout the Vioxx Settlement
Agreement process.
e.
Defendants failed to properly consult with and advise [Plaintiff] before
making the decision to appeal the Gate Committee’s Notice of Ineligibility to the
Special Master.
f.
Defendants failed to properly supervise non-attorney employees of [Branch
Law Firm] and allowed such non-attorney employees to exercise an improper
amount of autonomy and responsibility over aspects of administration of the Estate’s
Vioxx Settlement Agreement claim.
g.
Defendants, through their conduct, failed to exercise the ordinary care, skill,
and knowledge of a reasonably competent attorney in representing and advising the
Estate.
The Court agrees with Defendants and finds that Interrogatory No. 6 should be counted as
seven separate interrogatories. Although the information sought may arguably relate to the common
theme of Defendants’ alleged negligence in the administration and prosecution of the Estate’s Vioxx
claim, the Court finds the allegations are sufficiently different and require Defendants to identify
a different set of facts. They should therefore be counted as separate interrogatories. Interrogatory
No. 6 will be counted as seven interrogatories for purposes of the interrogatory limit.
B.

First Interrogatory No. 16

Defendants assert that Plaintiff’s First Interrogatory No. 16 should be counted as four
interrogatories. It requests that Defendants “[i]dentify each fact which you claim supports your
affirmative defense contained in paragraph J of the Affirmative Defenses section of the Answer and
identify all documents relied on to support such affirmative defense.” Paragraph J of Defendants’
Answer states that Plaintiff’s claims are barred by the doctrines of unclean hands, laches, estoppel,
5

and/or waiver.
The Court concludes that Interrogatory No. 16 should not be counted as four separate
interrogatories. The four affirmative defenses asserted by Defendants are closely related equitable
doctrines that pertain to alleged actions taken by Plaintiff that would relieve Defendants of liability
on her claim. The closely related nature of these equitable defenses satisfies the common theme
analysis because their success depends upon on certain alleged conduct of Plaintiff with respect to
asserting her claim. Moreover, these defenses appear to be boilerplate defenses that are commonly
asserted together in an answer. It is therefore appropriate for Plaintiff to inquire as to the facts
supporting them in one interrogatory. Interrogatory No. 16 should therefore be counted as only one
interrogatory.
C.

First Interrogatory No. 18

Defendants assert that Interrogatory No. 18 should be counted as three interrogatories. It
asks Plaintiff the following:
At the time Ms. Pouncil entered the Estate of Willie Sue Clay’s Vioxx Claim into the
Vioxx Settlement Agreement please state whether you advised Ms. Pouncil to enter
the Estate of Willie Sue Clay’s Vioxx Claim into the Vioxx Settlement Agreement
and whether you believed the Clay Claim was eligible for recovery under the Vioxx
Settlement Agreement. If you believe the Clay Claim was eligible for recovery under
the Vioxx Settlement Agreement, why do you believe the Clay Claim was denied?
If you do not believe the Clay Claim was eligible for recovery under the Vioxx
Settlement Agreement, why was the Clay Claim appealed to the Vioxx Settlement
Agreement Special Master?
The Court concludes that Interrogatory No. 18 does not contain three discrete subparts that
should be treated as separate interrogatories. All of the information sought in this interrogatory
pertains to the common theme of the Clay Claim being entered into the Vioxx Settlement
Agreement. Requesting specific information about Defendants’ beliefs regarding the claim and its

6

entry into the Vioxx Settlement Agreement does not enlarge the interrogatory beyond the bounds
of its common theme. Accordingly, Interrogatory No. 18 will be counted as one interrogatory.
D.

