Summary
recognizing that notices of slip and fall cases were not relevant to plaintiffs' § 1983 claims, but requiring defendant school district to respond to the request to the extent it was not objectionable, namely to produce notices of claims similar to that of plaintiff's.
Summary of this case from C.T. v. Liberal School DistrictOpinion
CIVIL ACTION No: 03-2018-CM
November 24, 2003
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff's First Motion to Compel Discovery (doc. 77) and plaintiff's Second Motion to Compel Discovery (doc. 90).
I. Background Information
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his First and Fourteenth Amendment rights. Plaintiff claims that Defendants violated his constitutional rights by retaliating against him and his son for threatening to file a lawsuit and then filing lawsuits in state court against certain of the Defendants. plaintiff's son attended Shawnee Mission West High School in the Shawnee Mission Unified School District (the "School District") at the time the state court lawsuits were filed. The Second Amended Complaint alleges that, at all relevant times, Defendant Karl Krawitz was principal and Defendant Keith Burgat associate principal of Shawnee Mission West High School.
II. plaintiff's First Motion to Compel Discovery (doc. 77)
Plaintiff seeks to compel answers to Requests for Production No. 13 and 17, which were served on Defendants on July 7, 2003.
Before addressing the merits of Defendants' objections to these requests, the Court notes that on November 12, 2003, the Court entered an order staying all discovery as to Defendant Karl Krawitz. That order held, inter alia, that "to the extent any written discovery requests are pending as to Krawitz, he shall be relieved of the responsibility to respond to them until such time as the motion to dismiss is ruled upon." Thus, to the extent the instant motion seeks to compel Krawitz to respond to these requests for production, the motion will be denied, without prejudice. Once the Court determines the issue of Krawitz's qualified immunity, Plaintiff may refile the motion to compel against Krawitz, if necessary.
Memorandum and Order filed November 12, 2003 (doc. 125).
Id. at p. 3.
The Court notes that Defendant Burgat also asserts qualified immunity in the motion to dismiss. Burgat, however, has never filed any type of motion asking the Court for a stay or a protective order as to any discovery directed to him. Consequently, there is no stay of discovery as to Burgat.
A. Request No. 13
This request asks Defendants to produce:
Any and all Notice of Claims mentioning any Shawnee Mission School District employee since 8/1/200. (Do not include the Notice of Claims Plaintiff has submitted or Notice of Claims mentioning sexual misconduct.)
In their initial response to this request, Defendants objected on the grounds that the request seeks irrelevant material and is not reasonably calculated to lead to the discovery of admissible evidence. In their response to plaintiff's Motion to Compel, Defendants also object to the request on the basis that it is unduly burdensome.
1. Undue burden
The Court deems this objection waived, as it was not asserted in the Defendants' initial response to the request. The Court will therefore overrule it.
See Cotracom Commodity Trading Co. v Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan 1999) (party who asserts objection for first time in response to motion to compel is deemed to have waived the objection).
2. Relevance
With respect to their objection that the requested information is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence, Defendants assert that the request would require Defendants to produce Notices of Claims that have nothing to do with this lawsuit, including slip and fall accidents and student claims involving personal injuries. Notwithstanding then-relevance objection, Defendants indicate that they informed Plaintiff that if he were willing to narrow his request Defendants would produce documents "limit[ed] to the individuals involved in this lawsuit for the same or similar claims being made, i.e., retaliation." Defendants assert that Plaintiff never narrowed his request, and, thus, Defendants never produced any documents in response to this request.
Defs.' Resp. to Mm. to Compel (doc. 78) at p. 2.
It is well settled that a party who makes this type of objection to a discovery request nevertheless has a duty to respond to the request to the extent it is not objectionable. Thus, Defendants had an obligation to respond to the request to the extent it was not objectionable, regardless of whether Plaintiff chose to narrow it in light of Defendants' objections.
Cotracom, 189 F.R.D. at 666 (citing Schartz v. Unified School Dist. No. 512, No. 95-2491-EEO, 1996 WL 741384, at *1 (D. Kan. Dec. 18, 1996) (addressing duty to answer interrogatories and respond to requests for production to extent not objectionable).
The Court finds that Defendants have the duty to respond to the request as limited in the following manner: "Any and all Notice of Claims for the time period August 1, 2000 to the present that (1) mention any of the individual defendants in this case, or (2) involve any claim of retaliation and mention any Shawnee Mission School District employee." The request shall also by limited by plaintiff's qualification that the request does not "include the Notice of Claims Plaintiff has submitted or Notice of Claims mentioning sexual misconduct." The School District and Burgat shall make these documents available to Plaintiff for inspection and copying by December 12, 2003 .
