KENNETH G. GALE, Magistrate Judge.
Before the Court are Plaintiff's three motions to compel and supporting memoranda, filed on December 15 and 18, 2014. (Docs. 64, 66, 68.) After reviewing the submissions of the parties, and striking certain pleadings for being in violation of District of Kansas local rules, the Court
The above-captioned matter is a garnishment action filed by Plaintiff who is seeking to collect from Garnishee Dairyland Insurance Company ("Garnishee"). (Doc. 1.) Garnishee insured Defendant, who was in an automobile accident that resulted in the death of Plaintiff's wife and daughter. (Doc. 27, at 2.) That automobile accident lead to a wrongful death lawsuit filed by Plaintiff against Defendant (hereinafter "the underlying lawsuit"). (See Doc. 1-1.) Plaintiff also alleges that Garnishee acted in bad faith or negligently in failing to settle the underlying lawsuit against Defendant, which resulted in a judgment against Defendant in excess of $5 million, well beyond the policy limits. (Id., at 9-20.) Defendant filed a timely appeal with the Kansas Court of Appeals in the underlying lawsuit, which remains pending and is set for oral argument on September 17, 2013. (Doc. 27, at 2.)
Plaintiff brings the three subject motions seeking to compel Garnishee to respond to Plaintiff's Interrogatories (Doc. 64), Requests for Production (Doc. 66), and Requests for Admission (Doc. 68.) Plaintiff served 13 Interrogatories, 129 Requests for Production, and 541 Requests for Admission. The sheer volume of discovery requests involved, in addition to the manner in which Plaintiff has chosen to brief the various legal issues, has complicated this process.
In the matter presently before the Court, Plaintiff has filed three separate discovery motions. The motions themselves (not the memoranda) are, respectively, 35 pages (Doc. 64, relating to Interrogatories), 193 pages (Doc. 66, relating to Requests for Production), and 864 pages (Doc. 68, relating to Requests for Admission).
In each motion, Plaintiff sets out verbatim the discovery request, Garnishee's response and then, as to each discovery request, Plaintiff offers, in italicized single-spaced print, his opposition to Garnishee's responses and objections. In the motion at Doc. 64 (relating to Interrogatories), this occupies more than 30 pages. In Doc. 66 (regarding Requests for Production), it occupies
The sections in the motions setting out Plaintiff's opposition to the objections are simply legal analyses which belong in the argument sections of the corresponding memoranda, which are limited by rule to 30 pages. D. Kan. Rule 7.1(e). A party cannot avoid the operation of this District Court rule by moving legal argument to the motion. The Court thus
Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.
"`Discovery relevance is minimal relevance,' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence."
Many of the arguments contained in the memorandum in support of Plaintiff's motion to compel Interrogatory responses (Doc. 65) are repeated in the memoranda supporting his motions to compel responses to his Requests for Production (Doc. 67) and to his Requests for Admissions (Doc. 69). For example, Plaintiff addresses the issues of attorney-client privilege, the work product doctrine, the "insurer-insured privilege," and conditional responses in the context of Garnishee's responses to more than one type of discovery. (See generally Docs. 65, 67, and 69.) Frequently, the argument is repeated verbatim in all three memoranda — often with no discussion of how the discussion relates to the specific, underlying discovery requests. To the extent an argument is contained in more than one memorandum, the Court will address the various types of discovery responses simultaneously.
Plaintiff's contends is that the information sought by his 13 interrogatories does not implicate the attorney-client privilege and work product doctrines "because they do not seek the production or content of any document or communication, nor [sic] do they seek the mental impressions of counsel." (Doc. 65, at 4.) In other words, Plaintiff merely asks Garnishee "to
Plaintiff makes the same argument in regard to his Requests for Admissions. (Doc. 69, at 4-5.) Plaintiff's memorandum does not, however, refer to any specific requests. (Id.) "It is not the province of the Court to review the discovery responses in their entirety and attempt to guess as to why Plaintiff found them to be improper" or objectionable.
Plaintiff next argues that Garnishee has failed to establish attorney-client privilege or the protections of the work product privilege because it has "failed to meet its burden of proving each and every element" of the privilege and doctrine. (Doc. 65, at 5-9, Doc. 67, at 4-8, Doc. 69, at 5-9.
To the extent Garnishee has not provided the requisite privilege log, it is hereby instructed to do so or the asserted privileges and protections will be deemed waived. Garnishee is directed to this Court's prior decisions of
Plaintiff also argues that Garnishee "has placed documents from the claims files at issue by using some of its claims documentation in its Motion for Summary Judgment, and, as such, has waived its claim of privilege and work product immunity for its claims documentation by placing those documents at issue." (Doc. 65, at 10; see also Doc. 67, at 10-11, Doc. 69, at 9-14.) Plaintiff continues that it would be "manifestly unfair to allow [Garnishee] to use only the beneficial documents in its claims files to defend against Plaintiff's claims of bad faith and negligence, while also allowing [Garnishee] to refuse to disclose remaining portions of its claims files by claiming privilege or work-product." (Doc. 65, at 10; see also Doc. 67, at 11.)
