Opinion
No. 97-4192-RDR
March 8, 2000.
MEMORANDUM AND ORDER
Under consideration are the following motions:
1. Motion to compel discovery (doc. 72), filed by defendant Willis and defendant Willis Holmes, P.A. and motion to reconsider motion to compel discovery (doc. 111), filed by defendant Raymond and defendant Schultz Lonker, Chtd.;
2. Motion to compel discovery (doc. 86), filed by defendant Willis and defendant Willis Holmes, P.A.;
3. Motions for protective order with regard to Willis and Raymond depositions, filed by all Defendants (docs. 84 and 94) and motion to preserve the depositions of Willis and Raymond (doc. 110), filed by Plaintiff;
4. Motion to amend the Complaint (doc. 90), filed by Plaintiff and motion for leave to amend its statement of damages (doc. 124), filed by Plaintiff; and
5. Motions to modify scheduling order (docs. 106, 118 and 121), filed by all Defendants.
A. The Duty to Confer
Before discussing the substantive issues raised by the myriad of motions currently pending in this matter, the Court first will address the parties' duty to confer. As a preliminary matter, many of the pending motions do not comply with federal and local rules requiring the parties to certify that they have "in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." See Fed.R.Civ.P. 37(a)(2)(B); D.Kan. Rule 37.2. Some motions contain no certification, whereas others simply refer to unanswered correspondence demanding discovery.
A single letter between counsel which addresses the discovery dispute does not satisfy the duty to confer. Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 302 (D.Kan. 1996). "A `reasonable effort to confer' means more than mailing a letter to opposing counsel." Porter v. Brancato, No. Civ. A. 96-2208-KHV, 1997 WL 150050 at *1 (D.Kan. Feb. 24, 1997). "It requires that counsel converse, confer, compare views, consult and deliberate." Id. Although the Court will consider all motions pending at this time, counsel strongly are advised by this Court to "reasonably confer" as defined herein before filing any future motions.
B. Factual Background
On April 5, 1995, Teets Food Distribution Company ("the debtor" or "Teets") filed a petition for relief under Chapter 11 of the United States Bankruptcy Code. Pursuant to a provision within the bankruptcy code, the debtor continued to operate its business as a debtor in possession. Jeffrey L. Willis of Willis Holmes, P.A. and Bill H. Raymond of Schultz Lonker, Chtd. (collectively "Defendants") served as attorneys for the debtor throughout these bankruptcy proceedings.
On or about April 13, 1995, the debtor filed an adversary proceeding against Simmons Foods, Inc. ("Simmons" or "Plaintiff") seeking to set aside Simmons' claimed security interest in the debtor's accounts receivables. On October 10, 1995, the debtor filed a Plan of Reorganization and a Disclosure Statement which, consistent with assertions within the pending adversary proceeding, identified Simmons as an unsecured creditor.
On January 12, 1996, the debtor filed an Amended Plan and Disclosure Statement. The Amended Plan identified Simmons as a secured creditor and provided for payment to Simmons upon collection of the debtor's accounts receivables. Simmons asserts it voted in favor of the debtor's reorganization plan on the basis of its treatment as a secured creditor pursuant to the January 12, 1996 Amended Plan and Disclosure Statement.
Simmons received its first payment under the approved Amended Plan on March 31, 1996 but did not receive any further payments. Simmons contends it did not receive further payments due to the fact that many of the accounts receivables identified in the debtor's Amended Plan and Disclosure Statement were uncollectible bad debts. Simmons further contends that, although the attorneys representing the debtors knew or should have known when it filed the Amended Plan and Disclosure Statement that many of the accounts receivables were uncollectible, the debtor's attorneys failed to communicate this information to Simmons or to the Bankruptcy Court. Simmons now brings the instant lawsuit against the debtor's attorneys for negligence, detrimental reliance and fraud in conjunction with the debtor's bankruptcy proceedings. Relevant to the motions pending before the Court, attorney Brock Snyder ("Snyder") represented Simmons in the underlying bankruptcy proceedings and currently represents plaintiff Simmons in this action as well.
