Summary
finding that the use of the phrase "relate to" rendered document requests overly broad on their face
Summary of this case from In re BernalOpinion
No. 00-2043-CM.
December 5, 2001
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Compel responses to their First and Third Sets of Document Production Requests (doc. 154). Upon review of the arguments presented, Defendants' Motion is granted in part and denied in part as specifically set forth below.
I. Factual Background
Plaintiff Western Resources ("Plaintiff," "WR" or "Western") generates, distributes and sells retail electric power in Kansas and is co-owner and designated operator of the Jeffrey Energy Center ("JEC"), a coal-fired electric generating facility located in Pottawatomie County, Kansas. Defendants Union Pacific Railroad Company ("UP") and Burlington Northern and Santa Fe Railway Company ("BNSF") are both interstate railroads that, among other things, provide transportation of coal by rail.
Plaintiff asserts it entered into two Rail Transportation Agreements effective in January 1993, both of which govern transportation services for the movement of coal by one or both Defendants from the Powder River Basin in Wyoming ("PRB") to Plaintiff at its JEC facility in Kansas. Plaintiff alleges in its First Amended Complaint that Defendants breached both the express terms of the contracts and the implied duty of good faith and fair dealing in performing these contracts.
On August 9, 2000, Defendants served their Joint First Set of Document Requests on Plaintiff and, on February 8, 2001, they subsequently served their Third Set of Requests. The parties confirm they have met and conferred in an attempt to resolve discovery disputes arising from Plaintiff's responses to the First and Third sets of Requests, but, based on the Motion currently pending, it appears they were unable to resolve them. Accordingly, the Court now considers Defendants' Motion to Compel Plaintiff to provide additional documents responsive to First Requests 14, 15 and 16 and Third Requests 23 and 24.
Although Defendants moved to compel responses to Third Request 25 as well, Plaintiff states in its briefing that this portion of the Motion to Compel is now moot given it recently has agreed to produce the responsive documents.
The requests in dispute seek documents bearing on the contractual relationship between Plaintiff and its coal supplier, Amax Coal West, Inc. ("Amax"), including but not limited to litigation documents from a recently settled lawsuit in Colorado between Plaintiff and Amax. According to Plaintiff, the Amax lawsuit included a counterclaim by Plaintiff against Amax alleging Plaintiff "was entitled to damages from Amax as a result of a transportation force majeure caused by the Railroad's inability to transport coal purchased by [Plaintiff] from Amax." Plaintiff's Memorandum at p. 2 (doc. 183). Plaintiff further claims it alleged in the Amax lawsuit that the Railroad's "inability to transport coal prevented Western from purchasing the amount of coal it needed, which, in turn, prevented Western from buying a larger amount of coal, at a discounted priced, from Amax. Id. Plaintiff asserts that "[t]he Amax Coal Supply Agreement provided that in such an event, Western would be entitled to a refund of its increased costs." Id.
II. Discussion
As noted above, the discovery in dispute seeks documents bearing on the contractual relationship between Plaintiff and its coal supplier, Amax, and litigation documents from a recently settled lawsuit in Colorado between Plaintiff and Amax. More specifically, the five requests at issue require Plaintiff to:
• Produce all documents that refer or relate to:
• the terms and conditions of the Amax contract (including without limitation the contract itself and all amendments);
• the quantity and cost of coal WR nominated and received under the Amax contract;
• performance of Amax or WR under the Amax contract;
• any alleged or actual breaches of the Amax contract;
• WR's reasons for attempting to terminate the Amax contract; and
• coal supply alternatives that WR has considered in the event the Amax contract is terminated.
• Produce all documents that refer or relate to communications between WR and any other person (including without limitation the Railroads, Amax, any JEC co-owner, or any regulatory body or public agency) regarding:
• projected or actual JEC coal inventories and burns;
• supply, transportation, and delivery of coal to JEC;
• coal tons forecasted, nominated, tendered, and shipped to or for JEC;
• the non-existence or existence (and terms) of a Cycle Time or other Performance Standard in the UP-BNSF Contract, the BNSF Contract, or the 1993 Letter of Understanding;
• the Railroads' service to JEC;
• your claims and lawsuit against the Railroads; and
• termination of the UP-BNSF Contract, BNSF Contract, or the Amax contract.
