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Holick v. Burkhart

United States District Court, D. Kansas

April 18, 2018

MARK HOLICK, Plaintiff,
v.
JULIE A. BURKHART, Defendant.

          MEMORANDUM & ORDER ON MOTIONS

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE.

         Now before the Court are Defendant's Motion to Quash Non-Party Depositions (Doc. 149) and Motion to for Leave to File Under Seal (Doc. 151). Having reviewed the submissions of the parties, Defendants motions are GRANTED as more fully set forth below. The Court also DENIES as moot Plaintiff's Motion to Strike Defendant's reply brief (Doc. 177).

         FACTUAL BACKGROUND

         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 in federal district court 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.) Facts relevant to the individual motions will be summarized in the context of the relevant motion, below.

         I. Defendant's Motion to Quash Non-Party Depositions (Doc. 149)

         Plaintiff seeks to depose Robert Eye and Erin Thompson, both of whom served as legal counsel for Defendant during the state court action. Defendant moves to quash the depositions, contending that “[a]ny knowledge about the underlying state action possessed by counsel that is relevant to [Plaintiff's] claims and defenses is unquestionably privileged.” (Doc. 150, at 1.) Defendant notes that “the operative Complaint in this case contains no allegations of a ‘conspiracy' to abuse legal process or engage in malicious prosecution.” (Id., at 2.) Plaintiff has since, however, filed a Motion to Amend that, in part, seeks to add a claim for civil conspiracy and fraudulent conduct. (See generally Doc. 152; Doc. 152-1, at 10-11.) That motion will be decided by separate Order.

         Plaintiff states that he has a “good-faith belief that defendant initiated the false stalking accusation” against him “due to the planning, recommendation, and strategy of the . . . attorneys . . . .” (Doc. 158, at 1.) He responds that he wants to depose Defendant's attorneys “who recommended strategy to [Defendant] before she filed the accusations of stalking against [Plaintiff] in state court.” (Id. (emphasis in original).) Plaintiff contends that he “does not seek to depose these attorneys concerning their knowledge about the underlying state action after that action was commenced in March 2013.” (Id., at 1-2.) Rather, he wants to question them “regarding their role in their conspiracy” with Defendant to bring “phony” stalking charges against Plaintiff in state court. (Id., at 2.)

         A. Standards for Discovery and Motions to Quash.

         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. Holick v. Burkhart, No. 16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018). Pursuant to Fed.R.Civ.P. 45(d)(3)(A), the court for the District where compliance is required must quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies.”

         Defendant argues that Plaintiff

presumably seeks to depose state counsel as to why [Defendant] sought a PFS order and what information she received from counsel prior to filing. This information - consisting of confidential communications made for the purposes of giving and receiving legal advice about a possible claim or remedy - falls squarely within the scope of attorney-client privilege under Kansas law.

(Doc. 150, at 5.) Defendant continues that Plaintiff cannot identify an exception to the privilege that would allow the information to be discovered. (Id., at 6.)

         Plaintiff responds that because Defendant has admitted that certain related emails are nonprivileged communication, he “should be permitted to depose Thompson, Eye, and Gaines about those emails, their contents, and the circumstances surrounding those communications.” (Doc. 158, at 5.) Plaintiff also contends that the ...


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