Holick v. Burkhart
MEMORANDUM AND ORDER granting in part and denying in part 64 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 11/30/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JULIE A. BURKHART,
Case No. 16-1188-JTM-KGG
MEMORANDUM & ORDER ON MOTION TO COMPEL
Now before the Court is Defendant’s “Motion to Compel Plaintiff to Answer
Certain Requests for Production.” (Doc. 64.) Having reviewed the submissions of
the parties, the Court GRANTS in part Defendant’s motion.
In 2013, Defendant received a temporary order of protection from stalking
against Plaintiff in Kansas state court (state court action). Plaintiff, who is a
resident of Oklahoma, brings the present matter alleging malicious prosecution and
abuse of process against Defendant, a Kansas resident, relating to the allegations
levied against him in the state court action. (See generally, Doc. 84.)
In regard to the malicious prosecution claim, Plaintiff alleges that Defendant
“lacked probable cause for the false allegations, did not take reasonable measures
to ascertain the veracity of said allegations, and was reckless and intentional in
filing the false stalking charges against [him].” (Doc. 84, at 6.) As for the abuse of
process claim, Plaintiff contends that Defendant “acted in a false and improper
manner in the prosecution of a regular proceeding under Kansas law for
anti-stalking against” Defendant. (Id., at 7.) Plaintiff continues that “[t]he use of
substantial falsehoods, speculation and mere suspicion, without probable cause, to
obtain an anti-stalking order is improper, illegal, and unauthorized by law.” (Id.)
Plaintiff alleges that over the course of two years, Defendant
continued the temporary order against [him] and did not
make it a permanent injunction. As late as January 2015,
defendant attempted to influence the Wichita police to
arrest Mark Holick for violating the anti-stalking order.
The filing of the petition and false accusations of
‘stalking’ caused extensive negative media publicity
(Id., at 5-6.) Plaintiff alleges that this “curtailed or reduced his First Amendment
and religious expressive activities” and caused him to fear “for his safety.” (Id., at
5.) Plaintiff continues that “[u]ltimately, when faced with a motion for summary
judgment by [Plaintiff], [Defendant] voluntarily dismissed her stalking case,
leaving [Plaintiff] as the prevailing party.” (Id., at 6.) He contends that “[t]he
initiation, continuation or procurement of the ‘anti-stalking’ order, based on
complete falsehoods, caused [him] to incur tens of thousands of dollars in attorney
Defendant’s Answer to Plaintiff’s Amended Complaint incorporates her
original answer, but deletes the portion directed to Plaintiff’s defamation claim
(Count III), which was voluntarily dismissed by Plaintiff. (See Doc. 97.) The
affirmative defenses contained in Defendant’s Answer contend that the statements
in her state court petition were true and “in good faith pursuant to a legitimate
interest, which is her safety; the statements were limited to those necessary to
uphold her interest; and the statements were made in a proper manner to a proper
party, the state.” (Doc. 20, at 7.) Defendant contends that she feared for her safety
given the allegedly threatening nature of Plaintiff’s statements and actions. (Id.)
For instance, Defendant alleges that the church where Plaintiff served as a pastor
“publically celebrated the death” of Dr. George Tiller, the doctor who provided
abortion services in Wichita prior to Plaintiff. (Id., at 7.) Defendant also alleges
that “Plaintiff publicly admitted he was at Defendant’s house” with a sign reading
“‘Where’s Your Church’ . . . after pointing out that Dr. Tiller wasn’t shot at his
home but at his church.” (Id.)
Defendant’s present motion requests an Order compelling Plaintiff to
comply with Fed.R.Civ.P. 34 and indicate whether he is withholding documents on
the basis of his objections to various Requests for Production. Defendant also
seeks an Order compelling Plaintiff to fully respond to certain of her Requests.
(See Docs. 64, 64-1.)
Fed.R.Civ.P. 26(b) states that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at state in the action, the amount in
controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable.
Compliance with Fed.R.Civ.P. 34(b).
Defendant’s first complaint is that Plaintiff’s responses do not comply with
Fed.R.Civ.P. 34(b)(2)(C) because Plaintiff does not indicate “what, if any,
responsive documents he is withholding on the basis of objections.” (Doc. 64-1, at
8.) Defendant continues that “Plaintiff’s noncompliance with Rule 24(b)(2)(C)
renders it impossible for [Defendant] to evaluate the extent of the deficiencies in
his responses to the Requests, particularly in light of his extensive objections.”
