Wichita Firemen's Relief Association v. Kansas City Life Insurance Company

Filing 140

MEMORANDUM AND ORDER denying 124 Motion for Order to Show Cause. Signed by Magistrate Judge Kenneth G. Gale on 2/28/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WICHITA FIREMEN’S RELIEF
ASSOCIATION,

)
)
)
Plaintiff,
)
)
v.
)
)
KANSAS CITY LIFE INSURANCE )
COMPANY,
)
)
Defendant. )
______________________________ )

Case No. 11-1029-KGG

ORDER DENYING MOTION FOR ORDER TO SHOW CAUSE
The Court is now obliged to consider Plaintiff’s Motion for Order to Show
Cause (Doc. 124). Because the Plaintiff has not requested any specific relief, and
because the Defense conduct of which Plaintiff complains was not committed
wilfully or in bad faith, the motion is DENIED.
FACTS
In this action, Plaintiff challenges Defendant’s denial of life insurance
coverage for one of its members. Plaintiff sues both for the proceeds allegedly due
under the insurance contract and for attorney fees for Defendant’s alleged denial of
the claim without just cause or excuse. (Doc. 1-1.) These claims are denied by
Defendant. (Doc. 6.)

In the year since this action was filed, it has occupied a great deal of this
Court’s attention. The Court has ruled on numerous discovery motions, and has
held lengthy hearings on pending motions. It is the Court’s perception that the
contentiousness of these proceedings has caused the parties, in some instances, to
misinterpret missteps by their opponent as intentional interference.
In the present motion, Plaintiff revisits this Court’s previous order
overruling certain objections to discovery requests, and complains concerning the
manner in which Defendant responded to those requests after its objections were
overruled by the Court. (Doc. 97.) The complaints include that, after the
objections were overruled, Defendant stated it had no further responses, which
Plaintiff claims demonstrated bad faith in asserting the original objections.
Plaintiff also complains that Defendant responded with a “document dump” of
duplicative and voluminous documents with, in some cases, blank pages and
improper redactions. Plaintiff also complains about certain documents being
marked “confidential” under the protective order. Plaintiff contends that
Defendant’s production of documents form has made it difficult to tie document
production to specific requests. Plaintiff further contends that Defendant has failed
to provide compliant privilege logs.
Plaintiff does not request specific and directed remedies for any of these
complaints. (Doc. 124, at 29.) It does not, for example, ask the Court to re-order

new privilege logs or to order that Defendant re-organize its document production
or strike certain protective order designations. The Court infers that, although
perhaps through extra effort by Plaintiff, Plaintiff has received the information it
requires in discovery.
Plaintiff states that it needs “some kind of effective court intervention” and
asks the Court to review the voluminous document production. Plaintiff admits
being “at a loss now to know what relief to request.” Plaintiff states it is “looking
to the Court to fashion an appropriate remedy.” In its reply, Plaintiff describes the
present motion as one asking the Court for an Order to Show Cause why the
Defendant should not be held in contempt and sanctioned for failing to comply
with the Court’s discovery orders. In its reply, Plaintiff for the first time urges the
Court to strike Defendant’s defenses or enter judgment against Defendant as a
sanction.
Defendant responds, denying the allegations of bad faith. Defendant
contends that documents were produced in the form they were maintained, which
included various files that included duplicate documents. Defendant states that
while this motion is pending it is continuing to attempt to “de-duplicate” some
documents. Defendant admits that some blank pages were produced, attributing
that, in some instances, to the maintenance of blank pages in produced files or to
the inadvertent copying of blank backs of documents. Defendant argues that

Plaintiff failed to confer as required by D. Kan. Rule 37.2, by communicating these
particular concerns only by letter. Defendant states that its designations of
documents under the protective order was proper. Defendant describes its
responses following this Court’s order and contends that it was compliant.
Federal Rule of Civil Procedure 7(b)(1)(C) states that a motion must “state
the relief sought.” Asking the Court to review voluminous documents and fashion
and appropriate remedy does not satisfy this requirement. In its reply, Plaintiff
proposes the strongest possible sanction – the entry of judgment or striking of
defenses. These sanctions, the only ones proposed, are proper only upon serious
culpability of the party, including willfulness or bad faith. In addition, the Court
must evaluate the prejudice to the moving party, the amount of interference with
the judicial process, the culpability of the litigant, whether the litigant had been
previously warned of the possible sanction, and the efficacy of lesser sanctions.
Garcia v. Berkshire Life Insurance Company of America, 569 F.3d 1174 (10th
Cir. 2009); ICE Corporation v. Hamilton Sundstrand Inc., No. 05-4135-JARKGS, 2007 WL 3037467, at *2 (D. Kan. Aug. 9, 2007).
While the Court recognizes its inherent authority to sanction discovery
abuses, it is convinced that the complained of conduct in this case was not the
result of bad faith or wilfulness and thus does not warrant the relief requested.
The Court is also convinced that the ability of Plaintiff to present its claims in this

case has not been prejudiced by the Defendant’s performance during discovery.
Plaintiff’s “Motion for Order to Show Cause” (Doc. 124) is, therefore,
DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 28th day of February, 2012.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge