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HIBU Inc. v. Peck

United States District Court, D. Kansas

June 8, 2017

HIBU INC., Plaintiff,
v.
CHAD PECK, Defendant.

          MEMORANDUM AND ORDER

          Teresa J. James U.S. Magistrate Judge.

         This matter is before the Court on Defendant's Motion to Compel (ECF No. 176). Defendant asks the Court to order Plaintiff to produce documents requested in Peck's Eighth Request for Production of Documents, Request Nos. 69 and 70. On June 6, 2017, the undersigned Magistrate Judge conducted a telephone hearing on the motion and issued an oral ruling granting the motion in part and denying it in part. The ruling is memorialized as set forth below.

         I. Relevant Background

         hibu alleges Defendant's conduct caused Plaintiff to suffer damages which include lost revenue in certain of hibu's Kansas markets. Plaintiff measures the decline by comparing the Kansas markets to 30 other hibu markets which, in the aggregate, suffered no similar decline. In his Eighth Request for Production of Documents, Defendant requested revenue data for all of hibu's markets, nationwide, for the purpose of preparing his own comparative market analysis. Plaintiff objected to the requests and Defendant brought the instant motion.

         The Court finds that the parties have conferred in attempts 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.[1]

         II. Legal Standards

         Federal 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.[2]

         Considerations of both relevance and proportionality now govern the scope of discovery.[3]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.[4]Information still “need not be admissible in evidence to be discoverable.”[5] 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 limitation.”[6]

         The consideration of proportionality is not new, as it has been part of the federal rules since 1983.[7] 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.[8] 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.[9] 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.[10] Relevancy determinations are generally made on a case-by-case basis.[11]

         In making its Rule 26 disclosures, a party is required to provide a computation of any category of damages it is claiming. The general rule is that a defendant is entitled to a specific computation of damages and to have made available for inspection and copying the documents and other evidentiary material on which such computation is based.[12]

         III. Analysis

         Defendant takes issue with respect to Plaintiff's objections and refusal to produce documents responsive to two requests from Defendant's Eighth Set of Requests for Production of Documents. The requests seek information for hibu's print directory and digital products revenue, respectively, as follows:

69. Produce documents sufficient to show a decline or increase in revenue for every hibu print directory, on a ...

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