United States District Court, D. Kansas
MEMORANDUM AND ORDER
KAREN M. HUMPHREYS, Magistrate Judge.
This matter is before the court on plaintiff's motion for a protective order and/or to quash defendant's proposed subpoenas (Doc. 60). For the reasons set forth below, plaintiff's motion shall be DENIED.
During his employment as an over-the-road truck driver, plaintiff was injured while picking up a trailer at defendant's Liberal, Kansas facility. Plaintiff claims the muddy and uneven surface on which the trailer was located, combined with the tightly parked arrangement of the trailers, caused the trailer to jerk and strike him in the head. As a result of the head injury, plaintiff claims permanent and progressive injuries to his head and neck. Plaintiff seeks recovery for pain and suffering, past and future medical expenses, lost income, and diminished enjoyment of life.
On January 9, 2014 the court issued a Memorandum and Order resolving the parties' separate motions to compel discovery responses. In that order, the court found that the identification of plaintiff's medical providers, without limitation to plaintiff's head and neck injury, is relevant to the claims and defenses in this matter. The order also approved the parties' agreement to a temporal limit of ten years on the identification of plaintiff's medical providers and disclosure of plaintiff's medical records.
Defendant has now notified plaintiff of its intent to issue subpoenas to five non-party insurance companies. The subpoenas request the companies to produce information on seven of plaintiff's previous insurance claims. These subpoenas are the subject of the parties' current dispute.
Plaintiff's Motion for a Protective Order and/or to Quash Proposed Subpoenas (Doc. 60)
Plaintiff seeks protection, in the form of either an order to quash or a protective order, from the subpoenas of his previous insurance claims. He claims that the subpoenas are facially overbroad, unduly burdensome, and irrelevant to the claims and defenses in this case. Plaintiff also argues that the subpoenas circumvent the parties' prior agreement as to the temporal limits and scope of permissible discovery. He contends that defendant's attempt to use evidence of plaintiff's prior insurance claims or litigation is irrelevant and constitutes improper character evidence.
Defendant maintains that plaintiff has not met his burden to establish good cause for a protective order under Fed.R.Civ.P. 26(c)(1) because overbreadth and relevancy are not reasons for issuing a protective order, and plaintiff has not met his burden to show that the subpoenas are unduly burdensome. Defendant also asserts that the subpoenas are not facially overbroad and that the claims meet the low threshold of relevancy for purposes of discovery; therefore, the subpoenas should not be quashed.
Plaintiff certifies that counsel for the parties conducted a conference in accordance with D. Kan. Rule 37.2. Defendant does not dispute that statement and therefore the court finds that the parties have properly conferred regarding this discovery dispute. For ease of discussion, the court addresses plaintiff's objections in the categories outlined in the parties' briefing.
Overbreadth and Relevance
Plaintiff first argues that the proposed subpoenas are facially overbroad and seek information that is not facially relevant. Defendant responds that Fed.R.Civ.P. 26(c) does not include overbreadth or relevance as a basis for issuing a protective order, but acknowledges that overbreadth or irrelevance could provide a basis for quashing the subpoena. While there is variation in this district as to whether overbreadth or relevance are proper bases for protection from a subpoena,  the motion need not be decided on this issue. Rather, as explained in greater detail below, the court finds that the subpoenas are not overly broad and seek information that is relevant at this stage of discovery.
To the extent plaintiff contends that the use of the omnibus phrase "relating to" renders the subpoenas facially overly broad, the court disagrees. While it may be generally true that phrases such as "regarding" or "pertaining to" may require a responding party to "engage in mental gymnastics to determine what information may or may not be remotely responsive, " defendant has narrowed its request to a specific policy and claim number arising on a specific date in each disputed subpoena. Because each request "modifies a sufficiently specific type of information, document, or event, rather than large or general categories of information or documents, " the court finds that the subpoenas are not facially overly broad. The burden then shifts to plaintiff to demonstrate overbreadth, and plaintiff has failed to meet that burden.
Plaintiff argues that the information requested in the subpoena is not relevant on its face. However, contrary to plaintiff's discovery responses,  defendant later discovered that plaintiff had been involved with several past insurance claims. When questioned at deposition about previous claims, plaintiff disclosed only one claim arising from an October 2012 car accident and admitted to also sustaining a neck injury in that accident. In light of plaintiff's apparent failure to disclose other claims, it appears possible that the insurance claims information could lead to the discovery of admissible evidence, and the requests are facially relevant. Although plaintiff claims that the subpoenas are not limited to his personal injuries and include claims by his family members and claims for property damages, plaintiff provides no factual support for his conclusory statement, nor did he challenge defendant's characterization by filing a reply. ...