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AKH Company, Inc. v. Universal Underwriters Insurance Co.

United States District Court, D. Kansas

July 27, 2015

AKH COMPANY, INC., Plaintiff,


KENNETH G. GALE, Magistrate Judge.

Now before the Court is Defendant Universal's "Motion to Compel" (Doc. 282), regarding a third-party subpoena issued to Gauntlett & Associates, a law firm that previously represented Plaintiff AKH. For the reasons set forth below, the Court GRANTS in part this motion.


The above-captioned matter is a declaratory judgment action based on a dispute concerning insurance coverage and the settlement of a trademark dispute involving Plaintiff AKH and a third party. ( See Doc. 1; Doc. 75, sealed, at 5-6 (underlying litigation hereinafter referred to as "RT litigation" or "RT case).) The facts of the case were summarized by District Court in its Order (Doc. 75, sealed) denying Plaintiff AKH's Motion for Partial Summary Judgment (Doc. 7) and Defendant Universal's Motion to Bifurcate (Doc. 68). The Court incorporates that factual summary herein. ( See Doc. 75, sealed, at 4-7.)

The case has, unfortunately, had a long and, in the Court's opinion, unnecessarily contentious history. ( See e.g., Docs. 40, 61, 82, 117, 123, 144, 152, 158, 160, 163, 164, 168, 184, 215, 220, 264, 269, 282, 290.) The parties disagreements culminated in this Court's ruling on Defendant's "Motion to Compel Sufficient Written Responses and Production of Documents" (Doc. 123), in which the Court held that the facts presented by Defendant created a prima facie case of fraud sufficient to waive the attorney-client privilege as to certain documents Plaintiff argued were privileged and protected from discovery. Upon Plaintiff's Motion for Reconsideration (Doc. 163) the Court's prior Order (Doc. 158), the Court ordered an in camera inspection of the documents and ordered that certain of them be produced to Defendant Universal. Plaintiff complied with that Order.

The present motion was initially filled by Defendant Universal in the United States District Court for the Central District of California[1], seeking an Order compelling non-party law firm Gauntlett to produce documents responsive to a subpoena. (Doc. 282.) That subpoena, served on July 15, 2014, seeks "production of communications and documents relating to the underlying litigation and its settlement, " with settlement of the underlying RT litigation occurring from September through December 2012. (Doc. 283, at 5-6.)

Defendant Universal contends that responsive documents "are relevant to [its] claims regarding fraud, misrepresentation, and concealment, among others." ( Id., at 6.) Universal argues that the information Gauntlett has produced is non-responsive and that the accompanying privilege log, which contains a single entry encompassing almost 2, 000 documents, is insufficient. ( Id. )

Gauntlett responds that it has produced all non-privileged documents and/or does not possess the documents Universal contends it is withholding. ( Id., at 24-25.) Gauntlett argues that its privilege log is sufficient. It contends that because of the voluminous nature of documents sought, a document-by-document privilege log would be unreasonable and overly burdensome. ( Id., at 28.) It further contends that "the documents withheld... are attorney-client communications and in-firm communications between attorneys in connection with the underlying litigation and, as such, are obviously protected by the attorney-client and work product privileges[2]...." ( Id., at 29.)


A. 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). Stated another way, "discovery should ordinarily be allowed unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Snowden By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991), appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991). The scope of discovery is broad, but not unlimited. If the proponent has failed to specify how the information is relevant, the Court will not require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D. Kan. 1995).

B. Responsive, Non-Privileged Documents.

Universal enumerates its first issue as "whether Gauntlett must produce all responsive, non-privileged documents." (Doc. 283, at 7.) Gauntlett contends that the documents in its "possession consist of: (1) communications with Universal; (2) pleadings and other public documents (3) communications between Gauntlett, AKH, and other counsel representing AKH and (4) research and analysis that constitute Gauntlett's opinions, theories, conclusions." ( Id., at 24.) Gauntlett continues that "[a]ll documents in [its] possession or ...

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