B. Request No. 17
This request seeks Defendant Karl Krawitz's personnel file. Defendants objected to this request on the grounds that it is overly broad and not reasonably calculated to lead to the discovery of admissible evidence. They also objected on the basis that the file "may contain information subject to state and federal privacy statutes." Notwithstanding these objections, Defendants agreed to produce, and did produce, documents contained in the personnel file that pertain to Krawitz's job performance and evaluations, and any complaints against Krawitz. In their response to the Motion to Compel, Defendants do not identify what documents from the personnel file they have withheld, nor do they explain what information contained in the personnel file is allegedly protected by "state and federal privacy statutes" or what those statutes are.
This Court has on numerous occasions ruled on the discoverability of personnel files in civil right cases arising under 42 U.S.C. § 1981 and 1983 and employment cases arising under Title VII where retaliation and discrimination are alleged. The Court has held that, generally speaking, an individual's personnel file is relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and therefore discoverable, if the individual is alleged to have engaged in the retaliation or discrimination at issue or to have played an important role in the decision or incident that gives rise to the lawsuit.
See EEOC v. Kan. City S. Ry., No. 99-2512-GTV, 2000 WL 33675756, at *3 (D. Kan. Oct. 2, 2000) (Title VII action in which court compelled production of personnel file of supervisor who made decision to terminate plaintiff's employment); Beach v. City of Olathe, Kan., No. 99-2210-GTV, 2000 WL 960808, at *2-3 (D. Kan. Jul. 6, 2000)(§ 1983 case in which court compelled production of personnel file of police officer alleged to be the driving force behind retaliatory action); McCoo v. Denny's, Inc., 192 F.R.D. 675, 677-78 (D. Kan. 2000)(§ 1981 public accommodations case in which court compelled production of personnel files of employees alleged to have witnessed or participated in the claimed discrimination); Daneshvar v. Graphic Tech., Inc., No. 97-2304-JWL, 1998 WL 726091, at *5 (D. Kan. Oct. 9, 1998) (Title VII case in which court compelled production of personnel files of three "key witnesses" who "played important roles in the employment decisions affecting plaintiff).
Here, Krawitz is alleged to be one of the employees of the Shawnee Mission School District who retaliated against Plaintiff and his son and who deprived Plaintiff of his constitutional rights. It is clear from the review of the Court's file that Krawitz will be an important witness in this case. Thus, on its face, plaintiff's request appears calculated to lead to the discovery of admissible evidence and Krawitz's personnel file appears relevant. Defendants, however, have asserted that the personnel file may contain medical records and other documents that are not relevant to the issues in this case and that are possibly subject to state and federal privacy statutes. While confidentiality does not generally act as a bar to discovery and is typically not grounds to withhold personnel files, Defendants' reference to privacy statutes raises an issue about possible privileges these documents might enjoy. The Court also questions the relevance of any medical records that may be contained in the personnel file. Defendants, however, have failed to provide sufficient information for the Court to determine the relevancy of these documents and whether a particular privilege may apply.
See generally Second Amended Complaint (doc. 51).
Dean v. Anderson, No. 02-2599-JAR, 2002 WL 21377729, at *3 (D. Kan. June 6, 2002); McCoo, 192 F.R.D. at 689-90.
See, e.g., Kan. City S. Ry, 2000 WL 33675756, at *4 (personnel files may not be withheld based on confidentiality reasons); Beach, 2000 WL 960808, at *3 (confidentiality does not act as bar to discovery of personnel files).
In light of the above, the Court will direct the School District and Burgat to prepare a log identifying all documents, if any, contained in Krawitz's personnel file that have not already been produced and to which Defendants object to producing. In the log, the School District and Burgat shall provide a description of each document Defendants are withholding and provide specific and precise reasons for Defendants' assertion that the document is privileged, not relevant, or otherwise not discoverable. This should include the following information: (1) the specific grounds for not producing the document, including any privilege or privacy statute asserted, (2) the date the document was prepared and dated (if different from its date of preparation), (3) the number of pages of the document, (4) the identity of the person(s) who prepared the document, (5) the identity of the person(s) for whom the document was prepared and to whom the document was directed (including copies), (6) the purpose for which the document was prepared, and (7) any other pertinent information necessary to establish Defendants' claim that the document is irrelevant, protected by state or federal privacy laws, or otherwise not discoverable.