First Interrogatory No. 20

Defendants assert that Interrogatory No. 20 should be counted as three interrogatories.
Interrogatory No. 20 asks Plaintiff to identify:
[A]ny and all persons who worked on, assisted with, or participated in any aspect of
the representation of the Clay Claim and for such individuals please identify (1)
whether such person is employed by [Branch Law Firm] or another entity, (2) what
role such person played in the representation of the Clay Claim including, without
limitation, such persons duties and responsibilities, (3) whether such person has
medical education or training, and (4) what role, if any, such person played in
determining the injury indicated on the Claims Form.
The Court concludes that Interrogatory No. 20 does not contain discrete subparts that should
be treated as separate interrogatories. This interrogatory is limited to the common theme of who
worked on the Clay Claim during Defendants’ representation of Plaintiff. Each asserted discrete
subpart requests pertinent, specific information related to those persons, and it does not exceed the
common theme. Again, there is no indication that this interrogatory is abusive or meant to skirt the
interrogatory limit. Instead, it merely asks for enumerated details regarding persons who worked
on the Estate’s Vioxx claim.

Accordingly, Interrogatory No. 20 will be counted as one

interrogatory.
In summary, the Court counts Plaintiff’s First Interrogatory No. 6 as seven interrogatories
and counts Nos. 16, 18 and 20 each as a single interrogatory. Even with Interrogatory No. 6
constituting seven interrogatories, Plaintiff’s Second Set of Interrogatories (Nos. 26 through 32)
does not exceed the 40-interrogatory limit imposed by the Scheduling Order. Accordingly,
Defendants are not relieved of their obligation to respond to Plaintiff’s Second Set of Interrogatories

7

based upon the Second Set exceeding the interrogatory limit.
III.

Specific Objections to Plaintiff’s Second Set of Interrogatories and Requests for
Production
A.

Second Interrogatory Nos. 26-28

Interrogatory Nos. 26 through 28 ask Defendants for the following information:
Please indicate whether or not you contend Willie Sue Clay suffered a
myocardial infarction prior to beginning her use of Vioxx pursuant to the
provisions of Exhibit 3.2.1 of the Vioxx Settlement Agreement. If so, please
identify each fact which you claim supports this contention and identify all
documents you believe support your contention. (Interrogatory No. 26)
Please indicate whether or not you contend Willie Sue Clay’s family history is
ambiguous or unambiguous pursuant to the provisions of Exhibit 3.2.1 of the
Vioxx Settlement Agreement. If so, please identify each fact which you claim
supports this contention and identify all documents you believe support this
contention. (Interrogatory No. 27)
Please indicate whether or not you contend Willie Sue Clay’s injury is less than
“Level 1-Death” pursuant to the provisions of Exhibit 3.2.1 of the Vioxx
Settlement Agreement. If so, identify each fact which you claim supports this
contention and identify all documents you believe support this contention.
(Interrogatory No. 28)
Defendants object to these interrogatories as seeking the mental impressions, conclusions,
opinions, and legal theories of their counsel, which are protected from discovery as attorney opinion
work product. They also object that these interrogatories are premature contention interrogatories
and they should not be compelled to respond until discovery is complete and the experts have been
deposed.
1.

Work Product Objection

The work product doctrine, first recognized by the Supreme Court in Hickman v. Taylor,7
is governed by the uniform federal standard set forth in Fed. R. Civ. P. 26(b)(3). Under Rule
7

329 U.S. 495, 510-11 (1947).
8

26(b)(3)(A), the work product doctrine applies to “documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party or its representative.” Subsection (B)
further provides that the court “must protect against the disclosure of the mental impressions,
conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the
litigation.” Thus, although Rule 26(b)(3)(A) is confined to the discovery of “documents and
tangible things,” the doctrine has been expanded to reach information sought through interrogatories
when the interrogatory seeks the mental impressions or legal conclusions of an attorney.8 A party
claiming work product protection has the burden of establishing that the material sought to be
protected as work product comes within the doctrine.9 “A mere allegation that the work product
doctrine applies is insufficient.”10
In the context of an objection to an interrogatory, this Court has held that unless the
interrogatory (1) specifically inquires into an attorney’s mental impressions, conclusions, or legal
theories, or (2) asks for the content of a document protectable as work product, it is inappropriate
to raise a work product objection.11 The work product doctrine also does not provide any protection
for “facts concerning the creation of work product or facts contained within work product.”12 In a
similar vein, it has held that the work product doctrine does not prevent a party from propounding

8

Gipson v. Sw. Bell Tel. Co., No. 08-2017-EFM-DJW, 2009 WL 790203, at *15 (D. Kan.
Mar. 24, 2009), overruled in part by 2009 WL 4157948 (D. Kan. Nov. 23, 2009).
9

Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995).

