United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Defendant's Supplemental Memorandum in Support of its Motion to Compel Discovery From Plaintiff (ECF No. 74). On January 23, 2015, the Court issued preliminary rulings on Defendant's oral motion to compel Plaintiff's responses to Defendant's First Request for Production of Documents to Plaintiff and Plaintiff's answers to Defendant's First Interrogatories to Plaintiff. The ruling permitted Defendant to supplement its oral motion, and Defendant has now done so. Pursuant to Fed.R.Civ.P. 37, Defendant asks the Court to (1) bar Plaintiff from relying on certain documents, (2) exclude a witness and that witness's affidavit, and (3) compel Plaintiff to provide the amount of his settlement in a prior lawsuit or bar Plaintiff from asserting a claim for emotional distress damages. As set forth below, the Court grants Defendant's motion in part and denies it in part.
I. Relevant Background
Defendant served its First Request for Production of Documents to Plaintiff and Defendant's First Interrogatories to Plaintiff ("Defendant's Opening Discovery") on December 12, 2014. Plaintiff's responses, answers, and objections to Defendant's Opening Discovery were due on January 15, 2015. In an email dated January 21, 2015 and through attachments thereto, counsel for Defendant described her efforts to meet and confer with Plaintiff concerning his failure to provide full and complete discovery responses. Counsel expressed urgency in light of the upcoming deposition of Plaintiff on February 2. The undersigned Magistrate Judge held a telephone conference to address the issues raised in the email message, which she construed as an oral motion to compel Plaintiff's responses and answers to Defendant's Opening Discovery. After finding that Plaintiff had failed to meet and confer as required by Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2, the Court made the following oral rulings which are reflected in the Minute Sheet from the hearing: by no later than noon on Monday, January 26, 2015, Plaintiff shall: (1) speak in person or by telephone with counsel for Defendant to discuss any objections Plaintiff may have in response to Defendant's Opening Discovery (even though such objections were due by January 15, 2015); (2) provide written, complete responses to Defendant's First Request for Production numbers 6, 7, 12, 16, and 17 (including objections) and produce the documents responsive thereto; and (3) provide complete supplemental answers (including objections) to interrogatory numbers 2, 4 through 8, 12, and 14 through 16 of Defendant's First Interrogatories.
The Court also stated that within one week of the completion of the depositions of Plaintiff and his wife, counsel for Defendant would be permitted to supplement its motion to compel. The undersigned Magistrate Judge would thereafter issue a ruling on Defendant's motion to compel, having considered Plaintiff's compliance with the order as of noon on January 26, 2015. The Court cautioned Plaintiff that his failure to fully comply with the terms of the order could result in sanctions.
Defendant timely filed its Supplemental Memorandum.
II. Specific Discovery Requests at Issue
In its Supplemental Memorandum, Defendant asserts that Plaintiff has yet to comply with his discovery obligations and the Court's order with respect to request numbers 12 and 16 of Defendant's First Request for Production of Documents. Defendant also raises two new issues: the first relates to Plaintiff's response to request number 2 of Defendant's First Request for Production of Documents; the second arises from Plaintiff's refusal to answer questions during his deposition about his settlement in another lawsuit.
A. Request No. 12
Defendant seeks to have the Court enter an order barring Plaintiff from proving that he is a leading expert in the field of men's clothing by relying on any documents, including his own books, which would have been responsive to request number 12. According to Defendant, Plaintiff raised no objection in response to request number 12, which requested "all documents identifying Plaintiff as a leading expert in the field' of men's clothing as alleged in paragraph 21 of the Complaint." In his response, however, Plaintiff stated that the best documents identifying him as such are the 13 books he has written, and he instructed Defendant how it could purchase the books. On January 25, 2015, Plaintiff filed a Supplemental Response in which he stated that there is no document that can identify him or anyone else as a "leading expert in the field" because that is a matter of personal opinion, that he has no responsive documents other than his books, and that he would seek direction from the Court about the books. Plaintiff produced no additional documents by the January 26 deadline. Defendant contends that Plaintiff's responses and actions should have the preclusive effect of barring him from introducing documents which Plaintiff asserts do not exist.
Plaintiff has a different interpretation of his statement that "there is no document that can identify" Plaintiff as a leading expert. In his responsive brief, Plaintiff writes that "he was trying to be humble and modest. The responses clearly indicate that plaintiff wishes to use his books to demonstrate his expertise on men's clothing." Plaintiff further asserts that on January 28, 2015 (two days after the deadline), he provided defense counsel with photocopies of excerpts of his books, and that Defendant has the financial resources to purchase the books.
The Court finds that insofar as Plaintiff complied with the Court's order to fully respond to request number 12 by the deadline, he is bound to his response that "there is no document that can identify plaintiff or any other person as a leading expert in the field.'" Plaintiff did not timely produce books or any other documents to supplement his response, and therefore any other response would not comply with the Court's order to fully respond to request number 12 and to produce all responsive documents by the deadline. Accordingly, the Court grants Defendant's motion to compel. Plaintiff will not be permitted to introduce into evidence, refer to, or otherwise rely on any documents (including the books he has written) that might purportedly identify Plaintiff as a leading expert in the field of men's clothing as alleged in paragraph 32 of the Amended Petition.
B. Request No. 16
In request number 16, Defendant sought "all writings of Plaintiff regarding his factual account of his visits to Dillard's on July 13, 2012, August 13, 2012 and September 13, 2012, including correspondence to others, narratives, diary and journal entries, drafts of pleadings to be submitted to the AAA and to the court." Plaintiff raised a number of objections to the request, including that it is unduly burdensome, overly broad, and that the burden or expense of production outweighs the benefit. In a letter dated January 15, 2015, Defendant took issue with Plaintiff's objections and asked Plaintiff to withdraw them and to produce responsive documents. ...