“The 2015 amendments to Rule 34 now require an objecting party to ‘state
whether any responsive materials are being withheld on the basis of that
objection.’” Rowan v. Sunflower Elec. Pwr. Corp., No. 15-9227-JWL-TJJ, 2016
WL 3743102, at *3 (D. Kan. July 13, 2016) (quoting Fed.R.Civ.P. 34(b)(2)(C)).
This amendment should end the confusion that frequently
arises when a producing party states several objections
and still produces information, leaving the requesting
party uncertain whether any relevant and responsive
information has been withheld on the basis of the
objections. The producing party does not need to provide
a detailed description or log of all documents withheld,
but does need to alert other parties to the fact that
documents have been withheld and thereby facilitate an
informed discussion of the objection. An objection that
states the limits that have controlled the search for
responsive and relevant materials qualifies as a statement
that the materials have been ‘withheld.’
Id. (quoting Fed.R.Civ.P. 34 advisory committee’s note to 2015 amendment).
Plaintiff’s response does not even address this issue. Regardless, the Court
finds the issue to be unambiguous. Plaintiff is instructed to provide supplemental
responses, compliant with the above discussion of Rule 34, indicating whether he
has withheld any documents on the basis of his stated objections. Obviously, as to
Plaintiff’s stated objections that the Court overrules in this Order, he may not
continue to withhold documents that he previously did not produce on the basis of
Objections to Defined/Undefined Terms.
Plaintiff objects that Defendant’s
definitions 4, 5, 6, 7, 8, 11, and 12 are objectionable as
used below because those definitions are overly broad
and unduly burdensome, and are so much so as to be
oppressive and harassing. The broad definitions as
applied in the contexts below are also vague and
confusing such that they are beyond the ability of
plaintiff to comprehend and answer accurately and fully.
(Doc. 65-2, at 1.) The Court does not agree. Rather, the Court finds Defendant’s
definitions of the terms “communication” (definition 4), “document” (5),
“identify” (6), “including or includes” (7), “relating to, referring to, or concerning”
(8), “anti-abortion or pro-life” (11), and “activities” (12) to be straightforward and
based on the commonly known definitions of these terms. Plaintiff has failed to
establish that the definitions are “vague” or “confusing” so as to make them
“beyond the ability of plaintiff to comprehend” their meaning. The Court
overrules Plaintiff’s objections to these terms.
Plaintiff also objects to certain terms that Defendant did not define as vague
and confusing – “investors,” “interaction,” “relationship,” and “public
appearances.” (Doc. 65-2, at 4, 20-22, 26; Doc. 65-7, at 5-6, 8.) The Court
similarly overrules Plaintiff’s objections to these terms, which the Court finds to
be commonly understood.
This portion of Defendant’s motion is GRANTED. Defendant asks for
Plaintiff to be compelled to “amend his responses to the Requests to state, for each
Request, whether he is withholding responsive material based upon his
objections.” (Doc. 64-1, at 7.) Because the Court has overruled Plaintiff’s
objections to these terms, Plaintiff is, rather, instructed to provide supplemental
responses to any discovery request for which he previously included an objection
based on the use and/or definition of these terms: “communication,” “document,”
“identify,” “including or includes,” “relating to, referring to, or concerning,” “antiabortion or pro-life,” “activities,” “investors,” “interaction,” “relationship,” and
“public appearances.” No documents shall be withheld from production by
Plaintiff on the basis of these overruled objections.1
Objections to Specific Discovery Requests.
Plaintiff’s response to Defendant’s motion to compel includes little or no
discussion of specific discovery requests. Rather, Plaintiff generally states that
he stands by his objections to the individual requests for
production. In sum, the discovery requests . . . are
clearly overly broad, unduly burdensome, not properly
limited in time and scope, vague and ambiguous, and
lack particularity, such that speculation and conjecture is
required of plaintiff to determine what information is
being sought. Further, the extremely broad requests . . .
are designed to annoy and harass the plaintiff.
