United States District Court, D. Kansas
JEFFREY T. GILMORE, Plaintiff,
L.D. DRILLING, INC.,, Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge
matter is before the Court on Defendants L.D. Drilling, Inc.
and Mark Davis' First Motion to Compel Discovery (ECF No.
79). Defendants ask the Court to compel Plaintiff to produce
documents responsive to request number five of their First
Request for Production of Documents. Plaintiff opposes the
motion. For the reasons set forth below, the Court denies the
March 23, 2017, L.D. Drilling and Mark Davis served their
First Request for Production of Documents to
Plaintiff. Plaintiff served his responses and
objections on April 24, 2017. On May 9, 2017, Defendants'
counsel sent a letter to Plaintiff's counsel explaining
his theory of the relevance of RFP No. 5 and offering to
narrow the request. Plaintiff's counsel responded by
letter ten days later, indicating Plaintiff was standing by
his objection and further explaining it. Counsel spoke by
telephone on May 23, 2017, and Plaintiff's counsel agreed
to speak with his client about the issue. On June 7, 2017,
Plaintiff's counsel sent an email with supplemental
responses to other document requests, and a statement that
Plaintiff intended to stand on his objection to RFP No. 5.
timely filed the instant motion. Although the motion does not
address compliance with the requirements of D. Kan. Rule
37.2, the Court finds that Defendants' 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.
request in their motion that the Court require Plaintiff to
produce the documents requested in RFP No. 5. Plaintiff
contends the request is objectionable in several ways. The
RFP and Plaintiff's response are as follows:
5. Produce your bank records and credit card statements
during the last four years of your employment with Defendant
L.D. Drilling, Inc. that in any way reflect purchases at
locations that sell alcohol.
Response: Plaintiff objects to this request because
it is overly broad, unduly burdensome, not properly limited
in time and scope, vague and ambiguous, and lacks
particularity in its use of the phrase “that in any way
reflect purchases at locations that sell alcohol, ”
requiring speculation and conjecture as to what information
is being sought. Further, this request is designed only to
embarrass, harass, and annoy Plaintiff and is not likely to
lead to the discovery of admissible evidence as whether
Plaintiff made a purchase at ...