C. Discussion
1. Willis Defendants' Motion to Compel Discovery (Doc. 72);
Raymond Defendants' Motion to Reconsider (Doc. 111)
The Court first considers the motion of defendant Willis and defendant Willis Holmes, P.A (hereinafter collectively referred to as "Willis Defendants") for an order compelling discovery. Pursuant to Fed.R.Civ.P. 37, Defendants seek an order to compel Plaintiff to answer discovery and to produce documents. Plaintiff objected to the requested discovery on grounds of attorney-client privilege when it originally responded to the discovery.
"In federal court, the determination of what is privileged depends upon the dictates of Rule 501 of the Federal Rules of Evidence." ERA Franchise Sys., Inc. v. Northern Ins. Co., 183 F.R.D. 276 (D.Kan. 1998) ( quoting Fisher v. City of Cincinnati, 753 F. Supp. 692, 694 (S.D.Ohio 1990)). Pursuant to Rule 501, state law governs claims of attorney-client privilege in a diversity action. Pacific Employers Ins. Co. v. P.B. Hoidale Co., Inc., 142 F.R.D. 171, 173 (D.Kan. 1992). Accordingly, Kansas law defines the scope of the attorney-client privilege applicable in this case.
Jurisdiction lies before the Court in this matter pursuant to 28 U.S.C. § 1332 (diversity jurisdiction.)
K.S.A. 60-426 sets forth the attorney-client privilege and the exceptions thereto. The general rule may be summarized as follows:
(1) Where legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) communications made in the course of that relationship (4) made in confidence (5) by the client (6) are permanently protected (7) from disclosure by the client, the legal advisor, or any other witness (8) unless the privilege is waived.State v. Maxwell, 10 Kan. App.2d 62, 63, 691 P.2d 1316, 1319 (1984) (citation omitted); see also, K.S.A. 60-426 (1994). The privilege protects confidential disclosures made by a client to an attorney in order to obtain legal assistance. Fisher v. United States, 425 U.S. 391, 403 (1976) (citations omitted).
There is no real conflict between federal and Kansas law regarding the attorney-client privilege. See Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 405 (D.Kan. 1998); Marten v. Yellow Freight Sys., Inc., No. Civ.A. 96-2013-GTV, 1998 WL 13244, at *4-6 (D.Kan. Jan. 6, 1998). "[T]he Kansas statute concerning the attorney-client privilege and its exceptions is typical of the laws of other jurisdictions." In re A.H. Robins Co., 107 F.R.D. 2, 8 (D.Kan. 1985) (citation omitted.) Whether the court applies federal or Kansas law generally makes no difference in determining whether the attorney-client privilege applies. See Great Plains Mut. Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 196 n. 3 (D.Kan. 1993) (citing K.S.A. 60-426; Wallace, Saunders, Austin, Brown Enochs, Chtd. v. Louisburg Grain Co., 250 Kan. 54, 824 P.2d 933 (1992)). Accordingly, the Court will at times utilize federal case law when it appears consistent with the Kansas law of privilege.
Because it stands as an obstacle to investigation of the truth, however, the privilege should be construed no more broadly than necessary to effectuate its purpose: promoting the freedom of consultation that is essential to full and effective legal representation. Id. at 403 (citations omitted); Great Plains Mut. Ins. Co., Inc. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 196 (D.Kan. 1993). The United States Supreme Court defines the scope of the privilege as follows:
[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, `What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.Upjohn Co. v. United States, 449 U.S. 383 (1981).