10

Id.

11

Gipson, 2009 WL 790203, at *15. See also Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626,
645 (D. Kan. 1999) (sanctioning defense counsel for improperly asserting attorney-client and work
product objections to deposition questions).
12

Resolution Trust Corp., 73 F.3d at 266.
9

an interrogatory asking about “the existence or nonexistence of documents, even though the
documents themselves may not be subject to discovery.”13
The Court finds that Interrogatory Nos. 26-28 do not specifically request or inquire into the
mental impressions, conclusions, or legal theories of defense counsel. Nor do they ask for the
content of any documents or materials that Defendants have shown to be protected work product.
The interrogatories ask for Defendants’ contentions with respect to the factual issues of whether
Willie Sue Clay suffered a myocardial infarction prior to beginning her use of Vioxx, whether her
family history is ambiguous, and whether her injury is less than “Level 1-Death.”

The

interrogatories also request that Defendants identify the facts and documents supporting their
contentions. Defendants, who have the burden of supporting their work product objection, have not
shown that answering these interrogatories would reveal the mental impressions, conclusions,
opinions, or legal theories of their counsel. Accordingly, Defendants’ work product objection to
Interrogatory Nos. 26-28 is overruled.
2.

Objection as Premature Contention Interrogatories

Defendants also object to the interrogatories as premature contention interrogatories. Fed.
R. Civ. P. 33(a)(2) allows certain contention interrogatories. It provides that an interrogatory “may
relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not
objectionable merely because it asks for an opinion or contention that relates to fact or the
application of law to fact, . . . .”14 Interrogatory Nos. 26-28 appear to be asking for Defendants’

13

Hoffman v. United Telecomms., Inc., 117 F.R.D. 436, 439 (D. Kan. 1987) (citing Casson
Constr. Co. v. Armco Steel Corp., 91 F.R.D. 376, 385 (D. Kan. 1980) (quoting 8 Charles A. Wright
and Arthur R. Miller, Federal Practice and Procedure § 2023 (1970 & Supp. 1978)).
14

Fed. R. Civ. P. 33(a)(2).
10

contentions that relate to certain facts. Those facts include whether Willie Sue Clay suffered a
myocardial infarction prior to beginning her use of Vioxx, whether her family history is ambiguous,
and whether her injury is less than “Level 1-Death.” These contention interrogatories provide
Plaintiff with the opportunity to determine what proof is necessary to effectively refute Defendants’
position on these issues. Plaintiff is permitted to serve contention interrogatories.
In addition to their other objections, Defendants ask, at a minimum, that the Court permit
them to delay answering Interrogatory Nos. 26-28 until the completion of discovery. It is within the
court’s discretion to “order that the interrogatory need not be answered until designated discovery
is complete.”15 Here, the Court finds no persuasive reason for Defendants to defer their answers to
Interrogatory Nos. 26-28. Defendants should answer these interrogatories as fully as they can,
keeping in mind their continuing obligation to supplement their discovery responses as additional
or different information becomes available. Although Defendants have not yet deposed Plaintiff’s
expert witness, Plaintiff has already provided Defendants with her expert’s report. Accordingly, the
Court denies Defendants’ request to defer compelling responses to Interrogatory Nos. 26-28 as
premature contention interrogatories. Plaintiff’s motion to compel Defendants to answer Second
Interrogatory Nos. 26-28 is granted.
B.

