United States District Court, D. Kansas
MEMORANDUM & ORDER ON MOTION TO
KENNETH G. GALE U.S. MAGISTRATE JUDGE
before the Court is Plaintiffs' “Motion for Partial
Reconsideration on Defendant's Motion for Protective
Order.” (Doc. 143; prior motion Doc. 128; underlying
Order Doc. 141.) Having reviewed the submissions of the
parties, as well as related case filings, Plaintiffs'
motion (Doc. 143) is GRANTED in part and
DENIED in part as more fully set forth
factual background of this negligence and wrongful death suit
was summarized in the underlying Order and is incorporated by
reference. (Doc. 141, at 1-3.) In the underlying motion,
Defendant Pinnacle Health Facilities XXXII, LP (hereinafter
“Defendant”) contended, in relevant part, that
“[t]he amended deposition notice lacks the
‘painstaking specificity' required by law and it
subjects Defendant to an impossible task.” (Doc. 129,
at 2.) As such, Defendant asks the Court to enter a
protective order “prohibiting this improper attempt to
run-up Defendant's fees and costs and to otherwise unduly
burden and harass Defendant with unnecessary and irrelevant
attempts at discovery.” (Id.)
legal standards for discovery, Rule 30(b)(6) depositions, and
protective orders were discussed in the Court's
underlying Order. (Doc. 141, at 3-6.) Those standards are
incorporated herein by reference.
the standards for a motion to reconsider, it “is not a
second chance for the losing party to make its strongest case
or to dress up arguments that previously failed.”
Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483
(D. Kan. 1994), aff'd, 43 F.3d 1484 (Table) (10th Cir.
1994). “A motion for reconsideration must be based on
(1) an intervening change in controlling law; (2) the
availability of new evidence; or (3) the need to correct
clear error or prevent manifest injustice.” D. Kan.
Rule 7.3 (emphasis added). Plaintiffs' motion is based on
the third option.
Rulings Disputed by Plaintiffs.
Procedures Relating to Falls (Topics 1 and 19).
first topic in the deposition notice is “[f]acility
procedures related to falls, fall prevention, and fall
intervention including the content, location, format,
formulation, retention of all such written policies.”
(Doc. 94, at 1-2.) The second sentence of the topic instructs
that the topic “includes all such policies and
procedures that arise from federal or state regulations or
statutes, as well as policies and procedures arising from
standard practice, training, experience, or common
law.” (Doc. 94, at 1.) Defendant objected that the
topic is “broad and vague as stated.” (Doc. 129,
underlying Order, the Court held that the first sentence of
the topic - facility procedures related to falls, fall
prevention, and fall intervention - is self-explanatory and
appropriate. The Court continued, however, that the remainder
of the topic unnecessarily complicates and confuses the
subject. The Court thus granted Defendant's objections,
in part, striking second sentence of Topic 1.
now argue that “[t]he first sentence sets forth the
topic of inquiry” while “[t]he second sentence
merely provides particularity as to the scope of the inquiry,
i.e., potential sources of policies or duties for
Defendant's consideration.” (Doc. 143, at 3.)
Plaintiffs contend that facially “this topic is neither
vague nor overbroad” and Defendant has made “no
valid showing of either.” (Id.)
Court notes, as it did in the underlying Order, that
Plaintiffs' response to the underlying motion did not
address these objections. (Doc. 141, at 10.) Further,
Plaintiffs' brief did not even discuss Topic No. 1
specifically. (See generally Doc. 137.) As Defendant
argues, “Plaintiffs could have made these same
arguments in their Response to the Motion for Protective
Order and chose not to do so.” (Doc. 148, at 5.) As
such, these arguments are waived. Cf. McCoy v.
Miller, No. 12-3050-JAR-KGS, 2014 WL 1977207, at *1 (D.
Kan. May 15, 2014) (citing Marshall v. Charter, 75
F.3d 1421, 1426 (10th Cir.1996)) (holding that
“[i]ssues raised for the first time in objections to
the magistrate judge's recommendation are deemed
waived.”). The Court DENIES
Plaintiffs' motion to reconsider as to Topic No. 1.
underlying Order held that Topic 19 was cumulative of Topic
1. Topic 19 seeks a deponent as to Defendant's
“policies and procedures, written or oral, for dealing
with residents identified as fall risks, and for
interventions and prevention of falls by elderly
residents.” (Doc. 94, at 8.) Plaintiffs now ask that to
have Topic 19 “reinstated, because it provides
detailed, non-ambiguous directions as to specific policies
about fall risk residents for which Plaintiffs seek
information.” (Doc. 143, at 5.) Given the limitation
placed on Topic 1, as well as the nature of Plaintiffs'
factual allegations, the Court GRANTS
Plaintiffs' motion as to Topic 19 and reinstates the
topic for purposes of the 30(b)(6) deposition.
Assessments (Topic 10).
topic seeks testimony regarding the assessments performed on
decedent by Defendant's staff. (Doc. 94, at 5.) Defendant
argued that the request is facially over broad and not