Opinion
Civil Action No: 99-2026-CM
April 30, 2002
MEMORANDUM AND ORDER
A hearing was held on Plaintiff's Motion to Compel Production of Documents (doc. 143) before the undersigned Magistrate Judge on April 8, 2002. Plaintiff appeared in person and through counsel Robert K. Ball. All Defendants except Brian McHenry appeared through counsel Mark A. Jess. Defendant Brian McHenry did not appear.
At the hearing, the Court denied in significant part the Motion to Compel. The Court entered an Order on April 10, 2002, memorializing the Court's rulings regarding various claims of privilege asserted by Defendants TCI of Overland Park, Inc. ("TCI") and Tele-Communications, Inc. (Tele-Communications). See doc. 173. Pursuant to that Order, said Defendants are to prepare an amended privilege log and submit to the Court for an in camera inspection the documents they contend are privileged, and the parties are to submit various briefs regarding privilege issues. As the Order indicated, the Court will defer ruling on all privilege and work product protection issues until such briefing is complete and the Court has reviewed in camera the documents provided by TCI and Tele-Communications.
At the hearing the Court ruled on various other aspects of Plaintiff's motion to compel. This Order will expand on and memorialize those rulings.
I. Defendant TCI Holdings, Inc. Is Not a Proper Party to this Motion
Plaintiff moves for an order compelling TCI, Tele-Communications, and TCI Holdings, Inc. to produce documents in response to Plaintiff's Request for Production of Documents. The Court holds that Plaintiff's motion is properly directed to only two of the defendants — TCI and Tele-Communications (which Plaintiff mistakenly refers to as "Telecommunications"). The motion to compel is not properly directed to TCI Holdings, Inc., as that entity was dismissed from the case on February 2, 2001. See doc. 95. The motion to compel is therefore denied in its entirety as it applies to TCI Holdings, Inc.
II. Analysis
A. Request for Production No. 2
Based on the representations made by TCI and Tele-Communications ("Responding Defendants") at the hearing, the Court finds that Responding Defendants have produced all documents responsive to this request, with the exception of any documents that Responding Defendants claim are privileged or protected work product. The Court cannot compel the production of documents that do not exist. Bradley v. Val-Mejias, No. 00-2395-GTV, at *7 (D.Kan. Oct. 9, 2001). The motion to compel will therefore be denied as to this request for production, except to the extent that Responding Defendants contend they have documents responsive to this request that are privileged or protected by the work product doctrine. Responding Defendants shall include those documents in their amended privilege log. As discussed above, the Court will defer ruling on any assertions of privilege and work product protection until briefing on the privilege issues is completed.
B. Request for Production No. 3
This request seeks "[a]ny records showing the transmittal of funds received from cable subscribers of the system maintained by TCI . . . for the period of time from its responsibility for such system to the date of termination of its responsibility for that system." The Court sustains Responding Defendants' objections that the request is overly broad and burdensome. The motion to compel will therefore be denied as to this request, except to the extent that Responding Defendants contend they have documents responsive to this request that are privileged or protected by the work product doctrine. Responding Defendants shall include those documents in their amended privilege log. The Court will defer ruling on any assertions of privilege and work product protection until briefing on the privilege issues is completed.
C. Request for Production No. 4.a
This request seeks federal corporate tax returns and financial statements for the Responding Defendants, TCI Holdings, Inc., and TCI Communications, Inc. The motion to compel is denied as to all of the tax returns inasmuch as Plaintiff has not met his burden to show that (1) the returns are relevant to any of his claims or to any of Defendants' defenses, and (2) there is a compelling need for the returns See Hilt v. SFC. Inc., 170 F.R.D. 182, 189 (D.Kan. 1997) (requesting party has burden to show that tax returns are relevant and that a compelling need exists for them). The motion to compel is also denied as to the tax returns of TCI Communications, Inc. for the additional reasons that the request for production was not directed to TCI Communications, Inc. and its returns are not in the possession, custody, or control of the Responding Defendants. The motion to compel is also denied as to the tax returns of TCI Holdings, Inc., because, as noted above, TCI Holdings, Inc. has been dismissed from this case, and its returns are not in the possession, custody, or control of the Responding Defendants.