Plaintiff's argument is not persuasive. Parties in litigation routinely withhold portions of files or larger document collections — or even passages within a single, specific document — on the basis of attorney-client privilege or work-product protection. Further, Plaintiff's counsel previously stated in writing that production of these documents from the claims file would not constitute a waiver of privilege. (Doc. 75-3.) The Court finds no waiver of the privilege and Plaintiff's motions are
Plaintiff also contends that he should be allowed to overcome Garnishee's work product protection because he has "substantial need" for the claims file materials at issue. (Doc. 65, at 10-11; Doc. 67, at 13-14; Doc. 69, at 14-15.) In support of this position, Plaintiff relies almost entirely on a statement in the Report of Parties' Planning Meeting that Defendant and Garnishee "do not necessarily disagree" with Plaintiff's assertion that he has "substantial need for the documents" in the underlying state court action. (Doc. 65, at 11; Doc. 67, at 14; Doc. 69, at 14.)
The Court is not persuaded that this single reference by Garnishee to not necessarily disagreeing with Plaintiff, taken in conjunction with the state court action being resolved, establishes sufficient need to waive the protections of the attorney-client privilege and work product doctrine.
Plaintiff's memoranda all include a section, that is basically repeated verbatim in each memoranda, regarding Garnishee's apparent use of the "insurer-insured privilege." (See Doc. 65, at 11-12, Doc. 67, at 14-15, and Doc. 69, at 15-16.) Plaintiff does not indicate, however, which of Garnishee's responses invoke this privilege. The Court will not review the entirety of the voluminous discovery responses excerpted in Plaintiff's stricken motions to make this identification for Plaintiff.
That stated, the Court is unable to find a single decision from a Kansas court, state or federal, recognizing the insurer-insured privilege. The Court sees no reason, based on the limited argument and discussion submitted by the parties, to create such a privilege at the present time. The Court, therefore,
Garnishee is instructed to provide supplemental responses to Plaintiff's Interrogatories, Requests for Production, and Requests for Admission removing all such objections on the basis of the insurer-insured privilege.
Finally, Plaintiff argues that Garnishee's responses to Interrogatories Nos. 2, 7, and 8 include improper conditional responses. (Doc. 65, at 13.) This Court has consistently found that such conditional responses are improper.
Garnishee contends that it has merely stated "an `objection to part of [the] request' provided that the response specifies the part objected to and responds to the non-objectionable portion." (Doc. 75, at 15 (quoting
Plaintiff also raises this issue in regard to "multiple conditional responses" by Garnishee to Plaintiff's Requests for Production and Requests for Admission. (Doc. 67, at 15; Doc. 69, at 16-17.) Plaintiff does not, however, indicate which of the responses to these discovery requests he believes to contain such conditional responses. "It is not the province of the Court to review the discovery responses in their entirety and attempt to guess as to why Plaintiff found them to be improper" or objectionable.
According to Plaintiff, "[s]everal of [his] Second Request for Production are contention requests that ask [Garnishee] to produce documents supporting specific allegations or denials [Garnishee] has made during the course of this garnishment action." (Doc. 67, at 16.) Again, however, Plaintiff has failed to identify the specific document requests at issue. As such, the Court will not review the Garnishee's responses to the entirety of Plaintiff's discovery responses and attempt to determine which responses Plaintiff finds to be improper.
A party is entitled to discover another party's contentions and to engage in discovery related to those contentions. If a request assumes a contention which the responding party is not asserting or maintaining in the case, a valid objection to that effect may be imposed by the responding party disclaiming the contention. The responding party would then be considered bound by such disclaimer, unless through additional discovery or development the party changes its position and adopts the contention. In such a situation, a duty to update its discovery responses would arise under Fed.R.Civ.P. 26(e).
Plaintiff cites several cases for the proposition that Garnishee's attorney-fee agreements, engagement letters, and billing records with the firm defending the underlying action are discoverable. (See Doc. 67, at 19.) The Court agrees, and Garnishee concedes, that, under Kansas law, "the general rule is that information regarding clients' fees is not protected by the attorney-client privilege because payment of fees is not a confidential communication between attorney and client."
