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Hopkins v. Board of County Commissioners of Wilson County

United States District Court, D. Kansas

July 23, 2018

DEBRA G. HOPKINS, et al., Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF WILSON COUNTY, KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Teresa J. James, U.S. Magistrate Judge

         This matter is before the Court on Plaintiffs' Motion to Compel Discovery (ECF No. 183). Plaintiffs request that the Court enter an order compelling Third-Party Defendant Advanced Correctional Healthcare (“ACH”) to properly answer Plaintiffs' First Interrogatories and produce documents responsive to Plaintiffs' First Requests for Production. As explained below, the motion is granted in part and denied in part.

         I. BACKGROUND RELEVANT TO THE DISCOVERY MOTION

         Plaintiffs served their First Interrogatories (numbered 1-15) and First Requests for Production of Documents (numbered 1-21) to “defendant” ACH via email on January 31, 2018.[1]On February 19, 2018, ACH's counsel emailed Plaintiffs' counsel stating that ACH was not a defendant in the case, but instead a third-party defendant. ACH's counsel requested correction of the discovery requests served upon “defendant” ACH, and stated ACH would serve its objections and answers within thirty days of receipt of the corrected discovery requests.[2] Plaintiffs' counsel replied “understood, ” however, the discovery requests were never re-served.[3]

         ACH served its answers and objections to Plaintiffs' interrogatories and requests for production on March 2, 2018.[4] Plaintiffs' counsel sent Golden Rule letters regarding ACH's objections, responses, and answers to Plaintiffs' discovery requests on March 8 and 9, 2018.[5] A telephone conference was set up for March 15, 2018.

         Shortly before the March 15 telephone conference, ACH served supplemental answers and responses to Plaintiffs' interrogatories and requests for production.[6] Counsel for Plaintiffs and ACH then conferred by telephone, resolved some of their disputes, and ACH agreed to further supplement some of its interrogatory answers.

         In a letter dated March 23, 2018, Plaintiffs' counsel requested that ACH provide a written response to Plaintiffs' Golden Rule letters. On March 27, 2018, ACH served its second supplemental answers and responses to Plaintiffs' interrogatories and requests for production.[7]Counsel conferred again by telephone on April 3, 2018 and reached an agreement limiting the scope of some of the interrogatories and requests for production.

         On April 30, 2018, ACH served its third supplemental answers and responses to Plaintiffs' interrogatories and requests for production.[8] ACH also provided a privilege log for documents withheld as responsive to Requests 3, 5, 20, and 21.[9]

         Plaintiffs filed the instant Motion to Compel Discovery on May 2, 2018.

         On May 14, 2018, ACH served its fourth supplemental answers and responses to Plaintiffs' interrogatories and requests for production.[10] ACH also provided a revised privilege log for documents it withheld as responsive to Requests 3, 4, 20, and 21, and Interrogatory 7.[11]ACH filed its response in opposition to Plaintiffs' motion to compel on May 16, 2018.

         II. OBJECTIONS ASSERTED IN ACH'S SUPPLEMENTAL DISCOVERY RESPONSES

         Plaintiffs request the Court overrule as untimely all the objections ACH asserted in its supplemental discovery answers and responses. They argue that ACH's original answers and responses consisted almost entirely of boilerplate objections, such as “overbroad, ” “unduly burdensome, ” or asserting work product or attorney-client privilege. According to Plaintiffs, it was only after Plaintiffs notified ACH of the claimed deficiencies in ACH's original discovery answers and responses, that ACH served supplemental answers or responses expanding its objections significantly. Plaintiffs contend ACH waived all objections asserted for the first time in ACH's supplemental answers and responses, and not asserted in ACH's original answers and responses served on March 2, 2018.

         ACH urges the Court to apply the proportionality considerations of Fed.R.Civ.P. 26(b). It repeatedly emphasizes that Plaintiffs served substantial, overwhelming, and voluminous discovery requests upon it, despite having no pending claim in this case against ACH. All of Plaintiffs' claims against ACH have been dismissed by the Court, and ACH remains in the case merely as a third-party defendant brought in by the Wilson County Defendants on a contractual indemnity claim.

         ACH's current status in this case-as a third-party defendant on claims asserted by the Wilson County Defendants-does not preclude it from being required to respond to discovery requests served by Plaintiffs. Although all of Plaintiffs' claims asserted against ACH and its employees have been dismissed, ACH remains a party in the case and it has an obligation to respond to discovery requests served upon it.[12] The number of interrogatories and requests for production Plaintiffs served upon ACH are not disproportionate given ACH's involvement and knowledge of the care and treatment of Naomi Keith at issue in this case.

