United States District Court, D. Kansas
MEMORANDUM & ORDER ON DEFENDANTS' MOTION TO ENFORCE DISCOVERY AND FOR SANCTIONS
KENNETH G. GALE, Magistrate Judge.
Before the Court is the "Motion to Enforce Discovery and for Sanctions" filed by Defendants. (Doc. 51.) For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.
The present action was filed on July 9, 2012, in the United States District Court for the Southern District of New York. Claims were asserted against the various Defendants for breach of contract, trademark infringement, false designation of origin and unfair competition, trademark dilution, and unjust enrichment. (Doc. 1.) In August 2012, Defendants moved to dismiss the Complaint or, in the alternative, transfer it to the District of Kansas. (Doc. 6.)
Defendant Ringside filed Suggestions of Bankruptcy in November 2012, in the United States Bankruptcy Court for the District of Kansas. (Doc. 17.) This triggered an automatic bankruptcy stay. The present action was transferred to the District of Kansas on March 13, 2013. (Doc. 22.)
Judge Berger of the United States Bankruptcy Court for the District of Kansas denied the Motion to Enforce Automatic Stay regarding Plaintiff's claims against Defendants RAL and Combat, by Order dated September 27, 2013. This permitted those counts to go forward in this Court. ( See Doc. 37, at 7.) Plaintiff filed a Motion to Amend the Complaint (Doc. 36) on December 2, 2013, which was granted on December 23, 2013 (Doc. 41).
Defendants served the discovery at issue on December 6, 2013. (Doc. 39.) A Scheduling Order was entered on January 28, 2014, which included the following in regard to this discovery: "Defendants' discovery originally served in December 2013, shall be deemed to have been served on Plaintiff on January 8, 2014, for purposes of calculating a response date." (Doc. 48, at 5.) This adjustment was made because discovery was served before the Rule 26(f) conference in violation of Rule 26(d)(1). Plaintiff's responses were, therefore, due on or before February 7, 2014. Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A). Having received no discovery responses, defense counsel sent correspondence to Plaintiff's counsel on February 14, 2014. (Doc. 52, at 7.) Without responding to defense counsel's communication, Plaintiff served discovery responses, largely consisting of unsupported objections (discussed infra ), on February 19, 2014. ( See Docs. 53-3, 53-4, 53-5.) Further, Plaintiff produced no responsive documents in response to the discovery requests. These responses are the subject of the present motion. Defense counsel made sufficient effort to communicate with Plaintiff's counsel in compliance with D. Kan. Rule 37.2 prior to filing the present motion. (Doc. 52, at 7-11.)
A. Timeliness Objection.
Defendants object that Plaintiff's discovery responses were 12 days late "[w]ithout seeking leave of Court or an extension from defense counsel...." (Doc. 52, at 12.) According to Fed.R.Civ.P. 33(b), a "responding party must serve its answers and any objections within 30 days after being served with the interrogatories." (Emphasis added.) The rule continues that "[a]ny ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure." Id., at (b)(4). These same parameters apply to document requests under Fed.R.Civ.P. 34, absent the signature requirement. To establish "good cause, " a party must show
at least as much as would be required to show excusable neglect.' The party failing to assert timely objections must show it could not have reasonably met the deadline to respond despite due diligence. Mistake of counsel, ignorance of the rules, or lack of prejudice to the opposing party generally does not constitute good cause.'
Linnebur v. United Telephone Ass'n, 10-1379-RDR, 2012 WL 1183073, at *6 (D. Kan. April 9, 2012).
Plaintiff responds that there are "extenuating circumstances" that establish the requisite "good cause" to allow it to serve responses to discovery out of time. (Doc. 58, at 2.) According to Plaintiff's counsel, good cause is established by the fact that he "is a practitioner with one associate... with limited resources to review, analyze and respond to such broad and expansive discovery requests." ( Id., at 2-3.) Further, Plaintiff's counsel contends that Plaintiff and its parent company "have executives spread throughout the country and internationally... making it quite challenging to address this breadth of discovery in a compressed time frame." ( Id., at 3.)
The Court is not persuaded by Plaintiff's reasoning. Plaintiff's counsel was aware of the resources of his firm and the international status of his client at the time he chose to initiate this lawsuit. While these issues may have made it difficult for Plaintiff's counsel to timely respond to the discovery requests, they do no excuse Plaintiff's failure to request a timely extension to do so. Plaintiff also has local counsel who are, or should, be available to be involved in this litigation as needed. Further, as discussed above, Plaintiff was given an additional 30 days to respond to the discovery requests per the Court's Scheduling Order. (Doc. 48, at 5.) Finally, the Court is unpersuaded by Plaintiff's argument that its failure should be excused by Defendants' alleged persistent failure to meet case deadlines. (Doc. 48, at 6.) Whether or not this is true, it is completely irrelevant to the issue of whether Plaintiff filed timely discovery responses and/or has established good cause for the failure to do so.
Given the obstructive nature of Plaintiff's discovery responses, discussed infra, the Court does not find that the failure to respond in a timely manner - or request a timely extension to do so - is supported by good cause. Rather than deem all of Plaintiff's objections waived, however, the Court will address the discovery issues on their merits.
B. General and Conditional Objections.
Plaintiff's discovery responses all begin with a series of "General Objections, " which include the following:
4. Plaintiff objects to the requests to the extent they seek information protected by the attorney-client privilege, the attorney work product doctrine, joint defense privilege, or any other lawfully recognized privilege or immunity. Inadvertent production of any such information shall not constitute a waiver of any privilege or any other ground for objecting to discovery with respect to such information, or any information obtained therefrom, or with respect to the subject matter thereof. Nor shall such inadvertent production waive Plaintiff's right to object to the use of any such information, or the information obtained therefrom, during any subsequent proceedings.
5. Plaintiff objects to each request that seeks information that is confidential, proprietary, or in the nature of trade secret. Plaintiff will produce such documents, if properly producible, only pursuant to entry of a protective order limiting dissemination of such documents.
6. Plaintiff objects to each request to the extent that they fail to identify a proper time frame for responsive information.
(Doc. 53-3, 53-4, 53-5, at 2-3.)
This Court has specifically held that "[t]hese type of objections are, at best, worthless and improper." Martin K. Eby Const. Co., Inc. v. OneBeacon Ins. Co., 08-1250-MLB-KGG, 2012 WL 1080801 (D. Kan. March 29, 2012) (citing Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 660-61 (D. Kan. 2004). "Such objections are considered mere hypothetical or contingent possibilities, where the objecting party makes no meaningful effort to show the application of any such theoretical objection to any request for discovery.'" Id. At worst, these types of objections leave the requesting party "unsure whether or not the objection correlates to withheld information." These general objections (Doc. 53-3, 53-4, 53-5, at 2-3) are, therefore, overruled.
The Court is equally disapproving of "conditional responses." Such responses occur when "a party asserts objections, but then provides a response subject to' or without waiving' the stated objections." Westlake v. BMO Harris Bank N.A., 2014 WL 1012669, *3 (D. Kan. March 17, 2014) (citing Sprint Comm'n Co., L.P. v. Comcast Cable Comm'n, LLC, Nos. 11-2684-JWL, 11-2685-JWL, 11-2686-JWL, 2014 WL 54544, *2, 3 (D.Kan. Feb. 11, 2014). The Court is in agreement with the Sprint decision that found such conditional responses to be "invalid, " "unsustainable, " and to "violate common sense." 2014 WL 54544, *2, 3. All such conditional responses are improper and Plaintiff is ...