hibu Inc. v. Peck

Filing 220

MEMORANDUM AND ORDER granting 198 Plaintiff hibu Inc.'s Motion for Protective Order. Signed by Magistrate Judge Teresa J. James on 6/30/2017. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

hibu INC.,
Plaintiff,
v.
CHAD PECK,
Defendant.

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Case No. 16-cv-1055-JTM-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff hibu Inc.’s Motion for Protective Order (ECF
No. 198). Plaintiff asks the Court to shield it from Defendant’s Request for Production of
Document Nos. 78 and 79. Defendant opposes the motion. For the reasons set forth below, the
Court grants the motion.
I.

Relevant Background
The parties have had numerous discovery disputes during the course of this litigation,

resulting in the undersigned Magistrate Judge holding a number of conferences and issuing several
written orders on motions. The instant motion deals with Defendant’s Ninth Request for
Production of Documents, served by Defendant’s new counsel when his long-time counsel
withdrew from representation. Plaintiff contends the requests are duplicative of prior counsel’s
earlier discovery requests, were served long after the deadline for Defendant to file a motion to
compel and, in spite of this history, Defendant has refused to withdraw the requests. Plaintiff
therefore seeks a protective order shielding it from the burden and annoyance of responding to
RFP Nos. 78 and 79.
Plaintiff asserts the parties have met and conferred about this matter in compliance with D.

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Kan. Rule 37.2, beginning with counsel speaking by telephone shortly after Defendant served his
Ninth Requests.1 In that conversation, Plaintiff’s counsel voiced his opinion that the requests are
duplicative of Defendant’s earlier discovery. On May 15, 2017, Plaintiff’s counsel reiterated the
message in writing, expressing his understanding that Defendant’s counsel is new to the case but
finding that to be an insufficient basis for redundant discovery requests. The email closed with a
request for Defendant’s counsel to withdraw RFP Nos. 78 and 79 and notice that, absent
withdrawal, Plaintiff would file a motion for protective order. Defendant did not withdraw the
requests and Plaintiff timely filed the instant motion.
Defendant argues that his counsel made a good faith effort to resolve this dispute, but that
rather than continue their dialogue, Plaintiff unnecessarily filed the instant motion. The Court
disagrees. Defendant’s counsel replied to the email and demonstrated his lack of familiarity with
what documents Plaintiff had produced to date. He indicated he wanted to review documents
Plaintiff had agreed to produce before further discussing the issue. But Plaintiff had already
produced those documents and, as counsel points out in its reply brief, it was not Plaintiff’s burden
to instruct Defendant’s new counsel regarding the history of this litigation. Accordingly, the
Court finds that Plaintiff’s counsel made a reasonable attempt to confer with Defendant’s counsel
in an attempt to resolve the issues in dispute without court action, as required by Fed. R. Civ. P.
37(a)(1) and D. Kan. Rule 37.2.
II.

Legal Standards
Pursuant to Federal Rule of Civil Procedure 26(c), a “court may, for good cause, issue an

order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or

1

According to the certificate of service (ECF No. 199-1 at 6), Defendant served his Ninth
Requests on May 8, 2017.

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expense, including forbidding the . . . discovery.”2 The decision to enter a protective order is
within the Court's broad discretion.3 Notwithstanding this broad grant of discretion, a court may
issue a protective order only if the moving party demonstrates that the basis for the protective order
falls within one of the specific categories enumerated in the Rule, i.e. that the requested order is
necessary to protect the party from “annoyance, embarrassment, oppression, or undue burden or
expense.”4
In addition, the party seeking a protective order bears the burden of establishing good
cause.5 To establish good cause, the moving party must make “a particular and specific
demonstration of fact, as distinguished from stereotyped and conclusory statements.”6
III.

Analysis
As noted above, the Court has broad discretion with respect to protective orders. The

Court may not issue such an order, however, unless the moving party “demonstrates that the basis
for the protective order falls within one of the categories enumerated in [Rule] 26(c).”7 In other
words, the moving party must show that the requested order is necessary to protect the party from

2

Fed. R. Civ. P. 26(c)(1)(A).

3

Thomas v. Int'l Bus. Machs., 48 F.3d 478, 482 (10th Cir.1995); Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984).

