overruling objection that discovery request called for legal conclusionSummary of this case from Sonnino v. University Kansas Hosp. Auth.
Civil Action Nos. 99-2210-GTV, 99-2217-GTV
Filed July 6, 2000.
Stephen D. Bonney, Bonney Law Office, Kansas City, MO; Weston R. Moore, The Moore Law Office, Overland Park, KS, for DENNIS BEACH, plaintiff.
Harold S. Youngentob, Goodell, Stratton, Edmonds Palmer Topeka, KS, for JOHN K BUNKER, plaintiff.
Daniel B. Denk and Ryan B. Denk, McAnany, Van Cleave Phillips, P.A., Kansas City, KS, for OLATHE, KANSAS, CITY OF, PHIL MAJOR, SUSAN SHERMAN, defendants.
Daniel B. Denk, McAnany, Van Cleave Phillips, P.A., Kansas City, KS, for HOWARD KANNADY, defendant.
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Dennis Beach's Motion for an Order Compelling Defendant City of Olathe to Fully Answer Plaintiff's First Request for Production and First Set of Interrogatories (doc. 40).
I. BACKGROUND INFORMATION
Plaintiff Beach, who was formerly a detective-sergeant with the Olathe Police Department, brings this action under 42 U.S.C. § 1983 against the City of Olathe (the City), the City Manager, and the former Chief of Police of the Olathe Police Department, Phil Major. Plaintiff claims that Defendants retaliated against him for speaking out about matters of public concern in violation of his rights to free speech and freedom of association under the First and Fourteenth Amendments. In his Second Amended Complaint, Plaintiff alleges that he spoke to members of the Olathe City Council, at the Council's request, and other public officials concerning misconduct within the Olathe Police Department, including information that Defendant Major was engaged in activities in violation of various rules, regulations, and laws. Plaintiff claims that after Defendants learned of his speech, they subjected him to adverse employment action, including disciplining him, removing him from his position as a detective-sergeant, and subjecting him to an investigation by the Police Department's Internal Affairs Department. Plaintiff also asserts a state law claim alleging that he was retaliated against for reporting wrongdoing by the Olathe Police Department, including the alleged wrongdoing of Defendant Major. He also asserts a state law claim against the City for breach of an employment contract.
This case has been consolidated a with a similar § 1983 case filed by John Bunker, the Chief of Detectives of the Olathe Police Department. Plaintiff Beach alleges that Bunker investigated allegations that Defendant Major had committed multiple thefts and that Bunker supplied information to the Johnson County District Attorney's office regarding those theft allegations. Plaintiff Beach also alleges that Bunker reported the theft allegations to the Johnson County District Attorney's office.
II. PLAINTIFF'S DUTY TO CONFER
The City asks the Court not to entertain Plaintiff's Motion because Plaintiff has failed to confer in good faith and to certify that he has done so, as required by Fed.R.Civ.P. 37(a)(2)(B) and D.Kan. Rule 37.2. The City asserts that Plaintiff has failed to certify, or even allege, in his Motion that he has conferred with the City in an effort to resolve these discovery disputes. The City also states that Plaintiff has only sent one letter to the City's counsel regarding the discovery at issue and that the letter was merely a demand that the City comply with his discovery requests.
In response, Plaintiff states in his reply brief that his counsel telephoned the City's counsel several times during the weeks of September 20 and 27, 1999, to schedule a telephone conference regarding the pending discovery dispute, and that, ultimately, the City's counsel agreed to attempt to resolve the dispute through a telephone conference with the Honorable Gerald Rushfelt. Plaintiff's reply also states that a telephone conference was indeed scheduled but did not take place due to a delay in Court business. Plaintiff's counsel states that he left three messages for the City's counsel to discuss rescheduling the conference but that he received no response. Plaintiff then filed the instant Motion.
