United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Defendants' Motion for Protective Order,  which seeks an order placing restrictions on discovery to: (1) limit discovery regarding the conduct and discipline of non-party employees to individuals who are similarly situated to Plaintiff; (2) limit discovery regarding the alleged conduct and discipline of non-party employees to conduct which is similar to that for which Plaintiff was discharged; (3) limit the temporal scope of discovery regarding the conduct and discipline of non-party employees to a period of March 1, 2007 through July 23, 2013; and (4) prohibit deposition questions based upon rumor or innuendo. The Court finds that Defendants have failed to show good cause for their request except as to limiting the temporal scope of discovery. Accordingly, for reasons set forth below the Court denies the motion in part and grants it in part.
I. Legal Standards
Pursuant to Federal Rule of Civil Procedure 26(c), a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" The decision to enter a protective order is within the Court's broad discretion. Despite this broad discretion, "a protective order is only warranted when the movant demonstrates that protection is necessary under a specific category set out in Rule 26(c)." In addition, the party seeking a protective order bears the burden of establishing good cause. The moving party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."
Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery. It provides that a party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Relevant information need not be admissible at trial if the discovery "appears reasonably calculated to lead to the discovery of admissible evidence." Relevancy is broadly construed, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. Consequently, a request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing" on the claim or defense of a party.
II. Background Information
Plaintiff asserts claims against the City of Lawrence, Kansas ("the City") and Tarik Khatib, the City's Police Chief, for denial of due process and race discrimination arising from Plaintiff's termination from employment with the City's Police Department ("LPD"). The discovery period as to Defendants resumed on January 27, 2014, after having been stayed for two months pending presiding District Court Judge Eric F. Melgren's ruling on Defendants' Motion to Dismiss. In a letter dated February 18, 2014, Defendants advised Plaintiff that their review of Plaintiff's Second Supplemental Rule 26(a) Disclosures and recently propounded discovery requests led Defendants to conclude that Plaintiff wished to perform discovery on irrelevant matters and in a manner that would embarrass, harass, oppress, and cause undue burden and expense to parties and non-parties. Defendants advised Plaintiff that unless he agreed to limit the scope of discovery to relevant issues, Defendants would seek a protective order. The parties then requested that the undersigned Magistrate Judge conduct a telephone conference in an effort to forgo litigating the issue, and that conference took place on March 14, 2014. Plaintiff indicated during the conference that he actually intends to depose far fewer witnesses than identified in his Rule 26 disclosures.
The parties did not reach agreement. In an email dated March 24, 2014, Plaintiff referred to ongoing discussions between the parties on this issue and repeated his expectation that he would take 25 or fewer depositions. He set forth a list of 16 areas of inquiry and 31 deposition witnesses, four of whom he listed as "tentative" and ten as "unlikely." Defendants replied by email three days later, (1) asking for clarification as to whether Plaintiff intended to conduct discovery on topics listed in his Rule 26 Disclosures but not in his March 24 email, such as alcohol abuse, improper transport of an explosive device, bias against women, and sexual harassment allegations, (2) opining that Plaintiff's discovery on his discrimination claims should be limited to similarly situated individuals and/or conduct, and (3) stating that they would be filing the instant motion. Referring to unnoticed possible depositions of potential witnesses but addressing only one actual pending discovery request (and that limited to two requests in Plaintiff's Fourth Request for Production of Documents), Defendants filed the instant motion for protective order.
III. Defendants' Burden to Satisfy Duty to Confer
Were the Court to consider only Defendants' motion and attachments, the Court would find that Defendants have failed to provide certification that they have in good faith conferred or attempted to confer with Plaintiff in an effort to resolve the dispute, as required by Federal Rule of Civil Procedure 26(c) and D. Kan. Rule 37.2. Defendants attach a copy of one letter and one set of email communications, neither of which describes with particularity the steps taken by the parties to avoid this dispute. Because the parties requested and the Court conducted a telephone conference on this issue, however, the Court considers the parties' representations and participation therein to have satisfied Defendants' burden.
As noted above, the Court has broad discretion with respect to protective orders. The Court may not issue such an order, however, unless the moving party "demonstrates that the basis for the protective order falls within one of the categories enumerated in [Rule] 26(c)." In other words, the moving party must show that the requested order is necessary to protect the party from annoyance, embarrassment, oppression, or undue burden or expense. "Rule 26(c) does not provide for any type of order to protect a party from having to provide discovery on topics merely because those topics are overly broad or irrelevant, or because the requested discovery is not reasonably calculated to lead to the discovery of admissible evidence."
A. Relevancy as Basis for Protective Order
Defendants seek a protective order which limits discovery regarding the conduct and discipline of non-party employees to individuals who are similarly situated to Plaintiff and whose conduct is similar to that for which Plaintiff was discharged. Defendants argue that Plaintiff cannot demonstrate pretext in his disparate treatment discrimination claims unless he can show that similarly situated employees were treated differently. Defendants assert that discovery regarding non-supervisory employees, employees with different ...