Summary
holding that information need not be admissible at trial to be relevant during the discovery phase
Summary of this case from United States v. DillardOpinion
Civil Action No. 99-2522-CM.
July 11, 2000.
Barry W. McCormick, Robert J. Luder and Scott M. Adam, McCormick, Adam Long, P.A., Overland Park, KS, for DAVID ORLEMAN, plaintiff.
Hal D. Meltzer, Turner Boisseau, Chartered, Overland Park, KS, for JUMPKING INC and WAL-MART STORES, INC., defendants.
MEMORANDUM AND ORDER
This matter is before the court on plaintiff's motion to compel discovery (Doc. 36). Plaintiff filed this suit following a spinal cord injury he allegedly suffered while using a Jumpking trampoline purchased from defendant Wal-Mart Stores and manufactured by defendant Jumpking, Inc. Plaintiff asserts that defendants are liable for his injury and seeks recovery under the following legal theories: strict liability in tort, negligence, breach of implied warranty of merchantability, breach of express warranty, and a loss of consortium. Defendants deny all liability.
In his motion, plaintiff seeks to compel information about defendant Jumpking's (hereinafter "defendant's") trampoline products, about defendant's knowledge of its trampoline products' safety, and about warnings given on defendant's trampoline products. Plaintiff claims defendant has set forth improper objections to his discovery requests. Plaintiff also asserts that during the deposition of Bud Nichols, the president and general manager of Jumpking in 1999, Mr. Nichols identified previously unproduced documents and information responsive to plaintiff's discovery requests. Plaintiff asserts that defendant improperly withheld this information from production in violation of its Rule 26 and general discovery obligations. Finally, plaintiff asserts that Mr. Nichols answered deposition inquiries in a manner that controverted defendant's prior answers to plaintiff's requests for admissions. Defendant asserts it is in full compliance with its discovery obligations. The court reviews each of plaintiff's requests separately.
Although plaintiff's motion is generally directed to both defendants, all discovery issues raised relate only to defendant Jumpking. Accordingly, only defendant Jumpking has responded. The court considers plaintiff's motion as directed solely to defendant Jumpking.
I. Discovery Standards
The scope of discovery in federal court is controlled by Federal Rule of Civil Procedure 26(b). See Pulsecard, Inc. v. Discovery Card Servs., Inc., 168 F.R.D. 295, 310 (D. Kan. 1996). In general, discovery is allowed of any matter that is relevant to the subject matter involved in the pending action that is not privileged. Fed.R.Civ.P. 26(b). Relevancy is broadly construed. See Folsom, et al. v. Heartland Bank, No. Civ. A. 98-2308-GEV, 1999 WL 322691, *1 (D. Kan. May 14, 1999). A relevant matter may be "any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case." Oil, Chemical Atomic Workers Local Union v. N.L.R.B., 711 F.2d 348, 360 (D.C. Cir. 1983). Relevant information is that information reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b).
II. Interrogatory Requests
Plaintiff asserts he is entitled to the following information requested in discovery and objected to by defendant.
A. Interrogatory No. 1 (First Set of Interrogatories)
Plaintiff seeks discovery of previous lawsuits or claims filed or made against defendant Jumpking, Inc. as a result of injuries incurred in the last fifteen years while using a trampoline. Defendant objected to the scope and time limit of the request. Specifically, defendant objects to the production of any prior claims or lawsuits related to trampoline models other than the JKXT14 model at issue here or substantially similar models.
Evidence of similar accidents involving the same product is admissible under both Kansas and federal law to establish notice or the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards. See Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987) (citations omitted). Before introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case. See id.; Rexrode v. American Laundry Press Co., 674 F.2d 826, 829 n. 9 (10th Cir.), cert. denied, 459 U.S. 862 (1982).
Whether accidents are substantially similar depends largely upon the theory of the case. "Differences in the nature of the defect alleged may affect a determination whether the accidents are substantially similar. . . . How substantial the similarity must be is in part a function of the proponent's theory of proof." Ponder, 834 F.2d at 1560. Evidence proffered to illustrate the existence of a dangerous condition necessitates a high degree of similarity because it weighs directly on the ultimate issue to be decided by the jury. The requirement is relaxed, however, when the evidence of other accidents is submitted to prove notice or awareness of the potential defect. See Exum v. General Elec. Co., 819 F.2d 1158, 1162-63 (D.C. Cir. 1987).
