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Holick v. Burkhart

United States District Court, D. Kansas

November 30, 2017

MARK HOLICK, Plaintiff,
v.
JULIE A. BURKHART, Defendant.

          MEMORANDUM & ORDER ON MOTION TO COMPEL

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE

         Now before the Court is Defendant's “Motion to Compel Plaintiff to Answer Certain Requests for Production.” (Doc. 64.) Having reviewed the submissions of the parties, the Court GRANTS in part Defendant's motion.

         FACTS

         In 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.)

         In 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 law.” (Id.)

         Plaintiff 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.)

         Defendant's Answer to Plaintiff's Amended Complaint incorporates her original answer, but deletes the portion directed to Plaintiff's defamation claim (Count III), which was voluntarily dismissed by Plaintiff. (See Doc. 97.) The affirmative defenses contained in Defendant's Answer contend that 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.” (Id.)

         Defendant's present motion requests an Order compelling Plaintiff to comply with Fed.R.Civ.P. 34 and indicate whether he is withholding documents on the basis of his objections to various Requests for Production. Defendant also seeks an Order compelling Plaintiff to fully respond to certain of her Requests. (See Docs. 64, 64-1.)

         ANALYSIS

         I. Legal Standards.

         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 nonprivileged, relevant, and proportional to the needs of the case to be discoverable.

         II. Compliance with Fed.R.Civ.P. 34(b).

         Defendant's first complaint is that Plaintiff's responses do not comply with Fed.R.Civ.P. 34(b)(2)(C) because Plaintiff does not indicate “what, if any, responsive documents he is withholding on the basis of objections.” (Doc. 64-1, at 8.) Defendant continues that “Plaintiff's noncompliance with Rule 24(b)(2)(C) renders it impossible for [Defendant] to evaluate the extent of the deficiencies in his responses to the Requests, particularly in light of his extensive objections.” (Id.)

         “The 2015 amendments to Rule 34 now require an objecting party to ‘state whether any responsive materials are being withheld on the basis of that objection.'” Rowan v. Sunflower Elec. Pwr. Corp., No. 15-9227-JWL-TJJ, 2016 WL 3743102, at *3 (D. Kan. July 13, 2016) (quoting Fed.R.Civ.P. 34(b)(2)(C)).

This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that ...

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