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holding that request for production seeking "all documents that relate to or concern" a particular topic was "overly broad on its face"
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Civil Action No. 02-2576-KHV-DJW
April 8, 2004
MEMORANDUM AND ORDER
Pending before the Court is plaintiff's Corrected Motion to Compel Responses to plaintiff's Second Set of Document Requests (doc. 169). Plaintiff seeks to compel responses to various Second Requests for Production from three sets of Defendants: (1) Dr. H. William Barkman, Jr., Irene Cumming, Robert Page-Adams, Dr. Kurt Schropp, and the University of Kansas Hospital Authority (collectively referred to as the "Hospital Defendants"); (2) the University of Kansas, Dr. Laurence Y. Cheung, and Dr. Barbara Atkinson (collectively referred to as the "University Defendants"); and (3) the Kansas University Surgery Association ("KUSA"). Plaintiff seeks sanctions against all Defendants. The University Defendants also seek sanctions against Plaintiff.
For the reasons set forth below, the Motion to Compel will be granted in part and denied in part. Both requests for sanctions will be denied.
I. Analysis Regarding the Motion to Compel
A. The Hospital Defendants 1. Second Request for Production No. 2
This request asks the Hospital Defendants to produce all documents that relate to or concern the decision to report Plaintiff to the National Practitioner's Data Bank ("Data Bank"), including all documents relating to Defendants' reasons for reporting Plaintiff to the Data Bank and all documents submitted to the Data Bank. The Hospital Defendants responded that they had already produced the report which was submitted to the Data Bank. They also asserted attorney-client privilege and work product immunity and provided Plaintiff with an amended privilege log identifying documents responsive to this request that they contend are privileged.
In her Motion to Compel, Plaintiff asserts that it is "nearly inconceivable" that Defendants would make a decision to report a physician to the Data Bank without generating any documents other than the report itself. In addition, Plaintiff complains that the Hospital Defendants have failed to produce any documents that were submitted to the Data Bank in support of their report. Plaintiff asks that the Court compel the Hospital Defendants to produce these documents. In the event the Hospital Defendants have no such documents, Plaintiff asks that the Hospital Defendants be required to state this in writing. Plaintiff makes no complaint regarding Defendants' assertion of attorney — client privilege or work product immunity.
Pl's Corrected Mot. to Compel (doc. 169) at p. 3.
The Hospital Defendants respond that the only document they submitted to the Data Bank was the report itself, which has been provided, and they represent that no supporting documents were submitted. They also state that no documents exist regarding their decision to report Plaintiff to the Data Bank, other than those already identified as privileged or protected by work product immunity. The Court cannot compel the production of documents that do not exist or that are not in the possession, custody or control of the Hospital Defendants. The Hospital Defendants have unequivocally represented that they have produced all documents responsive to this request other than those documents identified in their privilege log. The Court will therefore deny the Motion to Compel as to Second Request No. 2 and the Hospital Defendants.
Fed.R.Civ.P. 34 imposes a duty on the responding party to produce documents that are in the "possession, custody or control of the party." Am. Maplan Corp. v. Heilmayer, 203 F.R.D. 499, 501 (D. Kan. 2001) (citing Fed.R.Civ.P. 34).
2. Second Request for Production No. 3
Second Request No. 3 seeks all documents that relate to or concern the Board's Executive Committee's decision to accept the Medical Staff's recommendation to revoke plaintiff's staff privileges and membership. In their response to this request, the Hospital Defendants indicated that they would produce minutes from the Executive Committee's August 2003 meeting in which the University of Kansas Hospital voted to revoke plaintiff's privileges, but that they would redact from those minutes any matters not concerning Plaintiff. The Hospital Defendants did not produce the redacted minutes until January 26, almost two months after they served their written response to the request and the day before Plaintiff was required to file a motion compelling their production.
Plaintiff complains that the Hospital Defendants unduly delayed in producing these minutes. She also complains that the Hospital Defendants redacted the minutes from the Executive Session meeting, in which the revocation of Plaintiff's privileges was discussed. In addition, she complains that the Hospital Defendants have failed to produce any other documents responsive to this request such as internal communications regarding the decision to revoke Plaintiff's privileges and any notes that the individual Hospital Defendants or members of the Executive Committee may have made regarding the decision.
