United States District Court, D. Kansas
NATIONAL RAILROAD PASSENGER CORP. and BNSF RAILWAY COMPANY, Plaintiffs,
v.
CIMARRON CROSSING FEEDERS, LLC, Defendant, and EVERETT OWEN, et al., Intervenor-Plaintiffs, and NATIONAL RAILROAD PASSENGER CORP. d/b/a AMTRAK; and BNSF RAILWAY COMPANY, Defendants and Intervenor-Defendants.
MEMORANDUM AND ORDER
Teresa
J. James U.S. Magistrate Judge.
This
matter is before the Court on the Request for Protective
Order contained in Intervenor-Plaintiffs' Memorandum in
Support of Their Motion for Sanctions Against BNSF Railway
Company and National Railroad Passenger Corporations (ECF No.
263) (“Motion for Protective Order”). As set
forth below, the request is denied.
Intervenor-Plaintiffs
filed a motion for sanctions against Railroad Plaintiffs,
alleging extreme discovery abuses by those
parties.[1] Although not mentioned in their motion,
Intervenor-Plaintiffs include in their supporting memorandum
a one-paragraph motion for protective order.[2]
Intervenor-Plaintiffs seek to be relieved of their obligation
to respond to Railroad Plaintiffs' Requests for
Admissions, Third Requests for Production, and Second Set of
Interrogatories, until further discovery is completed.
Railroad Plaintiffs oppose the motion.
Railroad
Plaintiffs served these discovery requests on October 13,
2017. Intervenor-Plaintiffs filed their motion for protective
order on November 13, 2017, the day their responses were due.
Although Railroad Plaintiffs contend that
Intervenor-Plaintiffs failed to comply with D. Kan. Rule 37.2
by not conferring or making reasonable efforts to confer with
Railroad Plaintiffs' counsel, Intervenor-Plaintiffs view
their protective order request as one portion of their motion
for sanctions which they discussed by telephone with Railroad
Plaintiffs' counsel. The Court finds that
Intervenor-Plaintiffs have complied with D. Kan. Rule 37.2
with respect to their motion for sanctions and, by extension,
to this request.
I.
Legal Standards
Pursuant
to Federal Rule of Civil Procedure 26(c), a “court may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense[.]”[3] The decision to enter a protective order
is within the Court's broad discretion.[4]Despite this broad
discretion, “a protective order is only warranted when
the movant demonstrates that protection is necessary under a
specific category set out in Rule 26(c).”[5] In addition, the
party seeking a protective order bears the burden of
establishing good cause.[6] The moving party must make “a
particular and specific demonstration of fact, as
distinguished from stereotyped and conclusory
statements.”[7]
II.
Analysis
In
asking for a protective order, Intervenor-Plaintiffs do
nothing to demonstrate entitlement to protection beyond
merely citing Rule 26(c). They characterize Railroad
Plaintiffs' discovery requests as overly broad, but do
not say what makes them so. They assert the discovery is
premature because they cannot provide substantive responses
until further discovery is completed, but do not explain why
they did not respond to the discovery in accordance with the
Rules. Their one-paragraph motion contains no particular and
specific demonstrations of fact, nor does it mention
annoyance, embarrassment, oppression, or undue burden or
expense-at least one of which Rule 26(c) requires to
establish entitlement to protection. Intervenor-Plaintiffs
make additional arguments in their reply brief. However, the
Court will not consider arguments raised for the first time
in a reply brief, particularly where the arguments could have
been made in the first instance.[8]
“Rule
26(c) does not provide for any type of order to protect a
party from having to provide discovery on topics merely
because those topics are overly broad or irrelevant, or
because the requested discovery is not reasonably calculated
to lead to the discovery of admissible
evidence.”[9] The Court finds that Intervenor-Plaintiffs
have not met their burden to show they need protection from
responding to Railroad Plaintiffs' Requests for
Admissions, Third Requests for Production, and Second Set of
Interrogatories. The Court will therefore order
Intervenor-Plaintiffs to respond to those sets of discovery,
and cautions Intervenor-Plaintiffs to carefully adhere to the
requirements of Rule 26(g) in so doing.
The
Court intends to award expenses under Rule 26(c)(3), but will
defer addressing the issue until it rules on the balance of
Intervenor-Plaintiffs' motion for sanctions as well as
the cross-motion for sanctions.[10]
IT
IS THEREFORE ORDERED THAT Intervenor-Plaintiffs'
motion for protective order asking to be relieved of their
obligation to respond to Railroad Plaintiffs' Requests
for Admissions, Third Requests for Production, and Second Set
of Interrogatories (as contained in
Intervenor-Plaintiffs' Memorandum in Support of Their
Motion for Sanctions Against BNSF Railway Company and
National Railroad Passenger Corporations (ECF No. 263)) is
denied.
IT
IS FURTHER ORDERED THAT no later than ten
(10) days from the date of this Order,
Intervenor-Plaintiffs shall serve their responses and
objections, if any, to Railroad Plaintiffs' Requests for
Admissions, Third Requests for Production, and Second Set of
Interrogatories.
IT
IS FURTHER ORDERED THAT an award of expenses
pursuant to Fed.R.Civ.P. 26(c)(3) is taken under advisement.
IT
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