         ACH also argues that while many of Plaintiffs' discovery requests are patently objectionable on their face, it has, in the spirit of cooperation, supplemented the objections it initially and timely asserted. ACH contends these supplemented responses and objections merely provide further specific details about the discovery requests to which it had already objected.

         Federal Rule of Civil Procedure 33(b)(2) sets a 30-day time period for answering or objecting to an interrogatory, unless the parties stipulate to or the court orders a shorter or longer time period.[13] If objecting to an interrogatory, Rule 33(b)(4) provides that “[t]he grounds for objecting . . . must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Rule 34(b)(2)(A) likewise requires a party to whom a request for production or inspection is directed to “respond in writing within 30 days after being served, ” or, for early discovery requests, 30 days after the parties' first Rule 26(f) conference. Rule 34(b)(2)(B) also provides that “[f]or each item or category, the response must 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.” In lieu of permitting inspection, the responding party may state that it will produce copies of documents or of ESI.[14] “The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”[15] Finally, “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”[16]

         “When ruling upon a motion to compel, the court generally considers those objections which have been timely asserted and relied upon in response to the motion.”[17] Objections that a responding party fails to initially raise in the answer or response to the discovery request are deemed waived.[18] Objections that are initially raised-but not reasserted and relied upon in response to a motion to compel discovery-will be deemed abandoned.[19] An objecting party's failure to provide evidence and affidavits in support of discovery objections at the time initial discovery responses are served does not waive the objections.[20]

         Any objections ACH failed to assert within its time period for answering the interrogatories or responding to the requests for production are deemed waived. Under Rules 33(b)(2) and 34(b)(2)(A), ACH was required to assert any objections within 30 days of the date Plaintiffs served their interrogatories and requests for production, which were served on January 31, 2018. However, in this case, ACH's counsel reasonably understood Plaintiffs' counsel as agreeing to re-serve the discovery requests upon ACH and to extend ACH's deadline for responding to thirty days after re-serving them. It likely would not have been until ACH's counsel received Plaintiffs' Golden Rule letters on March 8 and 9, 2018, that they realized Plaintiffs' counsel did not intend to re-serve the discovery requests. The Court therefore construes March 8 as the date Plaintiffs' discovery requests were re-served on ACH. Based upon ACH's understanding of the parties' agreement, ACH's discovery responses would have been due 30 days later, on April 7, 2018. ACH's March 2 original, March 15 supplemental, and March 27 second supplemental answers and responses were all served prior to the April 7, 2018 deadline. The Court finds ACH's original, supplemental, and second supplemental answers and responses were therefore timely served.

         Plaintiffs argue that ACH's discovery answers and responses changed significantly between its March 2 original and its later multiple supplemental ones, and ACH should not be permitted, once its original objections are challenged, to raise other objections. The correspondence between counsel, however, reveals that ACH's supplementations were in large part the result of conferring efforts between counsel. ACH's supplemental answers and responses provide, at Plaintiffs' request, more details and explanation for the basis for ACH's original boilerplate objections to the discovery requests. Furthermore, ACH served at least its first and second supplementations within what ACH believed was the agreed time period for responding to all the interrogatories and requests for production at issue.

         The Court has reviewed ACH's original, supplemental, and second supplemental discovery answers and responses to all the interrogatories and requests at issue in Plaintiffs' motion. Based upon that review, the Court finds ACH's supplemental responses reassert and expand upon objections asserted in timely served discovery answers and responses, thus all objections ACH has reasserted and relied upon in response to Plaintiffs' motion to compel are timely.

         III. INTERROGATORY LIMIT OBJECTIONS

         ACH objected to each of Plaintiffs' Interrogatories 4 through 15 as exceeding the allowable interrogatory limit in Fed.R.Civ.P. 33(a). Rule 33(a) limits the number of written interrogatories, including all discrete subparts, to no more than 25 interrogatories unless otherwise stipulated or ordered by the court. In this case, the parties requested and the original Scheduling Order (ECF No. 17) allows the parties to serve a maximum of 30 interrogatories.