In their response to the Motion to Compel, the Hospital Defendants state that the only information redacted from the August 2003 minutes was information concerning issues and decisions that have no bearing on Plaintiff or her case, and they offer to let the Court review in camera the unredacted version of the minutes. They do not specifically address plaintiff's concern that they have failed to produce or have redacted the minutes of the Executive Session or that they have failed to produce any other documents or notes relating to the decision to revoke plaintiff's privileges. While the Hospital Defendants make a general representation in the beginning of their responsive brief that they have produced all non-privileged documents responsive to plaintiff's requests, they also make the seemingly contradictory representation that they have produced all non-privileged responsive documents "[w]ith regard to most of these requests." Thus, it is not clear to the Court that the Hospital Defendants have actually produced all documents responsive to Second Request No. 3.
Hosp. Defs.' Resp. to Pl's Corrected Mot. to Compel (doc. 176) at p. 2 (emphasis added).
Although the Court cannot require the Hospital Defendants to produce documents that do not exist or that are not in their possession or control, the Court can order the Hospital Defendants to provide a supplemental written response to Second Request No. 3 representing that all responsive documents have been produced. Thus, to the extent the Hospital Defendants do not have any additional documents responsive to this request, they shall serve a supplemental written response to that effect. In the event the Hospital Defendants do have additional documents responsive to this request, they shall produce them to Plaintiff and provide a supplemental written response. Said production and/or supplementation of the written response shall be made within twenty (20) days of the date of filing of this Order.
In addition, the Hospital Defendants shall provide to the Court, for the Court's in camera inspection, the redacted version of the Executive Committee's August 2003 minutes previously produced to Plaintiff, along with an unredacted version, so that the Court may determine whether Plaintiff is entitled to receive a copy of the unredacted version. Said minutes shall be provided to the Court within seven (7) days of the date of filing of this Order.
3. Second Request for Production No. 6
This request seeks all documents that relate to or concern Defendants' communications with any state medical board, including the Kansas Board of Healing Arts and the Georgia Medical Board. The Hospital Defendants indicated in their December 8, 2004 response to this request that they would produce "a copy of the submission made to the Kansas Board of Healing Arts." At the time Plaintiff filed her Motion to Compel (on January 30, 2004), the Hospital Defendants had still not produced a copy of this document.
In their response to the Motion to Compel, the Hospital Defendants concede that they "have determined that there are documents that have been submitted to the Kansas Board of Healing Arts that have not been produced to the plaintiff." They indicate that their failure to produce these documents was an "oversight" that they would remedy shortly, as soon as counsel could label and stamp the documents. At the time Plaintiff filed her reply brief (on February 24, 2004), however, the Hospital Defendants had still not produced these documents. In the event the Hospital Defendants have yet to produce these documents, they shall do so within twenty (20) days of the date of filing of this Order.
Id. at p. 9.
4. Second Request for Production No. 8
This request seeks "[a]ll documents that relate to or concern . . . [a]ll policies, practices, and/or procedures related to the compensation of employees, staff, and/or members for vacation and/or leave time." In their response to this request, the Hospital Defendants stated that Plaintiff was never employed by any of the Hospital Defendants and that they did not have any documents responsive to this request. The Hospital Defendants reiterate this position in their response to the Motion to Compel, and Plaintiff appears to agree to this point in her reply. The Court therefore deems this issue moot.
On page 6 of her reply, Plaintiff states that she is seeking to compel the University Defendants to respond to this request. Pl's reply (doc. 179) at p. 6.
B. The University Defendants
1. Second Request for Production No. 8
As noted above, this request seeks documents that concern all policies, practices, and procedures related to the compensation of employees and staff for vacation and leave time. The University Defendants responded to this request as follows:
[A]ll applicable policies of the University of Kansas Medical Center are available on-line at http://www.kumc.edu. The Medical Center's Handbook for Faculty and Other Unclassified Staff, along with other personnel policies, is available at http://www.kumc.edu/guides/policyguide. html.
Plaintiff complains that the University Defendants are playing "hide the ball" with respect to this request. She argues that the only information they ever provided her in response to this request was that their compensation policies and procedures were available online athttp://www.kumc.edu., which Plaintiff refers to as "the Medical Center's homepage." Plaintiff complains that the homepage "contains links to literally hundreds of documents and other web pages, the vast majority appearing to have nothing to do with personnel policies" and that she is unable to locate the policies on the website. In their response to the Motion to Compel, the University Defendants explain that this information is located in the "Medical Center's Handbook for Faculty and Other Unclassified Staff and further explain where this Handbook can be found on the website. In her reply, Plaintiff concedes that she is now able to locate the policies on the website, but she complains that the homepage identifies forty-nine other policy documents, which she argues she should not have to review just to find policy documents regarding compensation for leave time.