Second Interrogatory Nos. 29-32

Plaintiff’s Second Interrogatory No. 29 asks for the number of Vioxx claimants Defendants
represented at the end of each month during the period of February 2008 to July 2009. Interrogatory
No. 30 seeks the number of Vioxx claimants in which a certain employee worked on, assisted with,
or participated in any aspect of the representation as of the end of each month. Interrogatory No.

15

Fed. R. Civ. P. 33(a)(2).
11

31 requests the number of people employed by Defendants at the end of each month for the period
February 2008 to July 2009.

Interrogatory No. 32 asks Defendants to “indicate how many of

Defendants’ employees, exclusively or for a majority of their time (more than half of their working
time), worked on, assisted with, or participated in any aspect of the representation of Vioxx
claimants as of the end of each month. Of those employees, please indicate how many were
attorneys, how many were paralegals, and how many were employees other than attorneys or
paralegals.”
1.

Relevance Objection

Defendants object to Interrogatories Nos. 29-32 as not reasonably calculated to lead to the
discovery of admissible evidence. It argues that the information requested in the interrogatories
bears no relationship to the claims and defenses in this case.
Federal Rule of Civil Procedure 26(b)(1) sets the scope of discovery. It provides that
“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's
claim or defense.”16

The court construes relevance broadly at the discovery stage of litigation, and

a “request for discovery should be considered relevant if there is ‘any possibility’ that the
information sought may be relevant to the claim or defense of any party.”17
The Court finds that these interrogatories request relevant information. The interrogatories
request information regarding the number of clients Defendants represented during the time in
question, Defendants’ case management procedures, and details regarding how Defendants oversaw
employees who worked on Vioxx claims. All of this information is relevant to and probative of
16

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

17

In re Bank of Am. Wage & Hour Emp’t Practices Litig., 275 F.R.D. 534, 538 (D. Kan.
2011) (internal quotations omitted).
12

Plaintiff’s claim that Defendants breached a professional duty of care and were negligent in handling
the Estate’s Vioxx claim. Defendants’ relevance objection to Interrogatory Nos. 29-32 is overruled.
2.

Mootness

Defendants also argue that Plaintiff’s motion to compel information responsive to
Interrogatory Nos. 29-32 is moot because Plaintiff was able to elicit the information sought during
depositions of Defendant Branch and several employees of the law firm. The Court has reviewed
the deposition transcripts submitted and concludes that Interrogatory Nos. 29-32 are not moot as
argued by Defendants. Although the depositions briefly addressed the general themes of the disputed
interrogatories, they are insufficient as a substitute for answering the specific interrogatories at issue
here. The Court finds that the deposition testimony does not sufficiently answer the interrogatories
and therefore does not render Plaintiff’s motion to compel moot. Accordingly, Defendants shall
provide responsive answers to these interrogatories. Plaintiff’s motion to compel Defendants to
answer Second Interrogatory Nos. 29-32 is granted.
C.

Second Request for Production Nos. 2 and 3

Request No. 2 asks for “[a]ll documents relating to any form of advertising which were used
or publicized in the State of Kansas at any time by Defendants soliciting the representation of
persons injured as a result of using Vioxx including, but not limited to, television, radio, and print.”
Request No. 3 similarly requests information “relating to any form of advertising used by
third-parties at any time who were retained by Defendants or who referred clients or potential clients
to Defendants.” These Requests thus seek television, radio and print advertising—whether directly
by Defendants or through third parties—in the state of Kansas that solicited the representation of
persons injured as a result of using Vioxx.