4

ICE Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1652056, at *3 (D. Kan.
June 6, 2007) (quoting Fed. R. Civ. P. 26(c)).
5

Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010).

6

Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981).

7

ICE Corp., 2007 WL 1652056, at *3; Kan. Waste Water, Inc. v. Alliant Techsystems, Inc., No.
02-2605-JWL-DJW, 2005 WL 327144, at *2 (D. Kan. Feb. 3, 2005); Aikens v. Deluxe Fin. Servs.,
Inc., 217 F.R.D. 533, 534 (D. Kan. 2003).

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annoyance, embarrassment, oppression, or undue burden or expense.8 “Rule 26(c) does not
provide for any type of order to protect a party from having to provide discovery on topics merely
because those topics are overly broad or irrelevant, or because the requested discovery is not
reasonably calculated to lead to the discovery of admissible evidence.”9
The Court considers each request in turn.
A.

Request for Production No. 78

RFP No. 78 asks Plaintiff to produce “[t]he personnel file of Peck and each of the Former
Hibu Sales Representatives.”10 On January 20, 2017, Defendant’s former counsel had served a
Sixth Request for Production of Documents.11

The latter includes RFP No. 54, which directs

Plaintiff to “[p]roduce all complete personnel files (including electronic records) for Chad Pack
and the Former hibu Sales Representatives.”12 Plaintiff responded that it would produce the
requested documents and at some point before Defendant served RFP No. 78, Plaintiff did produce
to Defendant the personnel files of all seven individuals.13
In his response to Plaintiff’s motion, Defendant now concedes that not only is RFP No. 78
redundant of RFP No. 54, but also that Plaintiff fully complied with the latter request. Defendant
offers no excuse for having propounded a duplicative document request, for his counsel’s lack of

8

See Fed. R. Civ. P. 26(c)(1).

9

Kan. Waste Water, Inc., 2005 WL 327144, at *2.

10

ECF No. 199-1 at 5. “Former Hibu (or hibu) Sales Representatives” refers to the sales
representatives Defendant solicited to leave hibu and join Dex Media, Defendant’s new employer.
11

See ECF No. 115.

12

ECF No. 199-2 at 4.

13

Plaintiff provides the Bates numbers of the seven groups of documents it produced in response
to RFP No. 54. ECF No. 199 at 2 n.3.

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familiarity with Plaintiff’s document production, or for his refusal to withdraw RFP No. 78. The
Court finds Plaintiff has demonstrated good cause and grants Plaintiff’s motion with respect to
RFP No. 78.
B.

Request for Production No. 79

RFP No. 79 directs Plaintiff to produce “[e]ach Employment Agreement that Peck or the
Former Hibu Sales Representatives signed, or were presented, from 2006 through 2016, as well as
all documents and communications relating to any such Employment Agreement signed by or
presented to them.”14 Plaintiff contends the request is duplicative of the cumulative requests
posed by two earlier RFPs and one interrogatory, in response to which Plaintiff both produced
documents and lodged an objection that Defendant did not challenge. The earlier discovery
requests are as follows:
Interrogatory No. 17: List the date on which any of the Former hibu Sales
Representatives were presented with or executed any type of agreement restricting
their ability to solicit hibu customers after their employment ended.
Request No. 57: Produce all emails showing all occasions when employment
agreements (or other documents containing restrictive covenants) were distributed
to Peck and the Former hibu Sales Representatives in connection with changes in
compensation.
Request No. 72: All documents, electronic or otherwise, pertaining to any
employee agreement presented to Peck by any employee of hibu from June 2006 to
January 2, 2015, including but not limited to (i) any employee agreements
distributed to Peck in 2007, 2011, and 2014; and (ii) Peck’s communications with
hibu regarding his execution of any employee agreement he was presented with.
In response to Interrogatory No. 17, Plaintiff ultimately produced “the most current
Employee Agreements for each of the Former hibu Sales Representatives that hibu has in its
possession, custody, or control.”15 Plaintiff objected to providing the date on which the former

14

ECF No. 199-1 at 4.