Pl.'s Corrected Mot. to Compel (doc. 169) at p. 7.
Id.
The Court finds plaintiff's argument to be without merit. Plaintiff ignores the fact that the University Defendants' response to this request specifically directed Plaintiff to the "Medical Center's Handbook for Faculty and Other Unclassified Staff" athttp://www.kumc.edu/guides/policyguide.html. When the user opens that web page, an index of "KUMC Policies and Procedures" appears. The index groups policies into six different categories, including one that is labeled "Human Resources Policies." The "Handbook for Faculty and Unclassified Staff is clearly listed under that heading. When the user clicks on the "Handbook for Faculty and Unclassified Staff," the user can easily turn to a "Table of Contents" that identifies a section entitled "Appointment Terms and Benefits," under which the topics "Salary Payments" and "Compensation in Excess of Full time Salary" are listed. The Table of Contents also identifies a section entitled "Leave Policies."
Contrary to what Plaintiff asserts, there is no need for Plaintiff to review any of the other forty-nine policies identified in the "KUMC Policies and Procedures" index, and it takes only a few minutes to locate the requested policies. It appears to the Court that Plaintiff should have been able to easily locate the requested policies in a very short amount of time and that a motion to compel was not necessary to find the requested policies based on the website information provided in the University Defendants' response to this request. Even if Plaintiff was legitimately confused as to how to find the policies based on the information provided in the University Defendants' response, Plaintiff could have conferred with Defendants' counsel to obtain assistance in locating the policies on the website. Nothing in the record indicates that Plaintiff did so. The Court therefore rejects plaintiff's argument with respect to the sufficiency of the website information.
Plaintiff makes an additional argument that the website information is not fully responsive to this request. Plaintiff asserts that the University Defendants have only partially responded to the request by directing Plaintiff to the formal policies and procedures provided on the website. Plaintiff argues that "informal practices or procedures which may not rise to the level of `policies,' which are requested in plaintiff's Document Request, do not appear on the Medical Center's homepage." Plaintiff asks the Court to compel the University Defendants to produce all documents "that relate to or concern" those practices and procedures, the specific language used by Plaintiff in her request.
Id.
The Court agrees that the University Defendants have only partially responded to this request by referring Plaintiff to the formal policies posted on the website. The Court notes, however, that the University Defendants objected to this request on the basis that the phrase "all documents that relate to or concern" renders the request "either excessively vague or overbroad in scope." The Court agrees with the University Defendants that the terms "relate to" and "concern" make this request overly broad on its face.
Although the University Defendants asserted this objection in their initial response to the request, Plaintiff failed to address it in her motion and she does not ask the Court to overrule it. As Plaintiff did not address this objection in her Motion to Compel, the University Defendants did not reassert it in their response to the Motion. Even though the University Defendants did not reassert the objection in their response, the Court does not deem it abandoned.
This Court has recognized on many occasions that the use of such omnibus terms as "relating to" or "regarding" can render a discovery request overly broad on its face. However, even when the use of such broad terms renders the request overly broad on its face, the responding party still has a duty to respond to the extent the discovery request is not objectionable. The University Defendants have already done this to the extent they referred Plaintiff to the "Medical Center's Handbook for Faculty and Other Unclassified Staff on the website "without waiving said objections."
See, e.g., Stewart v. Mtichell Transp., No. 01-2546-JWL, 2002 WL 1558210, at *4 (D. Kan. July 8, 2002) (subpoena requesting "all records, documents or information in your possession regarding [Defendant], including, but not limited to, your complete personnel file, job applications, job description and performance evaluations" was overly broad on its face); Bradley v. Val-Mejias, No. 00-2395-GTV, 2001 WL 1249339, *6 (D. Kan. Oct.9, 2001) (use of the term "pertaining to" rendered document request overly broad on its face); Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D. Kan. 1996) (same); Western Res., Inc. v. Union Pac.RR. Co., No. 00-2043-CM, 2001 WL 1718368, at *3 (D. Kan. Dec. 5, 2001) (use of the phrase "relate to" rendered document requests overly broad on their face).
Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 666 (D. Kan. 1999) (citing Fed.R.Civ.P. 34); Western Res., 2001 WL 1718368, at *3.
