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CCPS Transportation, LLC v. Sloan

United States District Court, Tenth Circuit

May 31, 2013

CCPS TRANSPORTATION, LLC, et al., Plaintiffs,
v.
BYRON SLOAN, et al., Defendants.

MEMORANDUM AND ORDER

K. Gary Sebelius U.S. Magistrate Judge

This matter comes before the Court upon Defendants Byron Sloan and Terry Sloan’s (collectively “the Sloans”) Second Motion to Compel (ECF No. 63). For the reasons set forth below, the Sloans’ Second Motion to Compel is hereby granted.

I. Relevant Background

Plaintiffs CCPS Transportation, LLC and Enbridge Pipelines (FSP), LLC (collectively “Enbridge”) brings this lawsuit against the Sloans based on an alleged breach of an easement purportedly located on the Sloans’ property in Allen County, Kansas. In February 2013, the Sloans propounded their Second Set of Interrogatories and Requests for Production on Enbridge. In response, Enbridge objected to Interrogatory Nos. 5 and 6 and Request for Production No. 2. The Sloans subsequently filed this Motion requesting the Court to compel Enbridge to respond to these disputed discovery requests.

II. Procedural Conference Requirement

Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2 require a moving party, in good faith, to confer with opposing counsel about any discovery disputes before filing a motion to compel. When a motion to compel is filed, it “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”[1] The duty to confer generally requires counsel to “converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.”[2] This District also requires the movant to “describe with particularity the steps taken by all attorneys to resolve the issues in dispute” so that the court can evaluate whether the movant made a reasonable effort to confer.[3] When determining whether the moving party has satisfied the duty to confer, the court examines the quality of the discussion(s) between the parties rather than the sheer number of contacts.[4] As explained by Judge Rushfelt:

When the dispute involves objections to requested discovery, parties do not satisfy the conference requirements simply by requesting or demanding compliance with the requests for discovery. The parties need to address and discuss the propriety of asserted objections. They must deliberate, confer, converse, compare views, or consult with a view to resolve the dispute without judicial intervention. They must make genuine efforts to resolve the dispute by determining precisely what the requesting party is actually seeking; what responsive documents or information the discovering party is reasonably capable of producing; and what specific, genuine objections or other issues, if any, cannot be resolved without judicial intervention.[5]

In this case, the Sloans assert they were advised by Enbridge that Enbridge is “standing by their objections and that there is no purpose to be served in having a meeting to discuss the Plaintiff’s objections.”[6] Neither the Sloans nor Enbridge provided any further information that they met and conferred to resolve the discovery in dispute. Based on this alone, it appears that the Sloans attempted to meet and confer with Enbridge to no avail. The lack of meaningful discussion between the parties, however, demonstrates the parties’ failure to comply with the procedural conference requirement. In addition, the Sloans failed to provide a separate certification outlining their additional attempts, if any, to confer with Enbridge to resolve this discovery dispute prior to court involvement. For these reasons, the Court could deny the present Motion on this basis. Nevertheless, based on the unique history of this case, the Court, in its discretion, will address the merits of the Sloans’ Motion.

III. Discussion

Fed. R. Civ. P. 26(b)(1) provides that “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” When a party fails to make disclosure of discovery, the opposing party may file a motion to compel. When a motion to compel is filed and asks the court to overrule certain objections, the objecting party must specifically show how each discovery request is objectionable.[7] Objections initially raised but not supported in the objecting party’s response to the motion to compel are deemed abandoned.[8]Similarly, any objections not asserted in the initial response to a discovery request but raised in response to a motion to compel will be deemed waived.[9] If, however, the discovery requests appear facially objectionable, in that they are overly broad or seek information that does not appear relevant, the burden is on the movant to demonstrate how the requests are not objectionable.[10] With this standard in mind, the Court turns to the discovery requests in dispute.

1. Interrogatory No. 5 and Request for Production No. 2

Interrogatory No. 5 seeks the identity of all persons who have conducted or participated in any surveys on the Sloans’ property in Allen County, Kansas during the year of 2012. Along the same lines, Request for Production No. 2 seeks copies of all results or reports from any survey or study conducted by Enbridge, or anyone acting on its behalf, on the Sloans’ property in Allen County, Kansas in 2012.[11] Enbridge initially objected to Interrogatory No. 5 for being irrelevant, unduly burdensome, and overly broad. Enbridge’s response to this Second Motion to Compel, however, only supports its irrelevancy objection. Accordingly, the Court finds Enbridge has abandoned its unduly burdensome and overbreadth objection to Interrogatory No. 5. In addition, Enbridge objects to Request for Production No. 2 for being irrelevant.[12] Therefore, the Court will examine Enbridge’s irrelevancy objection for both Interrogatory No. 5 and Request for Production No. 2.

Fed. R. Civ. P. 26(b)(1) states that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .” Relevant information does not need to be admissible at trial “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”[13] Relevancy is broadly construed at the discovery stage and any “request for discovery should be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the claim or defense of any party.”[14] Nevertheless, “discovery, like all matters of procedure, has ultimate and necessary boundaries.”[15] A discovery request “should be allowed ‘unless it is clear that the information sought can have no possible bearing’ on the claim or defense of a party.”[16] Additionally, “[t]here is no presumption in the Federal Rules of Civil Procedure that a discovery request is relevant.”[17]

Relevance is often apparent on the face of the request.[18] When discovery appears relevant on its face, the opponent to the discovery request must “establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Rule 26(b)(1), or (2) is of such marginal relevance that the potential harm the discovery may cause would outweigh the presumption in favor of broad disclosure.”[19]On the other hand, when relevance is not apparent on the face of the request, the ‚Äúproponent of ...


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