Opinion
Case No. 99-4186-RDR
January 11, 2001
MEMORANDUM AND ORDER
Pursuant to Fed.R.Civ.P. 37(a), this case comes before the Court on the motion of the plaintiff, Deborah K. Haid, to compel discovery compliance by the defendant, WalMart Stores, Inc. (doc. 49). Defendant has filed a responsive brief (doc. 53), and plaintiff has filed a reply brief (doc. 57).
Plaintiff requests that the Court compel answers to Plaintiffs First Interrogatories Nos. 8, 10, 14, 16, 19, 20, and 21, and Plaintiffs Third Interrogatories No. 1, and to compel production of the documents requested in Plaintiff's First Request for Production of Documents Nos. 2, 3, 5, 9, 15, and 17, and Plaintiff's Third Request for Production of Documents No. 1.
Plaintiff's motion lists Interrogatory No. 15 and Request for Production No. 10 at issue. However, plaintiff has not addressed either of these discovery requests in her supporting memorandum. Therefore, the Court will not address these particular discovery requests.
Plaintiff has requested that the Court hear oral argument on her motion, and each party has asked the Court to impose sanctions against the other party. The Court has determined oral argument would not materially assist it in the determination of the pending matters. Therefore, plaintiff's request for oral argument is denied. However, as explained below, the Court will deal with the issue of sanctions.
The Court initially notes that the instant motion does not comply with D. Kan. Rule 37.1, in that it is not accompanied by copies of the interrogatories, requests and responses in dispute. Notwithstanding, the briefs filed by the parties have provided the Court with sufficient information to address the merits of the motion.
Defendant preliminarily argues that plaintiff s motion to compel should be overruled on the ground that plaintiff supposedly waived her objections to defendant's responses, by failing to file a motion to compel within thirty days of the default or service of the responses as required by the Court's February 9, 2000-Scheduling Order. This argument is without merit. Plaintiff originally filed a motion to compel regarding the responses in dispute on April 14, 2000. On April 25, 2000, the Court issued an Order (doc. 22) finding that plaintiff's efforts to resolve the disputed matters were insufficient and overruling the motion without prejudice for reassertion in the event plaintiff's attempts to confer with defendant were unsuccessful. The record reflects that plaintiff's counsel then conferred or attempted to confer with various attorneys who have represented defendant in this case regarding the disputed matters on a regular basis from May 8, 2000 through September 25, 2000 — eleven days prior to filing the instant motion. Accordingly, under the circumstances, the Court considers the instant motion timely filed.
Turning to the merits of the motion, the Court notes that plaintiff, in her reply brief, claims that Interrogatory No. 10 was inadvertently included in the motion to compel. The motion is deemed moot as to this interrogatory.
Interrogatory No. 8 requests a detailed description of any previous incidents of which defendant is aware, occurring in substantially the same way as plaintiff's accident, or in the same or nearby location. Defendant has objected to the interrogatory on the grounds it seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Specifically, the defendant claims the interrogatory is not limited to the occurrence in question, to a reasonable period of time prior to such occurrence, or to the Topeka WalMart Store. Defendant also objects on the grounds that the interrogatory is vague and indefinite as to what is meant by plaintiff's "accident" and improperly assumes a fact that is in issue, that is, whether there was in fact an accident. Notwithstanding its objections, defendant claims it has provided the name and address of the one person involved in an incident at the subject store or nearby location.
In her reply, plaintiff claims that defendant did not provide a supplemental response to this interrogatory until after it served its memorandum in opposition to the motion to compel discovery. Plaintiff also claims it is doubtful the information provided is fully responsive, because the interrogatory requests information on certain types of falls at all WalMart locations, not just the "same or nearby location" to the one where plaintiff fell. However, in an effort to address defendant's objections as to the scope of the interrogatory, plaintiff states she has informed WalMart that it can limit its responses to falls on waxed paper at store locations having a bakery.
The discovery requests at issue here were served and responded to before the December 1, 2000-amendments to the Federal Rules of Civil Procedure. The allowable scope of discovery is as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . . The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1). Relevancy is broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy, for purposes of discovery, encompasses "any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Discovery requests should be considered relevant if there is any possibility that the information sought may be relevant to the subject matter of the action. Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. 583, 585 (D. Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999).