a. Willis Defendants' Interrogatories 9 and 10
The Willis Defendants' Interrogatory 9 seeks the date Plaintiff retained attorney Brock Snyder in the underlying bankruptcy action. This interrogatory inquires only into the factual circumstances surrounding the attorney-client relationship. It does not threaten to reveal the substance of any confidential communications. Such "external trappings" of the attorney-client relationship, as opposed to the substantive communications made during the relationship, are not privileged. See e.g., United States v. Anderson, 906 F.2d 1485, 1492 (10th Cir. 1990) (holding information regarding the attorney-client fee arrangement generally is not privileged, because it is not "normally part of the professional consultation."); ERA Franchise Sys., Inc. v. Northern Ins. Co., 183 F.R.D. 276, 280 (D.Kan. 1998) (noting that "federal circuits are uniformly in accord regarding the nonprivileged status of a client's identity and attorney-client fee arrangements") (citations omitted); Cypress Media, Inc. v. City of Overland Park, No. 82,353, 2000 WL 85362, *11 (Kan. Jan. 28, 2000) (holding attorney-client privilege does not apply to every interaction between an attorney and client); Arkansas City Bank v. McDowell, 7 Kan. App. 568, 52 P. 56, 59 (1898) (name of attorney's client not privileged). As such, Plaintiff shall disclose to Defendants within twenty (20) days from the date of this Order the date Plaintiff retained Brock Snyder with respect to the underlying bankruptcy action at issue in this lawsuit.
The Willis Defendants' Interrogatory 10 asks Plaintiff to "state in itemized fashion all amounts paid by Simmons Foods to Brock R. Snyder for legal fees relative to the Teets bankruptcy, setting forth the date of the bill, the amount of the bill, and the date the bill was paid." Plaintiff again objects on grounds of privilege. Relevant to the objection, the Willis Defendants explicitly define "state in itemized fashion" as the (1) date of each bill; (2) amount of each bill; and (3) date each bill was paid.
Based on the definition provided, the interrogatory appears to inquire into only the factual circumstances surrounding the attorney-client relationship. It does not threaten to reveal the substance of any confidential communications. See ERA Franchise Sys., Inc. v. Northern Ins. Co., 183 F.R.D. at 280 (citations omitted) ("federal circuits are uniformly in accord regarding the non-privileged status of . . . attorney-client fee arrangements"); Cypress Media, Inc. v. City of Overland Park, No. 82,353, 2000 WL 85362, at *12-13 (holding narratives in attorney fee billing statements are not per se privileged; rather, parties claiming the privilege must show application). Given the information sought is nonprivileged, Plaintiff shall disclose to the Willis Defendantswithin twenty (20) days from the date of this Order the date and amount of each bill sent to Simmons from Snyder for legal fees relative to the Teets bankruptcy and the date each bill was paid by Simmons.
In addition to privilege, Plaintiff asserts in its response brief that the information requested is not relevant and thus is non-discoverable. Plaintiff, however, waived its right to challenge these requests on grounds of relevancy, because it failed to lodge a timely relevancy objection when it initially responded to the discovery. See Fed.R.Civ.P. 33(b)(4) ("[a]ll grounds for an objection shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown.") Congress supplemented Rule 33 in 1993 "to make clear that objections must be specifically justified, and that unstated or untimely grounds for objections ordinarily are waived." Fed.R.Civ.P. 33 advisory committee notes (1993 amend.)
b. Willis Defendants' Requests 1 and 4;
Raymond Defendants' Requests 1 through 6
The Willis Defendants' Request 1 calls for the entire file of Brock R. Snyder relative to his representation of Simmons in the Teets bankruptcy. The Willis Defendants' Request 4 calls for copies of witness statements taken on behalf of Simmons. The Raymond Defendants' Requests 1 through 6 call for a wide range of documents dealing with the underlying bankruptcy proceedings. Plaintiff responds to all of these requests by stating that the requested documents are available for inspection and copying, "except [for] that part of the request that is privileged" pursuant to the attorney-client privilege and the work product doctrine.
The Raymond Defendants' motion to compel comes before the Court in the form of a motion to reconsider. Their prior motion to compel was procedurally denied without prejudice due to their failure to confer as required by local and federal rules (doc. 100).
