United States District Court, D. Kansas
MEMORANDUM & ORDER
KENNETH G. GALE United States Magistrate Judge
pending before the Court is Plaintiff's Motion to Compel
(Doc. 126). For the reasons set forth below, Plaintiff's
motion is GRANTED in part and DENIED in part.
facts of this case were recently summarized in the
undersigned Magistrate Judge's Memorandum & Order on
the parties' competing motions relating to the ESI
protocol. (See Doc. 135, at 1-3.) That summary is
incorporated herein by reference.
present motion relates to the responses and objections of
Defendants Appliance Art Incorporated and Instant One Media,
Inc. (“Defendants”) to Plaintiffs' First
Requests for Production (Doc. 126-3) and First
Interrogatories (Doc. 126-4). Plaintiffs generally contend
that Defendants responses were evasive, incomplete, and/or
asserted improper objections. (See Doc. 126.)
Standards for Discovery.
26(b) states that
[p]arties 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 state 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.
such, the requested information must be both nonprivileged
and relevant to be discoverable.
Plaintiffs' Motion to Compel (Doc. 126).
Conditional and “evasive” responses.
stated they would produce documents responsive to the
majority of Plaintiffs' Requests “following a
reasonable search” or “to the extent they
understand the request” or “to the extent the
documents exist” or “to the extent the documents
are in Defendant's possession, custody, or
control.” (Doc. 126, at 4; Requests 1-4, 6, 7, 10-13,
15, 16, 18, 22, 25, 29-33.) Plaintiffs contend these
responses violate Fed.R.Civ.P. 26(g)(1), which requires
certification of the response after a reasonable inquiry and
Fed.R.Civ.P. 34(b)(2)(C) (requiring a statement as to whether
any responsive materials are withheld pursuant to an
Court has specifically indicated its disapproval of
“conditional” discovery responses. See Kemp
v. Hudgins, No. 12-2739-JAR-KGG, 2015 WL 866905, at *5
(D. Kan. March 2, 2015) (holding that responses conditioned
with “to the extent” are improper). Defendants
are instructed to submit amended discovery responses removing
all conditions such as “to the extent such documents
exist and are in Defendants' possession, custody, or
control.” (See e.g., Doc. 126-3, as to
Requests Nos. 1-4, 6-7, 11-12, 16, 18, 22, 25, and 33.)
Either the documents exist and are in Defendants'
possession or they do not/are not. The Court also finds the
qualifier “to the extent Defendants understand the
request” to be improper and extraneous. Defendants are
instructed to strike this qualifier from their responses.
are hereby instructed to conduct a reasonable search in
accordance with Fed.R.Civ.P. 26(g)(1) and respond
accordingly. Continued responses that documents “will
be produced” (see e.g. Doc. 126-3 regarding
Request No. 4) are, at this stage, improper; responsive
documents are to be produced or arrangements are to
be made for them to be inspected forthwith. Defendants are
also reminded that their responses are to be in conformity
with Fed.R.Civ.P. 34(b)(2)(C) and include a statement as to
whether any responsive materials are withheld pursuant to an
frequently object that certain of Plaintiff's discovery
requests are vague, ambiguous, overly broad, unduly
burdensome, irrelevant, or disproportionate to the needs of
the case. Typically, Defendants raise these objections
without providing a substantive explanation or reason as to
why said requests are objectionable.
a discovery request is facially objectionable, the party
resisting discovery has the burden to support its objections.
Sonnino v. University of Kansas Hosp. Authority, 221
F.R.D. 661, n. 36 (D. Kan. 2004) (citing Hammond v.
Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 670 (D.
Kan. 2003)); Cont'l Ill. Nat'l Bank & Trust
Co. of Chicago v. Caton, 136 F.R.D. 682, 685 (D. Kan.
1991) (stating that a party resisting a discovery request
based on relevancy grounds bears the burden of explaining how
“each discovery request is irrelevant, not reasonably
calculated to the discovery of admissible evidence, or
A party opposing a discovery request cannot make conclusory
allegations that a request is irrelevant, immaterial, unduly
burdensome, or overly broad. Instead, the party resisting
discovery must show specifically how each discovery request
is irrelevant, immaterial, unduly burdensome or overly broad.
Gheesling v. Chater, 162 F.R.D. 649, 650 (D. Kan.
1995) (citation omitted).
stating that a particular word or phrase is vague or
ambiguous does not suffice unless the verbiage is facially
objectionable. The same is true for an assertion that a
request seeks irrelevant information or is not proportional
to the needs of the case - Defendants must explain how or why
the requested information is irrelevant or disproportional
unless the request is facially inappropriate. Given these
general findings, the Court will now address the specific
discovery requests at issue.
Specific Requests for Production. a. Requests Nos. 1-4 and
1-6 sought materials that Plaintiffs contend are relevant to
their claims that Defendants used false statements to market
their products “saying that their products were
endorsed by or featured on the Rachel Ray Show, HGTV, QVC,
the DIY Network, Restaurant Impossible, and the Today
Show.” (Doc. 126, at 8; see also Doc. 126-3,
at 2-6.) Defendants' objection that the use of the terms
“endorsement” and/or “featuring” is
vague and ambiguous as to Requests 1, 3 and 6 is overruled.
The terms are not facially vague or ambiguous and Defendants
have failed to explain how the terms could be misconstrued.
These boilerplate objections are overruled. See Seed
Research Equip. Sol'ns, LLC v. Gary W. Clem, Inc.,
No. 09-1282-EFM-KGG, 2011 WL 855804, at *2 (D. Kan. March 9,
2011) (internal citations omitted).
also contend that the evasive nature of Defendants'
responses to these requests made it impossible for Plaintiffs
to determine of Defendants had produced responsive documents.
Defendants are instructed to revise their responses to
Requests Nos. 1-4 and 6 given the Court's analysis of
Defendants' conditional objections, supra, as
well as removing the boilerplate objections.
Request No. 5.
Request sought all communications and documents between
Defendants and the National Apartment Association “that
concerned its approval for use of Your [sic] peel and stick
stainless steel.” (Doc. 126-3, at 5.) Defendants object
that the request seeks information that is irrelevant or not
proportional to the needs of the case. These objections are
conclusory as Defendants have provided no explanation as to
how the Request is irrelevant or disproportionate. Given the
causes of action and allegations raised in ...