United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTIONS RELATING TO
KENNETH G. GALE, U.S. MAGISTRATE JUDGE.
before the Court is Plaintiff's “Motion to Quash
Third Party Subpoenas” served upon Plaintiff's
witnesses David Gittrich of Kansans for Life, Pastor Robert
Rotola of Word of Life Church, John Pride, Bruce Garren of
Personhood Kansas, and Spirit One Ministries. (Doc. 56.)
Concurrently pending are Motions to Quash the subpoenas filed
by individual witnesses/recipients of the subpoenas - Pastor
Robert Rotola (Doc. 57), Word of Life Church (Doc. 58), John
Pride (Doc. 67). Plaintiff also has filed his Amended
Motion for Protective Order to stay and deny the discovery as
it relates to these witnesses. Having reviewed the
submissions of the parties, the Court is prepared to
2013, Defendant received a temporary order of protection from
stalking against Plaintiff in Kansas state court (state court
action). Plaintiff, who is a resident of Oklahoma, brings the
present matter alleging malicious prosecution and abuse of
process against Defendant, a Kansas resident, relating to the
allegations levied against him in the state court action.
(See generally, Doc. 84.)
elements of a claim for malicious prosecution under Kansas
(a) That the defendant initiated, continued, or procured
civil procedures against the plaintiff.
(b) That the defendant in so doing acted without probable
(c) That the defendant acted with malice, that is he acted
primarily for a purpose other than that of securing the
proper adjudication of the claim upon which the proceedings
(d) That the proceeding terminated in favor of the plaintiff.
(e) That the plaintiff sustained damages.
In re Landrith, 280 Kan. 619, 647, 124 P.3d 467
(2005). “There are two essential elements for the tort
of abuse of process: the existence of an ulterior motive and
an improper act in the regular prosecution of a
proceeding.” Lindenman v. Umscheid, 255 Kan.
610, 621, 875 P.2d 964, 973 (1994) (citation omitted).
regard to the malicious prosecution claim, Plaintiff alleges
that Defendant “lacked probable cause for the false
allegations, did not take reasonable measures to ascertain
the veracity of said allegations, and was reckless and
intentional in filing the false stalking charges against
[him].” (Doc. 84, at 6.) As for the abuse of process
claim, Plaintiff contends that Defendant “acted in a
false and improper manner in the prosecution of a regular
proceeding under Kansas law for anti-stalking against”
Defendant. (Id., at 7.) Plaintiff continues that
“[t]he use of substantial falsehoods, speculation and
mere suspicion, without probable cause, to obtain an
anti-stalking order is improper, illegal, and unauthorized by
alleges that over the course of two years, Defendant
continued the temporary order against [him] and did not make
it a permanent injunction. As late as January 2015, defendant
attempted to influence the Wichita police to arrest Mark
Holick for violating the anti-stalking order. The filing of
the petition and false accusations of ‘stalking'
caused extensive negative media publicity about him.
(Id., at 5-6.) Plaintiff alleges that this
“curtailed or reduced his First Amendment and religious
expressive activities” and caused him to fear
“for his safety.” (Id., at 5.) Plaintiff
continues that “[u]ltimately, when faced with a motion
for summary judgment by [Plaintiff], [Defendant] voluntarily
dismissed her stalking case, leaving [Plaintiff] as the
prevailing party.” (Id., at 6.) He contends
that “[t]he initiation, continuation or procurement of
the ‘anti-stalking' order, based on complete
falsehoods, caused [him] to incur tens of thousands of
dollars in attorney fees.” (Id.)
time for Defendant to Answer the Amended Complaint has not
yet expired. In the affirmative defenses contained in
Defendants Answer to the original Complaint, however,
Defendant contends the statements in her state court petition
were true and “in good faith pursuant to a legitimate
interest, which is her safety; the statements were limited to
those necessary to uphold her interest; and the statements
were made in a proper manner to a proper party, the
state.” (Doc. 20, at 7.) Defendant contends that she
feared for her safety given the allegedly threatening nature
of Plaintiff's statements and actions. (Id.) For
instance, Defendant alleges that the church where Plaintiff
served as a pastor “publically celebrated the
death” of Dr. George Tiller, the doctor who provided
abortion services in Wichita prior to Plaintiff.
(Id., at 7.) Defendant also alleges that
“Plaintiff publicly admitted he was at Defendant's
house” with a sign reading “‘Where's
Your Church' . . . after pointing out that Dr. Tiller
wasn't shot at his home but at his church.”
characterizes the third-party subpoenas at issue as seeking
documents and information regarding the
anti-abortion/pro-life activities of these
individuals/entities as well as documents “referred to
or considered in connection with” affidavits these
individuals submitted in state court action. (See
Doc. 56-1, 56-2.) Defendant categorizes the requested
information as follows:
(1) documents prepared by the witness that relate to
abortion; (2) communications between the witness and other
anti-abortion activists concerning anti-abortion
topics; (3) documents and communications between
the witness and another person concerning Ms. Burkhart, Dr.
Tiller, or their respective clinics; (4) documents and
communications regarding the underlying anti-abortion events
in this case (November 2012 and January and February 2013);
(5) documents and communications relating to anti-abortion
events that the witness participated in and that were carried
out at Ms. Burkhart's home or place of business; and (6)
all documents that the witness referred to or relied on in
preparing his affidavit in the State Action.
(Doc. 59, at 10; see also Doc. 56-2 (Rotola
to quash the subpoenas have been filed by Plaintiff as well
as each of the witnesses. The motions generally argue that
the information requested is overly broad, unduly burdensome,
harassing, and not proportional to the needs of the case.
(See e.g. Doc. 57, 58; Doc. 67, at 3-8). Other
objections are that Defendant violated Rule 45(c) and failed
to provide a reasonable time to comply with the subpoena.
(Doc. 56, at 1-4; Doc. 67, at 11-12.)
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 nonprivileged,
relevant, and proportional to the needs of the case to be
discoverable. “Federal Rule of Civil Procedure 26(c)
confers broad discretion on the trial court to decide when a
protective order is appropriate and what degree of protection
is required.” Layne Christensen Co. v.
Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010)
(quoting Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36 (1984)).
45 governs subpoenas, with section (d) of that Rule relating
to “protecting a person subject to a subpoena” as
well as ...