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

Filing 189

MEMORANDUM AND ORDER granting in part and denying in part 154 Motion to Quash Subpoenas. Signed by Magistrate Judge Kenneth G. Gale on 8/8/2012. (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 ON MOTION TO QUASH SUBPOENAS
Now before the Court is Plaintiff’s Motion to Quash Subpoenas (Doc. 154).
Having reviewed the submissions of the parties, the Court GRANTS in part and
DENIES in part Plaintiff’s motion.
FACTS
Plaintiff in the matter before the Court is Wichita Firemen’s Relief
Association, a public body organized under the Firefighters Relief Act, K.S.A.
§40-1701, et seq., to administer public funds and consisting of members of public
fire departments. (See Doc. 1-1.) This case results from an alleged on-duty injury,
a rupture of the chordae tendinae, sustained by Captain Urban Eck (“Captain Eck”

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or “decedent”), an employee of the Wichita Fire Department, while fighting a local
fire.
Plaintiff contends the injury necessitated heart surgery and that Captain Eck
died as a result of surgical complications. Plaintiff, which had a group policy of
insurance issued by Defendant, brings its present claims seeking payment of an
accidental death and dismemberment (AD&D) benefit which Plaintiff contends
was a rider to the insurance policy issued by Defendant. Plaintiff alleges that
Defendant has “failed to support its claim that Captain Eck was diseased or ill
before he ruptured the tissues of his heart on December 13, 2009,” and, therefore,
Defendant’s refusal to pay the AD&D benefit is “without just cause and excuse.”
As noted in the Court’s February 28, 2012, Order denying Plaintiff’s Motion
for Order to Show Cause (Doc. 140), this action has occupied a great deal of this
Court’s attention since its inception. The Court has ruled on numerous discovery
motions, and has held lengthy hearings on pending motions. (See generally Doc.
128; see also Docs. 80, 93, 95, 98, 108, 124, 140.) The Court has previously been
asked to quash other subpoenas. (Docs. 98, 128.)
In the matter presently before the Court, Plaintiff asks the Court to quash the
subpoenas issued by Defendant to insurance agent Patrick Hill and the Hutton &
Hutton Law Firm, which represents the widow of decedent in medical malpractice
litigation concerning medical care decedent received after the rupture of his

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chordae tendinae. (Doc. 155; Doc. 155-2.) The subpoena to Hill seeks
information relating to the underlying insurance contract at issue and claims raised
by decedent’s family. (Doc. 155-2, at 4-5.) The subpoena to Hutton & Hutton
seeks information relating to the two medical malpractice cases filed by the law
firm on behalf of decedent’s widow. (Id., at 9.) Plaintiff argues that although the
subpoenas were not served on it, it has standing to object because they seek
information in which Plaintiff has a personal right. (Doc. 155, at 4.) Plaintiff
contends the subpoenas constitute continued “fishing expeditions” by Defendant in
an effort to find evidence that decedent was ill before his chordae tendinae
ruptured. (Id., at 2, 3.) Plaintiff objects that the subpoenas are overly broad and
burdensome, seek irrelevant information, and seek information in Defendant’s
possession and/or readily obtainable from another third party. (Doc. 155, at 4.)
ANALYSIS
A.

Standing.
As an initial matter, the Court must consider whether Plaintiff has standing

to object to the third-party subpoenas at issue. Because this issue, if decided
against Plaintiff, would foreclose further analysis on some or all of Plaintiff’s
arguments, the Court will address it first.
As this Court held in it’s Order on a previous motion to quash in this matter,
“[a] motion to quash or modify a subpoena duces tecum may be made only by the

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party to whom the subpoena is directed.” (Doc. 128, at 17 (citing Peterbilt of
Great Bend, LLC v. Doonan, 05-1281-JTM, 2006 WL 3193371, at *2 (D. Kan.
Nov. 1, 2006) (internal citation omitted)). An exception to this rule is when the
party challenging the subpoena “has a personal right or privilege in respect to the
subject matter requested in the subpoena.” Smith v. Midland Brake, Inc., 162
F.R.D. 683, 685 (D. Kan. 1995); see also Hertenstein v. Kimberly Home Health
Care, Inc., 189 F.R.D. 620, 635 (D.Kan. 1999).
Plaintiff states that it has been in a business relationship with Mr. Hill since
1988, who is the “insurance agent who assisted [Plaintiff] when it entered into the
contract which is at issue in this matter.” (Doc. 155, at 4.) According to Plaintiff,
this creates a “personal right” on its behalf “concerning the items that KCL is
seeking” from Hill. (Id.) Because Plaintiff was the policyholder of the policy in
question, and because Hill was Plaintiff’s insurance agent for that policy, the Court
is satisfied that Plaintiff has a personal interest in the information sought by the
Hill subpoena.
The same is not the case, however, for the information sought via the
subpoena served on the Hutton & Hutton Law Firm. Plaintiff argues that it “has
the status of a trustee over the Policy proceeds” and “is seeking the payment of the
accidental death benefits for the benefit of” decedent’s widow, Lori Eck. (Doc.
170, at 6.) This is uncontroverted by Defendant and the Court agrees. Plaintiff