"Parties objecting to discovery on the basis of the attorney-client privilege bear the burden of establishing that it applies." ERA Franchise Sys. v. Northern Ins. Co., 183 F.R.D. at 278 (citing Boyer v. Bd of County Comm'rs. 162 F.R.D. 687, 688 (D.Kan. 1995)). "To carry the burden, they must describe in detail the documents or information to be protected and provide precise reasons for the objection to discovery." Id. at 278-79 (citing National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan. 1994)). "A `blanket claim' as to the applicability of a privilege does not satisfy the burden of proof." Id. (citing Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan. 1994)). Parties who withhold discovery on privilege grounds must "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 the information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." Fed.R.Civ.P. 26(b)(5).
Plaintiff fails to satisfy the requirements of Fed.R.Civ.P. 26(b)(5) with respect to its privilege objections. As such, the Court does not possess sufficient information to enable it to determine whether each element of the asserted privilege is satisfied. See Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan. 1995) (holding that a claim of privilege fails upon insufficient evidence as to any element). Given Plaintiff's failure to provide the required information, the Court could grant Defendants' motion to compel. In light of the nature of the requests, however, the Court will defer ruling on Defendants' motion to compel and directs Plaintiff to provide to Defendants within twenty (20) days from the date of this Order a list with "a detailed description of the materials in dispute and . . . specific and precise reasons for [its] claim of protection from disclosure." Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 334 (D.Kan. 1991) (citation omitted); Cypress Media, Inc. v. City of Overland Park, No. 82,353, 2000 WL 85362, at *13-14 (same). The description should include at least the following information for each such document:
1. A description of the document (i.e. correspondence, memorandum, etc.);
2. Date prepared or date notations made;
3. Date of document (if different from #2);
4. Who prepared the document or made notations on the document;
5. For whom the document was prepared and to whom the document was directed;
6. Purpose of preparing the document or making the notations;
7. Number of pages of each document; and
8. Basis for withholding discovery.
Plaintiff claims it is an "undue burden" to create a privilege log because there are "voluminous amounts of [privileged] documents." Without further explanation from Plaintiff, however, the Court finds that compilation of a privilege log is not unduly burdensome. Plaintiff thus is not relieved of its duties under Rule 26(b)(5) based on undue burden. See Transamerica Computer Co. v. IBM, 573 F.2d 646, 649 (9th Cir. 1978) (seventeen million potentially privileged documents). Plaintiff may, however, choose to produce the "privileged" documents at issue in lieu of providing a privilege log as described.
Defendants may then request production of any document for which the claim of privilege appears inadequate or waived by filing supplemental briefs in support thereof. Defendants' supplemental briefs requesting production of documents for which the claim of privilege appears inadequate or waived shall be filed within twenty (20) days after receiving Plaintiff's log.
c. Raymond Defendants' Request 7
Raymond Defendants' Request 7 calls for "[a]ll income tax returns and accompanying schedules of plaintiff for the years 1994 through 1998." The Raymond Defendants sole argument in support of viewing the tax returns is that they will be able to determine whether Plaintiff may have been writing off debts owed to Plaintiff by Teets Foods. They claim that if the debts were written off, it would demonstrate Plaintiff had no real expectation of collecting the accounts receivables from Teets — thus proving Plaintiff had no basis for relying on any representations made by Defendants regarding the same.
In response, Plaintiff states the accounts receivables at issue were converted to a Promissory Note and an agreement signed by Mr. Teets, and thus the tax returns at issue are irrelevant. The Raymond Defendants did not file a Reply Memorandum in response to Plaintiff's Memorandum and thus failed to address Plaintiff's argument.
"Relevancy is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action." Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan. 1991). A party does not have to prove a prima facie case to justify a request which appears reasonably calculated to lead to the discovery of admissible evidence. When the discovery sought appears relevant, [t]he party resisting discovery bears the burden of establishing lack of relevance by demonstrating that the requested discovery either does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1) or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.