Although there are specific limits on the admissibility of similar lawsuits, such evidence need not be admissible to be relevant and, therefore, discoverable. See Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). Relevancy in the discovery context is broader than admissibility of evidence at trial. See Folsom, No. Civ. A. 98-2308-GEV, 1999 WL 322691 at *1; Caldwell v. Life Ins. Co. of N. Am., 165 F.R.D. 633, 638 (D. Kan. 1996); United States v. Ausbrook, No. 92-40064-01, 1993 WL 270506, *3 (D. Kan. June 4, 1993) ("`relevance' in civil discovery is a much more encompassing standard than `relevance' in the admissibility of evidence . . . In fact, inadmissibility at trial is not a proper objection to discovery in a civil case."). Whether the court will ultimately disallow the use of such information at trial due to its prejudicial effect does not affect its discoverability. However, this legal tenant should not be misapplied to allow a fishing expedition in discovery. See Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
Here, it appears plaintiff seeks to discover prior lawsuits not only to establish the dangerousness of the trampoline at issue (the JKXT14), but also to establish defendant's notice of its dangerousness. Although the court recognizes the limits on the admissibility of similar lawsuits, it applies the broader relevancy concept to the discovery dispute at issue. Presumptively, lawsuits involving the same make and model of trampoline as the one at issue here are discoverable. The parties do not provide the court with ample detail to determine the similarity of the models of trampolines involved in prior lawsuits against defendant. Even without this information, the court finds the interrogatory is too broadly drafted. Only prior lawsuits or complaints regarding the JKXT14 model or substantially similar models are relevant. Accordingly, the defendant shall produce responsive information for the JKXT14 model and other substantially similar models.
The court finds that the time period of defendant's corporate existence (1991 to the present) is an appropriate temporal limitation on this request. Although plaintiff asserts that information from defendant's corporate predecessor is relevant, the court is not persuaded by plaintiff's bald assertion. Accordingly, defendant shall produce responsive information for the time period beginning in 1991 to the present date.
B. Interrogatory No. 3 (First Set of Interrogatories)
Plaintiff seeks to discover the identity of any person or organization retained or otherwise asked to conduct any testing or review of the use of Jumpking trampolines and any associated warnings in the last 10 years. Defendant objected to this request as overly broad in time and scope, and as subject to the attorney-client privilege, the work product doctrine and self-critical analysis privilege. Defendant further objected on the basis that the request was not sufficiently limited to warnings for the JKXT14 trampoline at issue in this litigation. Defendant appears to have abandoned its objection to privilege, as it does not pursue the objection in its response to plaintiff's motion. Defendant continues to maintain that the request is overly broad in time, but provides no support for the contention. Finally, defendant asserts that any discovery requested for trampolines other than the JKXT14 is not relevant.
Plaintiff asserts that Mr. Nichols's deposition testimony indicated the same warnings are given on all trampolines, and, therefore, defendant has no basis to object to relevancy regarding models other than the JKXT14, a 14 foot in diameter trampoline model. Defendant asserts Mr. Nichols's testimony only related to 12 and 14 foot trampolines, not to all models of defendant's trampolines. The court finds, based on Mr. Nichols's testimony, that testing or warnings related to defendant's 12 or 14 foot trampoline models are relevant to plaintiff's claims regarding defendant's knowledge of dangerous conditions. Defendant shall produce any responsive information related to its 12 and 14 foot trampolines for the time period of 1991 to the present.
C. Interrogatory No. 7 (Second Set of Interrogatories)
Plaintiff seeks to discover reports, literature, studies, writings, articles or test results concerning the dangers, hazards, adequacy, safety and suitability of backyard trampolines of which defendant is aware. Plaintiff further seeks to know when such information came to the defendant's attention. Defendant objected to this request as overly broad in time and scope, as it is not limited to the JKXT14 model or to the type of injury alleged by plaintiff in this suit, and as vague, ambiguous and unduly burdensome. Defendant further objects that this request calls for information protected by the work product doctrine, the attorney client privilege and the self-critical analysis privilege.