Agreeing with Plaintiff that the University Defendants have only partially responded to this request by referring Plaintiff to the formal policies posted on the website, but recognizing the overly broad scope of the request as written by Plaintiff, the Court will narrow the request to read: "All documents that contain or set forth Defendants' policies, practices, and/or procedures related to the compensation of employees, staff, and/or members for vacation and/or leave time." To the extent the University Defendants have any additional documents responsive to this request as narrowed (i.e., any documents other than the Handbook for Faculty and Unclassified Staff), they shall produce them and provide a supplemental written response within twenty (20) days of the date of filing of this Order. If no such documents exist, the University Defendants shall, within the same time frame, provide a supplemental written response to that effect.
2. Second Requests for Production No. 2, 3, and 6
The University Defendants devote a significant portion of their responsive brief discussing their responses and/or objections to Second Requests No. 2, 3, and 6. Plaintiff indicates in her reply, however, that she is not moving to compel responses from the University Defendants as to those requests but only as to Second Request No. 8. In other words, Second Requests No. 2, 3, and 6 are not at issue with respect to the University Defendants. Accordingly, the Court will not analyze the arguments that the University Defendants have raised with respect to these requests.
C. KUSA
Plaintiff moves to compel KUSA to provide "full and complete responses" to plaintiff's Second Requests No. 1-9. KUSA served its written responses to these requests on December 1, 2003. In response to Second Requests No. 1-3 and 5-7, KUSA stated: "This request is directed to another defendant. As a result, Defendant KUSA makes no response to this request." In response to Second Requests No. 4 and 9, KUSA stated it would produce the requested documents. Finally, in response to Second Request No. 8, KUSA stated it had no responsive documents.
KUSA produced its responsive documents on December 29, 2003. On January 26, 2004, the day before Plaintiff was required to file her motion to compel, KUSA served supplemental responses to these requests, indicating that (1) it had no documents responsive to Requests Nos. 1-3 and 7-8; (2) it had already produced documents responsive to Requests No. 4 and 9; and (3) it would supplement its response to Request No. 6. On February 2, 2004, a few days after Plaintiff filed the instant motion, KUSA produced eight additional documents responsive to Second Request No. 6.
Plaintiff concedes in her reply that, with the supplemental February 2, 2004 production, KUSA "has now satisfied its obligation to respond fully to plaintiff's documents requests." The Court therefore finds the Motion to Compel moot as it applies to KUSA, except for the issue of sanctions, which is discussed below.
Pl.'s Reply (doc. 179) at p. 7.
II. Analysis Regarding the Requests for Sanctions
A. Plaintiff's Request for Sanctions
Plaintiff seeks to recover from all Defendants the expenses and attorney fees she has incurred in bringing this Motion to Compel. Pursuant to Federal Rule of Civil Procedure 37(a)(4)(A), when a motion to compel is granted or the requested discovery is provided after the motion was filed, the Court will award the moving party the reasonable expenses and attorney fees the party incurred in making the motion. If, however, the Court concludes that (1) the motion was filed without the movant making a good faith effort to obtain the discovery, (2) the opposing party's nondisclsoure, response or objection was substantially justified, or (3) "other circumstances make a sanctions award unjust," the Court may decline to award sanctions. Where the motion to compel is granted in part and denied in part, the Court may, pursuant to Federal Rule of Civil Procedure 37(a)(4)(B), apportion the reasonable expenses and fees incurred among the parties "in a just manner."
Here, the Court is granting in part and denying in part the Motion to Compel as it pertains to the Hospital Defendants. The Hospital Defendants have indicated in their response to the Motion to Compel that they will be producing some additional documents responsive to Second Request No. 6, which they had failed to produce earlier due to an oversight. The Court does not condone Defendants' failure to locate these documents earlier or their delay in providing them to Plaintiff (the Hospital Defendants had still not produced them at the time Plaintiff filed her reply). The Court, however, does not believe that sanctions are appropriate, as no bad faith on the part of the Hospital Defendants has been established. The Court will therefore decline to impose sanctions against the Hospital Defendants.
With respect to the University Defendants, the Court is granting in part and denying in part the Motion to Compel. The Court does not find it appropriate to impose sanctions against the University Defendants nor does it find it appropriate to apportion any fees or expenses between Plaintiff and the University Defendants.
Finally, with respect to KUSA, the Court is denying the motion as moot. Although the Court recognizes that KUSA produced eight documents after the Motion to Compel was filed, the Court does not find any evidence of bad faith on KUSA's part. Thus, the Court does not find that sanctions should be imposed against KUSA. In sum, the Court will decline to award Plaintiff sanctions against any Defendant.