(Doc. 95, at 10.) A party objecting to discovery requests has the burden
substantiate those objections unless the request is facially objectionable. See
The Court does agree with Plaintiff, however, that Defendant’s request for
documents “sufficient to show Your financial status” (Doc. 65-2, at 26) employs
terminology that is vague, ambiguous, and confusing to the degree that it would be
extremely difficult, if not impossible, to appropriately respond to Request No. 25.
Defendant has withdrawn her request to compel a supplemental response to Request No.
25 because Plaintiff has withdrawn his claim for lost income, as discussed infra. As such,
this issue is moot.
Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Serv. Cntr., 211 F.R.D. 658,
663 (D. Kan. 2003) (holding that a party objecting to undue burden or relevancy
has the burden to establish the objection). The Court will review the specific
discovery requests at issue in order to determine whether the requests are facially
objectionable and/or whether Plaintiff has adequately substantiated his objections
in his discovery responses and/or responsive brief.
In this context, the Court acknowledges Plaintiff’s concerns that Defendant’s
discovery requests – as well as the arguments in the brief supporting her motion –
concern “broad, general information . . . about abortion [that] might be relevant to
show that [she] ‘reasonably feared that [Defendant] was a threat.’” (Doc. 95, at 3
(citing Doc. 64-1, at 8-9.) Plaintiff argues that “[s]uch arguments display a
misunderstanding of the law.” (Doc. 95, at 4.)
‘[p]robable cause and ‘reasonable fear’ do not provide a
basis for a defendant to lie about someone and assert
false charges against them in a verified pleading.
Boilerplate allegations and speculation about potential
threats or ‘reasonable fear’ do not open the door to
wholesale searches to find supporting evidence after the
fact, nor do they permit discovery conducted in the hope
of finding something to support the false pleading.
(Id.) Plaintiff continues that “[w]ant or existence of probable cause is limited to
the facts and circumstances which were apparent to a defendant at the time she
initiated and continued the prosecution of plaintiff.” (Id. (citations omitted).) In
this regard, the Court agrees.
Plaintiff argues that “Defendant is on a fishing expedition seeking to find
something now, in 2017, to justify the filing she made several years ago. This
tactic is not permissible under the law of probable cause.” (Id.) Given the facially
overly broad nature of several of Defendant’s requests, discussed infra., the Court
agrees. Defendant may properly attempt to discover evidence relevant to support
facts known to Defendant at the time the underlying action was filed, which
Defendant claims supported her decision to file the protection from stalking action.
Attempted discovery into the actions of Plaintiff not known to Defendant at the
time of the filing is not proper, at least on the current record. A detailed inquiry
into Plaintiff’s lawful political activities is overbroad beyond establishing that
Plaintiff was, generally, actively involved in the pro-life movement, which the
Court presumes is not disputed. The Court’s focus will now turn to the specific
discovery requests at issue.
Requests Nos. 3 and 4.
Request No. 3 seeks “seeks “[a]ll Documents and Communications
Concerning or Relating to Anti-Abortion Activities, Including Documents and
Communications posted on Social Media.” (Doc. 65-2.) Request No. 4 asks for
“[a]ll Documents, Communications, and images that You conceived, authored,
drafted, created, selected, compiled, received, published, or distributed that
Relate to abortion, Including pamphlets, flyers, letters, signs, manifestos, sermons,
speeches, articles, columns, commentaries, interviews, and statements on Social
Plaintiff’s response contains two pages of objections, including that the time
period is overly broad, that the terms “communication,” “anti-abortion,” and
“activities” are overly broad, unduly burdensome, oppressive and/or harassing, and
that the request “is not reasonably calculated to lead to the discovery of admissible
evidence . . . .” (Id., at 5-7.)
As an initial matter, the Court notes that the “reasonably calculated”
standard has been replaced by the “proportional to the needs of the case” standard
discussed, supra. See Fed.R.Civ.P. 26(b). That stated, the Court finds that
Request No. 3 is facially overbroad, particularly given the time frame implicated.
Further, although the Court has overruled Plaintiff’s objections to the terms
“communication,” “anti-abortion,” and “activities,” the combination of these terms
in this particular discovery request, as worded, could potentially implicate the vast
majority of communications and/or activities Plaintiff has engaged in
professionally or as an activist for almost 20 years.