A party does not have to present a prima facie case to justify a request which appears reasonably calculated to lead to the discovery of admissible evidence. When the discovery appears relevant, the burden is on the party objecting to show the discovery is not relevant. Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D. Kan. 1991). When relevancy is not apparent, it is the burden of the party seeking discovery to show the relevancy of the discovery request. Ratts v. Board of County Comm'rs, 189 F.R.D. 448, 450 (D. Kan. 1999) (citations omitted.).
The Court finds the information sought by Interrogatory No. 8, as limited by plaintiff, appears relevant. Defendant has not met its burden showing the requested information is not relevant. Accordingly, the objection is overruled.
The objection that the interrogatory is overly broad and burdensome is also overruled. The objecting party has the burden to substantiate its objections. Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540 (10th Cir. 1984), cert. dismissed, 105 S.Ct. 983 (1985). The objecting party must show that the burden or expense is unreasonable in light of the benefits to be secured from the discovery. Defendant's objection is unsupported by an affidavit or specific facts. Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D. Kan. 1991). The Court also finds defendant's objection that the interrogatory is vague and indefinite without merit. Accordingly, within eleven days from the date this Memorandum and Order is filed, defendant shall serve a supplemental answer which is fully responsive to this interrogatory, as limited by plaintiff.
Interrogatory No. 14 requests the name, address, and telephone number of the person or persons who choose or approved the floor tile for the area in Store 1802, which includes the floor near the donut counter as it existed May 16, 1998. Defendant claims it believed the admission that the floor had not been changed since the time of the accident would result in the withdrawal of this interrogatory. In her reply, plaintiff claims this interrogatory is still in dispute and has not been resolved by the parties.
The Court notes that, in the January 19, 2000-letter from defendant's counsel to plaintiff's counsel, defendant agreed to provide an answer to this interrogatory. Accordingly, within eleven days from the date this Memorandum and Order is filed, defendant shall serve a supplemental answer to this interrogatory.
See attachments to Plaintiff's Motion to Compel (doc. 49).
Interrogatory No. 16 requests a description of any claims or lawsuits that were brought against defendant between January 1, 1996 and May 16, 1998, by reason of an accident or injury at the same or similar location, or for a similar type of accident on defendant's premises at some other location. Defendant objects on the grounds that the interrogatory seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence and is over broad and burdensome. Defendant claims it would cost thousands of dollars to perform the type of search necessary to respond to the interrogatory. Defendant then refers to an "Affidavit to be filed before hearing." Defendant also objects that the interrogatory is vague and indefinite.
In her reply, plaintiff claims she has informed WalMart that it can limit its response to only those stores which have a bakery for the time period between January 1, 1996 and May 16, 1998.
The Court initially finds that defendant was required to provide support for its objection based on burdensomeness at the time it served its response, not at some tentative date in the future. Accordingly, defendant's objection on this basis is overruled.
In light of the limitation as to the scope of the information requested by plaintiff, and for the reasons set forth above with respect to Interrogatory No. 8, the Court overrules defendant's objection based on relevancy. Accordingly, within eleven days from the date this Memorandum and Order is filed, defendant shall serve a supplemental answer which is fully responsive to this interrogatory, as limited by plaintiff.
As to Interrogatory No. 19, defendant claims it has advised plaintiff that it does not know the name of the maintenance person who responded to the alleged accident. The Court cannot compel a party to provide information it does not have. However, if defendant has not provided a supplemental answer to this interrogatory, under oath, defendant has eleven days from the date this Memorandum and Order is filed to do so.
As to Interrogatory No. 21 and Plaintiff s Third Interrogatories, No. 1, plaintiff states in her reply that the requested information was provided by defendant in its supplemental response served after the filing of the response to the motion to compel. The motion as to these interrogatories is, therefore, overruled as moot.
As to Request Nos. 2 and 3, it appears plaintiff has received only a verbal representation by defendant that all relevant statements at the store incident level have been provided. The Court orders defendant to serve supplemental responses to these requests within eleven days from the date this Memorandum and Order is filed.
Request No. 5 seeks "any and all reports or other documents prepared by defendant concerning the subject occurrence." Defendant claims it has produced all the information requested with the exception of attorney-client communications which it is withholding as privileged. Plaintiff claims defendant has not produced the floor plans which it had previously agreed to produce as agreed and, a privilege log describing the documents it is withholding as privileged, as required by Fed.R.Civ.P. 26(b)(5). Defendant acknowledges it has not provided a privilege log. Instead, defendant questions whether it should "be forced to incur the time and expense of drafting a privilege log for a request that is patently improper."
