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

Filing 246

MEMORANDUM AND ORDER granting in part and denying in part 175 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 9/10/2012. (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 Defendant’s Motion to Compel Compliance with
Third-Party Subpoena to Patrick Hill. (Doc. 175.) Having reviewed the objections
to the Hill subpoena previously raised by Plaintiff in the context of Hill’s
correspondence adopting Plaintiff’s objections, the Court GRANTS in part and
DENIES in part the motion.
FACTS
The Court previously entered an Order (Doc. 189) granting in part and
denying in part Plaintiff's Motion to Quash the subpoena at issue (Doc. 154). The
facts of this case were adequately summarized in that Order of August 8, 2012.
(Doc. 189, at 1-3.) That summary is incorporated herein by reference. The Court

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now considers correspondence containing a signature block for “Patrick Hill.”
(Doc. 176-3.) The correspondence was drafted, signed, and sent by Plaintiff’s
counsel on Hill’s behalf because he was apparently traveling with no computer
access. (Id.) In the correspondence, Mr. Hill's adopts the objections and
arguments raised by Plaintiff in support of its Motion to Compel (Doc. 155) with
no additional argument or discussion.
ANALYSIS
A.

Standards on Motions to Compel.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.
“‘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

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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).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the
proponent has failed to specify how the information is relevant, the Court will not
require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D.
649 (D.Kan.1995). Even so, courts look “with disfavor on conclusory or
boilerplate objections that discovery requests are irrelevant, immaterial, unduly
burdensome, or overly broad.” Id., 650. “Unless a request is overly broad,
irrelevant, or unduly burdensome on its face, the party asserting the objection has

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the duty to support its objections.” Sonnino v. University of Kansas Hosp.
Authority, 221 F.R.D. 661, n. 36 (D.Kan.2004) (citing Hammond v. Lowe's Home
Ctrs., Inc., 216 F.R.D. 666, 670 (D.Kan. 2003)); Cont’l Ill. Nat’l Bank & Trust
Co. of Chicago v. Caton, 136 F.R.D. 682, 685 (D. Kan. 1991) (stating that a party
resisting a discovery request based on relevancy grounds bears the burden of
explaining how “each discovery request is irrelevant, not reasonably calculated to
the discovery of admissible evidence, or burdensome”). Thus, “the objecting party
must specifically show . . . , despite the broad and liberal construction afforded by
the federal discovery rules, how each request for production or interrogatory is
objectionable.” Sonnino, 221 F.R.D. at 670–71 (internal citation omitted).
In the prior Motion to Quash, Plaintiff argued 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.) As such, the Court
will now consider these objections as Hill’s own. As stated in the Court’s previous
Order(Doc. 189), Plaintiff failed to specifically discuss categories 8, 15, and 17
enumerated in the subpoena. (See generally Doc. 155, at 4-11.) Thus, any
objection Mr. Hill may have had regarding these categories has been waived by
Plaintiff’s failure to address these categories and Hill’s failure to address them
himself.

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B.

Standing.
Objects to a subpoena “may be made only by the 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) (so holding in context of motion to quash or modify subpoena)).
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).
The Court previously held that Plaintiff had standing to object to the thirdparty subpoena to Mr. Pat Hill, 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.)
Even still, the Court found that certain objections were unsupported or improper,
and/or that Plaintiff did not have standing to bring particular objections. (See
generally Doc. 189.)
In summary, because Mr. Hill is adopting the arguments and objections
previously made by Plaintiff, the Court’s substantive rulings from it’s previous
Order will be applied to the objections as adopted by Hill. Where appropriate, the
Court will revisit those issues in the context of Mr. Hill’s objections in this Order.

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The present Order will, however, primarily focus on the specific objections which
the Court previously held Plaintiff had no standing to raise, but which Mr. Hill
obviously does.
C.

Objections at Issue.
1.

Relevance.

In its prior Order (Doc. 189) addressing Plaintiff’s objections, the Court
stated that it was not satisfied that Plaintiff adequately supported what, in certain
instances, constitute boilerplate relevance 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). By
merely adopting Plaintiff’s objections, Hill has, unfortunately, also adopted
Plaintiff’s failures to adequately support and explain the objections. For instance,
Plaintiff asserted 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).) Because Plaintiff’s
underlying relevance objections were found to be unsupported, especially given the
minimal threshold for discovery relevance, the Court must again overrule the
relevance objection in regard to the categories in which it was raised by Plaintiff
(1, 3, 11, 13, and 16) and now “adopted” by Hill.
2.

Overbreadth and/or undue burden.