Aramburu v. Boeing Co., No. 93-4064-SAC, 1994 WL 810246, at *1 (D.Kan. Sept. 22, 1994). When the relevancy of propounded discovery is not apparent, however, its proponent has the burden to show the discovery relevant. Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 309 (D.Kan. 1996).
Upon consideration of the arguments presented, the Court fails to see how the tax returns are relevant or reasonably calculated to lead to the discovery of admissible evidence. See Gheesling v. Chater, 162 F.R.D. 649, 650 (D.Kan. 1995) (when party seeking discovery fails to show relevance and court cannot otherwise determine how information sought is relevant, court will not compel requested discovery.) The Court will not compel production of the tax returns as requested and this portion of the motion to compel will be denied.
2. Willis Defendants' Motion to Compel Discovery (Doc. 86)
Gary Ely ("Ely") was the accountant for Teets before it filed for bankruptcy. Prior to the instant lawsuit, Simmons sued Ely for accounting malpractice relative to his alleged activities in the Teets bankruptcy matter. That case subsequently was dismissed pursuant to a Settlement Agreement between the parties.
During the May 4, 1999 deposition of Simmons' corporate agent Randolph Hart ("Hart"), Hart refused to answer questions regarding the Settlement Agreement between Simmons and Ely. Hart justified his refusal by stating he was prohibited from commenting on the Agreement because the parties contractually agreed within the Agreement that they would keep it confidential.
The Willis Defendants seek an order compelling Plaintiff, through Hart, to respond to deposition questions regarding the Settlement Agreement between Plaintiff and Ely. Defendants contend they are entitled to discovery regarding the Settlement Agreement because the terms of the Agreement are essential to determine the existence and extent of any bias on Ely's part. Plaintiff argues that the Settlement Agreement is irrelevant to this action.
Fed.R.Civ.P. 26(b)(1) permits discovery of any nonprivileged matter relevant to the case. Information may be discovered even if it would not be admissible at trial, so long as it is reasonably calculated to lead to admissible evidence. Given the broad scope and purpose of the federal discovery rules as described in section C(1)(c) above, as well as the possibility that Hart may be biased, Defendants sufficiently demonstrates the information relating to the Settlement Agreement is relevant and/or reasonably calculated to lead to the discovery of admissible evidence. Accordingly, Hart shall answer questions regarding the Settlement Agreement. To protect the rights of both Plaintiff and Ely to keep their settlement agreement confidential, however, the Court will order Hart to testify in his deposition on this subject pursuant to a Rule 26(c) Protective Order which limits access to the testimony and imposes non-disclosure obligations on all persons obtaining knowledge or possession of the testimony. To that end, the parties shall provide to the Court prior to Hart's deposition a joint proposed Protective Order for the Court's signature.
Neither party suggests the Agreement is privileged, only that it is confidential. Confidentiality does not equate to privilege. Folsom v. Heartland Bank, No. Civ. A. 98-2308-GTV, 1999 WL 322691, *2 (May 14, 1999) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979)).
Many other federal courts also have concluded settlement agreements are discoverable if relevant. See Young v. State Farm Mut. Auto. Ins. Co., 169 F.R.D. 72, 79 (S.D.W. Va. 1996) (settlement agreement discoverable); Doe v. Methacton Sch. Dist., 164 F.R.D. 175, 176 (E.D.Pa. 1995) (recognizing discoverability but declining to allow discovery because not relevant); Vardon Golf Co., Inc. v. BBMG Golf Ltd., 156 F.R.D. 641, 650-51 (N.D.Ill. 1994) (same); Lesal Interiors, Inc. v. Resolution Trust Corp., 153 F.R.D. 552, 563-64 (D.N.J. 1994) (same); Fidelity Fed. Sav. Loan Ass'n v. Felicetti, 148 F.R.D. 532, 534 (E.D.Pa. 1993) (settlement agreement discoverable); Morse/Diesel Inc. v. Trinity Indus., 142 F.R.D. 80, 85 (S.D.N.Y. 1992) (court must determine whether settlement agreement reasonably calculated to lead to the discovery of admissible evidence); Bennett v. La Pere, 112 F.R.D. 136 (D.R.I. 1986) (holding terms of settlement agreement relevant and thus discoverable).