Plaintiff's Motion has been on file since November 1999. Due to the Court's backlog of cases, the Court has not been able to rule on this Motion as quickly as it would have liked. While the Court is not particularly impressed with Plaintiff's counsel's initial attempts to confer with the City's counsel regarding this case, given the delay in ruling on the Motion and the attempts that Plaintiff's counsel did make to reschedule the matter for a conference, which the City's counsel apparently ignored, the Court will entertain the Motion. See Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 302 (D.Kan. 1996) ("At its discretion the court may waive strict compliance with the conference requirements.") Although the Court will consider the Motion, Plaintiff's counsel is strongly advised to "reasonably confer" and to comply with the applicable certification requirements before filing any future motions.
"A `reasonable effort to confer' means more than mailing a letter to opposing counsel. It requires that counsel converse, confer, compare views, consult and deliberate." Fears v. Wal-Mart Stores, Inc., 2000 WL 715819, at *1 (D.Kan. May 30, 2000) (quoting Porter v. Brancato, No. 96-2208-KHV, 1997 WL 150050, at *1 (D.Kan. Feb. 24, 1997)).
III. THE REQUESTS FOR PRODUCTION AT ISSUE A. Requests for Production Nos. 3, 12 and 15 (Documents the City Has Now Agreed to Produce)
Plaintiff has moved to compel responses to Request No. 3 (Defendant Major's employment applications, resumes and other information submitted by Major while seeking employment with the City), Request No. 12 (minutes of City Council meetings), and Request No. 15 (Plaintiff John Bunker's personnel file). In response to the Motion to Compel, the City has indicated its willingness to produce these materials and/or to provide them for Plaintiff's inspection. Based on the City's representations, the Court will deem Plaintiff's Motion moot as to these three requests for production. If, however, the City has yet to produce or provide those documents to Plaintiff for his inspection, the City shall do so within thirty (30) days of the date of the filing of this Order .
B. Request for Production No. 2 (Defendant Major's Personnel File)
This request seeks the personnel file of Defendant Major, who as noted above, was Chief of Police for the Olathe Police Department. The City objected to providing the personnel file on the grounds that the file contains "confidential employment materials" and is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Since the filing of the Motion to Compel, the City has agreed to produce all documents in Defendant Major's personnel file relating to policy or criminal violations committed by Major. The City continues to object to producing the remaining documents from his file.
The Court will first address the City's objection that the request seeks irrelevant information and is not reasonably calculated to lead to the discovery of admissible evidence. 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. Scott v. Leavenworth Unified School Dist. 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). A request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Scott, 190 F.R.D. at 585 (quoting Snowden v. Connaught Lab., Inc., 137 F.R.D. 336, 341 (D.Kan. 1991)) (emphasis added by Scott). 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 broad 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, 190 F.R.D. at 585 (citations omitted).
In McCoo v. Denny's, Inc., 192 F.R.D. 675, ___, 2000 WL 553893, at * 11 (D.Kan. April 18, 2000), this Court summarized the holdings of various employment discrimination, retaliation, and other employment-related cases addressing the discoverability of personnel files. As noted therein, those cases have deemed an individual's personnel file 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 discrimination, harassment, or retaliation at issue or played an important role in the employment decision or incident that gives rise to the lawsuit. Id. (citing Daneshvar v. Graphic Technology, Inc., No. 97-2304-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). Relying on those cases, the Court in McCoo ordered production of personnel files of employees alleged to have witnessed or participated in the claimed discrimination under 42 U.S.C. § 1981. McCoo, 2000 WL 553893, at * 11.
Applying these standards, the Court finds that Plaintiff is entitled to discover the entire personnel file of Defendant Major since Major is alleged to have been the driving force behind most of the alleged retaliatory action. See First Amended Complaint, ¶ 39 (in retaliation for Plaintiff's communications about matters of public concern, "Major removed Plaintiff from his position as a detective, suspended Plaintiff from duty, subjected Plaintiff to unlawful restraint, transferred Plaintiff to a less desirable position. . . .").
