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Brown v. Panhandle Eastern Pipeline Co. L.P.

United States District Court, D. Kansas

January 2, 2018

JUANITA BROWN, et al., Plaintiffs,
v.
PANHANDLE EASTERN PIPELINE COMPANY L.P., Defendant.

          MEMORANDUM AND ORDER

          TERESA J. JAMES U.S. MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Motion to Compel Discovery (ECF No. 66). Plaintiffs ask the Court to overrule Defendant's objections, order Defendant to supplement its discovery responses, and award sanctions in connection with Defendant Panhandle Eastern Pipeline, L.P.'s (1) Responses and Objections and Supplemental Responses and Objections to Plaintiffs' First Requests for Production of Documents, and (2) Answers and Objections and Supplemental Answers and Objections to Plaintiffs' First Interrogatories. Defendant opposes the motion. For the reasons set forth below, the Court denies the motion in part and grants it in part.

         I. Relevant Background

         On July 4, 2017, Plaintiffs served their First Interrogatories and First Requests for Production of Documents on Defendant. Plaintiffs agreed to Defendant's two requests for additional time, and on September 5, 2017, Defendant served responses and objections but produced no documents or a privilege log. The next day, Plaintiffs' counsel sent a letter inquiring when Defendant intended to deliver the responsive documents it had agreed to produce, a privilege log for the documents it was withholding, and an affidavit supporting its claimed burden in responding. Defendant did not respond before Plaintiffs' counsel sent a golden rule letter that addressed specific issues in Defendant's responses. On October 2, 2017, Defendant's counsel responded to both letters. The Court conducted a telephone conference on October 4, 2017, and after hearing argument and providing guidance on the discovery issues, encouraged the parties to exchange narrowed requests and supplemental responses. The Court also extended until October 13, 2017, Plaintiffs' deadline to file a motion to compel related to this discovery.[1]

         During the next week, counsel continued to confer by telephone and exchange written communications. While they were able to narrow the issues, they were unable to fully resolve their disagreements. On October 13, 2017, the deadline for Plaintiffs to file a motion to compel, the parties agreed that Plaintiffs should seek a further extension. Plaintiffs did so, and attached to their motion for extension of time a draft of their motion to compel.[2] The Court granted Plaintiffs' motion, extending the motion to compel deadline to October 18, 2017.[3] On the morning of October 17, 2017, counsel telephoned the undersigned Magistrate Judge's chambers to request another telephone conference, which the Court held that afternoon after reviewing additional submissions from counsel. During the conference, the Court confirmed that counsel had agreed on both the geographic scope and temporal limits of the discovery requests. The Court set additional deadlines for production and an October 20, 2017 deadline for Plaintiffs to file a motion to compel regarding the sufficiency of Defendant's responses.[4] Counsel further conferred but did not resolve the matter.

         Plaintiffs timely filed the instant motion and assert that counsel complied with the requirements of D. Kan. Rule 37.2. Defendant disagrees. The Court finds that 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.

         II. Legal Standards

         Federal 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.[5]

         Considerations of both relevance and proportionality now govern the scope of discovery.[6]

         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.[7] Information still “need not be admissible in evidence to be discoverable.”[8] 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 limitation.”[9]

         The consideration of proportionality is not new, as it has been part of the federal rules since 1983.[10] 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.[11] 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.[12]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.[13] Relevancy determinations are generally made on a case-by-case basis.[14]

         III. Analysis

         Plaintiffs' motion, coming 45 days after Defendant's first responses but only two days after Defendant served its supplemental responses, addresses objections Defendant made in both its original and supplemental responses. The Court will rule only on the objections that Defendant asserted in its original responses and has not subsequently withdrawn.[15] Defendant waived its later objections by asserting them beyond the deadline to which Plaintiffs agreed and without the Court having excused Defendant's failure to timely respond.[16]

         Neither does the Court need to rule on the general objections Defendant included in its original responses, as counsel withdrew those objections in its supplemental responses.

         The Court considers in turn each of Plaintiffs' challenges to Defendant's timely-asserted objections.

         A. Objections that requests are vague and ambiguous.

         There is no question that Defendant's initial objections to certain words as being vague and ambiguous were not valid. Defendant made no attempt to describe the alleged inadequacies, and the words to which Defendant objected (e.g., “chemicals, ” “real and personal properties, ” “spills, ” “tests”) are perfectly clear in the context of this case. In its supplemental responses, Defendant added an explanation of how some words are allegedly vague and ambiguous. In response to RFP 16, in which Plaintiffs seek documents provided to Defendant by third-party inspectors investigating the subject release, Defendant objects that the term “third-party inspector” is vague and ambiguous and its intended scope is uncertain. Defendant further responded by saying it will construe the term as referring to third-party inspector Jim Hagemann. Plaintiffs' response indicates no dissatisfaction with Defendant's construction of “third-party inspector.” The Court finds the construction reasonable and denies Plaintiffs' motion on this point.

         In response to RFP 28, which asks Defendant to identify brands of chemicals in the Olpe 100 line, Defendant objects that the words “chemicals in the Olpe 100 line” are vague and ambiguous. Defendant states that it construes the phrase as excluding natural gas. Plaintiffs do not argue against Defendant's construction. The Court also finds this construction reasonable and denies Plaintiffs' motion on this point.

         The Court's review of the remaining RFPs and the one Interrogatory in which Defendant alleges certain words are vague and ambiguous yields the same result.[17] In each instance, Defendant indicates its construction and/or what responsive documents it will produce. The Court finds each reasonable, and Plaintiffs do not further challenge Defendant's objections of vagueness and ambiguity in its supplemental responses. The Court therefore denies Plaintiffs' motion insofar as it asks the Court to overrule Defendant's objections on the basis that portions of certain discovery requests are vague and ambiguous.

         B. Objections of overbreadth and disproportionality

         Defendant objects that eight RFPs are overbroad and disproportionate to the likely benefit because those requests seek documents that fall outside the temporal and geographic limits set by the Court for collecting or producing ESI or hardcopy documents.[18] Each individual RFP does not contain language limiting the request to the scope the Court allowed, i.e. documents dated January 1, 2009 to June 18, 2016 that relate to the Panhandle system within the State of Kansas.[19] But as Plaintiffs point out, both their Interrogatories and Requests for Production include the following direction: “Each request should be construed only to the extent that it complies with the scope of the Court's Order regarding discovery.”[20] Accordingly, the temporal and geographic limitations are implicit in each request, making Defendant's objections moot. The Court therefore grants Plaintiffs' motion insofar as it asks the Court to overrule Defendant's objections on the basis that portions of certain discovery requests are overbroad and disproportionate as going beyond the temporal and geographic limitations the Court has imposed.

         C. Objection on basis that Interrogatories assume ...


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