Defendant has supplemented its response to provide a bibliography of published articles and data in its possession that may contain responsive information. The court finds defendant has met its obligation under this request. Providing all articles for every model of backyard trampoline may be too burdensome for defendant, although the court is not provided with information regarding the numerosity of the models produced by defendant. Even without the benefit of this information, the court finds the bibliography provided should provide plaintiff with sufficient information to determine the type of articles within the defendant's possession. Were plaintiff to restrict the request to information regarding the JKXT14 model or similar models, or to information regarding spinal cord injuries, then a more thorough response by defendant may be required. As drafted, the request is overly broad. Based on this ruling, the court does not find it necessary to address the privilege or time issue raised by defendant's objection.
D. Interrogatory No. 10 (Second Set of Interrogatories)
Plaintiff seeks to discover any claim, legal action, situation or occurrence in the last 15 years in which a person suffered a spinal cord injury while using a backyard trampoline of which defendant was aware. Defendant objected to the request as overly broad in scope and time. Defendant responded to the request by providing information regarding spinal cord injuries for the period from 1991 through 1999, as Jumpking was not in existence until 1991. Further, defendant has supplemented its disclosure with additional information that it has uncovered during the discovery period. Plaintiff asserts that the 1991 to 1999 time limitation is not proper, as defendant is a continuation of its predecessor, Weslo's, operations. As noted previously, without more support for plaintiff's argument regarding the relevancy of defendant Jumpking's predecessor's information, the court finds the time period of defendant's corporate existence is presumptively reasonable. Accordingly, the court finds defendant has satisfied their obligation under this request.
III. Requests for Production of Documents
A. Request No. 1 (First Request for Production of Documents)
Plaintiff seeks the production of any videos made or distributed by Jumpking related to the use of a trampoline, including any accompanying written material, in the last 10 years. Defendant objected to the request as overly broad in time and scope, as the request was not limited to the JKXT14 model or to substantially similar models. Defendant has produced, subsequent to the filing of this motion to compel, copies of videos created prior to May 23, 1999 that relate to defendant's JKXT14 model and to other models substantially similar to the JKXT14 model. Defendant continues to object to the relevancy of any other videos regarding other models of trampolines.
The court finds that defendant has partially satisfied its obligations under this request. Unless plaintiff can establish sufficient reason why videos regarding other models of trampolines not substantially similar to the JKXT14 model are relevant to his claim, defendant will not be compelled to produce such material. The court finds, however, that defendant's chosen time limitation is artificially brief. The court expects defendant to produce responsive material for all of 1999 and to the present. Accordingly, defendant shall produce responsive video and written materials related to the JKXT14 model and other substantially similar models for the time period from 1991 to the present.
B. Request No. 3 (First Request for Production of Documents)
Plaintiff seeks production of documents related to the creation of the user's manuals for previous models of defendant's backyard trampolines for the previous 10 years. Defendant objected to this request as overly broad in time and scope. It objected that the request seeks information about trampolines that are not substantially similar to the JKXT14 model at issue. Defendant also objected that the information requested calls for privileged information. Defendant has produced all of Jumpking's User's Manuals for 12 foot and 14 foot in diameter trampolines manufactured dating back to 1991.
The court again finds the time period from 1991 to the present is presumptively reasonable as it tracks the time period of defendant's corporate existence. Defendant shall produce all responsive information for the JKXT14 model and all substantially similar trampolines to the extent such information is not privileged. Where defendant believes a privilege exists, it shall "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection," as required by Federal Rule of Civil Procedure 26(b)(5).
C. Request No. 4 (First Request for Production of Documents)
Plaintiff seeks production of all warnings sold with, or attached to, any Jumpking trampoline over the previous 15 years, including, user's manual warnings, frame labels, safety placards or shipping labels. Defendant objected on the basis that the request was overly broad in time and in seeking information regarding trampolines that are not substantially similar to the JKXT14 model. Defendant has produced copies of user's manuals for the JKXT14 model and for substantially similar trampolines back to January 1991. Further, defendant indicates that not all on-product labels and warnings are available for production. However, following the filing of this motion to compel, defendant did produce additional warning labels as supplemental discovery responses, indicating that the labels were not previously within defendant's possession.
Plaintiff asserts that Mr. Nichols testified during his deposition that defendant maintains archives of all warnings, including all bed and frame labels. Plaintiff also asserts that defendant failed to produce frame labels from defendant's trampolines that plaintiff knows were attached as exhibits to pleadings filed by defendant in separate litigation. Plaintiff is in possession of these exhibits from sources other than defendant.
