Opinion
No. 98-2485-JTM
July 24, 2000.
Peter A. Jouras, Jr., Law Offices of Peter A. Jouras, Fairway, KS; Michael G. Holcomb, Roeland Park, KS, for Robin Tamera Williams, plaintiff.
Daniel B. Denk and Ryan B. Denk, McAnany, Van Cleave Phillips, 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, defendant.
John L. Peterson, Williamson Cubbison, Kansas City, KS; Daniel B. Denk and Ryan B. Denk, McAnany, Van Cleave Phillips, 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 is before the Court on the following motions: (1) Plaintiff's Motion to Shorten Defendant's Time to Respond to Requests for Production (doc. 245); (2) Defendants' Motion for Protective Order (doc. 263); and Plaintiff's Motion to Redepose Deponent Chief James K. Swafford, Jr. (doc. 231).
I. Plaintiff's Motion to Shorten Defendant's Time to Respond to Request for Production (doc. 245) and Defendants' Motion for Protective Order (doc. 263) A. The Merits of the MotionsBecause these two motions deal with the same issues, the Court will address them together. On May 26, 2000, Plaintiff served by mail two sets of requests for production, one on all Defendants and one on the Board of County Commissioners of the Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government"). Under Fed.R.Civ.P. 6(e) and 34(b), the responses would have been due on or before June 28, 2000. Plaintiff's Motion sought to shorten the time for Defendants to respond to the requests so that the responses would have been due June 9, 2000. Defendants filed a memorandum in opposition to the Motion to Shorten, in addition to filing a Motion for Protective Order.
There is some confusion as to whether the request for production served on the Board of County Commissioners of the Unified Government of Wyandotte County and Kansas City, Kansas was served on May 25 or 26. For purposes of these two Motions, the Court will consider it served on the 26th.
In their Motion for Protective Order, Defendants seek to be relieved of any obligation to respond to the requests for production on the basis that the requests were served out of time. On that same basis, Defendants also seek to be relieved of any obligation to respond to three additional requests for production propounded by Plaintiff: (1) a request served on the Kansas City, Kansas Police Department on May 10, 2000; (2) a request served on the Unified Government on June 6, 2000; and (3) a request served on the Kansas City, Kansas Police Department on June 6, 2000. Under Fed.R.Civ.P. 6(e) and 34(b), the responses to the May 10 request would have been due June 12 and the responses to the June 6 requests would have been due July 10.
At the time Plaintiff served her May 10 and May 26 requests, discovery was set to close on May 5, 2000. Plaintiff, however, had filed a motion on May 1, 2000 to extend the discovery deadline to June 26, 2000. (S ee doc. 176.) Defendants had also filed a motion on May 3, 2000 to extend discovery until June 26, 2000, but only for purposes of taking certain depositions. ( See doc. 193.) At the final pretrial conference held on May 31, 2000, the Court orally extended the discovery deadline to June 9, 2000 and indicated that all discovery was to be commenced in time to be completed by that deadline. An Order was entered on June 6, memorializing the Court's rulings at the pretrial conference. ( See doc. 246.)
Defendants correctly assert that all of the above requests for productions were not commenced in time to be completed by the June 9 discovery deadline. While the Court did indicate at the pretrial conference that Plaintiff was free to file a motion to shorten the response time, the Court made no assurances that such a motion would be granted.
The Court does not find that Plaintiff has established good cause to shorten the time for responses. That the parties agreed to continue with depositions until the first week of July is not sufficient cause. The discovery period in this case has exceeded one year. During that period, Plaintiff has propounded, and Defendants have responded to, eighteen sets of requests for production. Plaintiff provides no reason why the additional five requests at issue here could not have been propounded in time to be completed by the discovery deadline.
Fed.R.Civ.P. 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense." As Defendants point out, requiring them to respond to the discovery requests in contravention of the Court's clear order as to when discovery may be propounded would constitute annoyance, oppression, and undue burden and expense.
In light of the above, the Court will grant Defendant's Motion for Protective Order (doc. 263) and deny Plaintiff's Motion to Shorten Defendant's Time to Respond to Requests for Production (doc. 245).
B. Defendants' Request for Sanctions
Defendants seek to recover their fees and expenses incurred in bringing the Motion for Protective Order. Fed.R.Civ.P. 26(c) states that the provisions of Fed.R.Civ.P. 37(a)(4) apply to the award of expenses incurred in relation to a motion for protective order. Rule 37(a)(4) in turn states that when "the motion is granted. . . . the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay . . . the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that . . . circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(4) (emphasis added).
The Court is not aware of any circumstances that would make an award of expenses unjust here. The Court therefore rules that Defendants shall be allowed to recover the reasonable expenses, including attorney fees, that they incurred in bringing the Motion for Protective Order.
To aid the Court is determining the proper amount of expenses, Defendants' counsel shall file, within ten days of the date this Memorandum and Order is filed, an affidavit itemizing the expenses and attorney fees that Defendants incurred in bringing their Motion for Protective Order. Plaintiff shall have ten days thereafter to file a response to the affidavit if she so chooses. The Court will then issue a second order, specifying the amount and time of payment. In the absence of any evidence that Plaintiff herself was responsible for propounding the requests out of time, the Court will hold Plaintiff's counsel solely responsible for paying the monetary sanctions. See McCoo v. Denny's, Inc., 192 F.R.D. 675, 697 (D.Kan. 2000) and cases cited therein.
The Court recognizes that before sanctions may be imposed, the Court must afford the party an "opportunity to be heard." See Fed.R.Civ.P. 37(a)(4)(A). The Advisory Committee Notes to the 1993 Amendments to Rule 37(a)(4) make it clear that the Court may consider the issue of sanctions "on written submissions." Here, Defendants specifically requested expenses in their Motion for Protective Order. Plaintiff responded to the Motion, and, without discussion, asked the Court to deny Defendants' request for sanctions. The Court therefore finds that Plaintiff has had sufficient "opportunity to be heard" within the meaning of Fed.R.Civ.P. 37. See McCoo, 192 F.R.D. at 697 (party has been given "opportunity to be heard" as required by Rule 37 so long as party requesting sanctions requests sanctions in the motion, even if opposing party fails to specifically address sanctions in its response to the motion).
II. Plaintiff's Motion to Redepose Deponent Chief James K. Swafford, Jr. (doc. 231)
Defendants consented to the Motion at the pretrial conference. The Motion is therefore granted by consent.
III. Summary
To recap, Plaintiff's Motion to Redepose Deponent Chief James K. Swafford, Jr. (doc. 231) is granted by consent. Plaintiff's Motion to Shorten Defendant's Time to Respond to Requests for Production (doc. 245) is denied. Defendants' Motion for Protective Order (doc. 263) is granted, and Defendants are relieved from responding to the requests for productions that Plaintiff served on them on May 10, May 26, and June 6, 2000. In addition, Defendants' request for fees and expenses incurred in bringing the Motion for Protective Order is granted. Within ten days of the filing of this Memorandum and Order , Defendants' counsel shall submit an affidavit itemizing the expenses and fees incurred in bringing the Motion for Protective Order. Plaintiff shall have ten days thereafter to file a response to the affidavit.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 24th day of ____.