Opinion
No. 98-2485-JTM
Filed: June 21, 2000.
Peter A. Jouras, Jr., Law Offices of Peter A. Jouras, Fairway, KS and Michael G. Holcomb, Roeland Park, KS, for Robin Tamera Williams, plaintiff.
Daniel B. Denk and Ryan B. Denk, McAnany, Van Cleave Phillips, P.A., Kansas City, KS, for Board Of County Commissioners Of The Unified Government Of Wyandotte County/Kansas City, Kansas, A Government Entity; Kansas City, Kansas, City Of, A Government Entity; Kansas City, Kansas Police Department, A Public Entity, defendants.
John L. Peterson, Williamson Cubbison, Kansas City, KS; Daniel B. Denk and Ryan B. Denk, McAnany, Van Cleave Phillips, P.A., Kansas City, KS, for Jeffery Jacks, Individually, and as a Police Officer of the Kansas City, Kansas Police Department, in his official capacity, defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff's Motion to Compel Discovery (doc. 82).
I. The Duty to Confer
On July 1, 1999, Plaintiff served the following discovery upon Defendants:
(1) Plaintiff's Initial Request for Production of Documents from Defendant Jeffery Jacks;
(2) Plaintiff's Initial Request for Production of Documents from Defendant City of Kansas City, Kansas;
(3) Plaintiff's Initial Request for Production of Documents from Defendant Kansas City, Kansas Police Department;
(4) Plaintiff's Initial Request for Production of Documents from Defendant Board of County Commissioners;
(5) Plaintiff's First Set of Interrogatories to Defendant Jeffery Jacks;
(6) Plaintiff's First Set of Interrogatories to Defendant City of Kansas City, Kansas;
(7) Plaintiff's First Set of Interrogatories to Defendant Kansas City, Kansas Police Department; and
(8) Plaintiff's First Set of Interrogatories to Defendant Board of County Commissioners.
After receiving Defendants' responses to these discovery requests, Plaintiff sent a letter to Defendants challenging Defendant Jacks' response to Interrogatory 17 and Defendant Board of County Commissioners' responses to Requests 30, 32, 33 and 36. Subsequent correspondence between the parties establishes they resolved the prospective dispute with regard to Defendant Board of County Commissioners' responses to Requests 30, 32, 33 and 36. This correspondence also reflects, however, that Plaintiff's challenge to Defendant Jacks' response to Interrogatory 17 remained unresolved.
On February 3, 2000, Plaintiff filed this motion to compel discovery seeking to compel the following discovery from the following defendants:
Kansas City, Kansas Police Department: Interrogatories 14, 16Jacks: Interrogatories 10, 16, 17
Board of Commissioners: Requests 1, 2, 3, 4, 5, 6, 17, 21, 30, 40, 47, 48City of Kansas City, Kansas: Interrogatory 2
In response to Plaintiff's motion to compel, Defendants allege that, with the exception of defendant Jacks' answer to Interrogatory 17, Plaintiff failed to confer in good faith regarding any of the issues raised in Plaintiff's motion. Plaintiff denies Defendants' allegation regarding failure to confer and certifies that counsel for Plaintiff did confer in good faith regarding the issues raised in her motion. In support of her certification, Plaintiff cites to the "volume of correspondence attached" to both Plaintiff's Motion and Defendants' Response.
Fed.R.Civ.P. 37(a)(2)(B) directs movants to include with a motion to compel a certification 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." D.Kan. Rule 37.2 states in pertinent part that "[e]very certification required by Fed.R.Civ.P. 26(c) and 37 . . . related to the efforts of the parties to resolve discovery or disclosure disputes shall describe the steps taken by all counsel to resolve the issues in dispute." These requirements "encourage resolving discovery disputes without judicial involvement." Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D.Kan. 1999). "Failure to confer or attempt to confer may result in unnecessary motions. When the court must resolve a dispute that the parties themselves could have resolved, it must needlessly expend resources that it could better utilize elsewhere." Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 302 (D.Kan. 1996).
Although the motion currently pending before the Court includes the required declaration stating Plaintiff conferred in good faith in an attempt to resolve the discovery disputes at issue, the Court is not persuaded Plaintiff did so before filing her motion. The Court has reviewed the referenced correspondence attached to both Plaintiff's and Defendants' briefs and, with the exception of defendant Jacks' answer to Interrogatory 17, the Court fails to find evidence of any attempt to confer by Plaintiff with respect to the discovery requests at issue in Plaintiff's motion. Because Plaintiff has not satisfied her duty to confer, this Court has discretion to summarily deny her motion to compel without reaching any substantive issue. Notwithstanding this fact, the Court will consider the substantive issues raised by Plaintiff in her motion. Counsel strongly are advised, however, to "reasonably confer" as defined herein before filing future motions.
