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Cadence Education, LLC v. Vore

United States District Court, D. Kansas

February 2, 2018




         Pending before the Court is Plaintiff's Motion to Compel Production and Overrule Objections (ECF No. 64). Pursuant to Fed.R.Civ.P. 37, Plaintiff requests that the Court overrule the objections asserted by Defendants J. Brandon Vore, Sarah Vore, and FHD, Inc. (collectively Defendants)[1] and compel them to produce documents responsive to Plaintiff's First Requests For Production of Documents Nos. 6, 10, 13-15, 17, 27, 36-37, 39-47, and 51. As explained below, the motion is granted in part and denied in part.


         Plaintiff, the operator of a private preschool, brings this action to recover rent payments, interest, and late charges it claims Defendant FHD, Inc. is obligated to pay under a commercial property Sublease. It also asserts claims for breach of contract, unjust enrichment, fraud or fraudulent inducement, civil conspiracy, and reformation and breach of reformed contract.

         Defendants assert three counterclaims. They allege as the bases for their counterclaims that Plaintiff took computer servers belonging to Brandon Vore, which contained Sarah Vore's stored electronic research and data, from locked rooms at the school;[2] Plaintiff exceeded its license, disconnected, unplugged and removed equipment, and trespassed into other parts of the space in which it had no right, title or interest;[3] and Plaintiff exceeded its limited license to redirect website address from the servers to equipment located in other space.[4]

         The parties made reasonable efforts to confer as required by D. Kan. Rule 37.2, and Plaintiff's Motion to Compel has been fully briefed.


         Defendants object to all nineteen of the disputed Requests based upon their use of omnibus terms like “relating to” or “concerning” with respect to a general category of documents. They argue that Requests asking for “[a]ll documents relating to” or “reflecting” general categories or groups of documents render the Requests overly broad and unduly burdensome because such broad language makes arduous the task of deciding which of numerous documents may conceivably fall within the scope of each Request. Defendants also argue Plaintiff's broad definition of the word “documents” makes it nearly impossible to ascertain the scope of the documents responsive to each Request.

         Plaintiff argues that Defendants ignore decisions holding that the use of omnibus phrases like “all documents” is not objectionable if anchored to particular categories of information. It claims all the Requests at issue are specifically pegged to substantive issues implicated by the parties' claims and defenses, as opposed to objectionable general requests for all documents relating to this case.

         “The use of omnibus terms-such as ‘relating to, ' ‘pertaining to, ' or ‘concerning'-may signal an overly broad [discovery] request when the term modifies a general category or broad range of documents.”[5] The rationale is that a discovery request seeking documents “pertaining to” or “concerning” a broad range of items “requires the respondent either to guess or move through mental gymnastics . . . to determine which of many pieces of paper may conceivably contain some detail, either obvious or hidden, within the scope of the request.”[6] When, however, the omnibus phrase “modifies a sufficiently specific type of information, document, or event, rather than large or general categories of information or documents, the request will not be deemed objectionable on its face.”[7]

         The Court finds Plaintiff's use of the introductory phrase “all documents relating to” in their Requests does not make each Request per se objectionable. The Court has reviewed all the Requests in dispute and finds the omnibus terms do not modify general categories or a broad range of documents, but instead otherwise modify sufficiently specific types of information, documents, or events. Defendants' objections to the Requests on grounds that they ask for “all” documents and associated omnibus words such as “relating to” specified topics are therefore overruled.


         Defendants assert specific objections to Plaintiff's Requests 6, 10, 13-15, 17, 27, 36-37, 39-47, and 51. They also suggest many of these Requests be substantively limited to a particular place (e.g., the school's second floor server room), or a particular time period. The Court will address Defendants' objections and proposed limitations to each of the disputed Requests in turn below.

         A. Request 6 (Counterclaim timing documents)

         Request 6 asks Defendants to produce “[a]ll documents relating to any decision by Defendants, and the reasons for any such decision, to assert the Counterclaims in March 2017, instead of asserting the Counterclaims at an earlier time.” Defendants responded:

On or about the time the destruction of the servers was discovered, Defendant Sarah Vore had an unexpected and potentially life-threatening health issue requiring hospitalization, As a result, Sarah and her husband, Defendant Brandon Vore, made the decision to forgo or postpone litigation and focus their time and attention on Sarah's health and their [family].[8]

         Defendants admit that health records exist, but object to producing them, claiming they are private and confidential, not relevant to either party's claims or defenses, not likely to assist in resolving the issues, and would be unduly burdensome to produce.

         Plaintiff argues it would be “grossly unfair” to shield Ms. Vore's health-related documents from discovery. Plaintiff contends these documents are relevant to liability issues on Defendants' counterclaims, and potentially relevant to Plaintiff's defenses such as estoppel, waiver, or abandonment. According to Plaintiff, the requested documents are relevant because Defendants did not notify Plaintiff anything was missing for months, even though Defendants now claim equipment and data worth more than $1 million is missing, and even though any confusion or ambiguity about the equipment or data might have been resolved or clarified with prompt notice. The requested documents are also relevant to whether Defendants' delay reflects on the merits of the counterclaims and shows those counterclaims were asserted merely as after-the-fact retaliatory measures. According to Plaintiff, Defendants are unwilling to stipulate that they will not argue to the jury that the delay in reporting the alleged conversions and in asserting the counterclaims was for health reasons. Thus, Plaintiff contends it needs the requested documentation to determine whether Defendants' explanation is pretextual. Plaintiff contends the protective order in place would address any confidentiality concerns.