It appears that through its supplementation, defendant has partially satisfied its obligation under this request. The court continues to find that the time period from 1991 to the present is presumptively the reasonable time frame for discovery in this matter. The court counsels defendant that where responsive information is in its possession, it is obligated to produce the information, whether or not plaintiff has obtained the information from an alternate source. The rules of discovery do not permit parties to withhold material because the opponent either has or could discover it on their own. See Fed.R.Civ.P. 26. Accordingly, to the extent defendant has not produced all responsive information within its possession, it shall do so.
D. Request No. 5 (First Request for Production of Documents)
Plaintiff seeks defendant to produce all documents related to the creation of the warnings requested in request No. 4. Defendant's objections were the same as those to request No. 4. Defendant indicates that there are no responsive documents (relating to the JKXT14 or substantially similar models) other than those previously produced in response to other requests. The court reminds counsel that, to the extent otherwise responsive documents exist that it asserts are privileged, it is under an obligation to produce a privilege log as specified by Rule 26(b)(5).
E. Request No. 6 (First Request for Production of Documents)
Plaintiff seeks to discover correspondence, reports, and billings related to the use or retention of any outside testing agency, person or organization requested by Jumpking or its corporate predecessors to perform work associated with the use or safety of its trampolines over the previous ten years. Defendant objected to this request as overly broad in time and scope. Defendant also asserted that some responsive information is subject to a privilege. Defendant has produced responsive information related to the JKXT14 model and substantially similar models. Defendant has not produced any billing information, asserting that it is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Finally, defendant has indicated that it will supplement its privilege log with documents to which it asserts a privilege.
The court finds defendant has substantially complied with this request. The court finds, however, that billing information may be relevant in identifying an agency or person utilized by defendant to perform work associated with the use or safety of its JKXT14 or substantially similar models. Accordingly, defendant shall produce any responsive billing information. Defendant may, however, redact any pricing information where plaintiff does not present a compelling reason why such billing information is relevant.
F. Request No. 7 (First Request for Production of Documents)
Plaintiff requests defendant to produce any article, publication, report, correspondence, or other documents in defendant's possession suggesting backyard trampolines are safe without instruction or supervision. Defendant objected to this request as seeking information protected by a privilege. Defendant agreed to produce responsive documents in a privilege log "if and when located or identified." Defendant further asserts that it does not contend that "backyard trampolines are safe without instruction or supervision." Defendant states it is unaware of any articles which suggest this principle and accordingly claims it has no responsive documents to produce.
The court finds that where defendant has done a thorough search for responsive documents, it has complied with this request. Defendant does have an affirmative obligation to search for responsive documents. Defendant may not simply feign ignorance of responsive documents and produce them at a later point "if and when" they are discovered. Further, defendant must, to the extent responsive documents exist that they contend are protected by privilege, complete a privilege log compliant with Rule 26(b)(5).
G. Request No. 10 and 12 (First Request for Production of Documents)
Plaintiff seeks documents and agreements which address the distribution and sale of Jumpking trampolines by Wal-Mart for the previous five years. Plaintiff also seeks to discover contracts, including all letter agreements and endorsements, amendments, as well as any indemnity or hold harmless agreements between defendants Jumpking and Wal-Mart for the last five years. Defendant objected to the time and scope of the requests, and asserted that the requests seek privileged information. Defendant did agree to produce responsive documents for the contract period during which the JKXT14 model was sold with a redaction of irrelevant terms, conditions, amounts or numbers and the deletion of trade sensitive commercial information, subject to the issuance of a protective order.
The court finds the time period of five years is reasonable, where either the JKXT14 or substantially similar models were for retail sale at defendant Wal-Mart or its associated stores. Defendant admits its vendor agreements are responsive. Defendant shall produce such responsive vendor agreements relating to the JKXT14 and substantially similar models for the previous five years. Defendant may redact sensitive commercial information, where the nature of the redacted information is explained to plaintiff sufficient to allow him to determine the reasonableness of the redaction and to determine whether production subject to a protective order is appropriate. As the court is not provided with the relevant documentation, it is not in a position to make a relevancy determination as to the proposed redactions. Defendant shall not be compelled to produce all purchase orders with Wal-Mart for the JKXT14 and substantially similar models for the last five years, absent a more sufficient showing by plaintiff why such information is reasonably calculated to lead to the discovery of admissible evidence. However, where defendant has in its possession documents containing retail price points for the JKXT14 and substantially similar models for the past five years, it shall produce them to plaintiff.
