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

Filing 314

MEMORANDUM AND ORDER denying 236 Motion to Compel; granting 313 Motion to Withdraw. Signed by Magistrate Judge Kenneth G. Gale on 12/28/2012. (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 ON MOTION TO COMPEL RESPONSES TO
SECOND REQUEST FOR PRODUCTION
Now before the Court is Defendant’s “Motion to Compel Responses to
Second Request for Production” and accompanying memorandum. (Docs. 236,
237.) Since this motion was filed, the parties have resolved their differences
regarding all but one of the discovery requests at issue – Defendant’s Request for
Production No. 63. Thus, Defendant filed its “Unopposed Motion to Withdraw
Motion to Compel,” which resolves the underlying discovery motion as to all but
this lone Request for Production. (Doc. 313.) Defendant’s unopposed Motion to
Withdraw (Doc. 313) is GRANTED.
The factual background of this case has been summarized numerous times in
the many Orders issued by this Court as a result of the continuing discovery

1

disputes between the parties. As such, the facts will not be repeated herein, but are
instead incorporated by reference. (See Doc. 189, at 1-3.)
Defendant’s Request for Production No. 63 seeks “[a]ll agreements,
contracts, arrangements, and other documents relating to the payment of attorneys’
fees, expert expenses, or costs of litigation for services rendered to WFRA.” (Doc.
238-1, sealed, at 24.) Plaintiff objected that the request “seeks information that is
protected by attorney/client privilege and seeks information that is irrelevant and is
not likely to lead to the discovery of admissible information.” (Id.) Plaintiff also
produced four pages of documents. (Id.)
Defendant argues that the information is relevant because Plaintiff has
asserted a claim for attorney’s fees pursuant to K.S.A. § 40-256. (Doc. 237, at 19.)
Defendant contends that it is “entitled to defend against this claim by challenging
the propriety, the reasonableness, and the amount of any attorney’s fees [Plaintiff]
seeks to recover.” (Id.) Defendant acknowledges that Plaintiff “can recover such
fees only if it obtains a favorable judgment,” but argues it has no choice but to seek
the information because the Scheduling Order contains no language regarding
“post-judgment discovery.” (Id., at 20.)
In response to the motion, Plaintiff merely argues that it is “premature” to
provide this information. (Doc. 273, at 20.) Plaintiff states that “if/when the Court
finds that [Defendant] failed to pay the . . . claim without just cause and excuse,

2

then [Defendant would be able to review the attorney’s fees for the services and
make any argument that it deemed appropriate as to the reasonableness of the
amount of fees that will be sought.” (Id., at 21 (emphasis in original).)1
Defendant also argues that Plaintiff failed to object on the basis of D. Kan.
Rule 54.2(f), which states that “discovery may not be conducted with motions for
awards of attorney’s fees unless the court permits upon motion and for good
cause.” Plaintiff responds that it did not waive such an objection because the rule,
“by its plain language, only applies when a motion for attorneys’ fees has been
filed pursuant to Fed.R.Civ.P. 54(d)(2). The Court agrees with Plaintiff as the
language of the rule is unambiguous.
The principal of D.Kan. Rule 54.2 is that motions for attorney’s fees should
not usually require discovery, thus discovery is permitted only for good cause after
a motion has been made for fees, and after the consultation requirements of the rule
have been satisfied. The request here is premature. If a motion for attorneys’ fees
is ultimately made in this case, and if the parties are unable to reach an agreement
by consultation as required by the rule, Defendant may move to conduct discovery
upon a showing of good cause. The discovery, at this point, is simply not yet
relevant. This remaining portion of Defendant’s motion is, therefore, DENIED.

1

In response to Defendant’s motion, Plaintiff did not address its assertion of
attorney-client privilege. As such, this objection is waived.
3

IT IS THEREFORE ORDERED that Defendant’s Motion to Compel (Doc.
236) is DENIED.
IT IS FURTHER ORDERED that Defendant’s“Unopposed Motion to
Withdraw Motion to Compel” (Doc. 313) is GRANTED.
IT IS SO ORDERED.
Dated this 28th day of December, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE

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

4