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Kickapoo Tribe of Indians of Kickapoo Reservation In Kansas v. Nemaha Brown Watershed Joint District No. 7

United States District Court, Tenth Circuit

September 23, 2013

KICKAPOO TRIBE OF INDIANS OF THE KICKAPOO RESERVATION IN KANSAS, Plaintiff,
v.
NEMAHA BROWN WATERSHED JOINT DISTRICT NO. 7, et al., Defendants.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

Pending before the Court is the Motion to Compel Defendant's Responses to Discovery (ECF No. 229). Plaintiff, Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas ("Tribe"), requests an order compelling Defendant, Nemaha Brown Watershed Joint District No. 7 ("District"), to produce documents responsive to the Tribe's Rule 34 Request for Production of Documents on Counts Five and Six of the Tribe's Second Amended Complaint and compelling the District to produce and permit inspection of all computers by technical forensic recovery experts as requested in the Tribe's Rule 34 Request for Inspection of Computers or Other Electronic Equipment. For the following reasons, the Court concludes that the Motion should be granted in part and denied in part.

I. Background

In this matter, the Tribe filed its original Complaint against multiple defendants in 2006 seeking declaratory relief, injunctive relief, compensatory damages, and specific performance regarding its water rights as to the Upper Delaware River and Tributaries Watershed in Kansas. The Tribe's original claims against the District are based on the 1994 Watershed Agreement, which the Tribe alleges obligated the District to exercise its eminent domain power to condemn lands.[1] The Tribe would then purchase the condemned lands to build a dam and reservoir called the Plum Creek Project.[2]

From February of 2007 through January of 2012, prior to the service of the discovery requests at issue here, the Tribe served five separate requests for production of documents and ESI on the District and/or its Board members.[3] The District and/or its Board members served responses and supplemental responses to all of these discovery requests from March of 2007 through April of 2012.[4] No motions to compel discovery were filed by the Tribe as to any of these discovery responses. As a result, by failing to timely move to compel under D. Kan. Rule 37.1(b), the Tribe waived its objections to the discovery responses served by the District and/or its Board members through April of 2012.

On June 22, 2012, the Tribe filed its Second Amended Complaint (ECF No. 199), adding Counts 5 and 6 to its action. In Count 5, the Tribe alleges the District violated the Tribe's constitutional rights.[5] Specifically, the Tribe contends that the "adoption of illegal policy under color of state law" by the District has impaired the Tribe's contract rights in violation of Article 1 § 10 of the U.S. Constitution.[6] Count 6 alleges violation of the Tribe's rights under 42 U.S.C. § 1981 by the District's adoption of an "illegal and discriminatory policy motivated by racial animus under color of state law" which impairs the Tribe's rights to make and enforce contracts and to enjoy the benefits of a contractual relationship.[7]

At the time the Tribe filed its Second Amended Complaint, the deadline for the completion of all discovery was June 30, 2012.[8] Thereafter, on August 22, 2012, on the Tribe's motion, the Court extended the deadline for discovery "on issues relating to the two new counts" to March 29, 2013.[9] As a result, discovery was extended as to the new Counts 5 and 6, but remained closed on issues related to all other claims as of the original deadline of June 30, 2012.

On August 6, 2012, the Tribe served on the District its Rule 34 Request for Production of Documents on Counts Five and Six of the Tribe's Second Amended Complaint, as well as its Rule 34 Request for Inspection of Computers or Other Electronic Equipment Containing Electronically Stored Information on Counts Five and Six of the Tribe's Second Amended Complaint.[10] The District served its responses to those requests via email on September 10, 2012.[11] This was followed by the exchange of letters between the parties on September 14, September 20, and October 5, 2012 in an effort to resolve their disputes pursuant to D. Kan. Rule 37.2.[12] The Tribe asserts that the District's responses do not comply with the Federal Rules of Civil Procedure, and asks the Court to overrule the District's objections. The Tribe alleges that the District has not produced all responsive documents, despite the District's assertions to the contrary. Thus, the Tribe requests an order compelling the District to produce documents responsive to Requests for Production ("RFPs") 131-145 and 147-149. The Tribe also seeks an order compelling the District to produce and permit the inspection by technical forensic recovery experts of all computers or other electronic equipment containing ESI.