3. Defendants' Motions for Protective Orders (Docs. 84 and 94);
Plaintiff's Motion to Preserve Willis and Raymond Depositions (Doc. 110)
Defendants seek to quash the deposition notices of defendants Willis and Raymond and prohibit Plaintiff from reissuing deposition notices for these two individuals until after Defendants have the opportunity to finish Hart's deposition and to initiate Ely's deposition.
The federal rules provide that, "[u]nless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery." Fed.R.Civ.P. 26(d). Upon a showing of good cause, however, the court may stay or limit the scope of discovery to protect a party from annoyance, embarrassment, oppression or undue burden or expense. Fed.R.Civ.P. 26(c). Notably, Defendants do not assert annoyance, embarrassment, oppression or undue burden or expense with regard to the Willis and Raymond depositions, but instead move the court "in the interest of justice" to dictate the sequence of discovery, because Plaintiff allegedly has attempted to manipulate the discovery process.
Defendants have set forth insufficient facts to quash or stay the depositions of defendants Willis and Raymond. Defendants fail to demonstrate good cause for such protection. Therefore, Defendants' motions will be denied and Plaintiff's motion to preserve these depositions will be granted. The parties are directed to meet and confer to reach an agreement on the sequence of these depositions before issuing such notices.
4. Plaintiff's Motion to Amend Complaint (Doc. 90);
Plaintiff's Motion to Amend Statement of Damages (Doc. 124)
Plaintiff seeks leave of Court to amend its Complaint to add a claim for punitive damages and to amend its statement of damages. Defendants oppose the motions on grounds of untimeliness and prejudice. Plaintiff concedes it filed the motion to amend the Complaint out of time. Plaintiff explains, however, that it was not able to gather sufficient facts to support a claim of punitive damages because the pending protective orders prevented it from deposing the two individual defendants. Plaintiff states it filed the motion to amend as soon as practicable based on information obtained through other discovery.
In its Scheduling Order dated December 30, 1998, this Court ordered all motions to amend the pleadings must be filed on or before February 1, 1999 and further ordered that the date would not be modified except by leave of Court upon a showing of good cause. The instant motion to amend was filed June 4, 1999. Given the explanation provided, the Court finds Plaintiff has shown good cause for filing the motion out of time.
The Court next addresses the standards for amendment. Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Although granting such a motion is within the discretion of the court, the United States Supreme Court has indicated the provision "leave shall be freely given" is a "mandate . . . to be heeded." Foman v. Davis, 371 U.S. 178, 182 (1962). In determining whether to grant leave to amend, the court may consider such factors as undue delay, the moving party's bad faith or dilatory motive, the prejudice an amendment may cause the opposing party and the futility of amendment. Id.
The Court finds no evidence of bad faith or dilatory motive on behalf of Plaintiff. In the absence of a specific factor such as flagrant abuse, bad faith, futility of amendment, or truly inordinate and unexplained delay, prejudice to the opposing party is the key factor to be evaluated in deciding a motion to amend. Little v. Reed-Prentice Div. of Pkg. Mach. Co., 131 F.R.D. 591, 593 (D.Kan. 1990) (citation omitted). Prejudice under Rule 15 "means undue difficulty in prosecuting [or defending] a lawsuit as a result of a change of tactics or theories on the part of the other party." Id. (quoting Deakyne v. Commissioners of Lewes, 416 F.2d 290, 300 (3d Cir. 1969); also citing LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1474 (10th Cir. 1983)). The party opposing the amendment has the burden of showing prejudice. Id. ( citing Beeck v. Aquaslide `N' Dive Corp., 562 F.2d 537, 540 (8th Cir. 1977)).