See Defendant's Memorandum in Opposition to Plaintiff's Motion to Compel Discovery, at page 9.
Fed.R.Civ.P. 26(b)(5) clearly 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" (emphasis added).
The judges in this district have consistently held that the party asserting the attorney-client privilege and work product immunity has the burden of establishing that the privilege/immunity applies. See McCoo v. Denny's Inc., 192 F.R.D. 675, 679 (D. Kan. 2000) (citing Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D. Kan. 1995)). To carry the burden, the party must make a clear showing that the asserted objection applies. Id. (citing Ali v. Douglas Cable Communications Ltd. Partnership, 890 F. Supp. 993, 994 (D. Kan. 1995)). The party asserting the privilege must "describe in detail" the documents or information sought to be protected and provide "precise reasons" for the objection to the discovery. Id. (citing National Union Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D. Kan. 1994)). The cases in this district have consistently held that "[a] party's failure to meet this burden when the trial court is asked to rule upon the existence of the privilege/work product immunity is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made. McCoo v. Denny's Inc., 192 F.R.D. at 680 (citing Peat, Marwick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984)).
The Court initially finds the request is not so overly broad as to relieve defendant of its obligation to provide a privilege log as required by Rule 26(b)(5) and the well-established law in this district. Without seeking and receiving relief from the Court in the nature of a protective order, defendant was obligated to provide a privilege log at the time it responded to the requests. Defendant made a strategic and tactical decision to remove this case from state to federal court. Yet, for some strange reason, defendant chose not to prepare the privilege log that is plainly required in federal practice. In any event, the Court finds defendant has failed to meet its burden to timely show that the documents it is withholding are privileged attorney-client communications. Defendant's objections therefore, have been waived. Defendant shall provide all documents responsive to this request within eleven days from the date this Memorandum and Order is filed.
Unlike Fed.R.Civ.P. 26(b)(5), Kansas state practice does notrequire a privilege log, at least by statute, rule, or precedent. But see Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 (2000) (state trial judge could, as a matter of discretion, require a privilege log in a particular case). If defendant is truly troubled by the supposed burden of complying with Rule 26(b)(5) in federal court (and frankly the Court is left unpersuaded that such is the case), presumably in the future defendant will take that supposed burden into account when deciding whether to remove fairly routine matters from Kansas state court.
Request No. 9 seeks "any and all documents of any insurance company or adjusting company, including Claims Management, Inc., which reviewed or investigated the subject occurrence." Defendant has objected on the grounds that the documents sought are attorney-client communications and work product. In its response to plaintiff's motion, defendant requests that "in the event that the Court considers this motion given the fatal procedural defect," it be allowed twenty days to produce a privilege log.
Defendant's objection to plaintiff s motion on the grounds it is "procedurally flawed" has been overruled by the Court. As to defendant's request for time to provide its privilege log, the Court finds any privileges defendant may have asserted have been waived. As previously stated, defendant was obligated to provide a privilege log at the time it served its response to the requests. Defendant shall provide all documents responsive to this request within eleven days from the date this Memorandum and Order is filed.
Request No. 15 seeks "any and all personal notes, memorandum, diaries, personal journal, appointment books, reports, correspondence, notes and other documents which were prepared by defendant's agents or employees, or maintained by defendant which relate in any way to the claims on this lawsuit." Defendant has objected to this request on the grounds that it is over broad and seeks attorney-client communications and work product.
The Court finds that Request No. 15 is not over broad. The Court also finds, for the reasons stated above, any claims of privilege or immunity defendant may have asserted have been waived. Defendant shall provide all documents responsive to this request within eleven days from the date this Memorandum and Order is filed.
As to Request No. 17, defendant claims that all the requested documents have been disclosed. Plaintiff argues that defendant has not provided a formal supplemental response. If not previously provided, defendant shall supplement its response to this request within eleven days from the date this Memorandum and Order is filed.
Plaintiffs Third Request for Production of Documents, Request No. 1 seeks "copies of any and all documentation concerning Kandi Riley-Goheen's fall at WalMart Store No. 1802, claim no. 96526399, on April 5, 1996." Defendant has objected to this request on the grounds it is not reasonably calculated to lead to the discovery of admissible evidence and that it seeks attorney-client communications.
The discovery sought appears relevant. Defendant has not met its burden showing that the requested documents are not relevant. Defendant's objection on this basis is overruled.
