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Holick v. Burkhart

United States District Court, D. Kansas

January 11, 2018

MARK HOLICK, Plaintiff,



         Now before the Court is Plaintiff's “Amended Motion to Compel Reasonable Production of Documents” (Doc. 115) and the “Motion to Compel Plaintiff to Answer Certain Requests for Production and Interrogatories” filed by Defendant (Doc. 118). Having reviewed the submissions of the parties, including the discovery responses of the parties, the Court is prepared to rule.


         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.)

         In the affirmative defenses contained in Defendants Answer to the Complaint, 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; see also Doc. 97, at 1 (Answer to Amended Complaint incorporating Answer to original Complaint.) Defendant contends that she feared for her safety given the allegedly threatening nature of Plaintiff's statements and actions. (Id.)


         A. 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. “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)).

         B. Plaintiff's Amended Motion to Compel (Doc. 115).

         Plaintiff “moves the Court for an order compelling [D]efendant to make proper production of documents in response to plaintiff's second Requests for Production . . . .” (Doc. 115, at 1.) Plaintiff argues that Defendant's document production was done in a manner that was not compliant with Fed.R.Civ.P. 34. It is uncontroverted that the documents, numbering approximately 20, 000 pages, were submitted as encrypted ZIP files.[1] According to Plaintiff, “no instructions were provided about how to remove the password or how to extract the documents without manual entry of the password every time for each [document].” (Doc. 115, at 1.) Plaintiff argues that the documents “were neither organized according to plaintiff's numbered requests for production, nor were they organized as they would be kept in a regular office file, i.e., as they would be reasonably maintained in the usual course of business.” (Id., at 2.) According to Plaintiff, “the files were encrypted with a ‘strong password.' Requiring entry of that strong password before access to each file, or to thousands of individual documents, is not reasonable by any standard, and was done to frustrate the recipient's ability to examine” the documents. (Id., at 3.)

         Defendant responds that this issue has been resolved. “Having learned of Plaintiff's technical difficulties for the first time on October 9, defense counsel informed Plaintiff's counsel, via step-by-step instructions, how to properly extract the documents on the next business day.” (Doc. 121, at 5.) Defendant contends that a meet and confer session, in compliance with Fed.R.Civ.P. 37 and D. Kan. Rule 37.2, would have made this portion of Plaintiff's motion unnecessary. (Id., at 6.)

         Plaintiff replies that “[h]ad there been no password problems at all, the dump of thousands of pages of non-responsive documents was, nevertheless, improper, harassing, and unduly burdensome.” (Doc. 129, at 9.) In other words, Plaintiff accuses Defendant of intentionally providing a “document dump” - voluminous documents of limited relevance in an effort to obscure relevant information. “Defendant . . . front loaded her production with thousands of pages that had only a remote connection those requests, if any . . . .” (Doc. 115, at 4, 5.) Plaintiff contends the document production was not done in “good faith.” (Id., at 4.)

         Plaintiff contends that defense counsel subsequently informed him that the actual number of documents responsive to Requests 1-10 and 16-23 - which Plaintiff contends related to him, his former church, and “specific events at issue in the lawsuit - “was less than a handful.” (Id., at 4 (emphasis in original).) In the initial (subsequently amended) motion regarding this issue, in an effort to simplify the document production, Plaintiff offered to withdraw Requests 11-15, which he described as “not linked to the events and entities at issue.” (Doc. 110, at 3.) Plaintiff now rescinds the offer to withdraw Requests Nos. 11-15, instead proposing that

Defendant should be directed to produce separately the ‘handful of documents' referenced as responsive to RFP's one through ten and sixteen through twenty-three. Those documents should be labeled and organized to correspond to the numbered categories specified in plaintiff's requests for production, to assist all parties and the Court in determining which documents are truly probative and meaningful, without needless, time-consuming efforts, technical burdens, and obstructive tactics. Given the revelations by defense counsel cited above, plaintiff withdraws his offer to drop RFP's eleven through sixteen. Defendant should be directed to clean up and limit that production to documents that defendant actually read or authored and which are directly related to issues in this case.

(Doc. 115, at 5.)

         Defendant responds that she

voluntarily agreed to make a narrow re-production of Defendant's social media posts that excluded any posts responsive only to Requests 11-15, which - as Plaintiff acknowledged in his original Motion to Compel (the ‘Original Motion, ' ECF 110) - are facially overbroad. Even though Plaintiff stubbornly refuses to withdraw these requests, as a practical matter, the relief he ...

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