II. The District's Global Objections to the Tribe's Discovery Requests

In its Response to the Motion to Compel, the District reasserts four objections as to all or most of the RFPs at issue. First, the District objects that it "cannot compel former members of the Board of Directors, former staff, or former employees to produce documents that are in their possession but that are not in the possession of the Watershed District itself."[13] Second, the District objects that the present RFPs are duplicative of the Tribe's discovery requests as to Counts 1-4 of the Tribe's original complaint, for which discovery is closed. Third, the District objects that the RFPs are "broadly worded and could include communications between attorneys and clients and attorney work product."[14] Lastly, the District asserts that all documents have already been produced. The Court shall address these four objections as follows as to all RFPs to which they are raised.

A. Objection as to Former Board Members, Staff, and Employees

The District objects to RFPs 131-137, 139-140, 141, 142, 143-145, 147, and 148-149 on the basis that it "cannot compel former members of the Board of Directors, former staff, or former employees to produce documents that are in their possession but that are not in the possession of the Watershed District itself."[15] The District argues that it does not have the duty or ability to compel production of documents from persons no longer associated with the District that are not parties to this action. The District believes that this is an attempt to shift the burden of discovery as to third parties from the Tribe to the District. The Tribe asserts that the Kansas Government Records Preservation Act (GRPA)[16] obligates the District to maintain records produced by its employees. The Tribe also asserts that the Kansas Open Records Act (KORA)[17] obligates the District to make its records available to the public. Further, the Tribe argues that if the District failed to meet these obligations, then it must take steps to obtain the documents that it failed to maintain and make available.

The Court rejects the Tribe's argument. The relevant question here is not whether the District has a duty under GRPA and/or KORA to retrieve responsive documents that may be in the possession of former Board members, staff, or employees. Rather, the relevant question is whether the District has "possession, custody, or control" of the documents requested by the Tribe under Fed.R.Civ.P. 34(a)(1). Documents are deemed to be within the possession, custody or control under Rule 34 "if the party has actual possession, custody or control or has the legal right to obtain the documents on demand."[18]

The party seeking the production of documents bears the burden of proving that the opposing party has the control required under Rule 34.[19] Here, the Court finds the Tribe has not met its burden of proving the District has the necessary control of the documents requested. The Tribe has not shown that the District has the legal right to obtain the documents requested on demand from former District Board members, staff, or employees. Neither GRPA nor KORA contain any provision granting government agencies, such as the District, the authority to retrieve documents not in their possession, custody or control. Also, the Tribe has cited no authority holding that GRPA or KORA obligate a government agency to retrieve items that are not in their possession, custody or control pursuant to a request for production under Rule 34. The fact that Kansas state law requires the District to maintain certain records and make those records available to the public does not render the District's objection that it does not have the requisite possession, custody, or control invalid. Furthermore, the Court notes that the District states that it is attempting to respond to the Tribe's RFPs by asking its former Board members, staff, and employees to voluntarily produce any responsive items they may have in their possession. The District's objection that it cannot compel former members of its Board of Directors, former staff, or former employees to produce documents that are in their possession but are not in the possession of the District itself is therefore sustained.

B. Objection as Duplicative

The District also objects to RFPs 131-137, 147, and 148-149 as needlessly duplicative. The District argues that these RFPs are identical to the Tribe's previous discovery requests made regarding Counts 1-4 of the original Complaint. The Tribe asserts that the RFPs properly seek information on the new Counts 5-6.

Fed. R. Civ. P. 26(b)(2)(C) places limits on discovery when "the discovery sought is unreasonably cumulative or duplicative."[20] As the party resisting the discovery based on such an assertion, the District has the burden to show facts justifying its objection.[21] Here, the District asserts the RFPs are not related to Counts 5-6 as added by the Second Amended Complaint, but instead are related to Counts 1-4, which were in the original Complaint and were the subject of the Tribe's earlier discovery requests. The District ...


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