Further, it appears defendant has not satisfied its obligation to specify through a privilege log sufficient information to allow plaintiff to make a determination of the reasonableness of defendant's privilege assertion as required by Rule 26(b)(5). Defendant, as the party asserting privilege, has the burden to establish the existence of the privilege. See Barclays Am. Corp. v. John L. Kane, Jr., 746 F.2d 653, 656 (10th Cir. 1984) ("The party seeking to assert the attorney-client privilege or the work product doctrine as a bar to discovery has the burden of establishing that either or both is applicable."). Defendant shall produce a compliant privilege log where it contends responsive documents are subject to a privilege.
H. Request No. 13 (First Request for Production of Documents)
Plaintiff seeks production of all ASTM documents dealing with trampolines in the possession of defendant for the past 10 years. Defendant objects to the time and scope of the request and asserts that the requested information is equally available to plaintiff. Defendant has produced copies of the minutes of ASTM subcommittee meetings and asserts that it has no other responsive documents in its possession.
The court finds the time period from 1991 to the present is reasonable. To the extent its prior production did not do so, defendant shall produce responsive documents related to the JKXT14 and substantially similar models in its possession, even where it believes plaintiff can access the information from a separate source. See Fed.R.Civ.P. 26.
I. Request No. 15 (First Request for Production of Documents)
Plaintiffs seeks production of promotional materials related to the JKXT14 model or Jumpking products generally from 1994 until May 23, 1999. Defendant objects to the scope of this request, and asserts that it seeks confidential and proprietary information regarding trade sensitive commercial information. Defendant has produced current versions of brochures and flyers provided with the user's manual and a safety placard featuring products manufactured by defendant. Defendant has also produced current marketing material regarding the JKXT14 and substantially similar trampolines. Defendant has supplemented its discovery responses with older flyers. Defendant asserts that, because plaintiff did not see, review, or rely upon any such promotional materials prior to purchasing the JKXT14 model, such materials are irrelevant to this case.
The court finds plaintiff's request for information for the time period from 1994 to May 23, 1999 is presumptively reasonable. Discovery of promotional material prior to the date plaintiff purchased the JKXT14 model may reasonably lead to the discovery of admissible evidence as it may reveal any changes in the type of promotional material produced by defendant. To the extent not previously done, defendant shall produce responsive information related to the JKXT14 and substantially similar models for the time period identified by plaintiff. To the extent defendant seeks to protect responsive information it asserts is confidential or proprietary, it shall provide sufficient information to plaintiff for a determination of whether such responsive information should be produced subject to a protective order.
J. Request No. 16 (First Request for Production of Documents)
Plaintiff seeks defendant to produce statements of plaintiff, including any videotape taken by defendant, its agents, or any investigator. Defendant responded to the request by indicating that it had no responsive information, other than that contained in plaintiff's medical records, which are more readily available to plaintiff. Defendant has also deposed both plaintiff and his wife, and indicates that transcripts of their testimony are also available to plaintiff.
Plaintiff asserted in his motion to compel that "[p]laintiff and his wife are aware from personal observation and discussions with neighbors who have talked to the investigator, that an investigator has been on Plaintiff's street conducting surveillance of Plaintiff and his home. This is further evidenced by questioning of defense counsel at Plaintiff's deposition." Defendant denies that it has conducted any videotape surveillance of plaintiff. Although plaintiff has indicated it is prepared to present evidence on this contested issue, the court finds that such evidence is unnecessary. Defendant shall, to the extent further responsive information exists, produce the same.
