Camp v. Gregory, Inc. et al
Filing
75
MEMORANDUM AND ORDER granting 53 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 2/22/2013. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASSIDY J. CAMP,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
GREGORY, INC.,
Defendant.
Case No. 12-1083-EFM-KGG
MEMORANDUM & ORDER
Before the Court is Defendant’s Motion to Compel seeking supplemental
responses from Plaintiff to one Request for Production and one Interrogatory.
(Doc. 53.) Having reviewed the submissions and exhibits of the parties, the Court
GRANTS Defendant’s motion.
BACKGROUND
Plaintiff, who initially represented himself pro se prior to obtaining counsel,
has recently filed his First Amended Complaint alleging claims of religious
discrimination, harassment, and retaliation. (Doc. 66.) Defendant generally denies
Plaintiff’s allegations. (Doc. 74.)
As an initial matter, Plaintiff contends that Defendant did not satisfy the
Court’s requirement to meet and confer prior to filing the present discovery motion
pursuant to D. Kan. Rule 37.2. (See Doc. 56, at 1-4.) Although the conversations
1
may not have been fruitful, the Court finds that the communications between the
parties – which encompassed numerous letters as well as more than one telephone
conference – were adequate to fulfill the requirements of local rule 37.2. As such,
the Court must address the adequacy of Plaintiff’s responses to two discovery
requests – Request for Production No. 7 and Interrogatory No. 6.
A.
Request No. 7.
This request seeks all documents “in which you list, summarize, explain or
otherwise record any act of Defendants about which you make any claim or
complaint.” (Doc. 54-3, at 2.) Plaintiff objects that the request is “vague.”
Plaintiff also includes the following “general objection” at the beginning of his
responses, which the Court surmises is supposed to theoretically apply to each
request:
[t]o the extent permitted by law, Plaintiff objects to
producing documents which are subject to appropriate
attorney/client and work product privileges. Plaintiff is
not aware of any such documents existing; [sic] but
lodges the objection in the event of inadvertent
disclosures during production.
(Id., at 1.)
This Court has expressly stated its disapproval of the use of “general
objections” in responding to discovery. See U.S. ex rel. Minge v. Turbine Engine
Components Techn. Corp., No 07-1212-MLB-KGG, 2011 WL 2607082, at *1 (D.
Kan. July 1, 2011) (holding that such objections are “worthless,” “improper,” and “
2
leave[s] the discovery proponent unsure whether or not the objection correlates to
withheld information”). The Court, therefore, overrules Plaintiff’s general
objections as they were initially raised and orders Plaintiff to provide a
supplemental response to Defendant within 2 weeks of the date of this Order.
The Court is not, however, ruling on the validity or applicability of this
privilege objection in the context of Request for Production No. 7 for the simple
reason that the objection was raised in a general manner and has not been applied
by Plaintiff to this particular discovery request. If the privilege objection contained
in Plaintiff’s “general objections” applies to Request No. 7, that objection shall be
raised in Plaintiff’s supplemental response. Further, if any information is, in turn,
being withheld from production because of such objection, Plaintiff shall so
indicate in his supplemental response. The Court notes that Plaintiff has indicated
that all relevant documents have been produced and that no additional documents
“could be said to be responsive whether protected by the attorney-client privilege
or otherwise.” (Doc. 56, at 4-5.) If this remains the case, Plaintiff shall so state in
his supplemental response.
The Court also overrules Plaintiff’s objection that Request No. 7 is “vague.”
The basis for the objection was not explained in Plaintiff’s original discovery
responses. (Doc. 54-3, at 2-3.) Plaintiff also failed to address this objection in
response to Defendant’s motion. (See generally Doc. 39.)
3
When a party fails, even inadvertently, to address its
boilerplate or conclusory objections in response to a
motion to compel, the party ‘fails to meet its burden to
support its objections.’ Sonnino v. University of Kansas
Hosp. Authority, 221 F.R.D. 661, 671 (D.Kan.2004).
