Finley v. Colby, Kansas, City of et al

Filing 121

MEMORANDUM AND ORDER granting 114 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 6/3/19. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LANCE FINLEY,

)
Plaintiff,
)
vs.
)
)
CITY OF COLBY, KANSAS and
)
RON ALEXANDER,
)
Defendants.
)
_______________________________)

Case 6:17-CV-01215-EFM-KGG

ORDER ON MOTION TO COMPEL
Now before the Court is Plaintiff’s Motion to Compel. (Doc. 114.) Having
reviewed the submissions of the parties, Plaintiff’s motion is GRANTED.
BACKGROUND
The present motion arises from Plaintiff’s claims that Defendants violated
the First Amendment of the United States Constitution, Kansas public policy, and
Kansas common law. (Doc. 40, at 5, ¶ 26.) Plaintiff has filed this motion seeking
an order to compel production of text messages from a 2015 investigation which
“demonstrate illegal conduct by a City of Colby code enforcement officer.” (Doc.
114, at 2.) Defendants object, arguing that Plaintiff’s motion should be denied on

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the basis that it “seeks information that is not relevant to any issue in this case” and
“is not proportional to the needs of this case.”1 (Doc. 117, at 1.)
ANALYSIS
I.

Standards for Discovery.
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. Holick v. Burkhart,
No.16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).
II.

Plaintiff’s Motion to Compel.

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Defendants also object that Request No. 50 is not “admissible or calculated to
lead to the discovery of admissible evidence.” (Doc. 117, at 1.) The Court notes
that this is no longer the standard for discovery in federal courts. Rather, the
standard was revised nearly four years ago pursuant to the December 1, 2015,
amendments to Fed.R.Civ.P. 26. 
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Defendants argue that the information requested is not relevant because it
“does not focus on the termination of employees, nor does it focus on any exercise
of First Amendment rights.” (Doc 117, at 1.) However, Plaintiff contends that the
requested evidence is significant in determining whether Plaintiff was performing
his job with diligence, as well as establishing elements of the Garcetti Pickering
test, which is integral to its claim of First Amendment retaliation. (Doc. 114, at 4.)
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Relevance is to be
“broadly construed at the discovery stage of the litigation and a request for
discovery should be considered relevant if there is any possibility the information
sought may be relevant to the subject matter of the action.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D. Kan. 1991).
Plaintiff contends that the evidence requested is significant in distinguishing
between “Defendant Alexander’s response to two reports of government employee
misconduct” and is therefore relevant in establishing the fifth prong of the Garcetti
Pickering test. (Doc. 120, at 1-2.) This element of the Garcetti Pickering test asks
“whether the defendant would have reached the same employment decision in the
absence of the protected conduct.” Dixon v. Kirkpatrick, 553 F.3d 1294, 1302
(10th Cir. 2009) (citing Brammer-Hoelter v. Twin Peaks Charter Academy, 492
F.3d 1192, 1203 (10th Cir. 2007)). Under this broad standard of relevance, the
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Court finds that Plaintiff has met its burden of establishing that the requested
information is relevant to its claim.
Once this low burden of relevance has been established, the legal burden
regarding the defense of a motion to compel resides with the party opposing the
discovery request. See Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661,
662, 666 (D. Kan. 2004) (stating that the party resisting a discovery request based
on overbreadth, vagueness, ambiguity, or undue burden/expense objections bears
the burden to support the objections). Thus, “the objecting party must specifically
show in its response to the motion to compel, despite the broad and liberal
construction afforded by the federal discovery rules, how each request for
production or interrogatory is objectionable.” Sonnino v. University of Kansas
Hosp. Authority, 221 F.R.D. 661, 670–71 (D. Kan. 2004).
Plaintiff claims that this request will result in minimal burden to the
Defendants. (Doc. 114, at 5.) Defendants have offered nothing to refute this
claim, nor to support any claim that compliance with this request will cause them
any disproportionate burden. The Court, therefore, finds no issue based on the
proportionality of Plaintiff’s request.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
114) is GRANTED as more fully set forth above.
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IT IS SO ORDERED.
Dated this 3rd day of June, 2019, at Wichita, Kansas.

S/ KENNETH G. GALE

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

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