Opinion
CIVIL ACTION No: 99-2406-JWL
May 1, 2001
MEMORANDUM AND ORDER
A telephone hearing was held on April 11, 2001 regarding the following motions: (1) Defendants' Motion to Compel (doc. 76); (2) Plaintiff's Motions to Extend Time (doc. 92 and 95); and (3) Defendants' Motion to Strike (doc. 94). Plaintiff appeared through her counsel John B. Gage. Defendants appeared through their counsel Gregory P. Goheen.
This Order will memorialize the rulings made at the telephone hearing. It will also address several issues relating to the Motion to Compel (doc. 76) that the Court took under advisement at the telephone hearing. In addition, it will memorialize the Court's ruling denying Plaintiff's Motion for Leave to File Memorandum in Opposition to Motion to Strike Out of Time (doc. 117), of which the j parties were orally informed prior to the telephone hearing.
I. Plaintiff's Motions to Extend Time (doc. 92 and 95)
The Court finds that Plaintiff's first motion for extension of time to file her opposition to; Defendant's Motion to Compel was timely; however the second motion was untimely. The second motion, which should have been filed on February 6, 2001, was not filed until February 7. The Court finds that Plaintiff has made an excessive number of requests for extension of time in this case. Moreover, the Court does not find that Plaintiff has established the necessary good cause or excusable neglect that would justify allowing Plaintiff to file her response out of time. The Court will therefore deny the second motion for extension of time.
II. Plaintiff's Motion for Leave to File Memorandum in Opposition to Motion to Strike Out of Time (doc. 117)
As the Court has already orally informed counsel, this motion is denied. In order to be timely, Plaintiff's opposition to the Motion to Strike should have been filed by February 26, 2001. Plaintiff did not timely oppose the Motion and waited more than one month to file the instant motion for leave to file her opposition out of time. The Court does not find that Plaintiff has established good cause or excusable neglect sufficient to support her request.
III. Defendants' Motion to Strike (doc. 94)
When Plaintiff filed her second motion for extension of time to file her opposition to I Defendants' Motion to Compel, she also filed her opposition brief (doc. 97). Because the Court has denied the second motion for extension of time, her opposition was untimely filed. The Court will j therefore grant Defendants' Motion to Strike Plaintiff's opposition. Plaintiff's Memorandum in Opposition to Motion to Compel (doc. 97) is hereby striken.
IV. Defendants' Motion to Compel and Request for Sanctions (doc. 76-1 and 76-2)
Although the Court has striken Plaintiff's written opposition to the Motion to Compel, the Court j did hear oral argument from Plaintiff's counsel at the telephone hearing. The Court will decline to grant the Motion to Compel as uncontested. The Court makes the following rulings as to the Motion to Compel:
A. Defendant Unified Government's First Set of Interrogatories to Plaintiff
1. General objections
The Court overrules Plaintiff's first general objection that the interrogatories exceed the limit on interrogatories contained in the Scheduling Order. That Order allowed each party to submit fifty | interrogatories upon any other party. Even counting each subpart as an individual interrogatory, the Unified Government of Wyandotte County/Kansas City, Kansas' ("Unified Government") interrogatories do not exceed that limit.
The Court also overrules Plaintiff's second general objection, that the interrogatories are overly broad and burdensome, except as discussed below with respect to certain interrogatories.
In addition, the Court overrules Plaintiff's third general objection, that Defendant's general instructions impose a greater obligation than that required by Fed.R.Civ.P. 26 and 33.
2. Objections to specific interrogatories
a. Interrogatory No. 5
The Court sustains Plaintiff's objection that this interrogatory is overly broad as to the time | period covered. The Court will limit the interrogatory to the period of Plaintiff s employment with the Unified Government through the present and the two — year period prior to that employment. All other objections to Interrogatory No. 5 are overruled.