13

Defendants argue that these Requests are not properly oriented in time or tailored to the
issues in this matter because they are not limited to a time frame in which Plaintiff or other heirs of
the Estate would have allegedly seen advertisements before retaining Defendants. Defendants cite
no authority to support this objection, although it is apparently akin to arguing the disputed Requests
are overly broad and unduly burdensome. The Court has reviewed Request Nos. 2 and 3 and
concludes that they are narrowly tailored to a reasonable time frame. Consequently, the Court denies
Defendants’ objections regarding the alleged failure to properly orient or tailor the requests to the
issues in this matter.
Although the requests ask for “all documents related to any form of advertising” and contain
no explicit time limitation, they are not overly broad in terms of time. They are limited to
advertising to potential clients regarding injuries sustained as a result of using Vioxx; this is a
sufficient limitation in terms of both time and substance. Defendants assert that they only advertised
regarding Vioxx injuries in the state of Kansas during a limited period of time. Due to the explicit
limitation to Vioxx-related advertising, Request Nos. 2 and 3 are necessarily limited to this time
frame. Because this period would not extend for an overly burdensome period of time or cover an
overly burdensome amount of material, Defendants’ objection to the requests for failure to tailor or
orient in time is without merit.
Despite their objections, Defendants state that they have already produced the only
documents responsive to these Requests. In her reply, Plaintiff disputes that the newsletters
produced by Defendants are responsive to the Requests. She claims that Defendants have not
produced any documents related to advertising from other law firms with whom Defendants had
agreements with to conduct advertising and refer clients. To the extent that Defendants have in their

14

possession, custody or control any documents related to advertising for Vioxx-related-injuries from
other law firms with whom they had agreements, Defendants shall produce these documents within
30 days of the date of this Memorandum and Order. Plaintiff’s motion to compel Defendants to
produce documents responsive to Second Request Nos. 2 and 3 is granted.
D.

Second Request for Production No. 4

Request No. 4 seeks “[a]ll documents relating to agreements of any kind, which Defendants
had with other law firms or attorneys regarding fee sharing arrangements related to the
representation of the Estate of Willie Sue Clay.” Defendants object to the Request as not reasonably
calculated to lead to the discovery of admissible evidence. They argue that fee arrangements
between Defendants and other firms or attorneys bear no relation to the claims and defenses in this
matter, and they should not be compelled to produce any such documents. They also assert that the
motion to compel is moot with regard to Request No. 4 as they have produced responsive documents
and Plaintiff’s counsel has already questioned Defendant Branch regarding the fee arrangements at
his deposition.
1.

Relevance Objection

The Court finds that the documents sought by Request No. 4. are directly relevant to
Plaintiff’s claims. Request for Production No. 4 seeks information regarding Defendants’ fee
arrangements with other law firms that could bear directly on the representations allegedly made to
potential clients, including the Estate. Defendants’ fee sharing agreements with other law firms
relating the representation of the Estate’s Vioxx claim are relevant to Plaintiff’s malpractice,
negligence, and breach of fiduciary duty claims. More specifically, the information is relevant to
whether the fee arrangements provided a financial incentive for Defendants to accept more Vioxx

15

clients than they could competently handle. Defendants’ relevancy objection to Request No. 4 is
overruled.
2.

Mootness

Defendants also assert that Plaintiff’s motion to compel is moot because they have produced
documents responsive to the Request and Plaintiff’s counsel has already deposed Defendant Branch
regarding the fee arrangements. In her reply, Plaintiff argues that the motion to compel on this
Request is not moot. She argues that Defendants cannot avoid their obligation to produce
documents responsive to a request for production by lodging baseless objections and then claiming
they are moot because Plaintiff later had the opportunity to question a witness in a deposition about
a related topic. Plaintiff maintains that she is entitled to receive all documents that are responsive
to this request.
The Court has reviewed the excerpted portions of Defendant Branch’s deposition transcript
and concludes that the motion to compel as to Request No. 4 is not moot. Although Defendant
Branch was questioned about the fee arrangement with the Estate, he did not testify regarding any
fee sharing arrangements that Defendants had with other law firms or attorneys. Moreover, this
testimony is not the same as actually producing the agreements and other responsive documents.
Defendant Branch’s deposition testimony does not render Plaintiff’s motion to compel on Request
No. 4 moot. Plaintiff’s motion to compel Defendants to produce documents responsive to Second
Request No. 4 is granted.
E.

