Barnes v. St. Francis Community Services et al

Filing 76

MEMORANDUM AND ORDER denying 44 Motion to Quash or Modify the Subpoena Issued to Verizon. Signed by Magistrate Judge Gerald L. Rushfelt on 2/15/18. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ASHLEY M. BARNES,
Plaintiff,
v.

Case No. 16-CV-1281-EFM-GLR

ST. FRANCIS COMMUNITY SERVICES and
CHRIS DOLPH,
Defendants.

MEMORANDUM AND ORDER
Before the Court is Defendant St. Francis Community Services’ Motion to Quash or
Modify the Subpoena Issued to Verizon (ECF 44). Plaintiff filed a Notice of Intent to Issue
Subpoena (ECF 42) on October 27, 2017. The notice indicated an intent to subpoena documents
“related to and constituting the entire call, file and text message history” for the phone issued by
St. Francis Community Services to Chris Dolph. In response, St. Francis filed the instant motion
to quash. It indicates counsel conferred by e-mail, which it has attached as Exhibit 2 (ECF 44-3).
D. Kan. Rule 37.2 requires “more than mailing or faxing a letter.” It adds that “the parties in
good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to
do so.” The Court finds nothing to show that the parties have adequately conferred as required.
Accordingly, it denies the motion.
In determining whether the parties have “satisfied the conference requirements under
Fed. R. Civ. P. 37 and D. Kan. Rule 37.2, the Court reviews all of the surrounding
circumstances.”1 Although communication via e-mail can be sufficient to satisfy this rule,2 the

1

U.S. Fire Ins. Co. v. Burge N. Am., Inc., No. 05-2192-JWL-DJW, 2008 WL 2222022, at *4 (D. Kan. May 28,
2008).

single e-mail and single response attached to the motion appear to be the only communication
counsel had on this issue. This Court has previously held that “[a] single e-mail and a single
response by e-mail hardly meets the requirement to ‘in good faith converse, confer, compare
views, consult and deliberate, or in good faith attempt to do so.’”3
The Court believes the parties might benefit from adequate conference on this issue. The
briefing suggests there may be relevant information in Verizon’s records. But it also suggests
that St. Francis has a legitimate interest in protecting other clients against unnecessary disclosure
of their confidential information. The parties should, in accordance with D. Kan. R. 37.2,
adequately confer to reach a solution that will address these concerns and any avoid unnecessary
disclosure of confidential information. Should the parties be unable to agree on a procedure that
allows for production of items that may be relevant without requiring production of information
that is irrelevant or should otherwise be protected, the Court can if necessary consider a further
motion on this issue.
IT IS THEREFORE ORDERED BY THE COURT that Defendant St. Francis
Community Services’ Motion to Quash or Modify the Subpoena Issued to Verizon (ECF 44) is
denied.
Dated February 15, 2018, at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

See id. (where several e-mails were exchanged between the parties, “the various e-mails and letters exchanged
between counsel for the parties demonstrated that the discovery disputes were discussed at length.”).
3
Lohmann & Rauscher, Inc. v. YKK (U.S.A.), Inc., No. 05-2369-JWL-GLR, 2007 WL 677726, at *2 (D. Kan. Mar.
2, 2007).
2

2