United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTIONS
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
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
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.
Defendant's Motion to Quash Non-Party Depositions (Doc.
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.
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.)
Standards for Discovery and Motions to Quash.
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,
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
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.)
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 ...