United States District Court, D. Kansas
PROGRESSIVE NORTHWESTERN INSURANCE COMPANY, Plaintiff/Counterclaim Defendant,
GABRIEL GANT, et al., Defendants/Counterclaim Plaintiffs.
ORDER ON DEFENDANT'S MOTION TO COMPEL
KENNETH G. GALE United States Magistrate Judge.
before the Court is Defendant's Motion to Compel. (Doc.
212.) For the reasons set forth below, Defendant's motion
is GRANTED in part and DENIED in
part as more fully set forth below.
a declaratory judgment action brought by Plaintiff
Progressive Northwestern Insurance Company
(“Plaintiff” or “Progressive”).
Plaintiff requests a finding that its handling of an
underlying claim and lawsuit, resulting from a fatal
automobile accident, “was appropriate, in good faith,
and consistent with the Progressive Policy and all duties
imposed upon it by law or otherwise.” (See
Doc. 1, at 5; Doc. 14, at 7.) Issues with the handling relate
specifically to counsel (Kevin McMaster) retained by
Plaintiff for its insured, who were defendants in the
underlying action. McMaster is alleged to have engaged in
conduct described as “obstructionist, ”
“highly prejudicial, ” and “to the extreme
detriment” of the defendants in the underlying lawsuit.
(See generally Doc. 6-5.)
facts relating to this case, as well as to the underlying
lawsuit, were summarized in the District Court's
Memorandum and Order granting Defendants leave to answer out
of time, Plaintiff's motion to strike, and
Plaintiff's motion to dismiss. (See Doc. 92, at
1-3.) That summary is incorporated herein by reference.
present motion relates to Plaintiff's responses to
Defendants' Second Requests for Production. (See
Doc. 212.) As a matter of context, the Court previously
granted in part and denied in part Defendants first Motion to
Compel, which dealt with a prior set of discovery requests
seeking the same general information as the requests
currently at issue - prior instances of “bad
behavior” by Kevin McMaster, counsel retained by
Plaintiff to represent various insureds. (See Order,
prior Order, this Court generally agreed that
evidence of prior notice to the insurer of McMaster's
previous bad conduct in other cases is relevant to
Defendants' theory of Progressive's potential
negligence or bad faith in retaining McMaster to represent
its insureds. The Court also acknowledges Defendants'
argument that the requests are proportional to the needs of
the case pursuant to Fed.R.Civ.P. 26 given the significant
outstanding judgment in this case. (Doc. 117, at 10-11.)
Even so, the Court finds the Requests at issue to be
inherently overbroad and unduly burdensome. This is
especially true of the information that is available to
Defendants as public record (pleadings, court orders, etc.)
or through other sources (transcripts). Plaintiff's
objection as to pleadings, court orders, and other documents
of public record is sustained.
Defendants' requests for all discovery, all
correspondence exchanged between counsel, and all
correspondence between Plaintiff Progressive and McMaster are
also facially overbroad. Discovery exchanged and answered by
both parties on any and all topics relevant to other the
lawsuits identified would clearly encompass more information
that was irrelevant than relevant. All of the requested
correspondence in these cases would equally encompass volumes
of documents that are entirely irrelevant to these
Plaintiff's overbreadth and burdensome objections are
sustained as to the requested discovery and correspondence
sought in Requests Nos. 9-14. Defendants' motion is
DENIED in regard to Requests Nos. 9-14. Because the discovery
requests are so broadly written, the Court cannot endeavor to
rewrite or narrow them to make them appropriate. To the
extent Defendants want specific information that is
encompassed within these categories, Defendants are
instructed to serve revised discovery requests.
186, at 5-6.)
Defendant served his Second Requests for Production, which he
contends “complied with the Court's
directives” and they were more narrowly tailored and
sought “much more specific information.” (Doc.
213, at 4.) Even so, Plaintiff objected that much of the
requested information is irrelevant. (See Doc.
212-1.) The parties subsequently participated in an informal
telephone conference with the Court to discuss the issues
relating to the Second Requests for Production. Following ...