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George K. Baum Advisors, LLC v. Sprint Spectrum, L.P.

United States District Court, Tenth Circuit

September 17, 2013

GEORGE K. BAUM ADVISORS LLC, Plaintiff,
v.
SPRINT SPECTRUM, L.P., Defendant.

MEMORANDUM AND ORDER

KAREN M. HUMPHREYS UNITED STATES MAGISTRATE JUDGE

This matter is before the court on two motions to compel filed by defendant (Sprint). Following a status conference with the court on August 19, 2013, the parties filed a joint stipulation (Doc. 179) that resolved a number of discovery disputes. As a result, two issues now remain for decision: (1) plaintiff’s (GKB) refusal to produce settlement communications responsive to Sprint’s first requests for production (Doc. 102); and (2) GKB’s responses to Sprint’s second interrogatories (Doc. 170).[1]

For the reasons set forth below, Sprint's motion to compel the production of documents (Doc. 102) shall be DENIED and its motion to compel answers to interrogatories (Doc. 170) shall be GRANTED.

Background

This is a declaratory action concerning Sprint's obligation to defend and indemnify GKB in connection with four state court lawsuits against GKB. Because the parties are familiar with the facts and procedural nature of this case set forth in previous opinions, the court’s discussion is limited to the issues pertinent to the rulings which follow.

Sprint's Motion to Compel (Doc. 102)

Sprint’s first motion seeks to compel GKB’s responses to Sprint’s First Requests for Production, specifically Nos. 3, 4 and 14. For ease of discussion, the analysis uses the same identifying numbers referenced in the parties’ briefing. However, the identified requests relate only to the underlying McCormack-Missouri Wireless litigation.[2] Identical requests related to the other three lawsuits were served and answered in the same manner. For this reason, the rulings on each category of requests will also apply to the corresponding requests related to the other underlying lawsuits.

Sprint served its first requests on January 31, 2012 and GKB timely responded. Thereafter the parties exchanged correspondence and conferred regarding their disagreement about the sufficiency of GKB’s responses. In part, GKB refused to produce settlement communications based on a “settlement communications privilege.” The parties agree that their most recent contact regarding the settlement communications, until the filing of Sprint’s motion to compel, was a letter from GKB dated June 20, 2012.

The parties have continued a practice of “rolling” document production, with each party producing thousands of documents beginning in early 2012. In March 2012, the court granted a joint motion to extend the deadline for motions to compel to 60 days after completion of the responding party’s document production.[3] GKB produced documents in response to Sprint’s first discovery requests as recently as April and May 2013.[4] Given the extended deadline for production and the recent production, Sprint asserts its motion is timely. GKB disagrees, arguing that its position regarding production of settlement communications has never changed since its initial response in early 2012 and the motion is therefore untimely.

Requests Nos. 3, 4 and 14

Sprint’s First Request No. 3 seeks “all communications between GKB and any plaintiff or other party in the McCormack-Missouri Wireless litigation regarding or referring to settlement of the underlying cases.” Request No. 4 seeks “all offers, demands, or counteroffers of settlement by any party in the McCormack-Missouri Wireless litigation.” Request No. 14 seeks “all mediation statements, correspondence, case assessments or evaluations submitted to any mediator or other third-party neutral in the McCormack-Missouri Wireless litigation.”[5] GKB objects to Requests Nos. 3 and 14 as vague and overbroad, and to all requests on the basis that the information sought is not relevant to the claims at issue and is not reasonably calculated to lead to the discovery of admissible evidence. GKB further objects to the requests because they seek documents protected by the “settlement communications privilege.”[6]

In its review of GKB’s objections the court finds that any objections not relied upon in the parties’ briefing are deemed abandoned.[7] Although GKB’s discovery responses include objections for vagueness and overbreadth, GKB did not argue these objections in its briefing and the objections are therefore waived.[8] GKB’s objection that the requests are unduly burdensome is contained in one brief paragraph of conclusory allegations. Regarding the objection based on relevance, the terms of the settlements are clearly relevant to the claims and defenses of the parties[9] and the court is inclined to follow Judge Bostwick’s analysis in Heartland to find that the negotiations have merged into the written settlement agreements which have been previously produced.[10] However, it is unnecessary to address these objections or the issue of privilege because the timeliness of the motion is dispositive.

GKB asserts that the motion to compel documents labeled “settlement communications” is untimely under D. Kan. Rule 37.1(b).[11] The parties agreed by joint motion and order[12] to extend the time to file motions to compel responses to requests for production to “60 days after completion of the responding party’s document production.” Sprint argues that GKB’s recent document production extended its deadline appropriately[13]and therefore its motion is timely.

Unfortunately, the agreement is ambiguous regarding whether the extension requires that all document production responsive to an entire set of requests be complete, or whether document production responsive to a specific request must be complete for the 60-day clock to begin. A careful review of the language included in the parties’ motion provides a basis to discern the intent of the parties. The motion acknowledges that parties will engage in “rolling document production” and specifies that the purpose of the extension ...


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