United States District Court, D. Kansas
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
Plaintiff Tank Connection, LLC alleges that its former employee, Defendant Haight, misappropriated confidential and trade secret information before going to work for a competitor, former "relief defendant" USA Tank Sales & Erection Company, Inc. ("USA Tank"). This matter is before the Court on Plaintiff's Motion to Compel Discovery (ECF No. 118). Plaintiff requests an order under Fed.R.Civ.P. 37(a) compelling Defendant to produce documents responsive to Request for Production Nos. 3, 6, 11-13, and 16,  and to provide sufficient answers to Request for Admission Nos. 1-2, 5, 7, 8-9, and 10-11. For the reasons set forth below, the motion is granted in part and denied in part. Defendant Haight shall produce documents in his possession, custody, or control responsive to Plaintiff's Request for Production Nos. 3, 6, 11-13, and 16, and serve answers that admit or deny Request for Admission Nos. 1, 5, 7, and 8-9, subject to the limitations herein. The motion is otherwise denied.
I. Relevant History
Plaintiff served Defendant with nineteen Requests for Production of Documents and twenty-one Requests for Admission on November 25, 2014. Defendant responded on December 23, 2014, objecting to thirteen of the document requests and eight of the admission requests. On January 13, 2015, Plaintiff served a seven-page golden rule letter, identifying the deficiencies it noted in Defendant's discovery responses. After another follow up email, Defendant produced forty documents and responded, with respect to Plaintiff's Request for Production Nos. 6, 11, 13, and 16, that he "does not have permission for Plaintiff to dig through USA [Tank]'s work files." In an email dated January 28, 2014, Defendant confirmed that he has no lists of "customers, " has not created any, and has not spoken to anyone that he is aware of who is under a current contract with Plaintiff.
After making reasonable attempts to confer as required by Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2,  Plaintiff filed the instant motion with respect to certain Requests for Production and Requests for Admission on January 29, 2015. Defendant states that he stands by the sufficiency of his answers and objections to these discovery requests. He asks that the Court deny Plaintiff's motion and order Plaintiff to pay the expenses he incurred in responding to the motion.
II. Requests for Production in Dispute
A. First Request for Production No. 3
Request No. 3 asks Defendant Haight to produce:
All correspondence, including emails, between you and USA Tank regarding your prospective employment with USA Tank, including attachments and any documents that reference the correspondence.
Defendant objected as follows:
OBJECTION. The Request seeks items not reasonably calculated to lead to the discovery of admissible evidence, nor can Plaintiff demonstrate how such information is relevant to its claims against the Defendant. Plaintiff has no need of any correspondence regarding Mr. Haight's employment with USA Tank, and this request is only made to be overly burdensome and further propagate Plaintiff's campaign of intimidation against Mr. Haight.
In his response to the motion to compel, Defendant Haight argues that the terms and conditions of employment with his subsequent employer are not relevant to a misappropriation of trade secrets claim. Defendant states that he has "produced all the documents he has." Defendant contends Plaintiff served this request only to harass him. Defendant also argues that Plaintiff's own unlawful search of USA Tank's laptop has confirmed that there was no misappropriation.
Plaintiff reports that Defendant provided some documents responsive to Request No. 3, but did not produce his executed employment agreement with USA Tank. Plaintiff states that it has information that Defendant does not have a copy of his executed employment agreement and his employer, USA Tank, will not provide it to Defendant. Plaintiff also claims that USA Tank has objected to providing documents regarding Defendant's employment. Plaintiff argues the communications it has requested are clearly relevant to the claims it has made in this case. It requests that the Court order either Defendant or his employer, USA Tank, to produce the requested correspondence.