15

ECF No. 199-3 at 10. The quoted language is from Plaintiff’s supplemental answer to

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hibu employees were presented with any such agreements, and Defendant did not timely challenge
the objection. Insofar as RFP No. 79 seeks dates on which Plaintiff presented employee
agreements to any of the Former hibu Sales Representatives, Defendant has waived his right to
discover such information.16
In response to RFP No. 57, Plaintiff objected that the request is overly broad, burdensome,
not reasonably calculated to lead to the discovery of admissible information, disproportional, and
irrelevant to the issues in this case.17 Defendant did not timely challenge the objection.
Accordingly, insofar as RFP No. 79 seeks emails from Plaintiff to any of the Former hibu Sales
Representatives regarding employment agreements sent in connection with changes in
compensation, Defendant has likewise waived his right to discover such information.18
Finally, in response to RFP No. 72, Plaintiff agreed to produce responsive documents it
could reasonably locate,19 and in its motion Plaintiff represents that it did produce a
communication about an Employee Agreement distributed to Defendant in 2014, but which
Defendant did not execute and return. Defendant does not dispute Plaintiff’s representation, nor
has Defendant timely challenged the sufficiency of Plaintiff’s production. To the extent RFP No.
79 seeks documents relating to employee agreements Plaintiff presented to Defendant or
communications between them regarding Defendant’s execution of any such agreements,

Interrogatory No. 17, served February 13, 2017. Id. at 11.
16

See D. Kan. Rule 37.1.

17

ECF No. 199-2 at 5. Plaintiff served the responses which include this objection on February
17, 2017. Id. at 7.
18

See D. Kan. Rule 37.1.

19

ECF No. 199-4 at 5. Plaintiff served this response on April 10, 2017. Id. at 6.

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Defendant has waived the right to challenge the adequacy of Plaintiff’s production by repeating
the same request.20
What remains of RFP No. 79 after setting aside the redundant portions is a request for
documents and communications, other than emails, relating to employment agreements presented
to but not signed by the Former hibu Sales Representatives other than Chad Peck, for the period
2006 through 2016. Defendant characterizes it differently, however, stating that RFP No. 79 asks
for “the later employee agreements themselves.”21 As Defendant is the party propounding
discovery, the Court will accept his description of what he is seeking in RFP No. 79. Defendant’s
argument suggests that he believes Plaintiff possesses but has not produced later-dated
employment agreements for the six other Sales Representatives. In its reply, however, Plaintiff
insists it has produced “the latest, executed Employee Agreements in Hibu’s possession, custody
or control for these individuals.”22 Defendant offers no evidence that Plaintiff possesses any
signed Employee Agreements for the six Sales Representatives with dates later than the
agreements Plaintiff has produced. Accordingly, the Court finds that Plaintiff has shown good
cause and grants Plaintiff’s motion with respect to RFP No. 79.
C.

Request for Expenses

Pursuant to Federal Rule of Civil Procedure 26(c)(3), Plaintiff seeks the expenses it
incurred in bringing this motion. Defendant does not respond to Plaintiff’s request. While the
Court is granting Plaintiff’s motion and expenses are presumptively appropriate after notice and

20

See D. Kan. Rule 37.1.

21

ECF No. 204 at 5.

22

ECF No. 210 at 3.

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opportunity to be heard, the Court finds an award is not warranted at this time.23 Plaintiff makes
the request in a single sentence with no supporting argument, and in response to Defendant’s
concession that RFP No. 78 is redundant, Plaintiff states its willingness to abandon a request for
relief. The Court finds that the challenges new counsel face as a result of the long history and
large volume of discovery in this case do not excuse Defendant’s failure to withdraw its
duplicative request in RFP No. 79, but also finds that Defendant’s failure with regard to that one
RFP do not warrant an award of sanctions
IT IS THEREFORE ORDERED that Plaintiff hibu Inc.’s Motion for Protective Order
(ECF No. 198) is granted.
Dated this 30th day of June, 2017, at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

23

Rule 26(c)(3) states that Rule 37(a)(5) applies to the award of expenses. If a motion is granted
under Rule 37(a)(5), the court must, after giving opportunity to be heard, award reasonable
expenses unless the court finds one of the enumerated exceptions applies. In this case, the Court
finds applicable the third exception in which other circumstances make an award of expenses
unjust. See Fed. R. Civ. P. 37(a)(5)(A).

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