United States District Court, D. Kansas
JAMES P. O'HARA, Magistrate Judge.
The plaintiffs, Kyle Alexander and Dylan Symington, allege in this putative class action that the defendant, BF Labs, Inc., improperly collected prepayment for bitcoin mining equipment. Plaintiffs bring claims for unjust enrichment, negligent misrepresentation, conversion, and violations of the Kansas Consumer Protection Act. The case is before the undersigned U.S. Magistrate Judge, James P. O'Hara, on defendant's motion to compel. (ECF doc. 102). For the reasons stated below, defendant's motion is granted.
Specifically, defendant seeks complete answers and responses to its first interrogatories and request for production, directed at allegations in plaintiffs' complaint that seek class action certification under Fed.R.Civ.P. 23(a) & (b). Defendant served these discovery requests on April 9, 2015. Plaintiffs responded with objections on June 8, 2015. After a letter and two phone calls, plaintiffs supplemented their responses on June 30, 2015. Defendant then asked whether plaintiffs would continue to object to the discovery requests, and further that, if so, a motion to compel would be filed. Plaintiffs responded by stating that they would supplement their answers "in full without objection once discovery was complete and/or once plaintiffs' counsel's legal analysis regarding class certification has been completed." In this regard, it should be noted here that under the court's second amended scheduling order, discovery isn't due to be completed until November 2, 2015, and plaintiffs' motion for class certification isn't due until November 16, 2015. Defendant, dissatisfied with plaintiffs' supplemental response, filed its motion to compel.
When a party files a motion to compel and asks the court to overrule objections, the objecting party must specifically show in his response to the motion how each discovery request is objectionable. With this standard in mind, the court addresses defendant's objections and responses to the disputed requests.
Interrogatory No. 25 asks plaintiffs "[f]or each claim or count in Your Complaint in which you seek to represent a class of persons, state specifically the definition and scope of the class of persons You seek to represent, including but not limited to the time period and nature of each claim that You contend you would adequately represent a class of persons." Interrogatory No. 26 asks plaintiffs "[f]or each claim or count in Your Complaint, identify all principal or material facts that you contend support each requirement of Rule 23(a)." Interrogatory No. 27 asks plaintiffs "[f]or each claim or count in Your Complaint, identify all principal or material facts that you contend support each requirement of Rule 23(b)."
Plaintiffs' responses to Interrogatory Nos. 25-27 are the same:
Objection. Plaintiff is not a lawyer and does not possess the legal expertise to offer a legal opinion on which claims are subject to class certification or what constitutes a proper class definition in this case. Before this case was filed and as this case has progressed, Plaintiff's counsel has engaged in substantial legal research, analysis, and mental notes regarding the claims for which Plaintiff may seek class certification, as well as a proper class definition for such claims. Plaintiff's counsel's legal analysis regarding class certification has evolved and continues to evolve as discovery progresses. Plaintiff's counsel's ongoing and evolving legal research, analysis, thoughts, strategies, and mental impressions regarding class certification and a class definition are protected by the work product doctrine and are immune from discovery.
Subject to these objections, Plaintiff states: Plaintiff will file a motion for class certification setting forth the claims sought to be certified and a class definition on or prior to November 16, 2015, as required by the Court's Second Amended Scheduling Order.
SUPPLEMENTAL ANSWER: Plaintiff has not withheld any known responsive information. All known persons who might have relevant knowledge and all known relevant documents have been provided to Defendant. Plaintiff's counsel, not Plaintiff, will determine which claims are proper for class certification, the definition and scope of the class, and the time period and nature of each claim Plaintiff is adequate to represent. Plaintiff's counsel has not yet decided the requested information and has until November 16, 2015 to do so pursuant to the Court's Second Amended Scheduling Order.
Document Request No. 42 seeks "[a]ll documents reflecting, referring to, or supporting Your contention that You are an adequate class representative as alleged in Your Complaint." Document Request No. 43 seeks "[a]ll documents reflecting, referring to, or that support Your contention that there are common questions of law of fact as alleged in Your Complaint." Document Request No. 44 seeks "[a]ll documents reflecting, referencing, or that support Your contention that Your claims are typical of the class You seek to represent." Document Request No. 45 seeks "[a]ll documents reflecting, referencing, or that support Your contention that the elements of Rule 23(a) can be satisfied by You." And finally, Document Request No. 46 seeks "[a]ll documents reflecting, referencing or that support Your contention that the elements of Rule 23(b) can be satisfied by You."
Plaintiffs responded to Document Request Nos. 42-46 in similar fashion, i.e., by claiming they have not yet decided which documents will be cited to support the factors under Rule 23 and have until November 16, 2015 to do so under the court's second amended scheduling order. Plaintiffs also assert they have already provided defendant with "the universe of responsive facts and documents currently possessed by Plaintiffs out of which Plaintiffs' counsel might cite to in a motion for class certification." Finally, plaintiffs argue their counsel's mental impressions and legal strategies regarding class certification are work product and not discoverable, and that there is nothing further to compel.
Under Fed.R.Civ.P. 26(b)(3), the work product doctrine applies to "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." Subsection (B) of Rule 26(b)(3) further provides that the court "must protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Thus, although Rule 26(b)(3)(A) is confined to the discovery of "documents and tangible things, " the doctrine has been expanded to reach information sought through interrogatories when the interrogatory seeks the mental impressions or legal conclusions of an attorney.
A party claiming work product protection has the burden of establishing that the material sought to be protected as work product comes within the doctrine. "A mere allegation that the work product doctrine applies is insufficient."
In the context of an objection to an interrogatory, this court has held that unless the interrogatory (1) specifically inquires into an attorney's mental impressions, conclusions, or legal theories, or (2) asks for the content of a document protectable as work product, it's inappropriate to raise a work product objection. The work product doctrine also doesn't ...