United States District Court, D. Kansas
ORDER ON MOTION TO COMPEL
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion to Compel. (Doc.
114.) Having reviewed the submissions of the parties,
Plaintiff's motion is GRANTED.
present motion arises from Plaintiff's claims that
Defendants violated the First Amendment of the United States
Constitution, Kansas public policy, and Kansas common law.
(Doc. 40, at 5, ¶ 26.) Plaintiff has filed this motion
seeking an order to compel production of text messages from a
2015 investigation which “demonstrate illegal conduct
by a City of Colby code enforcement officer.” (Doc.
114, at 2.) Defendants object, arguing that Plaintiff's
motion should be denied on the basis that it “seeks
information that is not relevant to any issue in this
case” and “is not proportional to the needs of
this case.” (Doc. 117, at 1.)
Standards for Discovery.
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,
Plaintiff's Motion to Compel.
argue that the information requested is not relevant because
it “does not focus on the termination of employees, nor
does it focus on any exercise of First Amendment
rights.” (Doc 117, at 1.) However, Plaintiff contends
that the requested evidence is significant in determining
whether Plaintiff was performing his job with diligence, as
well as establishing elements of the Garcetti
Pickering test, which is integral to its claim of First
Amendment retaliation. (Doc. 114, at 4.)
requests must be relevant on their face. Williams
v. Bd. of County Comm'rs, 192 F.R.D. 698,
705 (D. Kan. 2000). Relevance is to be “broadly
construed at the discovery stage of the litigation and a
request for discovery should be considered relevant if there
is any possibility the information sought may be relevant to
the subject matter of the action.” Smith v.
MCI Telecommunications Corp., 137 F.R.D. 25, 27
(D. Kan. 1991).
contends that the evidence requested is significant in
distinguishing between “Defendant Alexander's
response to two reports of government employee
misconduct” and is therefore relevant in establishing
the fifth prong of the Garcetti Pickering test.
(Doc. 120, at 1-2.) This element of the Garcetti
Pickering test asks “whether the defendant would
have reached the same employment decision in the absence of
the protected conduct.” Dixon v.
Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir.
2009) (citing Brammer-Hoelter v. Twin Peaks
Charter Academy, 492 F.3d 1192, 1203 (10th Cir.
2007)). Under this broad standard of relevance, the Court
finds that Plaintiff has met its burden of establishing that
the requested information is relevant to its claim.
this low burden of relevance has been established, the legal
burden regarding the defense of a motion to compel resides
with the party opposing the discovery request. See
Swackhammer v. Sprint Corp. PCS, 225
F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that the
party resisting a discovery request based on overbreadth,
vagueness, ambiguity, or undue burden/expense objections
bears the burden to support the objections). Thus, “the
objecting party must specifically show in its response to the
motion to compel, despite the broad and liberal construction
afforded by the federal discovery rules, how ...