         Defendants argue Request 6 seeks irrelevant private health information of Ms. Vore. They contend Plaintiff is requesting these documents so that it can attempt to suggest Ms. Vore's health issues did not exist or were not serious enough to justify Defendants' decision to forgo suing Plaintiff. They also contend discovery regarding their decision of when to assert the counterclaim would invade the attorney-client privilege. Defendants maintain that requiring production of documents reflecting Ms. Vore's private health issues would unnecessarily cause embarrassment and invite further abusive and harassing discovery.

         The Court finds the details of Ms. Vore's medical issues set out in her personal health records are not relevant or are of such marginal relevance to the issues in this case as to be outweighed by the potential harm to Defendants from the disclosure of such private and highly personal health information. The Court finds, however, that Defendants' response to Request 6 expressly states “on or about the time the destruction of the servers was discovered” Ms. Vore experienced a serious health issue “requiring hospitalization, ” and therefore hospital billing records reflecting when Ms. Vore was hospitalized may be relevant to when this discovery occurred and to Defendants' explanation for their delay in asserting their counterclaims. The Court therefore sustains Defendants' relevancy objection to production of Ms. Vore's health records, except that the Court will compel Defendants to produce all hospital billing records reflecting Ms. Vore's hospitalization “on or about the time [they allege] the destruction of the servers was discovered” and any other hospital billing records that support Defendants' assertion Ms. Vore and her husband “made the decision to forgo or postpone litigation and focus their time and attention on [Ms. Vore's] health and their [family].” Plaintiff's motion to compel is granted in part with respect to Request 6.

         B. Request 10 (Counterclaim leased space documents)

         Request 10 seeks “[a]ll documents relating to any space maintained by any Defendant in any building or facility leased to Plaintiff, including but not limited to any space at Canterbury Preparatory School or any space on the second floor of the building alleged in paragraphs 4-5 and 15-16 of the Counterclaims, along with documents relating to each item that is or was located or stored in such space.”

         Defendants served the following response to Request 10:

Defendants will produce responsive, non-privileged documents, if any, located after a reasonable and proportional search, subject to the terms of the Protective Order and the following objections. The Request invades the attorney client privilege, the attorney work product doctrine, or other privileges by seeking documents to, from, or created at the direction of counsel, including correspondence by, with, or involving attorneys about the Counterclaims or the subjects in the Request. This request is overly broad and unduly burdensome, with regard to “any space maintained by any Defendant in any building or facility leased to Plaintiff” and as to ”documents relating to each item that is or was located or stored in such space” as this request encompasses items not relevant or pertinent to this lawsuit. Defendants will attempt to reasonably construe this Request and produce any non-privileged documents relating to the servers destroyed, converted, or removed by [Plaintiff].[9]

         Defendants' response is an improper conditional objection to Request 10.[10] As noted in Sprint Communications Co., L.P. v. Comcast Cable Communications, LLC, the practice of responding to discovery requests by asserting objections and then answering “subject to” the objections “is manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure.”[11] Defendants' response is confusing and possibly misleading. Their statement that they “will produce responsive, non-privileged documents, if any” is subject to conditions (i.e. documents located after a “reasonable and proportional search” and after Defendants “reasonably construe” the request) and a lengthy laundry list of objections that make it impossible to discern what part or nature of documents requested the Defendants intend to produce or what they may be withholding based upon one of the many privileges or objections asserted.

         Additionally, Defendants' conditional objection runs afoul of Federal Rule of Civil Procedure 34. Specifically, Rule 34(b)(2)(B) requires that a response to a request for production “either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” A discovery response that states responsive documents, if any, will be produced after a search, subject to its objections is not an option under the Rule. Moreover, Rule 34 was amended in 2015 to provide that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection.”[12] The Rule also requires that “[a]n objection to part of a request must specify the part and permit inspection of the rest.”[13] While Defendants' response seems to indicate that some responsive documents are being withheld, it fails to specify the particular part(s) of the Request to which Defendants object and permit inspection of the rest.

         Accordingly, the Court finds that Defendants' conditional objection to Request 10 is improper and their objections to the Request are therefore waived. However, the Court notes Plaintiff, apparently conceding the Request is to some extent overly broad, has offered in briefing the motion to limit the scope of Request 10 in two significant ways: (a) with respect to location, to the server room on the second floor of Canterbury Preparatory School; and (b) with respect to time frame, to the period from one year prior to the Asset Purchase Agreement (“APA”) to present. The Court will therefore limit Request 10 as offered by Plaintiff. The motion to compel with ...

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