• Produce all documents that refer or relate to any delays in supplying, transporting, or receiving coal under the UP-BNSF Contract or the Amax Contract, including without limitation all documents that refer or relate to:
any force majeure event (whether claimed or not);
the impact of weather conditions;
delays in loading or unloading;
equipment failures;
switching WR's railcars in and/or out of a trainset;
storing or maintaining WR's railcars;
delays at the Northport, N.E. interchange;
mine delays; and
delays at JEC.
• Produce all documents that refer or relate to the settlement or potential settlement of any claims of any party in the Amax litigation, including but not limited to the terms of any such settlement, the terms of any new or modified coal supply contracts entered into in connection with such settlement and the negotiation of any such settlement or any such new or modified coal supply contract.
• Produce all documents that refer or relate to any claim for damages by any party in the Amax litigation.
Plaintiff objects to producing the documents requested in these five discovery requests on grounds that the requests are overly broad, unduly burdensome and seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff predicates these objections in large part on the fact that the requests are couched in terms of "all documents that refer or relate to " a particular topic (emphasis added). Plaintiff argues that Defendants' use of such sweeping language as "refer to" or "relate to" in their discovery requests renders the requests overly broad, unduly burdensome and neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in that they fail to reasonably identify with precision the documents sought as required by Fed.R.Civ.P. 34.
With respect to Requests 23 and 24, Plaintiff also objects to providing drafts of the settlement agreement, negotiation documents and drafts of amendments to the WR-Amax contractual agreement as a result of the settlement agreement on grounds that the referenced documents are not relevant.
Subject to and without waiving these objections, Plaintiff ultimately produced the following documents to Defendants in response to the discovery requests at issue:
• The 1993 Coal Supply Agreement between Western and Amax, and all amendments thereto, which contain the incremental pricing structure for Westerns' purchase of coal;
• Amax's coal manifests (which show, among other things, the arrival and departure times of trains transporting coal to JEC, trains, the number of coal cars in each train, and the weight of coal loaded in each train);
• Amax invoices for JEC coal and associated correspondence;
• Western's internal reports pertaining to the cost of coal delivered to JEC;
• Western's documents concerning JEC's coal inventory;
• Documentation concerning Western's coal costs and coal budgets;
• Amax's Complaint against Western;
• Western's Answer to Amax's Complaint and Western's Counterclaim;
• Amax's Reply to Western's Counterclaim;
• All correspondence between Western and Amax concerning Western's transportation force majeure claim against Amax, including correspondence which sets forth the basis for the computation of the claim;
• The docket sheet from the Amax litigation;
• The Settlement Agreement between Western and Amax that concluded the Amax litigation; and
• The Second Amendment to the Coal Supply Agreement between Western and Amax which provides the basis for the analysis of compensation received by Western as a result of the settlement of the litigation with Amax.
A. Omnibus Phrases
Upon consideration of the arguments presented, the Court finds the five requests at issue are overly broad and unduly burdensome on their face to the extent that they utilize the omnibus phrase "relate to." The federal rules provide that "request[s] shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity." Fed.R.Civ.P. 34(b). Use of all-encompassing language violates Rule 34. "Requests should be reasonably specific, allowing the respondent to readily identify what is wanted." Audiotext Communications v. U.S. Telecom, Inc., No. Civ.A. 94-2395-GTV, 1995 WL 18759, at *1 (D.Kan. Jan. 17, 1995). Courts may find requests overly broad when they are "couched in such broad language as to make arduous the task of deciding which of numerous documents may conceivably fall within [their] scope." Id. at *6. Use of a broad term such as "relate to" provides no basis upon which a party can reasonably determine what documents may or may not be responsive. Cotracom Commodity Trading Co. V. Seaboard Corp., 189 F.R.D. 655, 666 (D.Kan. 1999) (citing Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D.Kan. 1996)). Here, as in Cotracom, the phrase "relate to" does not modify a specific type of document, but rather all documents; thus, its very use makes the requests overly broad on their face.
Although the term "refer to" (as opposed to "relate to") does not necessarily make a request overly broad on its face, its use in the discovery requests at issue in conjunction with other non-specific language also renders the requests at issue overly broad. Fed.R.Civ.P. 34 requires that requests for production identify documents sought with reasonable precision. The requests here fail to meet the particularity requirements of Rule 34 and Plaintiff is left to guess what documents are responsive.