K. Request No. 3 (Second Request for Production of Documents)
Plaintiff seeks production of information or documents related to the placement, or lack thereof, of center markings that defendant was aware of either before or after May 23, 1999. Plaintiff subsequently limited this request to production of documents for the past 15 years. Defendant objected to the request as overly broad in time and scope, and as seeking information protected by the work product doctrine or the self-critical analysis privilege. Defendant further protests that, based on the deposition testimony of plaintiff and his wife, both of whom witnessed the accident at issue in this case, plaintiff was in the center of the trampoline at the time of the accident. Therefore, defendant alleges that any information regarding the alleged necessity of center markings has no causal relationship or relevance to plaintiff's injuries in this case. Despite these objections, defendant has produced documents relating to the ASTM 8.17 committee proceedings addressing the issue of center markings and is supplementing its disclosures with additional ASTM documents that also address the center markings.
The court again finds the time period from 1991 to the present is the reasonable discovery period in this matter. Defendant shall produce responsive information relating to the JKXT14 and substantially similar models. The court does not rule on the merits of defendant's objection relating to causation, but finds that based upon the allegations in plaintiff's complaint, information related to the defendant's actions in relation to the placement of center markings is reasonably calculated to lead to the discovery of admissible evidence. Where defendant believes a privilege attaches to otherwise responsive information, such documents shall be identified in a privilege log as required by Rule 26(b)(5).
L. Request No. 5 (Second Request for Production of Documents)
Plaintiff seeks production of warranties defendant provided to purchasers warranting that the JKXT14 is fit for the ordinary purpose for which it is intended. Defendant objected to this request by indicating that "Any warranty of fitness for ordinary purpose is a function of the state law of the state in which the product is sold and exists by operation of law only." Defendant has not responded to this request in its response to plaintiff's motion to compel. The court finds the information requested by plaintiff is relevant to the pending action as it is reasonably calculated to lead to the discovery of admissible evidence. The court recognizes defendant's argument regarding potential warranties of fitness for ordinary purpose as existing pursuant to state law. However, plaintiff's request appears to be seeking copies of any warranties defendant affirmatively provided to purchasers warranting the fitness of their JKXT14 model. Accordingly, defendant shall provide responsive documentation, if any exists.
III. Notice Duces Tecum
Plaintiff asserts defendant's failure to produce documents requested pursuant to a notice duces tecum during the deposition of Mr. Nichols is a violation of its discovery obligations.
Federal Rule of Civil Procedure 30(b)(1) provides that if a "subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to, or included in, the notice." A party witness may be compelled to bring documents to a deposition if a description of the documents is included in the notice of deposition. Fed.R.Civ.P. 30(b)(5). However, where the witness is a party, he must be accorded the 30 days to interpose objections to the document requests under the rationale that one should not be able to circumvent the 30-day period provided for under Rule 34 by issuing a notice of deposition. See id. A non-party witness may be compelled to bring documents to a deposition by issuing a subpoena duces tecum under Federal Rule of Civil Procedure 45(a)(1)(C), and including a description of the requested documents in the notice. Fed.R.Civ.P. 45(a)(1)(C).
Here plaintiff sought to compel Mr. Nichols to produce at his deposition a list of 27 types of documents. Plaintiff issued a "Notice to Take Videotaped Deposition — Duces Tecum" to Albert "Bud" Nichols and included a list of requested documents. The notice referenced Rule 30(b)(2) regarding the videotaping of the deposition. However, the notice was not issued pursuant to Rule 45, as a subpoena duces tecum. Mr. Nichols voluntarily appeared at the deposition, but did not produce the requested documents. Defendant did not produce Mr. Nichols as a corporate representative. It appears from the facts placed before the court that Mr. Nichols was not a party witness. Because Mr. Nichols is not a party witness, he could not be compelled to bring documents to his deposition absent plaintiff's compliance with the procedures of Rule 45. Accordingly, because it does not appear from the documents submitted to this court that the notice was fashioned as a subpoena or that Rule 45's requirements were met, Mr. Nichols was not required to produce the requested documents, and this court will not compel him to do so.
Even if Mr. Nichols were a party witness, he could not have been compelled to produce documents at his deposition outside the Rule 34 procedures. Accordingly, as the notice was served on March 1, 2000, defendant would have had 30 days plus an additional three for mailing under Rule 6 to respond, placing the response date on April 3, 2000.
IV. Request for Admissions
Plaintiff objects to defendant's responses to certain requests for admission. Plaintiff claims the deposition testimony of Mr. Nichols establishes that defendant improperly responded to the requests for admission. Accordingly, plaintiff seeks the court to overrule defendant's objections, to order defendant to withdraw any of its denials, and to substitute admissions based upon the testimony of Mr. Nichols.