The Court will next address the City's confidentiality objection. While the Court understands the City's confidentiality concerns, it is well settled that confidentiality does not act as a bar to discovery and is generally not grounds to withhold documents from discovery. See, e.g., McCoo, 2000 WL 553893, at *14; Mackey v. IBP, Inc., 167 F.R.D. 186, 196 (D.Kan. 1996). The same rule is generally applied to police personnel records, with the exception that police officers may have "constitutionally-based privacy interests in personal matters contained within their police files." Mason v. Stock, 869 F. Supp. 828, 833 (D.Kan. 1994) (emphasis added). Mason was a § 1983 case involving excessive use of force by police officers. Judge Belot overruled the police department's objections to producing the personnel files of various police officers except for psychological evaluations that were so "highly personal and sensitive in nature that [the evaluations] should be safeguarded as privileged." Id. In so ruling, Judge Belot noted that the privacy interests of police officers in personnel records should be narrowly construed, especially in federal civil rights actions. Id. In addition, the police officer's privacy interests "should be especially limited in view of the role played by the police officer as a public servant who must be accountable to public review." Id.
The City has not indicated that Defendant Major's personnel file contains any highly personal or sensitive information that requires special protection under Mason. Accordingly, the Court will grant Plaintiff's motion to compel production of Defendant Major's complete personnel file. The Court, will, however, require that the documents be disclosed subject to a protective order that would prohibit their disclosure except as necessary for the litigation of this case. The Court notes that a Stipulated Protective Order is already on file in this case ( see doc. 17) and in the Bunker case ( see doc. 16). Those protective orders appear sufficient to protect the confidentiality of these documents.
C. Request for Production Nos. 5, 6 and 7 (Investigative Materials)
Request No. 5 seeks all documents and files "compiled during or concerning any investigations undertaken by the City of Olathe or its representatives" of John Bunker. Request No. 6 seeks the same materials concerning any investigation undertaken of Defendant Major. Request No. 7 seeks all documents "concerning or referring to an allegation that any employee of the City of Olathe violated any law, regulation, rule or agreement regarding the use of the M.O.C.I.C. phone system."
The City objected to all three requests on the basis that they seek "confidential employment information." In addition, the City objected to Request No. 5 on the basis that the requested investigative materials concerning John Bunker are "unrelated to plaintiff's [Beach's] claims and [the request] is not reasonably calculated to lead to discoverable or admissible evidence." It also objected to Request No. 7 on the basis that the request is vague and ambiguous and "requires defendant to commit unduly burdensome and oppressive acts."
In its response to the Motion to Compel, the City states that is has agreed to provide all "Internal Affairs file materials concerning Bunker and relating to the subject matter of this case" "as the plaintiff's [Beach's] and Bunker's internal affairs investigation was consolidated into one investigation." Response (doc. 47) at 7. The City also indicates that it has agreed to produce all materials relating to the investigation of Defendant Major relating to the M.O.C.I.C. telephone line. The City states, however, that it continues to object to producing other documents relating to any past investigations of Bunker and Major on the basis that they are wholly irrelevant and confidential.
The Court will first address the City's objection to relevancy. The City asserted this objection only in response to Request No. 5; it did not assert irrelevance in response to Request No. 6 or 7. The City has therefore waived any relevancy objection to Request Nos. 6 and 7. See Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D.Kan. 1999) (when a party asserts an objection for the first time in response to a motion to compel, the Court will deem it waived) ; VNA Plus, Inc. v. Apria Healthcare Group, Inc., No. 98-2138-KHV, 1999 WL 386949, at *5 (D.Kan. June 8, 1999) (defendants waived irrelevancy objection by asserting it for the first time in their response to motion to compel).
Because the City did assert irrelevance in response to Request No. 5, the Court will address the merits of that objection. As noted above, Request No. 5 seeks all files and documents compiled during or concerning any investigation of Plaintiff Bunker. As also noted above, the City has agreed to provide the requested investigative materials concerning the Internal Affairs Department's investigation of Plaintiff Bunker since that investigation was consolidated with the investigation of Plaintiff Beach. The City objects to producing any other documents that may relate to any past investigations of Bunker. The City does not explain why it believes those documents are irrelevant, but merely states in a conclusory fashion that they "would be wholly irrelevant to plaintiff's claims in this case based upon the face of plaintiff's complaint and the rationale supplied in plaintiff's Motion." Response (doc. 47) at 7. Plaintiff argues in response that he is entitled to know whether Defendants ordered any other investigations or "witch hunts" against Bunker, i.e., any investigations in addition to the Internal Affairs investigation that is in issue in this case. Plaintiff asserts that if any investigations of Bunker were ordered prior to Bunker's report of the theft allegations to the District Attorney's Office, it would "undercut Plaintiff's theory that the action was taken in response to the report to the District Attorney's office." Reply (doc. 54) at 4. In other words, information about any other investigations relating to Bunker would be relevant to show (or not show) retaliatory motive.