D. Request for Production No. 4.e
This request seeks documents relating to the charge accounts formerly maintained for TCI. The Court finds that, as written, this request is overly broad and unduly burdensome. The Court will, however, allow Plaintiff to serve a more narrow request on Responding Defendants seeking documents showing that Tele-Communications, Inc., paid any charge accounts bills of TCI from 1994 up until the time that Time-Warner Cable began managing the Overland Park cable system. Plaintiff shall serve this revised request on Responding Defendants within ten (10) days of the date of filing of this Memorandum and Order. Responding Defendants shall have twenty (20) days thereafter to object and/or respond to the revised request.
E. Request for Production No. 4.e(5)
This request seeks documents relating to workers' compensation coverage provided for TCI, including any such documents of GAB Robbins, the third-party administrator of TCI's workers' compensation claims. Based on the representations made by Responding Defendants at the hearing, the Court finds that Responding Defendants have produced all documents responsive to this request, with the exception of any documents that Responding Defendants claim are privileged or protected work product. The motion to compel will therefore be denied as to this request for production, except to the extent that Responding Defendants contend they have responsive documents that are privileged or protected work product. Responding Defendants shall include those documents in their amended privilege log. As noted above, the Court will defer ruling on any assertions of privilege and work product protection until briefing on the privilege issues is completed.
F. Request for Production No. 5
This request seeks personnel, payroll, and job performance records of Time-Warner Cable and TCI relating to all individuals who were employed by TCI and who were not retained by Time-Warner Cable. The motion to compel will be denied as to the records of Time-Warner Cable in that it is not a party to this lawsuit and the requested Time-Warner Cable documents are not in the possession, custody, or control of Responding Defendants. In addition, the motion to compel will be denied as to the records of TCI on the basis that the request is overly broad.
G. Request for Production No. 6
Based on the representations made by Responding Defendants at the hearing, the Court finds that Responding Defendants have produced all documents responsive to this request. The motion to compel will therefore be denied as to this request.
H. Request for Production No. 7(g)-(n)
These requests seek records of Time-Warner Cable and TCI relating to certain employees. The motion to compel will be denied as to the records of Time-Warner Cable for the reasons set forth above with respect to Request for Production No. 5. As to the records of TCI, the Court will grant the motion to compel but only as to payroll records for the time period covered by the statute of limitations applying to Plaintiff's overtime pay claim. To the extent Responding Defendants contend that any such payroll records for the relevant time period are privileged or protected by the work product doctrine, Responding Defendants shall identify them in their amended privilege log. The Court will defer ruling on any assertions of privilege and work product protection until briefing on the privilege issues is completed. The motion to compel is denied in all other respects as to the records of TCI.
I. Request for Production No. 8
This request seeks payroll and personnel records of Time-Warner Cable and TCI relating to Plaintiff. The motion to compel will be denied as to the records of Time-Warner Cable for the reasons set forth above with respect to Request for Production No. 5. As to TCI's records, Responding Defendants represented at the hearing that they had produced all responsive documents except for those that they contend are privileged or protected by work product. The Court will therefore deny the motion to compel as to this request except to the extent that Responding Defendants contend they have documents responsive to this request that are privileged or protected by the work product doctrine. Responding Defendants shall include those documents in their amended privilege log, and, as discussed above, the Court will defer ruling on any assertions of privilege and work product protection until briefing on the privilege issues is completed.
