United States District Court, D. Kansas
JEFFREY T. GILMORE, Plaintiff,
L.D. DRILLING, INC., et al., Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge
matter is before the Court on Plaintiff Jeffrey T.
Gilmore's First Motion to Compel Discovery (ECF No. 58).
Plaintiff asks the Court to overrule certain objections to
requests for production to each Defendant and to an
interrogatory posed to Defendant L.D. Drilling, require L.D.
Drilling to provide an answer to the interrogatory at issue,
and require both Defendants to produce documents responsive
to the respective document requests. Defendants oppose the
motion. For the reasons set forth below, the Court denies the
motion in part and grants it in part.
February 7, 2017, Plaintiff served each Defendant with his
Opening Set of Interrogatories and First Requests for
Production of Documents. Defendants served their answers,
responses, and objections on March 14, 2017. Three days
later, Plaintiff's counsel sent a letter to
Defendants' counsel regarding the discovery responses and
requesting dates for counsel to meet and confer.
Defendants' counsel sent a substantive reply three weeks
later, and on April 11, 2017 counsel conferred by telephone.
The parties continued to work towards resolving their
differences and in the process Defendants supplemented their
responses and Plaintiff sought and was granted extensions of
time to file the instant motion. While their disputes have
been resolved in part, the objections discussed below remain
timely filed the instant motion and contends that counsel
complied with the requirements of D. Kan. Rule 37.2.
Defendant does not disagree. The Court finds that
Plaintiff's counsel made a reasonable attempt to resolve
the issues in dispute without court action, as required by
Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2.
Rule of Civil Procedure 26(b)(1) sets out the general scope
of discovery. As amended in 2015, it provides as follows:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
of both relevance and proportionality now govern the scope of
discovery. Relevance is still to be “construed
broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear
on” any party's claim or defense. Information still
“need not be admissible in evidence to be
discoverable.” The amendment deleted the
“reasonably calculated to lead to the discovery of
admissible evidence” phrase, however, because it was
often misused to define the scope of discovery and had the
potential to “swallow any other
consideration of proportionality is not new, as it has been
part of the federal rules since 1983. Moving the proportionality
provisions to Rule 26 does not place on the party seeking
discovery the burden of addressing all proportionality
considerations. If a discovery dispute arises that requires
court intervention, the parties' responsibilities remain
the same as under the pre-amendment Rule. In other words,
when the discovery sought appears relevant, the party
resisting discovery has the burden to establish the lack of
relevancy by demonstrating that the requested discovery (1)
does not come within the scope of relevancy as defined under
Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevancy
that the potential harm occasioned by discovery would
outweigh the ordinary presumption in favor of broad
disclosure.Conversely, when the relevancy of the
discovery request is not readily apparent on its face, the
party seeking the discovery has the burden to show the
relevancy of the request. Relevancy determinations are
generally made on a case-by-case basis.
raises issues with respect to each Defendant's objections
to certain interrogatories and document requests. The Court
considers each in turn.
RFP No. 26 to Defendant L.D. Drilling
requests in his motion that the Court require Defendant L.D.
Drilling to produce the documents requested in RFP No. 26.
Defendant L.D. Drilling contends the information contained in
the documents at issue is not relevant to any claim or
defense in this action, and that Plaintiff misconstrues
Defendant's contentions with respect to the costs it
allegedly incurred as a result of Plaintiff's conduct.
The RFP and Defendant's response are as follows:
26. Each document explaining, outlining, or summarizing the
cost and expenses related to each oil or gas well Defendant
L.D. Drilling drilled between January 1, 2016 and June 1,
Response: Objection. Relevance. A statement of the
costs and expenses related to each oil or gas well drilled by
L.D. Drilling between January 1, 2016 and June 1, 2016 is
unrelated to any claim or defense stated in this action.
Furthermore, the documents contain confidential and private
information which, if disclosed, could cause L.D. Drilling,
Mr. Davis, and others annoyance, embarrassment, oppression,
or undue burden or expense. Accordingly, defendant L.D.
Drilling objects to disclosing these documents. If Mr.
Gilmore could articulate the relevance of this information
and focus the scope of this request, L.D. Drilling would
reconsider its objection.
counsel's golden rule letter, Plaintiff provided the same
explanation of relevance as is contained in his motion.
According to Plaintiff, he is entitled to prove that L.D.
Drilling's assertion that Plaintiff was late in
delivering pipe to a well is pretext, and that because L.D.
Drilling asserts Plaintiff's conduct resulted in
increased costs, Plaintiff is entitled to discover the costs
associated with the well in question and other
wells. In response, Defendant agreed to and did
supplement its response by producing the billing records L.D.
Drilling submitted for January 2016 for the well in question,
Riebel #1-9, but declined to provide costs and expenses for
argues he is entitled to discover L.D. Drilling's costs
for other wells (1) to see if the costs are in line with
other wells drilled by L.D. Drilling in a six-month time
period, and (2) to demonstrate what costs are generally
associated with the drilling of a well “so as to enable
the parties, and a jury, to determine whether or not
Defendants' justifications were authentic or an
after-the-fact rationalization to conceal its true
discriminatory motivations.” The Court does not find
Plaintiff's argument compelling. As Defendant points out,
the fact that pipe was delivered late to the well is not
material. Many legitimate reasons exist for late delivery of
materials to a drilling site (such as the availability of
materials, mechanical issues with delivery trucks, distance
of travel and road conditions), but Defendants contend
Plaintiff initially refused to deliver the materials because
he had been consuming alcoholic beverages while he was on