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Skepkek v. Roper & Twardowsky, LLC

United States District Court, D. Kansas

July 10, 2014



JAMES P. O'HARA, District Judge.

This case is before the undersigned U.S. Magistrate Judge, James P. O'Hara, on plaintiffs' latest motion to compel (ECF doc. 224). Specifically, plaintiffs move to compel defendants to produce responsive documents to plaintiffs' fourth set of requests for production. For the reasons discussed below, plaintiffs' motion is granted in part and denied in part.

On April 10, 2014, plaintiffs served their fourth set of production requests.[1] Plaintiffs explain that these requests were prompted by the March 11-12, 2014 depositions of defendant Angela Roper and of Kenneth Thyne. Defendants served their responses to plaintiffs' requests on May 9, 2014.[2] Plaintiffs made five requests in their fourth set of requests for documents, four of which ask for "all documents" from trust or operating accounts of defendant Roper & Twardowsky, LLC ("R&T") regarding the Prudential litigation from 2002 to the present.[3] The fifth request asks for "all documents" reflecting the potential resolution or settlement of R&T's clients who did not participate in the initial Prudential litigation settlement.[4]

Instead of producing documents in response to plaintiffs' document requests, defendants responded with general objections, specific objections, and two answers subject to objections. Initially, it appears that defendants did not provide any documents in response to plaintiffs' requests except for one chart summarizing settlement information in response to Request for Production No. 5.

On June 9, 2014, plaintiffs filed a motion to compel defendants to "make meaningful and adequate responses to Plaintiffs' Fourth Set of Production Requests."[5] With respect to Requests for Production Nos. 1-4, plaintiffs assert that they seek these financial records for two reasons: (1) to calculate damages in this case-a percentage of the net recovery in the Prudential case; and (2) to dispel defendants' contention that plaintiffs abandoned the Prudential litigation financially. Plaintiffs assert that the settlement documents sought in Request for Production No. 5 will show the total fee in the Prudential case, which will allow them to calculate damages.

Defendants respond that plaintiffs' motion is untimely. Regardless of its untimeliness, defendants assert that the requests for financial records are overbroad, unduly burdensome, and irrelevant to the issues in this case. With respect to Request No. 5, defendants argue that the settlement information sought is irrelevant and subject to confidentiality agreements. Further, defendants suggest that production of settlement documents serves no purpose because defendants have provided plaintiffs with all of the relevant information concerning the settlements in summary form.

Fed. R. Civ. P. 26(b)(1) provides that generally the scope of discovery is limited to the parties' pleaded claims and defenses, but that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." When a party files a motion to compel and asks the court to overrule objections, the objecting party must specifically show in its response to the motion how each discovery request is objectionable.[6] Objections initially raised but not supported in response to the motion to compel are deemed abandoned.[7] However, if the discovery request appears facially objectionable in that they are overly broad or seek information that does not appear relevant, the burden is on the movant to demonstrate how the requests are not objectionable.[8] With these standards in mind, the court addresses defendants' objections and responses to the disputed requests.

I. Timeliness

Before addressing the substance of plaintiffs' motion, the court will briefly address defendants' argument that plaintiffs' motion is untimely. Defendants assert that plaintiffs already have requested identical financial records in their third set of production requests, which defendants responded to on March 11, 2013.[9] Specifically, defendants argue Request Nos. 1-4 in plaintiffs' fourth set of document requests are "virtually identical" to Request Nos. 39-40 and 43-44 of plaintiffs' third set of document requests. Defendants objected to the third set of requests as irrelevant, solely designed to harass, overbroad, and unduly burdensome. As such, defendants did not provide documents in response to the requests. Defendants admit the language in plaintiffs' fourth set of document requests "us[es] different wording th[a]n their Third Request, " but they still maintain that it seeks the same information. Therefore, defendants argue plaintiffs have waived their right to challenge defendants' objections.

Plaintiffs respond that this argument fails for two reasons: (1) because the production requests were timely issued under the court's scheduling order; and (2) because they were never meant to circumvent Rule 37.1.[10] Plaintiffs explain that their fourth request for documents was a direct reaction to defendants' testimony during the March 2014 depositions when plaintiffs learned for the first time about how financials were handled in the Prudential litigation. To the extent there are duplicative similarities to earlier requests, plaintiffs argue defendants never challenged them as duplicative under Rule 26(b)(2).

As mentioned earlier, plaintiffs served their fourth requests for production on April 10, 2014, [11] and defendants served their responses on May 9, 2014.[12] In their response to plaintiffs' fourth set of production requests, defendants notably did not make a duplicative objection. Indeed, defendants made no mention of the alleged similarity between plaintiffs' third and fourth set of requests for production.[13] Plaintiffs timely filed their motion to compel on June 9, 2014.[14] In response, defendants objected for the first time that the fourth set of document requests seek the same information as the third set of requests for production. Specifically, defendants now argue that, because plaintiffs did not file a motion to compel with respect to their third set of document requests, plaintiffs waived any issue they have with defendants' objections to their third and fourth sets of requests for documents.

Neither side presents any authority which addresses "waiver" under the specific factual situation presented in this case. Defendants cite no cases whatsoever, but merely argue that plaintiffs "waived any issue they may have had by failing to address this issue then."[15] The court is not prepared to find a waiver under D. Kan. Rule 37.1. Although the requests seek similar information, the court does not find that the discovery sought is unreasonably cumulative or duplicative. By failing to file a motion to compel with regard to the third requests, plaintiffs did not waive any other timely discovery directed at the same general topics. Plaintiffs' motion to compel responses to their fourth set of document requests was filed within the thirty-day timeline to do so.[16] Given the history of discovery in this case, the preference in federal court that matters be decided on the merits, and having found defendants' procedural argument insufficient, the court will decide the motion to compel on its merits. Defendants' untimeliness objection is overruled.

II. Objections to Requests

Under Rule 34(b)(2)(B) of the Federal Rules of Civil Procedure, the party responding to requests for production must "either state that inspection and related activities will be permitted... or state an objection to the request, including the reasons." Of the five requests for production, defendants objected to all five, but answered and objected to Requests for Production Nos. 1 and 5. The court has substantial discretion to determine the propriety of such requests and the sufficiency of responses.[17] An objection and answer preserves nothing and serves only to waste the time and resources of both the parties and the court.[18] Answering discovery requests "subject to" objections is "manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure."[19] The court could ...

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