II. Discussion A. Defendant Kansas City, Kansas Police Department's Answers to Plaintiff's First Set of Interrogatories 1. Interrogatory 14
Interrogatory 14 requests identification of all officers on staff with the Kansas City, Kansas Police Department in October 1996. Defendants objected to the interrogatory on the grounds that it was vague and ambiguous with respect to the term "staff." Defendants also objected to this interrogatory on the grounds that it was unduly burdensome and oppressive. Without waiving these objections, Defendants went on to state they would produce a list of sworn officers as of September 9, 1996 upon entry of a protective order in the case. In their brief filed in response to Plaintiff's motion to compel, Defendants state the parties conferred regarding this matter at a meeting after Plaintiff's motion was filed, and Defendants agreed to produce the specific information requested upon entry of a protective order in this case. Given Defendants' response, and the fact that the referenced Protective Order was entered by the Court on May 26, 2000 (doc. 229), the Court will treat this aspect of Plaintiff's motion as uncontested. Thus, Defendants will be ordered to produce the requested information within ten days from the date of this Order.
2. Interrogatory 16
Interrogatory 16 requests identification of all dispatchers on duty on October 26 or October 27, 1996. Defendant objected to this interrogatory on the grounds that it was vague and ambiguous with respect to the term "dispatchers" and provided only the name of the individual in charge of the dispatchers on the days in question. Notwithstanding their original objections, Defendants state in their response brief that the parties conferred regarding this matter at a meeting after Plaintiff's motion was filed, and Defendants agreed to produce the information requested. Given Defendants' response, the Court will treat this aspect of Plaintiff's motion as uncontested. Thus, Defendants will be ordered to produce the requested information within ten days from the date of this Order.
B. Defendant Jeffery Jacks' Answers to Plaintiff's First Set of Interrogatories 1. Interrogatory 10
Interrogatory 10 requests identification of all Kansas City, Kansas Police Department employees with whom defendant Jacks had been partnered, including all reasons for any changes of partners. Defendant objected to this interrogatory on the grounds that it was vague and ambiguous with respect to the term "partners," but went on to state that "Defendant Jacks has typically worked as a district patrol officer in a single officer unit." Notwithstanding their original objections, Defendants state in their response brief that after Plaintiff filed her motion, counsel for Defendants "verified with Officer Jacks that he has never had a partner during his tenure with the Kansas City, Kansas Police Department." Given Defendants' response, the Court will treat this aspect of Plaintiff's motion as uncontested. Thus, Defendants will be ordered to provide the requested information to Plaintiff in the form required by Fed.R.Civ.P. 33 within ten days from the date of this Order.
2. Interrogatory 16
Interrogatory 16 requests defendant Jacks describe in detail all events, conversations and actions which led to sexual intercourse with the plaintiff Robin Williams. Defendants responded to this interrogatory by referring Plaintiff to a written statement made by defendant Jacks to the Internal Affairs Unit. Defendants went on to state that they would produce this written statement upon entry of a protective order in this case. Given Defendants' response, and the fact that the referenced Protective Order was entered by the Court on May 26, 2000 (doc. 229), the Court will treat this aspect of Plaintiff's motion as uncontested. Thus, Defendants will be ordered to produce the requested information within ten days from the date of this Order.
3. Interrogatory 17
Interrogatory 17 requests defendant Jacks identify and list any and all persons with whom he has had consensual and non-consensual sexual relations since 1986. Defendants objected to this interrogatory on the grounds that it was vague and ambiguous with regard to the term "sexual relations" but, without waiving these objections, went on to answer the interrogatory. After the parties conferred regarding Defendants' objection, Defendants supplemented their original answer. In their response brief, Defendants argue the supplemental pleading renders Plaintiff's motion moot with regard to Interrogatory 17. Because Plaintiff failed to respond to Defendants' "mootness" argument in her reply brief, and because the supplemental pleading appears to completely answer the interrogatory at issue, the Court will deny this portion of Plaintiff's motion to compel as moot.