Second Request for Production No. 7

Request for Production No. 7 asks Defendants to produce “[a]ll calendars, appointment
books, or other logs of dates and/or events that Defendant Turner Branch maintained at any time for

16

the period from February 14, 2008, to July 20, 2009.” Defendants object to the request on the
grounds the information is protected by the attorney-client privilege and the work product doctrine,
and is not relevant. They further point out that Plaintiff’s counsel had an opportunity to question
Defendant Branch during his deposition and that it would be redundant to require production of
documents responsive to Request No. 7.
1.

Attorney-Client Privilege Objection

The standards for evaluating the attorney-client privilege are well-established. “In federal
court, the determination of what is privileged depends upon the dictates of Rule 501 of the Federal
Rules of Evidence.”18 Subject-matter jurisdiction in this case is based on diversity; therefore, “state
law supplies the rule of decision.”19
Under Kansas law, the essential elements of the attorney-client privilege are:
(1) Where legal advice is sought (2) from a professional legal advisor in his capacity
as such, (3) the communications made in the course of that relationship (4) made in
confidence (5) by the client (6) are permanently protected (7) from disclosures by the
client, the legal advisor, or any other witness (8) unless privilege is waived.20
The existence of the privilege is determined on a case-by-case basis.21 The party seeking to assert
the attorney-client privilege as a bar to discovery has the burden of establishing that it applies.22

18

ERA Franchise Sys., Inc. v. N. Ins. Co. of New York, 183 F.R.D. 276, 278 (D. Kan. 1998)
(quoting Fisher v. City of Cincinnati, 753 F. Supp. 692, 694 (S.D. Ohio 1990)).
19

Fed. R. Evid. 501.

20

ERA Franchise, 183 F.R.D. at 278 (citations omitted); Cypress Media, Inc. v. City of
Overland Park, 268 Kan. 407, 418, 997 P.2d 681, 689 (Kan. 2000) (citations omitted).
21

Upjohn Co. v. United States, 449 U.S. 383, 396–97 (1981).

22

Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984).
17

Moreover, a party must make a “clear showing” that the privilege applies.23
With these rules in mind, the Court finds that Defendants have failed to make a clear
showing that the requested documents are protected by the attorney-client privilege. Defendants’
lone, unsupported statement that producing responsive documents will likely require disclosure of
Defendant Branch’s confidential communications with other clients is not sufficient to meet their
burden. Defendants’ objection that Request No. 7 calls for the production of documents or
information protected by the attorney-client privilege is overruled.
2.

Work Product Objection

Defendants also argue that the calendars and appointment books sought are protected from
disclosure as work product because they would disclose Defendant Branch’s mental impressions
regarding matters in which he represents other clients. Like their attorney-client privilege objection
above, the Court finds that Defendants have not met their burden of establishing that Defendant
Branch’s calendars, appointment books, or other logs of dates and events contain information that
would constitute the protected mental impressions of Defendant Branch relating to other clients.
Defendants, as the party with the burden of supporting their work product objection, have not shown
that the documents requested contain information that would reveal the mental impressions,
conclusions, opinions, or legal theories of Defendant Branch. Accordingly, Defendants’ work
product objection to Request No. 7 is overruled.
3.

Relevance Objection

Defendants also object to Request No. 7 as not reasonably calculated to lead to the discovery
of admissible evidence. They argue that because the relevancy of the Request is not apparent on its