Thus, the Court is ‘left without any basis to determine
whether the objections are valid and applicable in light of
the particular circumstances of the case.’ Id. As such,
any arguments that could have been made regarding
production of this information have been waived.
Jackson v. Coach, 2008 WL 782635, at * 10 (D. Kan. March 20, 2008). See also
Sonnino, 221 F.R.D. at 670–71 (stating that a party that does not support an
objection to a discovery request in response to a motion to compel has abandoned
that objection); Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662,
666 (D.Kan.2004) (holding that party resisting discovery request based on
overbreadth, vagueness, ambiguity, or undue burden/expense objections bears the
burden to support the objections); Cardenas v. Dorel Juvenile Group, Inc., 232
F.R.D. 377, 380 (D.Kan. 2005) (holding that “[o]bjections initially raised but not
relied upon in response to the motion to compel will be deemed abandoned”).
Plaintiff’s objections are thus overruled and Defendant’s motion is GRANTED in
regard to Request No. 7.
B.
Interrogatory No. 6.
This interrogatory asks Plaintiff to “identify any and all conversations . . .
you or anyone acting on your behalf, have had in which the facts of this lawsuit
were discussed . . . .” (Doc. 54-4, at 2.) Without further explanation, Plaintiff
4
merely objects that the interrogatory is “overly broad.” (Id.) In response to
Defendant’s “golden rule” letter, Plaintiff attempted to bootstrap an attorney-client
privilege objection to his overbreadth objection, stating that
[t]he objection was lodged as being overly broad in that it
might encompass privileged communications and
materials including attorney-client and work product
protected documents. Any and all documents that are
responsive have been provided.
(Doc. 54-6, at 3.)1
The Court is not persuaded that Plaintiff’s initial overbreadth objection
would encompass an attorney-client privilege objection as a matter of course.
Although the information encompassed by these objections may often intersect, the
objections are clearly distinct.
Regardless, given the importance of the attorney-client privilege, the Court
may consider this objection even if untimely. Smith v. MCI Telecommunications
Corp., 124 F.R.D. 665, 686-87 (D. Kan. 1989) (citing Metros v. United States
Dist. Court for the Dist. of Colo., 441 F.2d 313, 318 (10th Cir. 1970)). The Court
finds that any such conversations involving counsel are clearly privileged and
nondiscoverable. To find that Plaintiff had waived this objection and require
disclosure of all attorney-client communications would be manifestly unjust.
1
The Court notes that Plaintiff’s interrogatory responses (Doc. 54-4) did not
contain the same “general objections,” which included the attorney-client privilege, as
were included in Plaintiff’s responses to Defendant’s document requests (Doc. 54-3).
5
The interrogatory is not, however, overly broad otherwise. Plaintiff’s
overbreadth objection is, therefore, overruled and Defendant’s motion is
GRANTED in regard to Interrogatory No. 6. Plaintiff shall supplement his
response to Interrogatory No. 6 within 2 weeks of the date of this Order. To the
extent any information is being withheld on a claim of attorney-client privilege, the
same shall be included in an appropriate privilege log.
C.
Sanctions.
The conclusion to the memorandum in support of Defendant’s motion
includes a passing reference to a request for an award of sanctions “for the time
and expenses related to this motion . . . .” (Doc. 54, at 8.) Fed.R.Civ.P. 37(a)(5)
states that if a motion to compel is granted, “the court must . . . require the party . .
. whose conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses incurred in making the
motion, including attorney's fees.” The rule continues, however, that “the court
must not order payment” when the nonmovant's conduct was “substantially
justified . . . .” The Court finds that the issues between the parties were, for the
most part, reasonable and Plaintiff’s objections were made in good faith. Sanctions
are, therefore, inappropriate under the circumstances presented. This portion of
Defendant’s motion is DENIED.
6
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel (Doc.
53) is GRANTED while its request for sanctions is DENIED.
IT IS SO ORDERED.
Dated this 22nd day of February, 2013, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?