The Court is not convinced that "it is clear" that the requested information can "have no possible bearing" on the subject matter of this case. To the contrary, the Court finds that there is at least "a possibility" that the information sought may be relevant to show retaliatory motive, or lack thereof. The Court will therefore overrule the City's relevancy objection to Request No. 5.
The Court will next address the City's vague and ambiguous and unduly burdensome objections to Request No. 7. While the City asserted these objections in its response to Request No. 7, it did not specifically reassert or address them in any meaningful way in its response to the Motion to Compel. When ruling on a motion to compel, a court generally considers only those objections that have been timely asserted and relied upon in response to the motion. Cotracom, 189 F.R.D. at 662. It will deem objections initially raised but not relied upon in response to the motion as abandoned. Id. The Court therefore rules that the City has abandoned those objections.
Even if the Court were to hold that the City had not abandoned them, the Court would nevertheless overrule them because the City has failed to support them in any way. With respect to its assertion that the request is unduly burdensome, the City has the burden to support the objection and to show not only "undue burden or expense," but also to show that the burden or expense is unreasonable in light of the benefits to be secured from the discovery. See Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D.Kan. 1991). Thus, even if the production of documents would cause great labor and expense or even considerable hardship and the possibility of injury to its business, the City would still be required to establish that the hardship would be undue and disproportionate to the benefits Plaintiff would gain from the document production. See id. Conclusory allegations that a request is unduly burdensome do not satisfy this burden.
The City makes nothing more than a conclusory, unsupported assertion that Request No. 7 is unduly burdensome. Thus, even if the Court were to determine that the City had properly reasserted this objection, the Court would still overrule it as unsupported. The same is true with respect to the City's vague and ambiguous objection. As the party objecting to a request as vague and ambiguous, the City has the burden to show such vagueness and ambiguity. See Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 310 (D.Kan. 1996). A party responding to discovery requests "should exercise reason and common sense to attribute ordinary definitions" to the terms and phrases used therein. Id. The City does not specify which terms of the request are supposedly vague or ambiguous. Giving the terms of the request their ordinary and common meaning, the Court does not find the request either vague or ambiguous.
The Court will next consider the City's confidentiality objection. As noted above, the City states that the documents responsive to Request Nos. 5, 6 and 7 were obtained and are maintained by the Police Department's Internal Affairs Unit under "a strict promise of confidentiality to the complaining parties, the witnesses involved, and the officer which is the subject of the investigation." Response (doc. 47) at 7. The Court does not find this to be a valid objection.
As noted above, confidentiality generally does not act as a bar to discovery. Admittedly, some courts have recognized a "self-policing" or "official information" privilege for police investigative or Internal Affairs files based on confidentiality concerns. See, e.g., King v. Conde, 121 F.R.D. 180, 192-96 (E.D.N.Y. 1988); Kelly v. City of San Jose, 114 F.R.D. 653, 660-61 (N.D.Cal. 1987). Judge Belot examined the validity of such a privilege in Mason v. Stock, 869 F. Supp. 828 (D.Kan. 1994), but refused to apply it to shield police department Internal Affairs files from disclosure. Although neither party has cited Mason, the Court finds its instructive.
