United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO COMPEL
KENNETH G. GALE, U.S. MAGISTRATE JUDGE
this is a patent infringement case, brought pursuant to 35
U.S.C. § 271, et seq. The parties are
competitors in the grain storage cover industry. Now before
the Court is Defendant's Motion to Compel. (Doc. 102.)
Defendant brings the present motion based on Plaintiff's
alleged “deficient responses and . . . refusal to
timely produce . . . important core documents. (Doc. 103, at
4.) The discovery requests at issue will be discussed and
addressed individually herein. Having reviewed the
submissions of the parties, Defendant's motion is
GRANTED in part as more fully set forth
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.
such, the requested information must be nonprivileged,
relevant, and proportional to the needs of the case to be
discoverable. Holick v. Burkhart, No.
16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11,
Meet & Confer.
initial matter, Plaintiff argues that Defendant filed the
present motion “in blatant violation of the Federal
Rules and this Court's local rules, ” particularly
Fed.R.Civ.P. 37(a)(1) and D. Kan. Rule 37.2. (Doc. 109, at
2.) Federal Rule 37(a)(1) requires that a motion to compel
discovery “must include a certification that the movant
has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an
effort to obtain it without court action.” Pursuant to
D. Kan. Rule 37.2, “[t]he court will not entertain any
motion to resolve a discovery dispute . . . unless the
attorney for the moving party has conferred or has made
reasonable effort to confer with opposing counsel concerning
the matter in dispute prior to the filing of the
concedes that the parties “conducted telephonic meet
and confers on three different occasions.” (Doc. 109,
at 2.) Even so, Plaintiff contends that a litany of the
issues addressed in Defendant's Motion to Compel were not
raised during that meet and confer process. (Id., at
2-3.) Defendant, however, contends that all issues addressed
in the motion were discussed by the parties. (Doc. 111, at
3-4.) According to Defendant, the issues were either
memorialized in Defendant's “golden rule”
letter or are included in defense counsel's notes from
the parties' discussions. (Id.)
Court obviously was not present during the parties' meet
and confer sessions. As such, based on the parties'
discussion of these communications in the submitted
briefings, the Court has no way of determining whether
Plaintiff or Defendant has more accurately summarized the
topics discussed. As such, the Court will not deny portions
of Defendant's motion on this technical issue but will
instead address the discovery requests at issue on their
not reflected in the Scheduling Orders (Docs. 23, 65), the
parties apparently agreed at the beginning of this case that
documents may be produced on a “rolling” basis.
This type of cooperation agreement is encouraged by this
Court. Its source is the “Trial by Agreement”
site maintained by Stephen D. Susman (trialbyagreement.com).
The purpose of such an agreement is to “produce
documents on a rolling basis as soon as they have been
located and copied.” Id. This agreement is not
a license to produce documents at some vague
“later” date, or to produce them when convenient.
Such documents should be produced within a reasonable time
after the response is submitted. The agreement's purpose
is to avoid the delay caused by waiting to produce any
documents until all have been compiled, and to recognize that
additional responsive documents may come into a party's
possession or control during the litigation.
course, subsequently acquired responsive documents would
activate a duty to supplement under Fed.R.Civ.P. 26(e). In
any event, documents in this case which were within the
custody or control of the plaintiff at the time of the
original discovery responses (May of 2017) should have been
produced long ago. This Order requires all responsive
documents be produced within thirty (30)
days of the date of this Order.
Discovery Requests at Issue.
initial matter, Plaintiff includes the following general
objection at the beginning of its responses to
Defendant's First and Second Interrogatories:
Plaintiff objects to the requests to the extent they call for
information subject to the work product doctrine, the
attorney-client privilege, joint defense privilege, privilege
for the opinions of or facts known or held by non-testifying
experts, and any other applicable privilege, protection or
(See Doc. 103-3, at 1; Doc. 103-9, at 1.)
Court has unequivocally ruled that such objections are
This Court has specifically held that ‘[t]hese type of
objections are, at best, worthless and improper.'
Martin K. Eby Const. Co., Inc. v. OneBeacon Ins.
Co., 08- 1250-MLB-KGG, 2012 WL 1080801 (D.Kan. March 29,
2012) (citing Swackhammer v. Sprint Corp. PCS, 225
F.R.D. 658, 660-61 (D.Kan.2004). ‘‘Such
objections are considered mere hypothetical or contingent
possibilities, where the objecting party makes no meaningful
effort to show the application of any such theoretical
objection to any request for discovery.''
Id. At worst, these types of objections leave the
requesting party ‘unsure whether or not the objection
correlates to withheld information.'
Everlast World's Boxing Headquarters Corp. v.
Ringside, Inc., No. 13-2150-CM-KGG, 2014 WL 2815515, at
*2-3 (D. Kan. June 23, 2014). As such, Plaintiff's
general objections are overruled. This determination does
not, however, apply to instances in which Plaintiff
subsequently raised these specific objections in response to
specific discovery requests.
Interrogatory No. 12.
No. 12 asks Plaintiff to “[i]dentify by name and
location each and every site or place where there is a grain
storage system that includes a Raven product and that you
contend infringes any claim of the ‘239 patent.”
(Doc. 103-3, at 1.) Plaintiff objects that the interrogatory
is unduly burdensome because Defendant “is in