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hibu Inc. v. Peck

United States District Court, D. Kansas

June 30, 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 Plaintiff hibu Inc.'s Motion for Protective Order (ECF No. 198). Plaintiff asks the Court to shield it from Defendant's Request for Production of Document Nos. 78 and 79. Defendant opposes the motion. For the reasons set forth below, the Court grants the motion.

         I. Relevant Background

         The parties have had numerous discovery disputes during the course of this litigation, resulting in the undersigned Magistrate Judge holding a number of conferences and issuing several written orders on motions. The instant motion deals with Defendant's Ninth Request for Production of Documents, served by Defendant's new counsel when his long-time counsel withdrew from representation. Plaintiff contends the requests are duplicative of prior counsel's earlier discovery requests, were served long after the deadline for Defendant to file a motion to compel and, in spite of this history, Defendant has refused to withdraw the requests. Plaintiff therefore seeks a protective order shielding it from the burden and annoyance of responding to RFP Nos. 78 and 79.

         Plaintiff asserts the parties have met and conferred about this matter in compliance with D. Kan. Rule 37.2, beginning with counsel speaking by telephone shortly after Defendant served his Ninth Requests.[1] In that conversation, Plaintiff's counsel voiced his opinion that the requests are duplicative of Defendant's earlier discovery. On May 15, 2017, Plaintiff's counsel reiterated the message in writing, expressing his understanding that Defendant's counsel is new to the case but finding that to be an insufficient basis for redundant discovery requests. The email closed with a request for Defendant's counsel to withdraw RFP Nos. 78 and 79 and notice that, absent withdrawal, Plaintiff would file a motion for protective order. Defendant did not withdraw the requests and Plaintiff timely filed the instant motion.

         Defendant argues that his counsel made a good faith effort to resolve this dispute, but that rather than continue their dialogue, Plaintiff unnecessarily filed the instant motion. The Court disagrees. Defendant's counsel replied to the email and demonstrated his lack of familiarity with what documents Plaintiff had produced to date. He indicated he wanted to review documents Plaintiff had agreed to produce before further discussing the issue. But Plaintiff had already produced those documents and, as counsel points out in its reply brief, it was not Plaintiff's burden to instruct Defendant's new counsel regarding the history of this litigation. Accordingly, the Court finds that Plaintiff's counsel made a reasonable attempt to confer with Defendant's counsel in an 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.

         II. Legal Standards

         Pursuant to Federal Rule of Civil Procedure 26(c), a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including forbidding the . . . discovery.”[2] The decision to enter a protective order is within the Court's broad discretion.[3] Notwithstanding this broad grant of discretion, a court may issue a protective order only if the moving party demonstrates that the basis for the protective order falls within one of the specific categories enumerated in the Rule, i.e. that the requested order is necessary to protect the party from “annoyance, embarrassment, oppression, or undue burden or expense.”[4]

         In addition, the party seeking a protective order bears the burden of establishing good cause.[5] To establish good cause, the moving party must make “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”[6]

         III. Analysis

         As noted above, the Court has broad discretion with respect to protective orders. The Court may not issue such an order, however, unless the moving party “demonstrates that the basis for the protective order falls within one of the categories enumerated in [Rule] 26(c).”[7] In other words, the moving party must show that the requested order is necessary to protect the party from annoyance, embarrassment, oppression, or undue burden or expense.[8] “Rule 26(c) does not provide for any type of order to protect a party from having to provide discovery on topics merely because those topics are overly broad or irrelevant, or because the requested discovery is not reasonably calculated to lead to the discovery of admissible evidence.”[9]The Court considers each request in turn.

         A. Request for Production No. 78

         RFP No. 78 asks Plaintiff to produce “[t]he personnel file of Peck and each of the Former Hibu Sales Representatives.”[10] On January 20, 2017, Defendant's former counsel had served a Sixth Request for Production of Documents.[11] The latter includes RFP No. 54, which directs Plaintiff to “[p]roduce all complete personnel files (including electronic records) for Chad Pack and the Former hibu Sales Representatives.”[12] Plaintiff responded that it would produce the requested documents and at some point before Defendant served RFP No. 78, Plaintiff did produce to Defendant the personnel files of all seven individuals.[13]

         In his response to Plaintiff's motion, Defendant now concedes that not only is RFP No. 78 redundant of RFP No. 54, but also that Plaintiff fully complied with the latter request. Defendant offers no excuse for having propounded a duplicative document request, for his counsel's lack of familiarity with Plaintiff's document production, or for his refusal to withdraw RFP No. 78. The Court finds Plaintiff has demonstrated good cause and grants Plaintiff's motion with respect to RFP No. 78.

         B. Request for ...


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