Despite the overly broad nature of the five requests at issue, however, Plaintiff has a duty under the federal rules to respond to the extent that discovery requests are not objectionable. See Fed.R.Civ.P. 34(b). Notwithstanding this requirement, however, the Court will not compel further response when inadequate guidance exists to determine the proper scope of a request for discovery. Cotracom Commodity Trading Co. V. Seaboard Corp., 189 F.R.D. at 666 (citing Schartz v. Unified School Dist. No. 512, No. Civ.A. 95-2491-EEO, 1996 WL 741384, at *1 (D.Kan. Dec. 18, 1996) (addressing duty to answer interrogatories and respond to requests for production); see also, Mackey v. IBP, Inc., 167 F.R.D. 186, 198 (D.Kan. 1996) (addressing duty to answer interrogatory)). Because the requests here fail to meet the particularity requirements of Rule 34, Plaintiff is left to guess what additional documents are responsive. Based on this fact, as well as the nature of the documents already produced in response to the Requests, the Court will not compel further response.
B. Relevancy
Plaintiff objects to providing drafts of the settlement agreement, negotiation documents and drafts of the amendments to the contractual agreement between it and Amax as a result of the settlement agreement. In support of its objection, Plaintiff argues they already have produced the final settlement agreement and the final amendment to the contractual agreement and, to the extent Requests 23 and 24 request drafts and documents representing settlement negotiations, such requests are overly broad, unduly burdensome and seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.
Amended Rule 26(b)(1) provides that "[p]arties may obtain discovery regarding any matter . . . that is relevant to the claim or defense of any party." Fed.R.Civ.P. 26(b)(1). Further, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.
Discovery of information "relevant to the subject matter involved in the action," previously allowed as a matter of right under the prior version of Rule 26(b)(1), now can be undertaken only with leave of court or for good cause shown. Since December 1, 2000, amended Rule 26(b)(1) has applied to federal court proceedings insofar as "just and practicable." It is unnecessary to decide whether the former or current version of Rule 26 is applicable here, because the Court finds the documents requested relevant under the current, more narrow version of the Rule.
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 (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. 583, 585 (D.Kan. 1999). Similarly, a party resisting discovery on the grounds that a request is overly broad has the burden to support its objection, unless the request is overly broad on its face. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999); Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan. 1997). Id. 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).
Pursuant to amended Rule 26(b)(1), the Court finds that Third Requests 23 and 24, to the extent they request drafts of the settlement agreement, drafts of the contract amendment and documents representing settlement negotiations, appear on their face to be relevant to the claims set forth by Plaintiff. In the Amended Complaint, Plaintiff seeks damages for the increased price it was forced to pay Amax for coal due to alleged failures to deliver coal by Defendants. In the Amax lawsuit, Plaintiff sought damages from Amax in the form of a refund for its increased costs due to the Railroad's inability to transport the amount of coal it needed. Based on the similarities between the damages sought in the two lawsuits, the Court finds that not only are the final settlement agreement and final contract amendments reasonably calculated to lead to the discovery of admissible evidence, but the drafts of such documents, including negotiation documents, are relevant to this extent as well.
Because the Court finds the discovery sought appears relevant on its face, Plaintiff now has the burden to establish lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. See Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. at 585.
To that end, Plaintiff argues that drafts and negotiation documents will provide no additional information given the final documents already have been produced; thus, they are only marginally relevant. The Court, however, is not persuaded by this argument. Moreover, Plaintiff fails to demonstrate that the potential harm occasioned by production of the drafts and negotiation documents would outweigh the relevance of such documents to Plaintiff's claim for damages. Accordingly, the Court finds any potential harm is outweighed by the potential relevance of such documents and Plaintiff will be required to produce the drafts and negotiation documents requested in Requests 23 and 24.
Notwithstanding the Court's holding above that Requests 23 and 24 are overly broad on their face due to use of the phrase "relate to," Plaintiff has a duty under the federal rules to respond to the extent that discovery requests are not objectionable. See Fed.R.Civ.P. 34(b). Consistent with the Court's ruling, Plaintiff will not be compelled to produce documents that "relate to" drafts of the settlement agreement, negotiation documents or drafts of the resulting contract amendments, but only will be required to produce or make available copies of the actual drafts and negotiation documents themselves.
III. Conclusion
Based on the discussion above, Defendants' Motion to Compel is granted in part and denied in part. Defendants' Motion is granted to the extent that Plaintiff shall be required to produce, or make available for inspection, copies of the actual drafts and negotiation documents requested in Requests 23 and 24. Defendants' Motion is denied to the extent that, beyond the copies of actual drafts and negotiation documents requested in Requests 23 and 24, the Court will not compel Plaintiff to further respond to the Requests at issue.IT IS SO ORDERED.