Plaintiff failed in her brief to inform the Court that Defendants had supplemented their original answer here. The supplemental pleading was filed and served on November 17, 1999 — over 2 1/2 months before Plaintiff filed this motion to compel.
C. Defendant Board of Commissioners' Responses to Plaintiff's Initial Request for Production of Documents 1. Request 1
Request 1 seeks complete employment files and/or personnel files for defendant Jacks and officers Buehler and Bower, the other two officers who responded to the call at the American Eagle Inn on October 26 and 27, 1996. Defendants objected to the request on the grounds that all three of the files at issue are confidential and proprietary information. Defendants further objected on grounds that neither Buehler and Bower are parties to this litigation and have not consented to having their confidential employment files released. Notwithstanding these objections, Defendants did agree to produce the personnel file of defendant Jacks upon entry of a protective order in this case. Given Defendants' response, and the fact that the referenced Protective Order was entered by the Court on May 26, 2000 (doc. 229), the Court will treat this aspect of Plaintiff's motion as uncontested. For this reason, Defendants will be ordered to produce Jacks' personnel file within ten days from the date of this Order.
In their response brief, Defendants, however, reiterate their objections to producing the personnel files of officers Buehler and Bower because the information requested is confidential and proprietary information and because neither Buehler nor Bower have consented to production of their files. In addition, Defendants also raise a new argument in support of their contention that the files should not be produced by asserting that the documents are "wholly irrelevant to this litigation."
The Court first will address Defendants' objections as to relevancy. Relevancy is broadly construed, and a request for discovery should be considered relevant if "`there is any possibility that the information sought may be relevant to the subject matter to the action.'" Etienee v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999) (quoting Smith v. MCI Telecomm. Corp, 137 F.R.D. 25, 27 (D.Kan. 1991)). "A request for discovery . . . should ordinarily be allowed unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Snowden v. Connaught Lab., 137 F.R.D. 336, 341 (D.Kan. 1991) (emphasis added). When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the 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." Etienee, 185 F.R.D. at 656 (quoting Aramburu v. Boeing Co., No. 93-4064-SAC, 1994 WL 810246, at *1 (D.Kan. Sept. 22, 1994)).
Although the Court finds Defendants likely waived their right to a relevancy objection because they failed to lodge a timely objection on this ground in their original response, the Court will address the objection.
The Court is not persuaded by Defendants' argument that the requested documents are irrelevant. As noted in the argument section of Plaintiff's brief, there may be information within the personnel files at issue bearing on the veracity of the witnesses in question. The Court cannot say that Buehler and Bower's personnel files have "no possible bearing" on Plaintiff's claims for relief. For these reasons, the Court concludes Defendants have failed to meet their burden to show that the requested documents are irrelevant.
The Court will now turn to Defendants' arguments relating to the confidentiality of the requested documents. Defendants argue that Buehler and Bower's personnel files should not be produced because they contain confidential information about non-party employees. Although the Court was unable to locate any case law addressing this issue in this context, it finds helpful those cases decided in an employment discrimination context. Such cases hold that merely because a person may be called as a witness at trial does not justify disclosure of his/her personnel file. See, e.g., Hicks v. Kansas Masonic Home, No. 97-1307-MLB, 1998 WL 173197, at *2 (D.Kan. March 5, 1998); Haselhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10, 11 (D.Kan. 1995). If, however, the individual is alleged to have engaged in the discrimination or harassment at issue or played an important role in the employment decision or incident that gives rise to the lawsuit, the personnel file will be considered relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and therefore discoverable. See, e.g., Daneshvar v. Graphic Technology, Inc., No. 97-23044-JWL, 1998 WL 726091, at *5 (D.Kan. Oct. 9, 1998) (compelling production of personnel files of three "key witnesses" who "played important roles in the employment decisions affecting plaintiff"); Krenning v. Hunter Health Clinic, Inc, 166 F.R.D. 33, 35 (D.Kan. 1996) (compelling production of personnel files of alleged harasser and employer's chief executive officer); Hoskins v. Sears, Roebuck and Co., No. 96-1357-MLB, 1997 WL 557327, at *2 (D.Kan. Sept. 2, 1997) (compelling production of personnel files of "eight individuals who are alleged to have been involved in, witnessed, or failed to report" the claimed harassment). See also Leighr v. Beverly Enterprises-Kansas Inc., No. 94-2474-GTV, 1996 WL 63501, at *2 (D.Kan. Feb. 7, 1996) (noting that the "personnel file of an allegedly discriminatory defendant would appear to contain relevant information," but declining to compel production of the file after reviewing defendant's itemization of the files contents and finding nothing relevant to plaintiff's discrimination claims).