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Id.
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face, Plaintiff must establish the relevancy of the documents sought. The Court agrees that Plaintiff
has the burden to show the relevancy of Defendant Branch’s calendars, appointment books, or other
logs of dates and events.
Plaintiff argues that the information regarding Defendants’ schedule during the requested
time period is relevant because Defendants assert that Turner Branch made the final decision on all
aspects of Plaintiff’s claim. Plaintiff points out that Defendants, in their Supplemental Response
to Interrogatory Nos. 19 and 20, state that Defendant Branch “oversaw all individuals working on
the claim; all individuals were under his control and no dispositive steps were taken on the claim
without Mr. Branch’s knowledge and input.” According to Plaintiff, this response demonstrates that
Defendants are claiming that Defendant Branch had an extensive and intimate involvement with the
representation of Plaintiff in relation to her Vioxx claim and that no major decision was made on the
claim without Mr. Branch’s direct involvement. Based on this alleged extensive involvement,
Defendant Branch’s schedule during the relevant time period of Defendants’ representation of the
Estate is relevant as to whether Mr. Branch was, in fact, present and available during such time
period to provide the type of involvement that Mr. Branch claims that he provided in Plaintiff’s
representation.
Plaintiff has convinced the Court that Request No. 7 for Defendant Branch’s calendars,
appointment books, or other logs of dates and events seeks information relevant to the issue of
whether Defendant Branch was present and available during the relevant time period he claims that
he was involved in the Estate’s Vioxx claim. Accordingly, Defendants’ objection based on the
relevancy of the discovery request is denied.

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4.

Objection That Information Sought is Redundant

Defendants’ final argument is that it would be redundant to require them to produce
documents responsive to Request No. 7 because Plaintiff’s counsel had the opportunity to question
Defendant Branch during his deposition about his schedule during the Vioxx litigation. They assert
that Defendant Branch testified that his time between November 2007 and 2009 was primarily spent
on Vioxx matters, including frequent travel to New Jersey, Houston, and New Orleans.
The Court does not find Request No. 7 to be unreasonably duplicative or cumulative of
Defendant Branch’s deposition testimony. The documents requested could contradict or support his
deposition testimony. Plaintiff’s motion to compel Defendants to produce documents responsive
to Second Request No. 7 is granted.
IV.

EXPENSES
A.

Expenses Related to this Motion

Under Fed. R. Civ. P. 37(a)(5)(A), if a motion to compel is granted, the court “must, after
providing an opportunity to be heard, require the party . . . whose conduct necessitated the motion
. . . to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s
fees.” The court must not order payment, however, if the opposing party’s response or objection
was substantially justified or other circumstances make an award of expenses unjust.24 In this case,
Plaintiff requests that the Court to assess her costs and fees related to the motion against
Defendants. Upon a review of the briefing, the Court concludes that the parties should bear their
own fees and expenses. Although the Court is granting Plaintiff’s motion to compel, Defendants

24

Fed. R. Civ. P. 37(a)(5)(A)(ii)-(iii).
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were substantially justified in lodging their supernumerary objections to the second set of
interrogatories. Plaintiff’s request for expenses related to this motion is denied.
B.

Expenses Related to Future Discovery and Depositions

Plaintiff additionally requests that the Court require Defendants to pay for any costs incurred
in deposing Defendants for a second time. Because Plaintiff did not have all of the relevant
information when she first deposed Defendants, the theory proceeds, it might be necessary to take
a second deposition after Defendants comply with this Order. Prospectively assessing these costs,
however, is not necessary. If Plaintiff determines the information disclosed by Defendants pursuant
to this Order requires additional depositions to be taken, then she will be free to move the Court for
leave to depose Defendants and with any associated expenses at that time. For the time being,
Plaintiff’s request for prospective costs related to secondary depositions is accordingly denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Defendants to Fully
Comply with Second Set of Interrogatories and Second Requests for Production (ECF No. 74) is
granted. Within thirty (30) days of this Memorandum and Order, Defendants shall serve,
without objection, their answers to Plaintiff’s Second Set of Interrogatories Nos. 26-32 and produce
documents responsive to Plaintiff’s Second Request for Production Nos. 2-4, and 7.
IT IS FURTHER ORDERED THAT each party shall bear its own fees and expenses
related to this motion.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 13th day of December 2011.

s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge
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