The sheer volume of information implicated by Requests 3 and 4, as worded,
is not proportional to the needs of the case. The Requests facially encompass a
massive amount of information that is entirely irrelevant to the claims, defenses,
and events at issue in this lawsuit. Given the degree to which these Requests are
facially overbroad, the Court will refrain from devising more narrow versions of
the Requests. Defendant’s motion is, therefore, DENIED in regard to Requests
Nos. 3 and 4.
Request No. 5.
Request No. 5 seeks
[a]ll Communications between or Concerning You and
Anti-abortion activists and organizations known to You,
Including Chris and Shelly Clegg, Angel Dillard, Bruce
Garden, David Goodrich, Nicholas Healed, David Leach,
Jennifer McCoy, Troy Newman, John Pride, Scott
Roader, Robert Rotola, Shelley Shannon, Cheryl
Sullenger, the Army of God, the Kansas Coalition for
Life, Kansans for Life, Operation Rescue, Operation
Save America, Operation Rescue/Operation Save
America, and Personhood Kansas.
(Doc. 65-2, at 8.) Plaintiff objects as to the use of the terms “communications” and
“anti-abortion.” (Id., at 8-9.) The Court finds that given the more particularized
nature of this Request, which enumerates potential communication with specific
individuals and organizations, the use of these terms is not objectionable.
The Request is, however, facially objectionable given the nearly two-decade
time frame implicated. Further, because of the nature of Plaintiff’s work and
activism, this Request could implicate an inordinate amount of irrelevant
information. The Court instructs Plaintiff to provide any responsive information
for the past seven (7) years that references Defendant or her office.
The Court notes that, “[w]ithout waiving any objection,” Plaintiff indicates
that he has “no such documents in [his] possession and control” other than a few
emails. (Doc. 65-2, at 9-10.) The Court finds it unlikely that narrowing Request
No. 5 will result in more responsive documents. Even so, Plaintiff is instructed to
conduct the requisite search and provide a supplemental response to Request No. 5.
Defendant’s motion is GRANTED in part in regard to Request No. 5.
Requests Nos. 11 and 16.
Request No. 11 asks for documents “[c]oncerning the ‘great inconvenience,’
referred to in Paragraph 44 of Your Complaint, that the filing and prosecution of
the Petition for Protection From Stalking allegedly caused You, since the Date the
Petition was filed.” (Doc. 65-2, at 16.) Plaintiff “incorporates . . . by reference . . .
all of the foregoing objections to the preceding Requests.” (Id.) Request No. 16
seeks documents “[r]elating to the damages You seek in this action, alleged in
Paragraphs 40, 45, and 52 of Your Complaint as being ‘in excess of $75,000,’
Including all Documents Concerning attorney’s fees and costs and all other
damages that You seek to recover in this action.” In response, Plaintiff merely
“incorporates . . . his response to request number 11.”
Plaintiff makes no effort to substantiate how any such “foregoing
objections,” as incorporated into his response to Request No. 11, relate to Requests
Nos. 11 and 16. The Court finds the requests to be facially relevant and coherent,
particularly as they reference language taken from Plaintiff’s Complaint.
Plaintiff’s objections are overruled and Defendant’s motion is GRANTED as to
Requests Nos. 11 and 16.2
Request No. 17.
This Request seeks “[a]ll Documents and Communications by and between
You and any Person Concerning Defendant’s Petition for Protection From Stalking
Order, prosecution of the related state lawsuit, and/or Defendant.” (Doc. 65-2, at
20.) This Request is not facially objectionable and Plaintiff has failed to
substantiate his objections. Defendant’s motion is, therefore, GRANTED in
regard to Request No. 17.
Request No. 19.
Request No. 19 asks for “[a]ll Documents Concerning any contact,
interaction, or relationship with Defendant or South Wind Women’s Center and its
employees since the Date of filing of Defendant’s Petition for Protection From
Stalking Order.” (Doc. 65-2, at 22.) Plaintiff objects that “[t]his request is
particularly vague and confusing, and overly broad and oppressive, because it does
not specify a subject, that is, who has made the ‘contact, interaction, or
As noted below, Plaintiff has dropped his claims for lost income. (Doc. 95, at 2.)