b. Interrogatory No. 6
Plaintiff informs the Court that he has already provided the Unified Government with the information requested in this interrogatory. The Court will thus deny the Motion to Compel as moot j with respect to this interrogatory. c. Interrogatory No. 9
This interrogatory asks Plaintiff to identify each person that she expects to call as an expert witness at trial and to provide certain information about the expert's opinions. The Court overrules all of Plaintiff s objections to this interrogatory. Plaintiff shall answer this interrogatory to the extent she presently knows who she plans to call as an expert witness and to the extent she presently knows the other information requested. If she later determines to designate a testifying expert, she shall supplement her response with the requested information at that time.
d. Interrogatory Nos. 14, 16, 77, 18, 20, 21
The Court overrules all objections to these interrogatories.
e. Interrogatory No. 23
The Court overrules Plaintiff's objections to this interrogatory. Plaintiff shall provide the j Unified Government with a supplemental response providing any additional information that forms the factual basis for her allegation that Dennis Hays "actually possessed any knowledge of plaintiffs situation." If Plaintiff has no other information responsive to this interrogatory, she shall serve a supplemental response stating that she has no additional information.
f. Interrogatory No. 31
This interrogatory seeks information regarding the health care providers and psychologists who have provided health care to Plaintiff within the past ten years. The Court sustains Plaintiff's objection that this interrogatory is overly broad in that it requests information for the past ten years. The Court j will limit this interrogatory to the period of Plaintiff's employment with the Unified Government! through the present and the two — year period prior to that employment.
The Court overrules all other objections, including Plaintiff's objection that none of this information need be provided because Plaintiff does not plan to present any medical expert testimony in support of her claims for mental anguish and emotional distress.
Plaintiff has placed her mental and emotional state at issue by claiming damages for "mental anguish, emotional distress, [and] loss of enjoyment of life" in connection with her Title VII discrimination and retaliation claims (Third Amended Complaint, Count I, ¶ 74) and by claiming those same damages and damages for "pain and suffering" in connection with her section 1981 claim (Count II, ¶ 79), Title VI claim (Count IV, ¶ 69), section 1985 claim (Count V, ¶ 76), and due process claim (Count VIII, ¶ 97). The medical and psychological information sought by this interrogatory appears relevant to both causation and the extent of Plaintiff's alleged injuries and damages. See Hilt v. SFC, Inc., 170 F.R.D. 182, 186 (D. Kan. 1997) (overruling objections to interrogatory asking sexual harassment plaintiff who claimed damages for mental and emotional pain to identify all physicians and health care professionals who had treated her or with whom she had consulted).
The fact that Plaintiff is not planning to present any expert testimony in support of her emotional distress and mental anguish claims does not make this information any less relevant. Moreover, the Court has been unable to locate any case law supporting Plaintiff's contention that this information is discoverable only if she were planning to present expert testimony regarding her mental and emotional condition.
B. Defendant Dennis M. Hays' First Set of Interrogatories to Plaintiff
1. General objections
Plaintiff asserts the same general objections to Defendant Hay's Interrogatories that she made; in response to the Unified Government's Interrogatories. The Court makes the same rulings regarding these objections that it made above in Part IV.A. 1 concerning the Unified Government's Interrogato — ries.
2. Objections to specific interrogatories
The Court overrules all of Plaintiff s objections to Interrogatory Nos. 2, 3, 6, 7, and 9-12.
C. Defendant Joseph M. Connor's First Set of Interrogatories to Plaintiff
The parties informed the Court at the telephone hearing that they would work together to resolve any disputes remaining about these interrogatories. The Motion to Compel is therefore denied as moot with respect to these interrogatories.
D. Municipal Defendants' Requests for Production of Documents to Plaintiff
1. Request for Production No. 2
The parties also informed the Court that Plaintiff has provided the documents responsive to this request. The Court will therefore deny the Motion to Compel as moot with respect to this request.
2. Request for Production No. 3
The Court will overrule all of Plaintiff's objections to this request, except to the extent that Plaintiff contends the requested statements are privileged. Plaintiff shall submit the requested statements to the Court for an in camera inspection. Said documents shall be provided to the Court by May 11, 2001 The Court will then determine whether any of the statements are privileged and not subject to discovery.
3. Request for Production No. 5
The Court will sustain Plaintiff's objection that this request is overly broad and will limit the j request to the period of Plaintiff s employment with the Unified Government through the present and j the two — year period prior to that employment. All other objections to this request are overruled.
