United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. MITCHELL U.S. MAGISTRATE JUDGE
matter comes before the court on Plaintiff's Motion to
Compel the Production of Documents by Defendants (ECF No.
48). Plaintiff asks the court to compel defendants to produce
documents concerning their income and compensation.
Defendants oppose the motion. For the reasons stated below,
the motion is granted in part and denied in part.
Ad Astra Recovery Services, Inc. (“Ad Astra”), a
debt collector and credit agency, alleges the
“defendants engaged in a fraudulent credit-repair
scheme designed to bombard debt collectors with false credit
dispute letters with the intention of deceiving debt
collectors . . . and frustrating their efforts to collect
legitimate debts.” (Compl. ¶ 3 (ECF No. 1).)
Defendants deny these allegations. Ad Astra asserts mail
fraud, wire fraud, and conspiracy claims under the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§1962(c) and (d).
Ad Astra also asserts Kansas common law claims for fraud and
tortious interference with existing contractual
relationships. The defendants are John C. Heath, Attorney at
Law, PLLC, doing business as Lexington Law Firm; Lexington
Consumer Advocacy, LLC; John Clifford Heath, Kevin Jones,
Adam C. Fullman; and Progrexion Teleservices, Inc. and
Progrexion Holdings, Inc. The individual defendants are
attorneys with Lexington Law, and the Progrexion defendants
are the law firm's printer and mass mailer.
present discovery dispute involves: (1) requests for
production of documents (“RFPs”) that Ad Astra
served on Lexington Law, the individual defendants, and the
Progrexion defendants (collectively “the Lexington Law
defendants”) and (2) Ad Astra's request that the
court compel production of documents used to create a
“Master License Tracking Chart” (“the
chart”) produced by the Lexington Law defendants that
shows payments made by the Lexington Law firm to various
Progrexion entities. The RFPs seek documents concerning these
defendants' income, compensation, and finances generally.
The Lexington Law defendants objected to these RFPs on the
grounds that, among other things, they are not proportional
to the needs of the case and are overly broad. On February
28, 2019, Ad Astra filed a motion to compel (ECF No. 33)
concerning these and other discovery requests.
April 4, 2019, the undersigned conducted an in-person
discovery conference with the parties, during which the court
ruled from the bench on the majority of Ad Astra's motion
(ECF No. 42). The court found the Lexington Law
defendants' RFP responses largely failed to comply with
Fed.R.Civ.P. 34(b)(2)(B), which requires a responding party
to “state with specificity the grounds for objecting to
the request, including the reasons” because the
Lexington Law defendants asserted impermissible boilerplate,
categorical objections. The court overruled most of the
Lexington Law defendants' proportionality objections,
finding that they were largely unsupported. The court also
noted the Lexington Law defendants' response brief had
failed to address the discovery requests concerning
compensation information raised in Ad Astra's motion to
compel, thereby waiving their objections to these discovery
requests. The court therefore granted this
portion of Ad Astra's motion to compel as unopposed and
found that Ad Astra had met its burden to show the
information was facially relevant. The undersigned encouraged
the parties to have an ongoing dialogue about a less invasive
way for Ad Astra to obtain this information.
the April 4 hearing, the parties further conferred about
compensation information, but they were unable to reach an
agreement. Ad Astra sent the Lexington Law defendants a
proposal to narrow the RFPs to certain categories of
information, but the Lexington Law defendants responded by
producing an even narrower category of documents. One of the
documents produced was the chart, which defense counsel
previously represented was created for the purpose of
litigation but now represents was created during the normal
course of business. After the parties reached an impasse, the
undersigned granted Ad Astra leave to file another motion to
compel concerning income and compensation documents.
Civ. P. 26(b)(1) defines the scope of discovery. Under the
rule, “[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.” In other words, considerations of both relevance
and proportionality now expressly govern the scope of
discovery. Fed.R.Civ.P. 26(b)(1) advisory committee's
note to the 2015 amendment. Relevance is “construed
broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any
issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see
Rowan v. Sunflower Elec. Power Corp., No. 15-9227, 2016
WL 3745680, at *2 (D. Kan. July 13, 2016) (applying
Oppenheimer after the 2015 amendment); see also
Kennicott v. Sandia Corp., 327 F.R.D. 454, 469 (D.N.M.