Garnishee argues, however, that Plaintiff
(Doc. 75, at 19.) Garnishee has misstated the standard for discovery. The standard is not whether the information is relevant to any "disputed issue." As discussed above, "`[d]iscovery relevance is minimal relevance,' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence."
While the Court acknowledges Garnishee's admission regarding the retention of the law firm, this does not mean that Plaintiff is foreclosed from seeking discovery to confirm this, or any other, admission. For instance, just because a party has admitted a material fact in deposition testimony does not mean the opposing party is foreclosed from using Requests for Production to compile documents confirming such a fact. Similarly, Plaintiff is within his rights granted by the Rules of Civil Procedure to seek documentation regarding this legal representation.
The Court also agrees with Garnishee, however, that certain information, such as narrative entries contained within billing records or fee invoices, "could reveal work product in the form of strategic considerations and the like." (Doc. 75, at 18-19.) Therefore, certain information may need to be redacted to preserve those privileges. As such, it is possible that Plaintiff will not receive all the information he seeks "to demonstrate what actions were and were not taken by [the law firm] in defending the underlying claim and in communicating with [Defendant]" (Doc. 67, at 19) as this may "invade [Defendant's] attorney-client and work-product" protections (Doc. 75, at 19).
Plaintiff next contends that
(Doc. 67, at 20 (citation omitted).) Garnishee responds that, based on the Court entering a Protective Order, it "is producing claim handling manuals and training materials that were in effect for claims fo the type [Plaintiff] asserted against [Defendant] from the time [Plaintiff] first asserted his claim until final resolution of the underlying lawsuit." (Doc. 75, at 20.) Plaintiff argues that "manuals and forms which were not applicable during the time period in which the underlying claims was being handled" may be relevant. (Doc. 67, at 20.)
The Court acknowledges the possible relevance of such documents. Plaintiff has, however, wholly failed to address
Without providing any legal authority, Plaintiff seeks production of Garnishee's "bad faith analysis and research generally, and for the claims arising out of the subject collision." (Doc. 67, at 21.) Plaintiff argues that Garnishee's work product objections should be overruled because Garnishee "has failed to prove each and every element of work product." (Id.) The Court finds this argument to be unpersuasive as "analysis and research" by their very nature go to the heart of work product.
Plaintiff also argues that Garnishee has waived work product protection for its
(Id.) Garnishee responds that none of the correspondence at issue
(Doc. 75, at 21-22.)
The Court agrees with Garnishee. The Court is aware, as counsel should be, that attorneys representing adverse parties frequently send correspondence to opposing counsel containing analysis of the strength and/or weaknesses of claims and/or defenses in dispute. This is a vital part of the litigation process and can frequently be used to facilitate settlement negotiations. Doing so does not waive attorney-client privilege or work product protection for the underlying legal research and analysis. A finding by the Court consistent with Plaintiff's position would set a dangerous and entirely unproductive precedent. This portion of Plaintiff's motion to compel (Doc. 67) is
Plaintiff next complains of Garnishee's "inability to admit or deny many Requests for Admission after allegedly conducting a `reasonable inquiry' (with no mention of what steps were taken to attempt to obtain information)." (Doc. 69, at 17.) Plaintiff has, however, failed to indicate which of Garnishee's responses are improper in this regard. Plaintiff's motion, which contains over 850 pages of analysis and discussion of Garnishee's responses, has been stricken, supra. Further, even assuming the motion had not been stricken, the Court will not review the hundreds of Requests for Admissions submitted by Plaintiff in an attempt to determine which of Garnishee's responses Plaintiff may find objectionable in this regard.
Plaintiff also complains about Garnishee "repeatedly object[ing] and refus[ing] to fully answer Plaintiff's Requests for Admission on the grounds that the Requests `assume[] as true purported facts that have not been admitted or otherwise established . . .'" (Doc. 69, at 18.) Plaintiff's brief, however, discusses only Request for Admission No. 83. (Id.)
Finally, Plaintiff complains of Garnishee's "attempts to read ambiguity into otherwise unambiguous terms and phrases in Plaintiff's Requests for Admission in a thinly shrouded attempt to avoid answering the Requests for Admission." (Doc. 69, at 20.) Again, however, Plaintiff has addressed only one such response, that being Garnishee's answer to Request for Admission No. 12 and its use of the term "greatly." (Id.)
That stated, Garnishee has failed to address these issue in its response brief. As such, it has waived any argument and this portion of Plaintiff's motion is
Pursuant to Fed.R.Civ.P. 36(a)(4),
Garnishee is instructed to review and supplement its responses to Plaintiff's Requests for Admissions accordingly. In doing so, Garnishee is instructed to give common words and phrases their ordinary meanings. "If necessary, [Garnishee] can admit or deny requests which contain undefined phrases by defining the phrase themselves."
