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Ezfauxdecor LLC v. Smith

United States District Court, D. Kansas

June 23, 2017

EZFAUXDECOR, LLC, et al., Plaintiffs,
ALISON SMITH, et al., Defendants.


          KENNETH G. GALE United States Magistrate Judge

         Currently 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.


         The 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.

         The 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.)


         A. Standards for Discovery.

         Fed.R.Civ.P. 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.

         As such, the requested information must be both nonprivileged and relevant to be discoverable.

         B. Plaintiffs' Motion to Compel (Doc. 126).

         1. Conditional and “evasive” responses.

         Defendants 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 objection).

         This 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.[1] 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.

         Defendants 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 objection.

         2. Boilerplate objections.

         Defendants 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.

         Unless 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 burdensome”).

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).

         Merely stating that a particular word or phrase is vague or ambiguous does not suffice unless the verbiage is facially objectionable.[2] 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.

         2. Specific Requests for Production. a. Requests Nos. 1-4 and 6.

         Requests 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).

         Plaintiffs 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.

         b. Request No. 5.

         This 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 ...

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