Plaintiff is claiming that Defendant misappropriated its trade secrets when Defendant left its employ and began working for his new employer, USA Tank. The Court agrees with Plaintiff that Request No. 3, which seeks correspondence, including emails, between Defendant and USA Tank regarding his prospective employment with USA Tank, does appear to seek relevant discovery. The Court finds that such discovery is relevant to Plaintiff's allegation that Defendant communicated or provided its confidential business and/or trade secret information to his new employer. The Court is not persuaded otherwise by Defendant's general argument that the requested documents are not relevant to a misappropriation of trade secrets claim. As to its unduly burdensome objection, Defendant asserted it without any support or showing that the time or expense involved in responding to the Request would be unduly burdensome. Defendant's unduly burdensome objection is therefore also overruled.
Although Defendant states in his Response (ECF No. 122) that he has produced "all the documents he has, " he is required by Fed.R.Civ.P. 34(a)(1) to produce all documents responsive to Request No. 3 in his "possession, custody, or control." Plaintiff's motion to compel is granted as to First Request for Production No. 3, and Defendant is ordered to produce all responsive documents in his "possession, custody, or control" or, if true and accurate, serve amended responses stating that he has no responsive documents in his "possession, custody, or control."
B. First Request for Production No. 11
Plaintiff's Request No. 11 asks Defendant to produce "[a]ll of your diaries, calendars and planners (including electronic) from July 1, 2013 through December 31, 2013."
Defendant objected as follows:
OBJECTION. Plaintiff already has possession of all diaries, calendars and planners utilized by Mr. Haight during his employment. This request is only made to be overly burdensome and further propagate Plaintiff's campaign of intimidation against Mr. Haight, and is not calculated to lead to the discovery of admissible evidence.
Defendant maintains that this Request is overly burdensome and only intended to harass him for the calendars, diaries, and planners that are already in Plaintiff's possession or the Receiver's possession in electronic form. Defendant does not explain, however, how the requested diaries, calendars, and planners would already be in Plaintiff's possession (i.e., whether Defendant left them with Plaintiff when he resigned his employment, whether Defendant previously produced them in this case, or by some other scenario whereby the items would be in Plaintiff's possession).
Plaintiff argues that Defendant has not met his obligation to show that the requested discovery is unduly burdensome. According to Plaintiff, the Request seeks discovery to show whether Defendant violated his non-disclosure agreement with Plaintiff by providing USA Tank with its proprietary and confidential information.
The Court agrees with Plaintiff that Defendant has not met his burden to show how producing the diaries, calendars, and planners within his possession, custody, or control for the six-month period July 1 through December 31, 2013 would be unduly burdensome. The request is limited to Defendant Haight's diaries, calendars, and planners, and further limited to only a six-month period. Defendant's unduly burdensome objection is therefore overruled. Finally, Defendant's relevancy objection is overruled. Defendant's diaries, calendars, and planners are relevant because they may show whether and to what extent Defendant was communicating or meeting with USA Tank around the time he resigned. Plaintiff's motion to compel is granted as to First Request for Production No. 11. Defendant shall produce all of his diaries, calendars, and planners within his possession, custody, or control from July 1, 2013 through December 31, 2013; provided, however, that Defendant is not required to produce any such items that he can identify (by Bates number or otherwise) as previously produced in this case, or items that are already in the custody of the Receiver.
C. First Request for Production Nos. 6, 12, and 13
Plaintiff's Request No. 6 asks Defendant to produce "[d]ocuments that relate or pertain to any communication by you or USA Tank with current customers of [Plaintiff], other than correspondence with your attorneys." Request No. 12 seeks "[a]ny and all lists or other documents listing current or previous customers of [Plaintiff]." Request No. 13 asks for "[a]ll correspondence, including emails, discussing current or previous customers of [Plaintiff], other than correspondence with your attorneys."
Defendant objects to all three Requests' use of the term "customers" as vague and ambiguous in the context of bidded work. He also claims that before he responds Plaintiff should be required to identify whom it intends to include within the "customers" category. Defendant also objects that responsive information is not within his control. He objects to Request No. 12 as vague and ambiguous and unduly burdensome because it fails to specify a time period or person in possession. Finally, stating that he understands Request No. 12 to be asking for lists created from Plaintiff's ...