Under Federal Rule of Civil Procedure 36, a party to whom a request is directed may respond by providing "a written answer or objection." Fed.R.Civ.P. 36(a). Where the court finds an objection is unjustified, it "shall order that an answer be served." Id. Where the court "determines that an answer does not comply with the requirements of th[e] rule, it may order either that the matter is admitted or that an amended answer be served." Id. Where a party "fails to admit the truth of any matter requested under Rule 36, and if the party requesting the admissions thereafter proves the . . . truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." Fed.R.Civ.P. 37(c)(2).
The court finds defendant has complied with Rule 36 in substantial part. The objections proffered are appropriate, as some language in the requests could be interpreted in various ways, causing the requests to be vague or ambiguous. Further, the language of each of the requests objected to is not identical to the language of the questions posed to Mr. Nichols during his deposition. In some instances, further explanation was provided to Mr. Nichols during his deposition that allowed him to more completely answer the questions.
However, the court does find, based upon the testimony elicited from Mr. Nichols, that defendant could have been more forthcoming in explaining the extent of its denials. Rule 36 requires that "when good faith requires that a party qualify and answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder." Fed.R.Civ.P. 36(a). Accordingly, defendant shall pay to plaintiff the "reasonable expenses incurred" in making the proof related to plaintiff's requests for admission numbers 8, 9, 13, 14, 32, 44, 46 and 48. Within 10 days of this order, plaintiff shall provide an accounting to the court of the reasonable expenses he has incurred in connection with the noted requests for admission. Defendant shall have 10 days to make objections to the plaintiff's accounting of expenses. Upon review of the papers submitted, the court will make a final determination of the amount defendant must pay to plaintiff for his reasonable expenses.
V. Defendant's Privilege Log
Plaintiff next asserts that defendant's privilege log is inadequate, as it does not sufficiently identify the documents which defendant claims as privileged. Plaintiff argues that even from the limited disclosures made, it is apparent that several documents are not privileged. Specifically, plaintiff asserts that letters from Crawford Co., an insurance company, are not privileged, as an insurance company's files are discoverable.
Defendant, as the party asserting the attorney-client privilege and work product immunity, has the burden of establishing that the privilege or immunity applies. Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D. Kan. 1995). To carry that burden, defendant must make a "clear showing" that the asserted objection applies. Ali v. Douglas Cable Communications, Ltd. Partnership, 890 F. Supp. 993, 944 (D. Kan. 1995). Defendant must also "describe in detail" the documents or information sought to be protected and provide "precise reasons" for the objection to discovery. National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994). Federal Rule of Civil Procedure 26(b)(5) provides that when a party withholds documents or other information based on a privilege or work product immunity, the "party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." As the party asserting the privilege or work product objection, defendant must also provide sufficient information to enable the court to determine whether each element of the asserted objection is satisfied. See Jones v. Boeing Co., 163 F.R.D. 15, 17 (D. Kan. 1995).
The court finds that the portion of defendant's privilege log produced to the court is insufficient. The court is unable to determine from the identifications whether the insurance company letters are privileged under the work product doctrine. Defendant shall, in accordance with the prior mandates of this order, make more complete disclosures in its privilege log, in accordance with Rule 26(c)(5).
VI. Order
It is unclear to the court whether defendant responded to plaintiff's golden rule letters requesting the production of information and documents. Further, the court notes that, although defendant supplemented its original discovery responses at the time it responded to plaintiff's motion to compel, such supplementation was unduly delayed. The court will not infer bad faith from this delay, but is concerned that such supplementation was not completed at the time plaintiff's golden rule letters were sent. Where the court is made aware of further undue delay in discovery by defendant, it will be more apt to find bad faith and to order appropriate sanctions.
Where the court has ordered disclosure or production in this order, defendant shall so act within ten days of this order, absent a showing of good cause why an extended period of time is necessary to comply. Further, plaintiff shall make an accounting of his expenses as specified herein.
Finally, the court notes that it should not be necessary for the court to simply restate the rules of discovery to counsel in resolving discovery disputes. Counsel here are reminded of their ethical obligation to comply with the rules of discovery and to act in good faith without prompting from the court.
IT IS SO ORDERED.