United States District Court, D. Kansas
HAROLD M. NYANJOM, Plaintiff,
HAWKER BEECHCRAFT, INC., Defendant.
MEMORANDUM & ORDER
KENNETH G. GALE, Magistrate Judge.
Now before the Court is Defendant's Motion to Compel Responses to Defendant's Discovery Requests. (Doc. 108.) After extensive conferring by the parties, the Court held a telephonic conference with the parties to address the issues prior to Defendant filing the present motion. (Minute Entry, Oct. 3, 2013.) Plaintiff did not follow many of the guidelines the Court gave him during that conference. Defendant subsequently filed the present motion. A hearing was held on May 20, 2014, at which the Court reached the certain conclusions and explained in detail the rulings which are contained herein. GRANTING in part and DENYING in part Defendant's motion. Such conclusions are more fully set forth below.
I. REPEATED DEFICIENCIES IN PLAINTIFF'S DISCOVERY RESPONSES.
A. Boilerplate Objections.
This Court has repeatedly condemned the use of "boilerplate" or blanket objections. Sellers v. Wesley Medical Center, No. 11-1340-JAR-KGG, 2012 WL 5362977, at *2 (D. Kan. Oct. 31, 2012) (citing Gheesling v. Chater, 162 F.R.D. 649 (D. Kan. 1995)). Those are general objections either not linked to a specific request,  or objections within a specific request but which are so general in nature that the requesting party cannot determine whether information or documents are being withheld pursuant to the objection.
Objections of this type do not provide the requesting party or the Court any way to evaluate the validity of the objection, or any way to know whether or not information is being withheld pursuant to the objection. Generally, such objections can be easily spotted because they either appear as General Objections not linked to a specific request, or they are worded as objections "to the extent" or "insofar as" the request is objectionable. An answer "subject to" such objection is incomplete. The undersigned generally views such objections as improper and ineffective to preserve any valid objections.
At the hearing, the Court specifically noted, and ordered stricken, such objections in Plaintiff's responses. Because the Plaintiff has been provided numerous opportunities to clarify and remove these objections, including a previous explanation by the Magistrate Judge during the informal pre-motion conference, Plaintiff will not be permitted to re-word those objections or narrow them to a specific request. The Court overrules and strikes all such boilerplate objections. The Court further orders supplemental answers not restricted by the objections, as discussed at the hearing.
B. Superfluous Objections.
These objections are identified by statements of the obvious, such as the responder will not provide documents outside of his possession, custody or control. Another example is a proviso that the responder does not concede the relevance or admissibility of a document by producing it. These principals are true whether stated or not. Thus, such statements should be avoided.
In most cases the requesting party might simply ignore such a proviso. However, coupled with the overall evasive nature of the Plaintiff's responses in this case, they add to the requestor's, and the Court's, discomfort concerning the completeness of Plaintiff's discovery responses. For clarity, the Court struck those objections. The objections were not "overruled" because they are not incorrect statements of the law.
C. Reserving the Right to Supplement or Amend Responses.
Statements contained in a party's discovery responses reserving the right to amend or supplement are mostly in the category of superflua. The duty to amend is described in Fed.R.Civ.P. 26(e). This duty need not be repeated, and cannot be expanded, by proviso or objection.
In some instances, Plaintiff urges that his failure to produce evidence not foreclose him from using the evidence at trial. This assertion is both improper and futile. The failure to produce evidence in discovery may very well bar the use of such evidence at trial. Such a determination will, however, be made by the District Judge if and when the issue is raised during trial. To avoid confusion, the Court strikes these objections and references in the responses.
D. Privilege Objections.
Privilege objections stated by Plaintiff but not tied to a particular request are improper, general, or boilerplate, and are hereby stricken. As to privilege objections made within specific questions, Plaintiff has failed to provide the required privilege log. See Fed.R.Civ.P. 26(b)(5)(A). Those objections are, therefore, waived.
While the Court might, especially with a pro se litigant, provide another chance to provide such a log, in this case the need for the log has been previously explained to Plaintiff by defense counsel and the Court. Additionally, there is no " pro se litigant, " privilege as asserted by Plaintiff. Further, no facts are presented by Plaintiff, who does not have an attorney in this case, to support his various assertions of the attorney-client privilege. Those objections are also overruled.
E. Objections to the Production of Documents not in Plaintiff's Possession or that are in the Possession of Others.
The Federal Rules of Civil Procedure specifically require only that a party provide documents within his "possession, custody, or control." Fed.R.Civ.P. 34(a)(1). A general boilerplate objection is not necessary to preserve this limitation, and is stricken as surplusage.
Further, Plaintiff may not alter, by general objection or qualification, what sort of documents the rules consider within his control. The Court is concerned that language in his responses would seem to attempt to narrow the definition of what he is considered to "control." While not exhaustive, Plaintiff is advised that documents which belong to him in the possession of, for example, his attorney or accountant, would be within his control. Documents in the ...