B. The University Defendants' Request for Sanctions
The University Defendants seek to recover the expenses and attorney fees they have incurred in responding to plaintiff's Motion, asserting that her motion was "unwarranted." As noted above, the University Defendants devoted a significant portion of their response opposing plaintiff's arguments regarding Second Requests No. 2, 3, and 6, under the belief that Plaintiff sought to compel them to respond to those particular requests. Plaintiff then indicated in her reply that she was not seeking to compel responses from the University Defendants as to those requests, but only as to Second Request No. 8.
The Court understands why the University Defendants believed Plaintiff was moving to compel responses from them to Second Requests No. 2, 3, and 6, as Plaintiff repeatedly refers to "Defendants" collectively throughout her brief and in her discussion of these particular requests. In her conclusion to the Motion, however, Plaintiff limits her request for relief as to the University Defendants to Second Request No. 8. She states:
For example, in the first paragraph of her motion, Plaintiff states that "the Court should require defendants to provide plaintiff with complete responses to all document requests and provide all documents responsive to plaintiff's Document Request Nos. 2-3, 6, and 8." Pl's Corrected Mot. to Compel (doc. 169) at p. 1 (emphasis added). In addition, in Part I of her motion, Plaintiff states that " defendants have continued to refuse to produce documents relating to the second Data Bank report . . ., minutes of Executive Board meetings, documents submitted to state medical boards." Id. at p. 2 (emphasis added).
Plaintiff respectfully requests that the Court compel the Hospital Defendants to produce a full and complete response to plaintiff's Document Requests Nos. 2-3, 6 and 8; that the University Defendants be compelled to produce all documents responsive to Plaintiff's Document Request No. 8; and that Defendant KUSA provide full and complete responses to plaintiff's Document Request Nos. 1-9."
Pl.'s Corrected Mot. to Compel (doc. 169) at p. 9 (emphasis added).
Had Plaintiff actually moved to compel responses from the University Defendants to Requests No. 2, 3, and 6, the Court would agree that the Motion was unwarranted. Plaintiff, however, apparently did not intend for her discussion of Second Requests No. 2, 3, and 6 to apply to the University Defendants. Notwithstanding the Motion's repeated references to "Defendants," the conclusion of Plaintiff's motion should have placed the University Defendants on notice that there was a question as to what Plaintiff intended and should have prompted the University Defendants' counsel to confer with plaintiff's counsel to determine which particular portions of the Motion were intended to apply to the University Defendants.
In addition, the Court did grant the Motion in part as to Second Request No. 8. Under these circumstances, the Court does not find that it would be appropriate to impose sanctions against Plaintiff. The Court will therefore deny the University Defendants' request for sanctions against Plaintiff.
IT IS THEREFORE ORDERED that plaintiff's Corrected Motion to Compel Responses to plaintiff's Second Set of Document Requests (doc. 169) is granted in part and denied in part, as set forth herein, with respect to Defendants H. William Barkman, Jr., M.D., Irene Cumming, Robert Page-Adams, Kurt Schropp, M.D., and the University of Kansas Hospital Authority.
IT IS FURTHER ORDERED that Defendants H. William Barkman, Jr., M.D., Irene Cumming, Robert Page-Adams, Kurt Schropp, M.D., and the University of Kansas Hospital Authority shall provide to the Court, for the Court's in camera inspection, the redacted and unredacted versions of the Executive Committee minutes discussed herein, within seven (7) days of the date of filing of this Order.
IT IS FURTHER ORDERED that plaintiff's Corrected Motion to Compel Responses to plaintiff's Second Set of Document Requests (doc. 169) is granted in part and denied in part, as set forth herein, with respect to Defendants University of Kansas, Laurence Y. Cheung, M.D., and Barbara Atkinson, M.D.
IT IS FURTHER ORDERED that plaintiff's Corrected Motion to Compel Responses to Plaintiff's Second Set of Document Requests (doc. 169) is denied as moot with respect to Defendant Kansas University Surgery Association.
IT IS FURTHER ORDERED that plaintiff's request for sanctions against Defendants is denied.
IT IS FURTHER ORDERED that the request for sanctions against Plaintiff made by University of Kansas, Laurence Y. Cheung, M.D., and Barbara Atkinson, M.D. (doc. 173) is denied.
IT IS FURTHER ORDERED that all supplemental written responses required to be made as a result of this Order shall be served, and all documents required to be produced as aresult of this Order shall be produced, within twenty (20) days of the date of filing of this Order.
IT IS SO ORDERED.