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Kear v. Kohl's Department Stores, Inc.

United States District Court, Tenth Circuit

June 18, 2013

TIFFANY KEAR, Plaintiff,


KENNETH G. GALE, Magistrate Judge.

This case is before the Court on Defendant's motion requesting an Order compelling Plaintiff to produce certain documents and respond to interrogatories. (Doc. 74.) After reviewing the submissions of the parties, the Court GRANTS in part and DENIES in part Defendant's motion as more fully set forth below.


Plaintiff Tiffany Kear was employed by Defendant Kohl's Department Stores, Inc. as an Assistant Store Manager from December 27, 2004, until September 10, 2010, when Plaintiff claims she was constructively discharged. In this action, Plaintiff claims damages for lost wages as well as "mental anguish" and "emotional distress" suffered during her employment with Kohl's. Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964 in the form of gender discrimination, gender stereotyping, pregnancy discrimination, and hostile environment created by sexual harassment. Plaintiff also claims discrimination under Kansas state law, K.S.A. ยง44-1001.

Defendant brings the present Motion to Compel (Doc. 74.) to challenge objections Plaintiff raised in response to Defendant's Interrogatories Nos. 4, 11, and 14, and Requests for Production Nos. 10, 15, 16, and 18 and to ask the Court to waive all objections to Interrogatory Nos. 11, 12, 14, 16 and Request for Production Nos. 1, 2, 4, 7, 10, 14-18.


A. Standards on Motions to Compel.

Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.

"Discovery relevance is minimal relevance, ' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence." Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). "Relevance is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action." Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way, "discovery should ordinarily be allowed unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Snowden By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991), appeal denied, 1991 WL 60514 (D.Kan. Mar. 29 , 1991).

Discovery requests must be relevant on their face. Williams v. Bd. of County Comm'rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of relevance is established, the legal burden regarding the defense of a motion to compel resides with the party opposing the discovery request. See Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that the party resisting a discovery request based on overbreadth, vagueness, ambiguity, or undue burden/expense objections bears the burden to support the objections). Although the scope of discovery is broad, it is not unlimited. If the proponent has failed to specify how the information is relevant, the Court will not require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D. Kan.1995).

B. Timeliness

Defendant contends that Plaintiff has waived all objections to discovery responses with the exception of Interrogatory Nos. 1-8 on the grounds that the remaining responses were untimely. Under Rule 33(b)(4) of the Federal Rules of Civil Procedure states that an untimely objection may be excused if there is good cause. Plaintiff counsel contends their fax machine malfunctioned by only faxing the pages containing the first eight (8) Interrogatories. Plaintiff minimized the delay caused by the malfunction by providing Defendant the remaining responses by the next business day. Accordingly, the Court finds any harm caused by Plaintiff's untimely response is negligible and holds that Plaintiff's objections are not waived.

C. Privilege Log

Defendant claims that Plaintiff failed to produce a privilege log and therefore waived any objection on that basis. Plaintiff was served the discovery requests on November 29, 2012 and responded on January 14, 2013, after the extended deadline to respond on January 11. Plaintiff asserted attorney work-product doctrine for Request for Production No. 2 and attorney-client privilege for Requests for Production Nos. 4 and 7. Defendant notified Plaintiff on January 15 and 24 that they had not produced a privilege log. A party withholding documents on the grounds of privilege must expressly make the claim of privilege, usually in the form of a privilege log. Sprint Commc'ns Co., L.P. v. Vonage Holdings Corp., 05-2433-JWL-DJW, 2007 WL 1347754 (D. Kan. May 8, 2007) (citing ...

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