Applying these standards, the Court finds Plaintiff is entitled to discover the personnel files of Buehler and Bower because these individuals were involved, to a certain extent, in the specific events giving rise to this lawsuit. Thus, Plaintiff's motion will be granted with respect to these documents.
2. Requests 2, 3, 4, 5 and 6
Requests 2, 3, 4, 5 and 6 seek investigation records, documents and reports regarding the incident at the American Eagle Inn on October 26 and 27, 1996. Defendants objected to production of these documents on the grounds that they are confidential and proprietary information and on grounds of privilege. Without waiving these objections, Defendants state they will produce the following documents responsive to Plaintiff's request upon entry of a protective order: The District Attorney's review, the statement of Robin Williams, the statement of Jeffery Jacks, the statement of Mark Klein, the statement of Donald Pointer, the statement of Bobby Mallicote, the statements of Officer James Bauer, Officer Dennis Buehler, Officer Clinton Swan, and Sergeant Richard Asten, the transcript of the communications tape of October 27, and photographs taken in connection with investigation of the Robin Williams case.
Defendants assert the documents are privileged because they were prepared in anticipation of litigation.
Given Defendants' response, and the fact that the referenced Protective Order was entered by the Court on May 26, 2000 (doc. 229), the Court will treat this aspect of Plaintiff's motion as uncontested. Thus, Defendants will be ordered to produce the referenced documents within ten days from the date of this Order.
Notwithstanding Defendants offer to produce designated documents responsive to Plaintiff's request, the Court is uncertain as to whether Defendants are withholding documents responsive to this request based on confidentiality and proprietary objections. As such, the Court finds it necessary to address Defendants' objections based on the confidential and proprietary nature of the information.
As a preliminary matter, 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)). As such, information is not shielded from discovery on the sole basis that such information is confidential. Id. Defendants, however, seem to argue that the information requested is so confidential and proprietary that disclosure of the documents at issue will cause great harm.
Although relevancy is broadly construed at the discovery stage of the litigation, Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan. 1991), the party resisting discovery may establish lack of relevance by demonstrating that the requested discovery is of such marginal relevance that the potential harm occasioned by it would outweigh the ordinary presumption in favor of broad disclosure. Scott v. Leavenworth Unified School District 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). Under the circumstances presented in this case, however, the Court finds the confidential and proprietary interests of Defendants are outweighed by Plaintiff's need to obtain documents regarding the incident giving rise to this lawsuit — especially given the terms of the Protective Order entered by the Court on May 26, 2000 (doc. 229). Accordingly, Defendants' objections based on confidential and proprietary information are overruled and Defendants shall produce within ten days from the date of this Order any documents held back based on this objection. As with the documents responsive to this request that Defendants voluntarily offered to produce, these documents shall be produced pursuant to the Protective Order entered by the Court on May 26, 2000 (doc. 229).
Defendants state that a report titled "Commander's Review" is being withheld on grounds of privilege pursuant to the work-product doctrine because it was prepared in anticipation of litigation. Plaintiff does not challenge the privileged status of this report; thus, the Court will permit Defendants' claim of privilege to stand.
3. Requests 17
Request 17 seeks documents evidencing any disciplinary actions, reprimands and sanctions taken against Officer Jacks. In their brief filed in response to Plaintiff's motion to compel, Defendants state the parties conferred regarding this matter at a meeting after Plaintiff's motion was filed, and Defendants agreed to produce defendant Jacks' personnel file upon entry of a protective order in this case. Given Defendants' response, and the fact that the referenced Protective Order was entered by the Court on May 26, 2000 (doc. 229), the Court will treat this aspect of Plaintiff's motion as uncontested. Thus, Defendants will be ordered to produce the requested information within ten days from the date of this Order.4. Request 21
Request 21 seeks time logs sent and received by police dispatch on October 26 and 27, 1996. In their response, Defendants responded that the documents sought had been requested from ALERT, Kansas City, Missouri Police Department and, upon receipt of such documents from ALERT and entry of a protective order, the documents would be produced. Given Defendants' response, and the fact that the referenced Protective Order was entered by the Court on May 26, 2000 (doc. 229), Defendants will be ordered to produce the requested information, if they have not done so already, within ten days from the date of this Order.