For the reasons stated above, the Court finds that any claims of privilege or immunity defendant may have asserted have been waived. Defendant shall provide all documents responsive to this request within eleven days from the date this Memorandum and Order is filed.
The Court next turns to the parties' cross-requests for fees. Plaintiff has requested sanctions pursuant to Fed.R.Civ.P. 37(a)(4)(A). Defendant requests that the Court deny plaintiff's request for sanctions, and instead impose sanctions against plaintiff due to the untimeliness of the filing of the instant motion in violation of the Court's Scheduling Order, and plaintiff's failure to confer with defendant with respect to the third interrogatories and request for production of documents before filing the instant motion to compel.
The Court first addresses defendant's request for sanctions. "The Court is well aware of counsel's obligations to act as an advocate for his/her client and to use legal procedure for the fullest benefit of the client.See Kansas Sup.Ct. Rule 226, KRPC 3.1 cmt. Those obligations, however, must be tempered against counsel's duty not to abuse legal procedure." McCoo v. Denny's, Inc., 192 F.R.D. 675, 697-98 (D. Kan. 2000) (Waxse, M.J.). Defendant's arguments in support of its request that the Court impose sanctions against plaintiff in this matter are wholly unpersuasive. Indeed, such arguments are so devoid of merit that they only hurt the credibility of defendant in this Court. As previously noted, the instant motion was filed by plaintiff after her counsel had made repeated efforts for more than four months to resolve the disputed issues. As to defendant's argument that plaintiff did not confer regarding Plaintiff s Third Request for Production of Documents, Request No. 1 and Plaintiffs Third Interrogatories, No. 1 prior to filing her motion, plaintiff claims her counsel did advise defense counsel that she intended to include these issues in her motion. Even if plaintiff had not conferred regarding these two issues, such conduct certainly would not warrant the imposition of sanctions. Therefore, defendant's request for sanctions is denied.
As to plaintiff's request for sanctions, Fed.R.Civ.P. 37(a)(4)(A) provides:
[i]f the motion is granted or if the disclosure or requested discovery is provided after the motion was filed . . . the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of time to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Rule 37(a)(4) requires that before sanctions may be imposed against a party, the Court must afford the party an "opportunity to be heard." Plaintiff requested sanctions in her motion to compel. Defendant's response addressed the issue of sanctions. The Court, therefore, finds that defendant has had sufficient "opportunity to be heard" within the meaning of Fed.R.Civ.P. 37.
The Court finds sanctions against defendant are warranted in this matter. It is undisputed that defendant did not serve supplemental responses upon plaintiff to many of the interrogatories and requests in dispute until after plaintiff filed the instant motion. Defendant has failed to offer any explanation for such failure. The Court, in this Order, has overruled the majority of defendant's objections, most because they were simply without merit. The Court has found that defendant has failed to comply with the clear mandate in Fed.R.Civ.P. 26(b)(5) regarding the withholding of documents as privileged or protected. Further, the position advanced by defendant in its response with regard to production of a privilege log is frivolous and contrary to the statutory and case law in this district. Accordingly, the Court deems it just to require defendant to pay plaintiff the reasonable expenses incurred in making the motion, including attorney's fees.
The Court will not consider the award of expenses and attorney's fees until plaintiff has advised the Court in writing that, after consultation promptly initiated by plaintiff with defendant, the parties have been unable to reach an agreement with regard to the award. The statement of consultation shall set forth the date of the consultation, the names of those who participated, and the specific results achieved.
If the parties reach an agreement, they shall file an appropriate stipulation and request for an Order. If they are unable to agree, plaintiff shall file, on or before February 2, 2001, the statement of consultation and an affidavit itemizing the expenses, including attorney's fees, that plaintiff incurred in bringing this motion. Defendant shall have until February 16, 2001, to file a response to the affidavit. To aid the Court in its determination of whom the sanction should be imposed upon, defendant should include its position on this issue in its response to the affidavit.
In consideration of the foregoing,
IT IS HEREBY ORDERED:
1. Plaintiff's motion to compel discovery (doc. 49) is granted in part and overruled in part.
2. Plaintiff's request for sanctions is granted.
3. Defendant's request for sanctions is denied.
4. Copies of this Order shall be mailed and faxed by the Clerk to all counsel of record.
Dated at Topeka, Kansas, this 11th day of January, 2001.