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Kemp v. Hudgins

United States District Court, D. Kansas

March 2, 2015

JOHN KEMP, Individually, and as a Special Administrator of the ESTATE OF TERESA LEANN KEMP, Plaintiff/Judgment Creditor,
KASTON HUDGINS, Defendant/Judgment Debtor, and DAIRYLAND INSURANCE COMPANY, Garnishee.


KENNETH G. GALE, Magistrate Judge.

Before the Court are Plaintiff's three motions to compel and supporting memoranda, filed on December 15 and 18, 2014. (Docs. 64, 66, 68.) After reviewing the submissions of the parties, and striking certain pleadings for being in violation of District of Kansas local rules, the Court GRANTS in part and DENIES in part Plaintiff's motions as more fully set forth below.


The above-captioned matter is a garnishment action filed by Plaintiff who is seeking to collect from Garnishee Dairyland Insurance Company ("Garnishee"). (Doc. 1.) Garnishee insured Defendant, who was in an automobile accident that resulted in the death of Plaintiff's wife and daughter. (Doc. 27, at 2.) That automobile accident lead to a wrongful death lawsuit filed by Plaintiff against Defendant (hereinafter "the underlying lawsuit"). ( See Doc. 1-1.) Plaintiff also alleges that Garnishee acted in bad faith or negligently in failing to settle the underlying lawsuit against Defendant, which resulted in a judgment against Defendant in excess of $5 million, well beyond the policy limits. ( Id., at 9-20.) Defendant filed a timely appeal with the Kansas Court of Appeals in the underlying lawsuit, which remains pending and is set for oral argument on September 17, 2013. (Doc. 27, at 2.)

Plaintiff brings the three subject motions seeking to compel Garnishee to respond to Plaintiff's Interrogatories (Doc. 64), Requests for Production (Doc. 66), and Requests for Admission (Doc. 68.) Plaintiff served 13 Interrogatories, 129 Requests for Production, and 541 Requests for Admission. The sheer volume of discovery requests involved, in addition to the manner in which Plaintiff has chosen to brief the various legal issues, has complicated this process.


A. Order Striking Improper Portions of Plaintiff's Motions.

In the matter presently before the Court, Plaintiff has filed three separate discovery motions. The motions themselves (not the memoranda) are, respectively, 35 pages (Doc. 64, relating to Interrogatories), 193 pages (Doc. 66, relating to Requests for Production), and 864 pages (Doc. 68, relating to Requests for Admission).

In each motion, Plaintiff sets out verbatim the discovery request, Garnishee's response and then, as to each discovery request, Plaintiff offers, in italicized single-spaced print, his opposition to Garnishee's responses and objections. In the motion at Doc. 64 (relating to Interrogatories), this occupies more than 30 pages. In Doc. 66 (regarding Requests for Production), it occupies more than 190 pages. In Doc. 68 (regarding Requests for Admission), it encompasses more than 850 pages. The memoranda in support, on the other hand, are concise and of reasonable length.

The sections in the motions setting out Plaintiff's opposition to the objections are simply legal analyses which belong in the argument sections of the corresponding memoranda, which are limited by rule to 30 pages. D. Kan. Rule 7.1(e). A party cannot avoid the operation of this District Court rule by moving legal argument to the motion. The Court thus STRIKES and disregards these improper sections of Plaintiff's motions.

THEREFORE, the portions of Documents 64, 66 and 68 containing argument, as described herein, are hereby STRICKEN. The Court will, however, review the merits of Plaintiff's legal arguments as contained solely in the accompanying briefs.

B. Standards for Discovery.

Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.

"Discovery relevance is minimal relevance, ' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence." Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). "Relevance is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action." Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Once this low burden of relevance is established, the legal burden regarding the defense of a motion to compel resides with the party opposing the discovery request. See Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that the party resisting a discovery request based on overbreadth, vagueness, ambiguity, or undue burden/expense objections bears the burden to support the objections).

C. Motions to Compel (Docs. 64, 66, and 68).

Many of the arguments contained in the memorandum in support of Plaintiff's motion to compel Interrogatory responses (Doc. 65) are repeated in the memoranda supporting his motions to compel responses to his Requests for Production (Doc. 67) and to his Requests for Admissions (Doc. 69). For example, Plaintiff addresses the issues of attorney-client privilege, the work product doctrine, the "insurer-insured privilege, " and conditional responses in the context of Garnishee's responses to more than one type of discovery. ( See generally Docs. 65, 67, and 69.) Frequently, the argument is repeated verbatim in all three memoranda - often with no discussion of how the discussion relates to the specific, underlying discovery requests. To the extent an argument is contained in more than one memorandum, the Court will address the various types of discovery responses simultaneously.

1. Whether the attorney-client privilege and work product doctrine are implicated by Plaintiff's discovery requests.

Plaintiff's contends is that the information sought by his 13 interrogatories does not implicate the attorney-client privilege and work product doctrines "because they do not seek the production or content of any document or communication, nor [sic] do they seek the mental impressions of counsel." (Doc. 65, at 4.) In other words, Plaintiff merely asks Garnishee "to identify various documents and communications regarding Defendant [sic] Dairyland's handling of the underlying claims...." ( Id., emphasis in original.) The Court agrees that attorney-client privilege "does not apply to the fact of communication between a client and attorney." Burton v. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 484 (D. Kan. 1997). Rather, "[i]t is the substance of the communication which is protected, not the fact that there has been communication." Id. To the extent Plaintiff is merely requesting that Garnishee identify such communications, Plaintiff's motion is GRANTED.

Plaintiff makes the same argument in regard to his Requests for Admissions. (Doc. 69, at 4-5.) Plaintiff's memorandum does not, however, refer to any specific requests. ( Id. ) "It is not the province of the Court to review the discovery responses in their entirety and attempt to guess as to why Plaintiff found them to be improper" or objectionable. Lynn v. Maddox, No. 12-3104-MLB-KGG, 2014 WL 129340, at *2 (D. Kan. Jan. 14, 2014). As noted above, Plaintiff's "motion" to compel regarding the Requests for Admissions is 864 pages long and discusses literally hundreds of Requests for Admission and the various ways Plaintiff finds Garnishee's responses to be improper. Even had the contents of the underlying motion not been stricken for failing to comply with the relevant District Court rule, the Court would not be inclined to review hundreds of Requests for Admission in an attempt to surmise which of the multitude of Requests, in Plaintiff's opinion, seek to verify the authenticity of documents, identify documents and/or communications, admit certain occurrences during the claims handling process, and/or admit Garnishee's awareness of certain facts. (Doc. 69, at 4-5.) See Lynn, 2014 WL 129340, at *2.

Plaintiff next argues that Garnishee has failed to establish attorney-client privilege or the protections of the work product privilege because it has "failed to meet its burden of proving each and every element" of the privilege and doctrine. (Doc. 65, at 5-9, Doc. 67, at 4-8, Doc. 69, at 5-9.[1]) The Court notes that any such tangible documents being withheld in response to Plaintiff's discovery requests on the basis of the attorney-client privilege or work product doctrine should be contained, and adequately described, in an appropriate privilege log.

To the extent Garnishee has not provided the requisite privilege log, it is hereby instructed to do so or the asserted privileges and protections will be deemed waived. Garnishee is directed to this Court's prior decisions of Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308890 (D.Kan. March 28, 2014) and Kear v. Kohl's Dept. Stores, Inc., No. 12-1235-JAR-KGG, 2013 WL 3088922, *3 (D.Kan. June 18, 2013) for discussions as to what constitutes ...

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