5. Request 30
Request 30 seeks documents pertaining to the financial status of the Unified Government. Defendants objected to this request on the grounds that it was unduly burdensome, oppressive and seeks documents and information unlikely to lead to discoverable information. After the parties conferred regarding Defendants' objections, however, Defendants state they produced the requested documents. Defendants now argue the supplemental production renders Plaintiff's motion moot with regard to Request 30. Because Plaintiff failed to respond to Defendants' "mootness" argument in her reply brief, and because the supplemental disclosure appears to completely respond to the request at issue, the Court will deny this portion of Plaintiff's motion to compel as moot.
6. Requests 40, 47 and 48
Requests 40, 47 and 48 seek policy reports involving any investigation of defendant Jacks, any recordings between defendant Jacks and the Internal Affairs Unit and documents or other evidence used by the Internal Affairs Unit to assess the culpability of defendant Jacks with regard to any Internal Affairs investigation or questioning. Defendants objected to production of these documents on the grounds stated in their objections to Request 2. For the reasons discussed in Section II(C)(2) above, and keeping in mind that these requests seek documents and information regarding any investigation of defendant Jacks by the Internal Affairs Unit or other department during the course of defendant Jacks' employment, Defendants will be ordered to produce the documents requested within ten days from the date of this Order.
In their response brief, Defendants state that Requests 40, 47 and 48 seek the same information sought in Requests 2, 3, 4, 5 and 6. The Court disagrees. Requests 2, 3, 4, 5 and 6 seek information regarding the specific events giving rise to this lawsuit. Requests 40, 47 and 48 seek information regarding any investigation of defendant Jacks by the Internal Affairs Unit or other department during the course of defendant Jacks' employment.
D. Defendant City of Kansas City, Kansas' Answers to Plaintiff's First Set of Interrogatories 1. Interrogatory 2
Interrogatory 2 seeks information regarding the regulations and standards for hiring and training of city employees and police officers. Defendants objected to this interrogatory on grounds it is vague and ambiguous and asks for a legal conclusion. Without waiving these objections, however, Defendants stated they would produce documents in response to the request. Plaintiff does not take issue with the objections raised, but instead argues that they have not received the documents Defendants promised to produce. In their response brief, Defendants assert they have produced the requested documents.
Rule 33 of the Federal Rules of Civil Procedure provides, in pertinent part, that
where an answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served . . . and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained. . . .A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.
Fed.R.Civ.P. 33(d) (emphasis added).
Based on this rule, and the fact that Defendants state they already have produced documents from which the information requested in Interrogatory 2 can be derived, Defendants will be ordered to designate for Plaintiffs within ten days from the date of this Order which documents contain the information requested. The designation should be in sufficient detail to permit Plaintiff to locate and to identify the documents from which the answer may be ascertained.
For example, providing the bates number of a document containing the information requested would permit Plaintiff to locate and identify the documents from which the answer may be ascertained.
E. Plaintiff's Request for Sanctions
Plaintiff seeks to recover fees and expenses incurred in connection with this motion to compel. Fed.R.Civ.P. 37(a)(4)(C) provides that "the court may . . . apportion reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." Given Plaintiff's failure to confer regarding most of the requests propounded and Defendants' prompt offer to produce information once the parties did confer, justice requires that each party be responsible for their own costs and expenses incurred.III. Conclusion
Based on the discussion above, it is hereby ORDERED that Plaintiff's Motion to Compel Discovery (doc. 82) is granted in part and denied in part:
(1) The motion to compel is denied as moot with respect to Plaintiff's request to compel defendant Jeffery Jacks to fully respond to Interrogatory 17 and with respect to Plaintiff's request to compel defendant Board of Commissioners to fully respond to Request 30;
(2) The motion to compel is granted with respect to Plaintiff's request to compel defendant City of Kansas City, Kansas to fully answer Interrogatory 2, and Defendants are hereby ORDERED to designate for Plaintiffs within ten days from the date of this Order which documents contain the information requested. The designation should be in sufficient detail to permit Plaintiff to locate and to identify the documents from which the answer may be ascertained;
(3) The motion to compel is granted as to the balance of Plaintiff's requests to compel and Defendants shall provide the information and documents requested, if they have not already done so, within ten (10) days from the date of this Order; and
(4) Plaintiff's motion for sanctions is denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 21st day of June.
David J. Waxse United States Magistrate Judge