2018) (analyzing the 2015 amendment and concluding that it
did not change discovery's scope but clarified it, and
therefore Oppenheimer still applies).
responding party fails to make a disclosure or permit
discovery, Fed.R.Civ.P. 37(a) permits the discovering party
to file a motion to compel. The party seeking discovery bears
the initial burden to establish relevance, but it does not
bear the burden to address all proportionality
considerations. See Landry v. Swire Oilfield Servs.,
L.L.C., 323 F.R.D. 360 (D.N.M. 2018) (discussing the effect
of the 2015 amendment on the party seeking discovery);
Gen. Elec. Capital Corp. v. Lear Corp., 215 F.R.D.
637, 640 (D. Kan. 2003) (stating the moving party bears the
initial burden to demonstrate relevance); Hofer v. Mack
Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)
(“Some threshold showing of relevance must be made
before parties are required to open wide the doors of
discovery and to produce a variety of information which does
not reasonably bear upon the issues in the case.”);
Fed.R.Civ.P. 26(b)(1) advisory committee's note to the
2015 amendment (noting that the amendment “does not
place on the party seeking discovery the burden of addressing
all proportionality considerations” and that “the
parties' responsibilities [on a discovery motion] would
remain the same as they have been”).
however, is often apparent on the face of the request.
See Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D.
648, 652-53 (D. Kan. 2006). When the discovery sought appears
relevant on its face, or the discovering party has
established relevance, the party resisting discovery bears
the burden to support its objections. See Ehrlich v.
Union Pac. R.R. Co., 302 F.R.D. 620, 624 (D. Kan. 2014)
(holding the party resisting discovery bears the burden to
show why a discovery request is improper); Martin K. Eby
Const. Co. v. OneBeacon Ins. Co., No. 08-1250-MLB-KGG,
2012 WL 1080801, at *3 (D. Kan. Mar. 29, 2012) (“Once
this low burden of relevance is established, the
legal burden regarding the defense of a motion to compel
resides with the party opposing the discovery request.”
(emphasis supplied)). The party resisting discovery does not
carry this burden by asserting “conclusory or
boilerplate objections that discovery requests are
irrelevant, immaterial, unduly burdensome, or overly
broad.” Sonnino v. Univ. of Kan. Hosp. Auth.,
221 F.R.D. 661, 670 (D. Kan. 2004). Rather, an 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 each request for
production or interrogatory is objectionable.”
Id. at 670-71.
RFPs SEEKING FINANCIAL INFORMATION
court turns first to Ad Astra's motion to compel the
Lexington Law defendants to respond in full to RFPs seeking
financial information. Specifically, these include RFP Nos.
75, 77, 78, and 83, issued to Lexington Law; RFP Nos. 34-39,
and 41, issued to Progrexion Holdings; RFP Nos. 34-39, and 41
issued to Progrexion Teleservices; RFP Nos. 19, 20, and 25,
issued to Mr. Jones; RFP Nos. 20, 21, and 26, issued to Mr.
Heath; and RFP Nos. 21, 22, and 27, issued to Mr. Fullman.
The parties address these RFPs categorically, and so the
court will do the same.
Astra argues the information sought is relevant to its RICO
claims. The Lexington Law defendants initially objected that
these RFPs were not proportional to the needs of the case
because they are overly broad. In response to this motion to
compel, the Lexington Law defendants continue to rely on
these objections, and they also assert that the RFPs are
harassing. The court has already heard the parties'
arguments as to these discovery disputes-both through the
briefings on Ad Astra's first motion to compel and in
person at the April 4 discovery conference, where the
undersigned overruled most of the Lexington Law
defendants' objections. Out of an abundance of caution,
the court allowed the Lexington Law defendants a second bite
at the apple to try to tailor this dispute to a more workable
solution and/or to substantiate their objections in
subsequent briefing. However, as set forth below, after