Defendants argue the proposed amendments will prejudice them. They suggest the amendments will necessitate re-deposition of witnesses, reformulation of defenses and trial theories and submission of additional written discovery. These general suggestions are insufficient to establish "undue difficulty" in defending the lawsuit — especially given the amount of discovery that has yet to be completed given the discovery rulings herein. Defendants fail to show prejudice that is sufficient to preclude the proposed amendments. Plaintiff's motion to amend the Complaint and its motion to amend the statement of damages will be granted.
There are two pending motions filed by the Willis Defendants requesting discovery be extended until after the Court has an opportunity to rule on the various discovery motions before it.
5. Defendants' Motions to Modify Scheduling Order (Docs. 106, 118 and 121)
Pursuant to this Court's Order dated October 28, 1999 (doc. 127), and for good cause shown, the referenced motions to modify the Scheduling Order in this matter will be granted, and the amended deadlines set forth in this Court's Order dated October 28, 1999 (doc. 127) shall remain in effect (with the exception of the pretrial conference which subsequently was reset to 11:00 a.m. on February 22, 2000 and submission of the joint proposed pretrial order which subsequently was reset to February 15, 2000. See January 14, 2000 Order (doc. 134)). In addition to these deadlines, all dispositive motions shall be filed on or beforeApril 14, 2000.
Accordingly, it is hereby ORDERED that
(1) Willis Defendants' motion to compel discovery (doc. 72) isgranted in part and deferred in part:
(a) The motion to compel is granted as to Interrogatories 9 and 10 and Plaintiff shall disclose to the Willis Defendants within twenty (20) days from the date of this Order
(i) the date and amount of each bill sent to Simmons from Brock R. Snyder for legal fees relative to the Teets bankruptcy and the date each bill was paid by Simmons; and
(ii) the date Plaintiff retained attorney Brock Snyder to represent it with respect to the underlying bankruptcy action at issue in this lawsuit.
(b) The motion to compel is deferred as to Requests 1 and 4, and Plaintiff is ordered to provide to Defendants within twenty (20) days from the date of this Order a log as described in section C(1)(b) of this Order to support its claims of privilege in response to Requests 1 and 4. Defendants may then request production of any document for which the claim of privilege appears inadequate or waived by filing a supplemental brief in support thereof. Defendants' supplemental brief shall be filed within twenty (20) days after receiving Plaintiff's log.
(2) Raymond Defendants' motion to reconsider their motion to compel (doc. 111) is denied in part and deferred in part:
(a) The motion to compel is denied as to Request 7; and
(b) The motion to compel is deferred as to Requests 1 through 6, and Plaintiff is ordered to provide to the Raymond Defendants within twenty (20) days from the date of this Order a log as described in section C(1)(b) of this Order to support its claims of privilege in response to Requests 1 through 6. Defendants may then request production of any document for which the claim of privilege appears inadequate or waived by filing a supplemental brief in support thereof. Defendants' supplemental brief shall be filed within twenty (20) days after receiving Plaintiff's log.
(3) The Willis Defendants' motion to compel discovery (doc. 86) is granted and Hart is ordered to answer questions in his deposition regarding the Settlement Agreement pursuant to a Rule 26(c) Protective Order as described in section C(2) of this Order.
(4) Defendants' motions for protective order with regard to Willis and Raymond depositions (docs. 84 and 94) are denied;
(5) Plaintiff's motion to preserve the depositions of Willis and Raymond (doc. 110) is granted;
(6) Plaintiff's motion to amend the Complaint (doc. 90) and Plaintiff's motion for leave to amend its statement of damages (doc. 124) are granted; and
(7) Defendants' motions to modify the scheduling order (docs. 106, 118 and 121) are granted as described herein.
IT IS SO ORDERED.