Even so, the Court finds Requests Nos. 11 and 16 to be relevant and appropriate because
Defendant must be able to “analyze, understand, or respond” to Plaintiff’s claim for
damages. (See Doc. 107, at 9 (citation omitted).)
relationship’ inquired about, with the named persons, entities, or their employees.”
The Court is comfortable inferring that the Request seeks “contact,
interaction, or relationship” that Plaintiff has had with Defendant or South Wind
Women’s Center and its employees. Given that clarification, the Court overrules
Plaintiff’s objections to this Request. Defendant’s motion is GRANTED in regard
to Request No. 19. The Court notes, however, that Plaintiff indicates he “has had
no such contact, interaction or relationship during the specified time period.”
(Doc. 95, at 11.) Even so, he is instructed to supplement his response accordingly.
Request No. 20.
This Request seeks “[a]ll Documents and Communications Relating to
Anti-Abortion Activities that You organized or participated in and that were
carried out near Defendant’s business (South Wind Women’s Center) or private
residence, Including Your preparation for such Activities and the creation of any
signage or similar materials to be used in such Activities.” (Doc. 65-2, at 22.) As
an initial matter, the Court overrules Plaintiff’s unsubstantiated, boilerplate
objection that the terms “communications,” “anti-abortion,” “activities,”
“participated in,” “including,” and “preparation” are vague, overly broad, and
unduly burdensome. (Id.)
Plaintiff also objects that this requests “is not specific as to an event, date, or
time, and leaves plaintiff to speculate about what is intended . . . .” Plaintiff
continues that “[t]he fact that no scope of time is specified further renders this
request overly broad, unduly burdensome, and oppressive.” (Id., at 23.) These
objections are overruled. The Court finds that the time frame is inferentially
established as the time during which Defendant lived in Wichita and/or worked at
the South Wind Women’s Center. Further, because the Request refers to antiabortion activities organized or participated in by Plaintiff near Defendant’s home
or place of work, this provides Plaintiff with an additional frame of reference “as to
an event, date, or time . . . .” Defendant’s motion is GRANTED in regard to
Request No. 20.
G. Request No. 21.
Request No. 21 asks for documents “[r]elated to the Anti-abortion Activities
that were held on or about November 17, 2012[,] outside Defendant’s home, in or
about January 2013 outside Defendant’s place of business, and on or about
February 15, 2013[,] outside Defendant’s home.” (Doc. 65-2, at 23.) Again, the
Court overrules Plaintiff’s objections to the use of the terms “anti-abortion,”
“activities,” “communications,” “including,” and “related to.”
Plaintiff objects “that the phrase ‘in or about January 2013 outside of
Defendant’s place of business’ is not specific as to an event or a date.” (Id., at 24.)
The Court finds that the phrase is sufficiently specific and overrules this objection.
Plaintiff also objects to the request “because he was not ‘outside Defendant’s
home’ on either November 17, 2012 or on February 15, 2013.” This is not a valid
objection because even assuming this to be true, that does not necessarily mean
Plaintiff has no documents and/or engaged in no communication related to these
Finally, Plaintiff contends that the requests is “immaterial and irrelevant”
and is “not reasonably calculate to lead to the discovery of admissible evidence.”
(Id.) The Court does not find the request to be facially irrelevant and Plaintiff has
failed to substantiate these boilerplate objections. Further, as noted supra, the
“reasonably calculated” standard has been replaced by the “proportional to the
needs of the case” standard discussed. See Fed.R.Civ.P. 26(b). As such,
Defendant’s motion is GRANTED in regard to Request No. 21.
Requests Nos. 22 and 25.
These requests seek financial information from Plaintiff. Because Plaintiff
is no longer seeking damages related to lost income (see Doc. 95, at 2), Defendant
has withdrawn her motion in regard to these requests (Doc. 107, at 2).
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel (Doc.
64) is GRANTED in part and DENIED in part as more fully set forth above.
Plaintiff is instructed to provide supplemental responses, removing the objections
overruled herein and complying with Rule 34, and to produce all additional
responsive documents within thirty (30) days of the date of this Order.
IT IS SO ORDERED.
Dated this 30th day of November, 2017, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
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