4. Request for Production No. 6
The Court will sustain Plaintiff's objection that the request is overly broad in that it requests releases for medical and psychological records from 1983 to the present. The Court will limit the request to the period of Plaintiff's employment with the Unified Government through the present and the two — year period prior to that employment. The Court will overrule all other objections, including Plaintiff's objection that none of the releases for these records need be provided because Plaintiff will not present any expert testimony in support of her claim for mental anguish and emotional distress damages. (See discussion above in Part IV. A.2.f., addressing the Unified Government's Interrogatory No. 31.)
5. Request for Production No. 7
The Court sustains Plaintiff's objection that this request is overly broad in that it requests releases for educational records for an unlimited period of time. The Court will limit the request to the period of Plaintiff's employment with the Unified Government. The Court overrules all other objections to this request.
6. Request for Production No. 10
Plaintiff objects to producing any documents that she provided to or received from the Equal j Employment Opportunity Commission ("EEOC"), Kansas Human Rights Commission ("KPIRC") or j any other administrative agency concerning her allegations because she contends that they are protected work product. The Court finds that Plaintiff waived any work production protection these documents might have enjoyed by disclosing them to the EEOC or other agency. See McCoo v. Denny's, Inc., No 98-2458-RDR, 2000 WL 307315, *l-2 (D. Kan. Mar. 21 2000) (party waives work product immunity j by providing document to KHRC). The Court also overrules Plaintiff's objection that any such documents she received from the EEOC or other agency are work product, in that such document would not have been prepared by Plaintiff, her counsel, or representative. See Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000) (party asserting work product protection must establish, inter alia, that the materials "were prepared by or for a party or a representative of that party") (quoting Fed. R Civ. P. 26(b)(3)).
Plaintiff also objects to producing any documents provided to or received from the EEOC or j other agency on the grounds they are attorney — client privileged. The Court overrules that objection j also. If Plaintiff provided any attorney — client document to a third party such as the EEOC, the privilege | would have been waived. If Plaintiff received the document from the EEOC or other agency there would be no basis to claim that it was an attorney — client communication in the first place.
In light of the above, the Court will grant the Motion to Compel as to any documents Plaintiff j received from or provided to the EEOC, KHRC, or other administrative agency relating to Plaintiff's allegations. The Court will sustain Plaintiff's assertion that all other documents responsive to this | request are privileged or protected by work product and will deny the Motion to Compel as to those documents.
E. Defendants' Request for Sanctions (doc. 76-2)
Because the Court has denied in part and granted in part Defendants' Motion to Compel, the j Court will deny the request for sanctions. Each party shall bear its/his/her fees and expenses incurred in connection with the Motion to Compel.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff's Motion to Extend Time (doc. 92) is granted.
IT IS FURTHER ORDERED that Plaintiff's Motion to Extend Time (doc. 95) is denied, IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to File Memorandum in Opposition to Motion to Strike Out of Time (doc. 117) is denied.
IT IS FURTHER ORDERED that Defendants' Motion to Strike (doc. 94) is granted. Plaintiff's Memorandum in Opposition to Motion to Compel (doc. 97) is hereby striken.
IT IS FURTHER ORDERED that Defendants' Motion to Compel (doc. 76) is granted in part and denied in part, as set forth herein. All documents required to be produced as a result of this Memorandum and Order shall be produced by Plaintiff by May 21, 2001 . Said production shall take place at the offices of Defendants' counsel or at any other location agreed upon by the parties. Plaintiff shall submit to the Court for an in camera inspection the claimed privileged statements responsive to the Municipal Defendants' Request for Production No. 3. Said statements shall be submitted to the Court by May 11, 2001. The Court will then determine whether any of the statements are privileged and not subject to discovery. All supplemental responses required to be served on Defendant(s) as a result of this Memorandum and Order shall be served by May 21, 2001 .
IT IS FURTHER ORDERED that Defendants' request for sanctions in connection with the filing of the Motion to Compel (doc. 76-2) is denied. Each party shall bear its/his/her own fees and expenses incurred in connection with the Motion to Compel.
IT IS SO ORDERED.