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continues, however, that it “has standing as a trustee to prevent KCL from
subjecting Lori Eck, and the attorneys who represent her from the harassment that
KCL is engaging in by conducting yet another fishing expedition for documents to
support the 2010 denial [of coverage], which was without just cause or excuse.”
(Id.) The Court finds this argument to be unpersuasive to create a “personal”
interest on the behalf of Plaintiff in regard to documents created and maintained in
separate and independent malpractice litigation in which Mrs. Eck – but not
Plaintiff – is a party and is represented by entirely different counsel.
As such, the Court holds that Plaintiff does not have standing to object to the
subpoena requesting information from the Hutton & Hutton Law Firm. Ms. Eck
and/or Hutton & Hutton could have done so but, for whatever reason, chose not to
do so. The portion of Plaintiff’s motion relating to this subpoena (Doc. 155-2, at
6-9) is DENIED. The Court will address Plaintiff’s remaining objections in the
context of the Hill subpoena.
B.

Patrick Hill Subpoena.
Federal Rule of Civil Procedure 26(c) governs protective orders and

provides, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending.... The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
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court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
***
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the
disclosure or discovery;
***
(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters;....
Fed.R.Civ.P. 26(c)(1).
The party seeking to quash a subpoena must show “good cause” for the
requested protective order. Id.; Sloan v. Overton, No. 08-2571-JAR-DJW, 2010
WL 3724873 (D.Kan. Sept. 17, 2010). To establish “good cause” within the
meaning of Rule 26(c), the party must clearly define the potential injury to be
caused by dissemination of the information. Zhou v. Pittsburg State Univ., No.
01-2493-KHV, 2002 WL 1932538, at *2 (D.Kan. July 25, 2002).
Plaintiff argues that the subpoena issued by Defendant to insurance agent Pat
Hill is overly broad and burdensome, seeks irrelevant information, and seeks
information in Defendant’s possession and/or readily obtainable from another third
party. (Doc. 155, at 4.) The Court will address each of these issues in turn. The
Court notes that Plaintiff’s motion does not specifically discuss categories 8, 15
and 17 enumerated in the subpoena. (See generally Doc. 155, at 4-11.) Thus, any

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objection Plaintiff may have had regarding the relevance of these categories has
been waived.
1.

Undue burden.

Although the Court has held that Plaintiff has standing to object to the Hill
subpoena, the Court fails to see how Plaintiff could have standing to raise the
particular objection of undue burden. Plaintiff is concerned that “there is no good
faith basis” to request certain categories of documents “other than to run up
additional fees.” (Doc. 155, at 6.) Even assuming that responding to the
subpoena is unduly burdensome, the burden and the brunt of the expense will not
fall on Plaintiff’s shoulders for the simple reason Plaintiff and it’s counsel will not
be involved in compiling the response. This particular objection is personal to Mr.
Hill. As such, this objection is overruled as to each category of information in the
subpoena, specifically categories 1, 12, and 14.
2.

Relevance.

Federal Rule of Civil Procedure 26(b)(1) provides, in relevant part:
[u]nless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense-including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the identity
and location of persons who know of any discoverable
matter. For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the
action. Relevant information need not be admissible at
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the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1).
“[T]he scope of discovery under a subpoena is the same as the scope of
discovery under Rules 26(b) and 34.” Goodyear Tire & Rubber Co. v. Kirk’s Tire
& Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 622 (D. Kan. 2003)
(citations omitted). “‘Discovery relevance is minimal relevance,’ which means it is
possible and reasonably calculated that the request will lead to the discovery of
admissible evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State
University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted).
“Relevance is broadly construed at the discovery stage of the litigation and a
request for discovery should be considered relevant if there is any possibility the
information sought may be relevant to the subject matter of the action.” Smith v.
MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another
way, “discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991). The issue is not whether
the information will be admissible at trial, but whether it meets discovery threshold
of relevancy.