J. Request for Production Nos. 9 and 10
Request No. 9 seeks all Time-Warner Cable and TCI documents setting forth the employment discrimination policies of TCI that were continued by Time-Warner Cable. Request No. 10 seeks the same documents, but only those that set forth those TCI policies which were discontinued by Time-Warner Cable. For the reason set forth above with respect to Request No. 5, the Court will deny the motion to compel as to the requested Time-Warner documents. As to the requested TCI documents, Responding Defendants represented at the hearing that they had produced all documents responsive to this request. The Court will therefore deny the motion to compel as to Request Nos. 9 and 10.
K. Request for Production No. 11
This request seeks certain employee drug testing records. Responding Defendants represented at the hearing that they have produced all responsive documents except for those that they contend are privileged or protected by the work product doctrine. The Court will therefore deny the motion to compel as to this request except to the extent that Responding Defendants contend they have documents responsive to this request that are privileged or protected by the work product doctrine. Responding Defendants shall include those documents in their amended privilege log. As set forth above, the Court will defer ruling on any assertions of privilege and work product protection until briefing on the privilege issues is completed.
L. Request for Production No. 12
This request seeks certain documents regarding wrist supports for employees. Again, Responding Defendants represented that they have produced all responsive documents except for those that they contend are privileged or protected by the work product doctrine. The Court will therefore deny the motion to compel as to this request except to the extent that Responding Defendants contend they have documents responsive to this request that are privileged or protected by the work product doctrine. Responding Defendants shall include those documents in their amended privilege log, and the Court will defer ruling on those assertions of privilege and work product protection until briefing on the privilege issues is completed.
M. Request for Production No. 13
This request seeks certain overtime payroll records for the time period 1994 through 1996. Responding Defendants produced the requested documents for the year 1996. Responding Defendants objected to producing the documents for the years 1994-1995 on the basis that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The Court overrules those objections and grants the motion to compel as to the requested documents for the time period 1994-1995. Within ten (10) days from the date of filing of this Order, Responding Defendants shall produce the requested documents, with production to take place at Plaintiff's counsel office or any other location agreed upon by the parties . . .
N. Request for Production No. 14
This request seeks the "investigative file" relating to Plaintiff. Responding Defendants assert that they have produced all documents from this file except for those documents that they contend are privileged or protected by the work product doctrine. The Court will therefore deny the motion to compel as to this request except to the extent that Responding Defendants assert they have documents responsive to this request that are privileged or protected by the work product doctrine. Responding Defendants shall include those documents in their amended privilege log, and the Court will defer ruling on those assertions of privilege and work product protection until briefing on the privilege issues is completed.
III. Fees and Expenses Incurred in Relation to this Motion to Compel
Pursuant to Federal Rule of Civil Procedure 37(a)(4)(C), when a court grants in part and denies in part a motion to compel, the court may "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Fed.R.Civ.P. 37(a)(4)(C). Here, the Court finds it appropriate and just for each party to bear its/his own expenses and fees incurred in connection with the motion to compel.
IT IS THEREFORE ORDERED that Plaintiff's Motion to Compel Production of Documents (doc. 143) is denied in its entirety as to TCI Holdings, Inc.
IT IS FURTHER ORDERED that Plaintiff's Motion to Compel Production of Documents (doc. 143) is denied in part and granted in part as set forth herein.
IT IS FURTHER ORDERED that all documents required to be produced as a result of this Memorandum and Order shall be produced by Defendants TCI of Overland Park, Inc. and/or Tele-Communications, Inc. within ten (10) days of the date of filing of this Memorandum and Order . Said production shall take place at the offices of Plaintiff's counsel or at any other location agreed upon by the parties.
IT IS FURTHER ORDERED that Plaintiff shall have the opportunity to serve on TCI of Overland Park, Inc. and Tele-Communications, Inc. a revised Request for Production No. 4.e, as set forth herein. Plaintiff shall serve this revised request on said Defendants within ten (10) days of the date of filing of this Memorandum and Order . Defendants shall have twenty (20) days thereafter to object and/or respond to the revised request.
IT IS FURTHER ORDERED that each party shall bear his/its own fees and expenses incurred in relation to this motion to compel.
IT IS SO ORDERED.