Mason was a § 1983 case involving police use of excessive force. The plaintiff sought all records of complaints previously lodged against the Haysville Police Department, including all investigatory and case files related to those complaints. The City of Haysville argued that its investigative files, which included Internal Affairs files, were largely irrelevant and fell within a "federal common law privilege for the internal investigatory files of police departments." Id. at 830-31. Judge Belot noted that this privilege, when recognized, focuses on the public's interest in keeping police files confidential and is predicated on the notion "that disclosure of officers' observations made during past internal investigations of their co-officer's alleged misconduct could have a chilling effect on their willingness to be candid in criticizing their fellow officers during future investigations. Id. at 834 (citations omitted). Judge Belot found the rationale for the privilege to be "fundamentally flawed" and noted that it has been challenged by many courts. Id. He stated:
[The theoretical basis for the privilege] has been questioned and challenged by many, including the Tenth Circuit and the revered Judge Weinstein. The Tenth Circuit has stated: "[I]t is doubtful that citizens and police officers will absolutely refuse to cooperate in investigations because of a few isolated instances of disclosure." Judge Weinstein goes even further, thoroughly attacking the "chilling effect" concept and persuasively arguing that disclosure of police files to civil rights litigants is, at best, a "minute influence on officers' candor" and can, in some circumstances, serve to "increase candor [rather] than chill it."Id. (citations omitted).
In light of the above, Judge Belot refused to apply the privilege to protect the Internal Affairs files from disclosure. Id. He went on to find that even if the Court were to recognize such a privilege protecting the Internal Affairs files, the City of Haysville had produced no evidence that its police officers had "clammed up" during past investigations and evaluations or would "clam up" in the future because Internal Affairs files are disclosed. Id. at 835.
This Court agrees with Judge Belot's holding in Mason and declines to adopt a privilege or other protection for police Internal Affairs files, at least in a § 1983 case such as this involving allegations of police misconduct. Even if the Court were inclined to adopt such a privilege or protection, the Court would find that the City has not established that any of the files at issue contain statements by officers that, if disclosed, would inhibit them from being candid in any later investigations that might take place. Moreover, the City has not demonstrated, through any competent declarations or evidence, how disclosure of the Internal Affairs files under a protective order would cause harm. The Court therefore overrules the City's confidentiality objections to producing the documents and other files responsive to Request Nos 5, 6 and 7.
In sum, the Court overrules all of the City's objections to Request Nos. 5, 6 and 7, and will grant the Motion to Compel as to them. The City may, however, produce the documents subject to the Stipulated Protective Orders already on file in these consolidated cases.
D. Request for Production No. 8 (Defendant Major's Resignation)
This request seeks documents related to or concerning Defendant Major's resignation. The City objected on the basis that the request seeks "confidential employment materials and is unlikely to lead to discoverable information." The City states in its response to the Motion to Compel that it will agree to produce all documents regarding Major's resignation that relate to "policy or criminal violations committed by Major," but will decline to produce other documents relating to his resignation, such as those that deal with retirement, COBRA and unemployment compensation. The City contends that those documents are confidential and irrelevant.
The Court will overrule these objections. The Court cannot say that this information can "have no possible bearing" on the subject matter of this action. Whether Defendant Major was able to retire, collect unemployment compensation, or even obtain COBRA benefits is relevant to the terms under which he left the City's employ and is therefore conceivably relevant. In any event, the City's confidentiality concerns may be addressed by disclosing the documents pursuant to the parties' Stipulated Protective orders.
E. Request for Production No. 11 (Complaints Regarding Defendant Major)
This request seeks all "written communications which contain complaints about or allegations of misconduct by Phil Major." The City objected on the basis that the request seeks "confidential employment information." It also objected on the basis that the request is vague and ambiguous in that the terms "communications" and "complaints" are "subject to a variety of meanings." The City's brief in response to the Motion to Compel provides no information or argument in support of these objections. It does, however, state that it is willing to produce all documents "relating to the City's investigation of Chief Major and alleged misuse of the M.O.C.I.C. WATS line." Response (doc. 47) at 6.
The Court will overrule the City's objections for a number of reasons. First, the City has failed to address or reassert its objections in its response to the Motion to Compel. As noted above, the Court will deem objections initially raised but not relied upon in response to the motion to compel as abandoned. See Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D.Kan. 1999). Even if the Court were to find that the City had not abandoned these objections, the Court would overrule them on the merits. The Court has already rejected the City's "confidential employment information" objection.