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Plaintiff specifically raises a relevancy objection in regard to categories 3
(total amount of premiums paid), 11 (communications with decedent’s family), 13
(communications with Defendant), and 16 (insurance policies relating to Defendant
or decedent). Plaintiff also infers a relevance objection in regard to category 1
(documents relating to the underlying insurance policy and its amendments and
riders) by stating that the request is “illogical.”
The Court is not satisfied that Plaintiff has adequately supported what, in
certain instances, constitute boilerplate objections. Swackhammer v. Sprint Corp.
PCS, 225 F.R.D. 658, 661, 662, 666 (D.Kan.2004) (holding that party objecting to
a discovery request bears the burden to support the objections). For instance,
Plaintiff asserts that certain categories of requested documents are irrelevant,
without attempting to explain how they are irrelevant. (See e.g., Doc. 155, at 9 (in
regard to category 11); id., at 10 (in regard to category 13).)
Considering the minimal threshold for discovery relevance, the Court
overrules the relevance objection in regard to the categories in which it was raised
(1, 3, 11, 13, and 16). Given the claims and defenses in this lawsuit, the
communications at issue could reasonably lead to the discovery of admissible
evidence. Further, the Court fails to see how information relating to the underlying
policy could be considered irrelevant.
3.

Overbreadth.

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Plaintiff raises this objection in regard to categories 1 (all documents relating
to the policy and amendments, riders, etc), 7 (copies of policy in effect), 9
(communications with the Wichita Fire Department), 10 (communications with
Plaintiff ), 11 (communication with decedent’s family), 12 (communications with
Defendant), 13 and 14 (documents and communications with or relating to
Plaintiff, the Wichita Fire Department, the policy, decedent and his family), and 16
(insurance policies relating to Defendant or decedent). Plaintiff contends that the
requests are overly broad in regard to time, scope and subject matter.
Having already noted the low threshold for discovery relevance, the Court is
not inclined to find that the subject matter of these categories of requested
information – generally relating to the insurance policy at issue and/or
communications between relevant parties – are beyond the scope of discoverable
information in this case. As such, this objection is overruled.
The Court does, however, agree with Plaintiff’s argument that certain
requests are overly broad in regard to time. Plaintiff states that the parties “entered
into this contract on September 1, 2001, and the events that are at issue in this
litigation occurred starting December 2009,” the date of decedent’s injury. (Doc.
155, at 6.) Other than categories 4, 5, and 6 (relating to claims made, denied or
paid on the policy), none of the categories of information requested are limited in
terms of time. As enumerated above, however, Plaintiff has raised this objection

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only in regard to categories 1 , 7, 9, 10, 11, 12, 13, 14, and 16. The Court sustains
Plaintiff’s objection relating to the time period for requested information
responsive to these categories and limits it to September 2001 (when the parties
entered into this contract of insurance) to the present.
4.

Information in Defendant’s possession or available elsewhere.

Plaintiff raises this objection in regard to categories 1 (all documents relating
to the policy and amendments, riders, etc), 4 (claims against the policy), 5 (denial
of claims made against the policy), 6 (payment of claims), 7 (copies of policy in
effect), 9 (communications with the Wichita Fire Department), 10
(communications with Plaintiff), and 16 (insurance policies relating to Defendant
or decedent). Even assuming Defendant does possess documents responsive to
these categories requested in the subpoena, this does not mean Defendant has no
valid interest in discovery another entity’s files regarding the same types of
information. Further, this objection – which basically relates to the
burdensomeness of the subpoena – is Mr. Hill’s to raise, not Plaintiff’s. This
objection is overruled.
5.

Redundant categories.

Plaintiff also argues that categories 13 and 14 (encompassing documents and
communications with or relating to Plaintiff, the Wichita Fire Department, the
policy, claims made against the policy, decedent and his family) are “basically . . .

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verbatim request[s] of the requests already addressed in the subpoena.” (Doc. 155,
at 10.) The Court notes that certain portions of the documents requested in
categories 13 and 14 would appear to overlap with categories 4, 5, 6, 9, 10, and 11.
There are, however, slight differences in the language used in categories 13 and 14
as compared to these others. As such, the Court overrules this objection.
Obviously, if documents are already being produced in response to the other
categories of information requested, the respondent will be able to simply refer to
such responsive information. Again, this objection – which arguably relates to the
burdensomeness of the subpoena – is Mr. Hill’s to raise, not Plaintiff’s. This
portion of Plaintiff’s motion is DENIED.

IT IS THEREFORE ORDERED the objections raised in Plaintiff’s Motion
to Quash Subpoena (Doc. 154) are sustained in part and overruled in part as more
fully set forth herein. Plaintiff’s motion is, therefore, GRANTED in part and
DENIED in part. Responsive documents shall be served on Defendant from Mr.
Hill and the Hutton & Hutton law firm within 30 days of the date of this Order.
IT IS SO ORDERED.
Dated this 8th day of August, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE

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

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