United States District Court, D. Kansas
MEMORANDUM AND ORDER
KAREN M. HUMPHREYS, Magistrate Judge.
Plaintiff filed this action against his former employer alleging breach of contract and violations of the Kansas Wage Payment Act. This matter is before the court on plaintiff's motion to compel defendants to fully respond to plaintiff's First Request for Production of Documents and First Set of Interrogatories (Doc. 48). For the reasons set forth below, plaintiff's motion is GRANTED.
In 2010 co-defendant Kevin Foxx, Chief Executive Officer and founder of Barcas Field Services, LLC ("BFS"), approached plaintiff regarding possible employment. Foxx sought a manager to oversee a new BFS location in southern Texas. Although plaintiff resided in Kansas, Foxx suggested that plaintiff could work from his home a portion of the time and travel to Texas and other states as necessary. Plaintiff alleges that, to make the position more attractive, Foxx offered plaintiff a bonus equal to 5% of the net proceeds from any future sale of BFS or its assets. Plaintiff accepted Foxx's offer of employment and worked for BFS from 2010 until September 1, 2013. On September 2, 2013, BFS sold its assets to Rose Rock Midstream, LP for a reported $47, 000, 000. Plaintiff claims that under the terms of the employment agreement he was entitled to 5% of the net proceeds of that sale. Defendants claim that plaintiff was an at-will employee and deny that he was entitled to any bonus.
Plaintiff's Motion to Compel (Doc. 48)
Plaintiff seeks to compel defendants to respond to selected interrogatories and requests for production. Defendants initially responded to plaintiff's discovery requests on March 6, 2014. They later amended their responses on May 5, 2014. After plaintiff filed his motion, defendants provided supplemental responses to the disputed discovery requests and now argue that plaintiff's motion should be moot. Plaintiff disagrees that all issues are resolved and seeks clarification of defendants' responses and additional production. Upon review of the parties' correspondence included in the briefing, the court finds that the parties have adequately conferred as required by D. Kan. Rule 37.2. The remaining issues are addressed in the same sequence in which the parties have categorized the disputed responses.
I. Requests for Production
Request Nos. 2, 6, 11, 13, 17, and 18.
Plaintiff argues that defendants waived any objections to Request Nos. 2, 6, 11, 13, 17, and 18 by providing conditional responses, which have recently been found invalid by Magistrate Judge James P. O'Hara. In each disputed response, defendants assert specific objections but then identify and produce documents "notwithstanding their objections."
Plaintiff does not address defendants' substantive objections but simply challenges defendants' conditional responses. The court joins others in this district in cautioning the parties against the use of conditional responses. But here, defendants have provided in each response a table identifying each produced document by Bates numbers and description. However, the responses fail to specify exactly what portion of the request is being objected to, as required by Fed.R.Civ.P. 34(b)(2)(C), and/or whether the documents produced fully satisfy plaintiff's requests. Therefore, without adopting the harsh result of waiving all objections, the court finds it imperative that defendants should clarify their responses.
Although the parties do not address the substantive objections and the court is loathe to issue advisory opinions, defendants are cautioned to review the broad standard of relevance during discovery. A number of defendants' substantive objections to the disputed requests include defendants' position that the requested documents "have no tendency to make any fact of consequence to this action more or less likely to be true." This language misstates the legal standard. Relevance in the context of discovery is minimal relevance, which means a request should be deemed relevant if there is any possibility that the request will lead to the discovery of admissible evidence.
In light of the above, plaintiff's motion to compel is GRANTED as to Request Nos. 2, 6, 11, 13, 17, and 18. Defendants are ordered to confirm in writing whether they have produced all responsive documents. If defendants have withheld any responsive documents, they must specifically identify the documents and provide a proper privilege log if appropriate.
Request No. 5
Defendants' initial response to plaintiff's Request No. 5 includes objections based on overbreadth, relevance, and vagueness. Defendants' supplemental responses identify and produce specific documents while stating that the production is "in addition to its earlier objections." Plaintiff argues that defendants' amended and supplemental responses to Request No. 5 are improper, e.g., their objection on relevance is ...