In addition, the Court does not find that the City has met its burden to support its vague and ambiguous objection. A party responding to discovery requests "should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories." Id. The Court does not find the terms "complaints" and "communications" vague or ambiguous, and the City should have attributed to them their common and ordinary meanings. See Pulsecard, Inc. v. Discover Card Serv., Inc., 168 F.R.D. 295, 310 (D.Kan. 1996) (party should "exercise reason and common sense to attribute ordinary definitions to terms and phrases" used in discovery requests"). At the very minimum, the City could have qualified its response by defining the terms in their response. See id. (if necessary to clarify its answers, the responding party may include any reasonable definition of the term or phrase at issue).
In sum, the Court will overrule the City's objections to Request No. 11 and will grant the Motion to Compel as to this request.
F. Request for Production No. 13 (Efficiency of the Detective Division)
This request seeks "any documents which indicate, refer to or can be used to determine the level of production, efficiency or effectiveness of the Detective Division, the Plaintiff or Detective Larue since June, 1994, including data regarding the number of cases handled, clearances and backlog of pending cases." The City objected on the basis that the requests required "unduly burdensome and oppressive acts by defendant." In support of its objection, the City stated:
Prior to 1998, all such records and documentation were kept in handwritten logs. Furthermore, the number of incidents and who handled these incidents was not categorized into Detective Division and complaints handled by regular uniformed officers. The City of Olathe opens over 20,000 incident files per year. Plaintiff's request would require defendant to go through all such incident logs and determine first whether the incident was ever assigned to a detective, and second the disposition of the case.
In its response to the Motion to Compel, the City reiterates this objection. It also asserts — for the first time — that the requested documents contain highly confidential information, which in some cases is protected by statute. The City does not identify any such statutes. It does, however, state that several of the incident files contain information relating to child abuse cases and that disclosing the identities of the abused children would violate state law.
Plaintiff contends that this information is important to his case because the City claims Plaintiff was disciplined for failing to give proper attention to his duties. He characterizes his request as asking the City to provide "those documents in its possession which indicate that Plaintiff did not produce at a sufficient level or quality." Mem. in Supp. (doc. 41) at 6. He asserts that if the City reviewed such documents before disciplining him, then the materials would already be compiled. But if the City did not compile such documents, Plaintiff wishes to review all of the requested materials to "extrapolate the date [sic] to affirmatively prove that he performed at a level which was acceptable to the City as compared to all those who did not make reports of public concern. Id. In his reply brief, however, Plaintiff takes a contrary position and states that "Plaintiff does not wish to view the actual reports." Reply (doc. 54) at 5. He also states that he "simply wants access to information relating to number of reports taken, number of cases assigned, number of cases cleared and other hand written data (referred to in Defendant's response)." Id.
The Court assumes Plaintiff meant to use the word "data" rather than "date."
In his reply, Plaintiff refers to Request No. 5, but it is apparent from the discussion that Plaintiff is actually referring to Request No. 13.
The Court will uphold the City's objection that the request is unduly burdensome. The City has sufficiently shown that the request would unduly burden the City. Furthermore, by Plaintiff's own admission, he does not actually wish to review the documents for their contents. The Court concludes that the burden on, and expense to, the City to produce these documents would be unreasonable in light of the benefits that Plaintiff would gain from the document production.
Because the Court will sustain the City's objection on the basis that the request in unduly burdensome, the Court need not address the City's assertion that the materials are protected from disclosure by Kansas law.
G. Request for Production No. 14 (Decision to Transfer Plaintiff)
This request seeks documents concerning the decision to transfer Plaintiff into or out of the Detective Bureau. The City stated in response to this request that "[a]ll such documents are contained within plaintiff's personnel file which will be produced upon the entry of a protective order in this case." In his brief in support of his Motion to Compel, Plaintiff recognizes that the City answered this request by agreeing to produce Plaintiff's personnel file. Plaintiff, however, goes on to state: "But, Plaintiff's request is not limited to his personnel file. Plaintiff needs to see all such documents to demonstrate, not just that he was transferred, but also why he was transferred." Mem. in Supp. (doc. 41 at 6-7). In its responsive brief, the City does not specifically address this request other than to indicate that it has agreed to produce Internal Affairs documents, in addition to the personnel file, in response to this request and Request No. 16. Plaintiff does not address this request in his reply brief.