The School District and Burgat shall provide the log to Plaintiff by December 5, 2003 . By December 12, 2003 , the parties shall confer within the meaning of D. Kan. Rule 37.2 and attempt to resolve the parties' dispute regarding Defendants' objections to producing these documents. In the event the parties are able to resolve their dispute, Plaintiff shall so notify the Court and shall do so by December 15, 2003 . In the event the parties are unable to resolve their dispute, Plaintiff shall, by December 19. 2003 , file a supplemental brief in support of his First Motion to Compel attaching a copy of the log and setting forth his arguments regarding the discoverability of the documents in dispute. The School District and Burgat shall have until December 30, 2003 to respond to Plaintiff's supplemental brief. The Court will defer ruling on these issues until the briefing is complete.
C. Summary of Ruling
To summarize, the Court will deny without prejudice plaintiff's First Motion to Compel as it pertains to Defendant Karl Krawitz. As to the other Defendants, i. e., the School District and Keith Burgat, the Court makes the following rulings. The Court will deny in part and grant in part the First Motion to Compel with respect to Request No. 13. By December 12, 2003 , the School District and Burgat shall make all documents that are responsive to said request (as limited herein) available to Plaintiff for inspection and copying. With respect to Request No. 17, the School District and Burgat shall, by December 5. 2003 , provide Plaintiff with a log of any documents contained in Krawitz's personnel file that Defendants contend are not discoverable. By December 12. 2003 , the parties shall attempt to resolve the dispute as to those documents; however, if the parties are unable to resolve their dispute, they shall follow the briefing schedule set forth herein. The Court will defer ruling on plaintiff's First Motion to Compel as it pertains to the School District and Burgat with respect to Request No. 17, until such time as the briefing is completed.
III. Plaintiff's Second Motion to Compel Discovery (doc. 77)
Plaintiff's Second Motion to Compel is filed against all three of the Defendants and asks the Court to order Defendants to withdraw their qualified immunity objections to Plaintiff's Request for Admissions and Plaintiff's Interrogatories to Defendant Krawitz. As the requests and interrogatories at issue were directed only to Krawitz, the Court finds that the Second Motion to Compel should have been filed only against Krawitz. The Court will therefore deny the Second Motion to Compel as it pertains to the School District and Burgat.
The Court will also deny the Second Motion to Compel as it pertains to Krawitz. As noted, above, Defendants have filed a motion to dismiss asserting the defense of qualified immunity and the Court has stayed all discovery directed to Krawitz pending a ruling on his qualified immunity defense. The Court has also relieved Krawitz of the responsibility of responding to any written discovery requests. With respect to Krawitz, then, the Court must deny the Second Motion to Compel, without prejudice to its refiling after the Court has ruled on the qualified immunity issue.
IT IS THEREFORE ORDERED that plaintiff's First Motion to Compel Discovery (doc. 77), as it pertains to Defendant Karl Krawitz, is denied without prejudice in its entirety.
IT IS FURTHER ORDERED that plaintiff's First Motion to Compel Discovery (doc. 77), as it pertains to Defendants Shawnee Mission Unified School District #512 and Keith Burgat with respect to Request for Production No. 13, is denied in part and granted in part as set forth herein.
IT IS FURTHER ORDERED that the Court will defer ruling on plaintiff's First Motion to Compel Discovery (doc. 77), as it pertains to Defendants Shawnee Mission Unified School District #512 and Keith Burgat with respect to Request for Production No. 17, and the parties shall follow the schedule set forth herein for resolving the dispute regarding Karl Krawitz's personnel file and for filing supplemental briefs.
IT IS FURTHER ORDERED that the Court will defer ruling on the issue of sanctions relating to plaintiff's First Motion to Compel (doc. 77) until such time as the underlying issues have either been resolved by the parties or ruled upon the Court.
IT IS FURTHER ORDERED that plaintiff's Second Motion to Compel Discovery (doc. 90) is denied as it pertains to Defendants Shawnee Mission Unified School District #512 and Keith Burgat, and denied without prejudice as it pertains to Defendant Karl Krawitz.
IT IS FURTHER ORDERED that each party shall bear his/its own fees and expenses incurred in connection with plaintiff's Second Motion to Compel Discovery (doc. 90).
IT IS FURTHER ORDERED that, as a result of the above orders, the time to complete discovery is extended to December 31, 2003 .
IT IS SO ORDERED.