         Plaintiffs' First Interrogatories to ACH are comprised of fifteen numbered interrogatories, however, two of the interrogatories are drafted in such a way that they clearly have discrete subparts. Specifically, the Court finds Interrogatory 3 is comprised of nine subparts[21] and Interrogatory 4 is comprised of six subparts[22] that are discrete and count separately for purposes of the interrogatory limit. However, because Plaintiffs only served fifteen interrogatories, the additional subparts in Interrogatories 3 and 4 do not cause the total to exceed the 30-interrogatory maximum. ACH's objections that it should not be required to answer Interrogatories 4 through 15 because they exceed the allowable interrogatory limit are overruled. To any extent ACH has not fully answered Plaintiffs' Interrogatories 4 through 15 based solely upon its interrogatory-limit objections, it shall serve supplemental answers to those interrogatories within ten (10) days of this Order.

         IV. TIMELINESS AND SUFFICIENCY OF ACH'S PRIVILEGE LOGS

         Plaintiffs argue that ACH's claims of attorney-client privilege and work product should be waived because ACH did not timely provide a privilege log for the responsive documents it was withholding, and the privilege logs eventually provided are insufficient because they do not contain all the required information to establish each element of the privilege or protection being asserted. Plaintiffs further point out that ACH has not offered any explanation why it waited so long to provide a privilege log.

         ACH responds that Plaintiffs' counsel requested a privilege log on April 3, 2018 and, pursuant to their agreement, ACH produced a privilege log on April 30, 2018, and later a supplemental privilege log. ACH maintains that the privilege log and supplemental privilege log it produced describe in detail the documents or information to be protected and are in full compliance with Rule 26(b)(5). ACH also points out that the Wilson County Defendants provided discovery responses similar to ACH's without producing privilege logs, yet Plaintiffs have not pursued a motion to compel against those defendants.

         A. Timeliness

         Federal Rule of Civil Procedure 26(b)(5)(A) provides that when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and
(ii) describe the nature of the documents, communications . . . not produced or disclosed . . . in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the claim.

         The party who withholds discovery materials under a claim of privilege or work product must provide sufficient information, usually in the form of a privilege log, to enable the party seeking the discovery to evaluate the applicability of the privilege or protection.[23] “Failure to follow the Federal Rules of Civil Procedure may result in waiver of the attorney-client privilege and/or work-product protection.”[24] If a party fails to make the required showing, by not producing a privilege log or by providing an inadequate one, the court may deem the privilege waived.[25]

         Under Rule 26(b)(5)(A), a party must expressly make the claim of privilege or protection at the time it “withholds” the discoverable information. Thus, the date a party is deemed to “withhold” discoverable material is the date when the party's responses to the discovery requests are due.[26]

         In this case, ACH asserted attorney-client privilege and/or work product in its original March 2, 2018 answers to Interrogatories 4, 5, 7, 14, and 15, [27] and responses to Requests for Production 3-5, 16, 17, 20, and 21.[28] Almost sixty days after it served its original discovery answers and responses, ACH provided a three-page privilege log on April 30, 2018 for documents it was withholding as responsive to Plaintiffs' Requests 3, 5, 20, and 21. On May 14, 2018, after Plaintiffs filed their motion to compel, ACH provided a five-page revised privilege log for Requests 3, 4, 20, 21, and Interrogatory 7.

         Due to the confusion when ACH's discovery responses were actually due, the Court declines to find ACH waived its claims of attorney-client privilege and work product by its failure to serve its privilege log when its discovery responses were due. As noted above, ACH likely realized on March 8, 2018 that Plaintiffs' counsel was not planning to re-serve the discovery requests. Construing March 8 as the date Plaintiffs' discovery requests were presumptively re-served on ACH, then ACH's discovery responses would have been due 30 days later, or on April 9, 2018. ACH provided its initial privilege log on April 30, 2018, after its counsel spoke with Plaintiffs' counsel on April 3, 2018. ACH provided a revised privilege log two week later on May 14, 2018, after Plaintiffs raised issues with the sufficiency of ACH's original privilege log.

         As recognized by courts in this District, waiver of privilege is a harsh sanction and should be reserved as a penalty where the offending party committed unjustified delay in responding.[29]The Court finds ACH's relatively short delay in providing a privilege log was not unjustified and does not warrant the harsh sanction of waiver.

         B. Sufficiency

         Plaintiffs also argue that the privilege logs ACH produced are insufficient because they do not contain all the required information to establish each element of the privilege or protection being asserted.

         The level of detail required in a privilege log is determined on a case-by-case basis, but courts in the District of Kansas have stated that a privilege log generally should contain the following:

1. A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.;
2. The date upon which the document was prepared;
3. The date of the document (if different from # 2);
4. The identity of the person(s) who prepared the document;
5. The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, “including an evidentiary showing based on competent evidence supporting any assertion that the ...

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