It is not clear to the Court why this request is at issue. Apparently, Plaintiff believes that the City has in its possession other documents responsive to this request, despite the City's response that " all such documents are contained within plaintiff's personnel file. . . ." (Emphasis added.) Granted, the City has indicated in its brief that additional documents exist in the Internal Affairs file, but it goes on to state that it will also produce that file.
The Court is not in a position to determine whether the City has in its possession any other documents responsive to this request. Certainly, Plaintiff has provided the Court with no reason to suspect that other documents exist. The Court will therefore deny the Motion to Compel with respect to this request. It will, however, order the City to supplement its written response to this request so that it is clear that the City has produced all documents responsive to it.
H. Request for Production No. 16 (Documents Demonstrating Plaintiff Engaged in Misconduct)
This request seeks production of "[a]ny materials which the City of Olathe contends demonstrate that Plaintiff engaged in conduct which justified the imposition of discipline." The City objected as follows:
Objection. This request does not contain any time limitations nor is it specific concerning what constitutes "discipline" and what "discipline" plaintiff is inquiring about. Request No. 16 as well requests attorney work product. What documents the attorneys for the City of Olathe contend demonstrate that plaintiff's conduct "justified" the imposition of discipline prys [sic] into the mental processes of counsel for the defendant. Request No. 16 is further objectionable in that it calls for a legal conclusion. Request No. 16 requires counsel for the defendant to determine which documentation demonstrates that the City of Olathe was "justified" in imposing the discipline upon plaintiff. Request No. 16 is further objectionable in that it is vague and ambiguous.
Defendant states in its responsive brief that it "maintains its objections as stated in its original answer;" but agrees to produce Plaintiff's personnel file and Internal Affairs documents. Resonse (doc. 47) at 8.
The Court will first address the City's objections that the request does not contain any time limitations and that it is not specific as to what "discipline" Plaintiff is inquiring about. The Court interprets these objections as asserting that the request is overly broad in these respects.
The general rule regarding overly broad objections is that the party resisting discovery has the burden to support its objection, unless the request is overly broad on its face. McCoo v. Denny's, Inc., 192 F.R.D. 675, ___, 2000 WL 553893, at * 9 (D.Kan. April 18, 2000); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999). This includes any objection to the temporal scope of the request. McCoo, 2000 WL 553893, at * 9. The Court does not find the request overly broad on its face, and the City makes no attempt to explain or support its objection. The Court therefore overrules this objection.
The Court will next address the City's general objection that the request is vague and ambiguous and its objection that the request is not specific "concerning what constitutes discipline." The Court assumes that this latter objection is really an explanation of how the request is vague and ambiguous, in that the City provides no other explanation of why it believes the request is vague or ambiguous. The Court will overrule these objections. The City has not carried it burden to support them, and the term "discipline" can be given its common, ordinary meaning.
The Court will next address the City's objection that the request seeks attorney work product. The City appears to be arguing that in responding to this request, the City's attorneys will be required to select those documents that the City contends justified discipline of Plaintiff and that this selection process would reveal the attorneys' mental processes.
Generally speaking, the work product doctrine protects only documents and tangible items. ERA Franchise Sys., Inc. v. Northern Ins. Co. of New York, 183 F.R.D. 276, 280 (D.Kan. 1998); Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan. 1995). An exception to this general rule, however, applies to the mental impressions, strategies, and conclusions of an attorney. In Starlight Int'l, Inc. v. Herlihy, 186 F.R.D. 626, 645-46 (D.Kan. 1999), Magistrate Judge Rushfelt noted that the work product doctrine provides "an almost absolute protection for an attorney's mental impressions and conclusions, which is not limited to documents and tangible things that are protected under Fed.R.Civ.P. 26(b)(3) ." Id. at 645-46 (citations and quotations omitted) (emphasis added). "Unless a question [or request] specifically inquires into an attorney's mental impressions, conclusions, opinions, or legal theories, it is inappropriate to raise an objection of work product." Id.
In Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 164 F.R.D. 250 (D.Kan. 1996), Judge Rushfelt overruled a work product objection similar to the City's. The objection in Audiotext was asserted in response to a request that the defendant produce a notebook of documents reviewed and relied upon by a witness before his deposition. Judge Rushfelt stated:
Defendant suggests that the selecting and grouping of the documents makes them attorney work product. Such suggestion ignores prior decisions of this court. The selecting and grouping of information does not transform discoverable documents into work product. See Bohannon v. Honda Motor Co. Ltd., 127 F.R.D. 536, 539-40 (D.Kan. 1989); Henshaw v. Hennessy Indus. Inc., No. 91-2248-KHV, unpublished op. at 4 (D.Kan. Feb. 4, 1993); Sunbird Air Servs., Inc. v. Beech Aircraft Corp., No. 89-2182-KHV, unpublished op. at 4-5 (D.Kan. Sept. 4, 1992).
The Court finds the rule as stated in Audiotext to be controlling. The Court will therefore overrule the City's attorney work product objection.
The Court also overrules the City's objection that this request calls for a legal conclusion. Regardless of whether this is a part of the City's work product objection or a separate objection, the Court holds that it is without merit.
To recap, the Court overrules all of the City's objections to Request No. 16. The Court will therefore compel the City to produce all documents responsive to this request.
IV. THE INTERROGATORIES AT ISSUE
Plaintiff seeks to compel answers to Interrogatory Nos. 2 and 4-11. Plaintiff does not specifically address the interrogatories in his initial brief and it is only in his reply brief that he attempts to explain why he is seeking to compel the City's answers. And even then, he fails to address Interrogatory No. 2 altogether. With respect to the remaining interrogatories at issue, he only generally argues that the City's objections are boilerplate and then states in a conclusory fashion that they are without merit.
The Court will deny Plaintiff's Motion with respect to the interrogatories at issue based on Plaintiff's failure to comply with Fed.R.Civ.P. 7(b)(1). Rule 7(b)(1) provides that a motion "shall state with particularity the grounds therefor." By requiring notice to the Court and the opposing party of the basis for the motion, Rule 7(b)(1) "advances the policies of reducing prejudice to either party and assuring that `the court can comprehend the basis of the motion and deal with it fairly.'" Calderon v. Kansas Dep't of Social and Rehab. Serv., 181 F.3d 1180, 1186 (10th Cir. 1999) (quoting Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1192 at 42 (2d ed. 1990)). Defendant contends that Plaintiff's failure to articulate specific reasons in support of his Motion to Compel "makes it impossible for defendant to respond to objections which it believes are wholly valid." Response (doc. 47 at 9). The Court agrees. Plaintiff's failure to comply with Rule 7(b)(1) has deprived the City of the opportunity to prepare and present a meaningful response to Plaintiff and the Court. In addition, Plaintiff's failure to articulate specific reasons and arguments in support of his Motion renders the Court unable to deal fully and fairly with Plaintiff's Motion. For the foregoing reasons, the Court will deny the Motion to Compel with respect to the interrogatories.
In summary, the Court grants in part, denies in part, and deems moot in part Plaintiff Dennis Beach's Motion for an Order Compelling Defendant City of Olathe to Fully Answer Plaintiff's First Request for Production and First Set of Interrogatories (doc. 40). Defendant City of Olathe, Kansas shall produce all documents responsive to Plaintiff Beach's First Request for Production Nos. 2, 5-8, 11, and 16, as directed herein. To the extent that the City has stated in its responsive brief that it will produce certain documents or make them available to Plaintiff, but has yet to do so, those documents shall also be produced or made available for Plaintiff's inspection. The City shall also serve on Plaintiff a supplemental written answer to Plaintiff's First Request for Production No. 14, as directed herein.
The Court deems the Motion moot to the extent it seeks to compel the production of documents to First Request for Production Nos. 3, 12, and 15, unless the City has yet to produce or provide for inspection the documents it has agreed to produce or provide in response to those requests. Those documents shall also be produced or provided to Plaintiff for his inspection.
The production of documents under this Order and all other actions required to be taken by the City hereunder shall be made or taken within thirty (30) days of the date of the filing of this Order . Said production of documents shall take place at the office of Plaintiff's counsel or at any other location agreed upon by the Parties. Each party shall bear his/its own expenses and fees incurred in this Motion.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 6th day of ____.