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Callahan v. Unified Government of Wyandotte County

United States District Court, Tenth Circuit

August 20, 2013



KAREN M. HUMPHREYS United States Magistrate Judge

This matter is before the court on plaintiffs’ motion to compel defendants to fully respond to plaintiffs’ production requests. (Doc. 253). For the reasons set forth below, the motion shall be DENIED.


The basis of this lawsuit is the arrest and detention of certain police officers employed by the Kansas City, Kansas Police Department (“KCKPD”). Highly summarized, plaintiffs allege various civil rights and state law violations related to their arrest and detention following an internal sting operation by the KCKPD. The sting was called “Operation Sticky Fingers” and was designed to catch members of a tactical police team in the act of stealing property while executing a search warrant on a residence.[2]Plaintiffs contend that they did not steal any property or engage in any illegal conduct and that their arrests were without probable cause. Plaintiffs claim defamation and invasion of privacy by placing them in a false light, and allege they suffered extreme emotional distress and psychological trauma from their arrests. Plaintiffs also contend that they have lost promotional opportunities and the wages and benefits corresponding with those promotions.

Plaintiffs’ Motion to Compel (Doc. 253)

The consolidated plaintiffs move to compel responses to Request Nos. 2-5 and 18 of plaintiffs’ third requests for production of documents.[3] On March 1, 2013, plaintiffs served the requests on defendants. Defendants timely served their responses and objections. Counsel exchanged “golden rule” correspondence, and the motion to compel was timely filed.[4]

Plaintiffs request an order compelling production of three general categories of documents: (1) the KCKPD’s “Giglio and/or “Brady” lists[5] and communications related to those lists; (2) the Internal Affairs records for officers accused of theft or dishonesty; and (3) the mental health care records of defendants. Defendants oppose the motion, asserting first that plaintiffs failed to confer as required by D. Kan. Rule 37.2. Defendants also object to the specific requests based on relevance, overbreadth, and privilege. The court will address each objection in turn.[6]

I. Failure to Comply with D. Kan. Rule 37.2

Before reaching the merits of the motion, the court must review the moving parties’ compliance with federal and local rules requiring conference prior to filing a discovery motion. Defendants argue that plaintiffs have failed to comply because no verbal communication occurred between counsel.

Federal Rule of Civil Procedure 37(a)(1) and D. Kan. Rule 37.2 both require a moving party to certify that a conference was conducted regarding the discovery dispute prior to seeking court action. The “reasonable effort to confer with the opposing counsel” required by D. Kan. Rule 37.2 specifically necessitates “more than mailing or faxing a letter to opposing counsel.” The rule “contemplates a conference, either face-to-face or by telephone.”[7] The purpose of the conference is that parties should make a genuine effort to resolve their dispute without court intervention, by “determining precisely what the requesting party is actually seeking; what responsive documents or information the discovery party is reasonably capable of producing, and what specific, genuine objections or other issues, if any, cannot be resolved without judicial intervention.”[8] The parties’ briefing makes clear that counsel corresponded only by letter. Though the letters invite one another to confer, neither party suggests that any discussion actually took place. The court therefore finds that plaintiffs have failed to satisfy the requirements of D. Kan. Rule 37.2.

Despite this lack of compliance, the court has discretion to decide a motion to compel on the merits even when the duty to confer has not been fulfilled.[9] Though the court is inclined to deny plaintiffs’ motion, the parties did exchange substantive views on the dispute through their written correspondence. Under such circumstances, the court will consider the substance of plaintiffs’ motion.[10]

II. Requests Nos. 2 through 4

Plaintiff’s Request No. 2 seeks “[a]ny and all ‘Giglio lists’ maintained by the [KCKPD] during the ten-year period prior to the date of [defendants’] response.”[11] Request No. 3 seeks any communications between the KCKPD and the Wyandotte County District Attorney’s Office during the same 10-year period “relating to the Giglio lists.” Request No. 4 ...

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