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These objections, as adopted by Hill, were raised by Plaintiff in regard to
categories 1 (all documents relating to the policy and amendments, riders, etc), 2
(documents relating to the negotiation, purchase, renewal of the policy), 3
(documents regarding amount of premiums paid), 7 (copies of policy in effect), 9
(communications with the Wichita Fire Department), 9 (communications with
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 objected that the requests are overly
broad in regard to time, scope and subject matter.1
Noting the low threshold for discovery relevance – and Plaintiff’s failure to
explain any perceived relevance issues – the Court previously held that it was not
inclined to find that the subject matter of these categories of requested information
(which generally relate to the insurance policy at issue and/or communications
between relevant parties) is beyond the scope of discoverable information in this
case. (See Doc. 189, at 10.) As such, the Court overruled Plaintiff’s subject matter

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Plaintiff also specifically contended that categories 1, 12, and 14 were unduly
burdensome, although the Court finds the burdensome objection to be subsumed in
Plaintiff’s overbreadth objection, at least as these objections relate to Hill.
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overbreadth objection, while placing certain time restrictions in regard to
Plaintiff’s temporal overbreadth objection.2 (Id., at 10-11.)
The Court finds that the subject matter of certain categories of requested
information may, however, be overly broad (and/or unduly burdensome) when
analyzed in the context of the burden on Hill, a third party, to comply with the
subpoena as opposed to Plaintiff, the party who initiated this litigation and who
would not even be responding to the subpoena. Even so, the Court may only
consider making such a finding in the regard to the categories of requested
information for which Plaintiff made this objection in the underlying motion,
enumerated above.
The Court finds that the information requested in category 3 regarding the
amount of premiums paid with respect to the policy is unduly burdensome given
the minimal relevance as there is no breach of contract claim at issue in this
lawsuit. This objection is sustained.
Given the temporal limitation of September 2001 through the present
(see fn.4, supra), the Court finds the information sought by category 1 (documents
relating to the policy and amendments, riders, etc.), category 2 (documents relating

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Plaintiff specifically raised the temporal overbreadth objection in regard to
categories 1, 7, 9, 10, 11, 12, 13, 14, and 16 of the Hill subpoena. Thus, the Court limited
the relevant time period for requested information responsive to these categories to
September 2001 (when the parties entered into this contract of insurance) to the present.
The Court finds this time restriction to be appropriate for Hill’s responses as well.
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to the negotiation, purchase, renewal of the policy), category 7 (relating copies of
the policy in effect), and category 16 (insurance policies relating to Defendant or
decedent) not to be overly broad or unduly burdensome. These objections are
overruled.
The same is somewhat true for the information requested in categories 9, 11,
12, 13, and 14 (documents or communications with the Wichita Fire Department,
Plaintiff, decedent’s family, Defendant, etc.). The objections are overruled in
part in regard to such information from September 2001 to the present. Such
information shall, however, be limited in subject matter to those documents or
communications that specifically relate to decedent and/or his family in the context
of the policy at issue. The burden on Mr. Hill to provide information regarding
claims made against the policy at issue that do not specifically involve decedent
outweighs whatever limited relevance such other claims could arguably have to the
present lawsuit. The same is true for any communications Hill had, or documents
he exchanged, with Defendant or Plaintiff that do not relate to decedent and/or
relate to the applicability of the policy at issue to his claims.
3.

Information in Defendant’s possession.

Plaintiff also raised the objection that certain requested categories of
documents should be in Defendant’s possession – categories 1 (all documents
relating to the policy and amendments, riders, etc), 4 (claims against the policy), 5

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(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 responsive documents, this
does not mean Defendant has no valid interest in discovery another entity’s files
regarding the same types of information. The Court therefore overrules this
objection as adopted by Mr. Hill.
4.

Redundant categories.

Plaintiff also argued 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 . . .
verbatim request[s] of the requests already addressed in the subpoena.” (Doc. 155,
at 10.) Again, certain portions of the documents requested in categories 13 and 14
appear to overlap with categories 4, 5, 6, 9, 10, and 11. As the Court previously
noted, however, there are slight differences in the language used in categories 13
and 14 as compared to these others. As such, the Court overrules this objection.
Because the 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 with the conditions set forth regarding categories 9,
11, 13, and 14, supra.

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IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
Compliance with Third-Party Subpoena to Patrick Hill (Doc. 175) is GRANTED
in part and DENIED in part as more fully set forth herein. Responsive
documents shall be served on Defendant from Mr. Hill within 30 days of the date
of this Order.
IT IS SO ORDERED.
Dated this 10th day of September, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE

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

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