CASES CONSOLIDATED FOR DISCOVERY

JAMES P. O'HARA, Magistrate Judge.

ORDER GOVERNING DISCOVERY

On March 8, 2016, U.S. District Judge Julie A. Robinson consolidated these voting-rights cases for discovery purposes and re-assigned Keener v. Kobach from U.S. Magistrate Judge Gerald L. Rushfelt to the undersigned U.S. Magistrate Judge, James P. O'Hara, such that the undersigned is now the magistrate judge assigned to both cases. Discovery in Keener has presumably been on-going since Judge Rushfelt entered a scheduling order in that case on February 18, 2016.1 Discovery in Fish v. Kobach is about to begin-Judge Robinson's order granted plaintiffs' request for limited expedited discovery and set a March 9, 2016 deadline for service of such discovery. This order endeavors to give the parties some legal and practical guidance on how discovery will be governed in these cases.

In promulgating discovery, the court expects the parties and counsel to efficiently limit its scope in accordance with the December 1, 2015 proportionality amendments to Fed. R. Civ. P. 26(b)(1). That is, the parties are entitled to obtain pretrial discovery regarding any nonprivileged matter provided it's (a) relevant to a party's claim or defense AND (b) proportional to the needs of this case. Under Rule 26(b)(1), whether any particular discovery request is proportional is to be determined by considering, to the extent they apply, the following six factors: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to relevant information, (4) the parties' resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.

With respect to discovery objections, it is the undersigned's experience that lawyers tend to be far too aggressive with their assertions. General objections are improper and will not be tolerated.2 More specifically, courts in the District of Kansas disapprove of the practice of asserting a general objection "to the extent" it may apply to particular requests for discovery.3 Objections based on undue burden must be clearly supported by an affidavit or other evidentiary proof of the time or expense involved in responding to the discovery request.4

Finally, to guard against overly aggressive assertions of attorney-client privilege or work-product protection, the court reminds the parties that case law in this district provides a wealth of guidance as to what is-and is not-protected. With respect to the attorney-client privilege, it is important to note first that "personal, confidential, [or] private information" is not necessarily privileged.5 As this court has held repeatedly, "confidential" does not equate to "nondiscoverable" or "privileged."6 Second, it is clear that "[u]nderlying facts are not protected by the privilege."7 "Similarly, neither the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not `communications.'"8 Nor are "general topics of attorney-client discussions" or ultimate "legal conclusions" of counsel protected.9

Case law from this district also provides direction about the scope of work-product protection. This court has explained that "the doctrine is not intended to protect investigative work unless done so under the supervision of an attorney in preparation for the real and imminent threat of litigation or trial."10 "Although certain actions by an adverse party, such as submitting a reservation of rights letter, might be considered precursors to litigation, the work product doctrine requires more than a mere possibility of litigation."11 Finally, the parties are directed to review the extensive analysis of when a document is "prepared in anticipation of litigation" set out by Judge Rushfelt in Marten v. Yellow Freight System, Inc.12

When documents are withheld under the attorney-client privilege or work-product protection, the burden is on the withholding party to produce a detailed privilege log. Fed. R. Civ. P. 26(b)(5)(A) provides that

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.13 "The information provided [in a privilege log] must be sufficient to enable the court to determine whether each element of the asserted privilege or protection is satisfied."14 Specifically, courts have required that a privilege log include the following information:

In both serving and responding to discovery, the parties and counsel are respectfully reminded that this court strictly enforces the certification requirements of Fed. R. Civ. P. 26(g). Among other things, Rule 26(g)(1) provides that, by signing a discovery request, response, or objection (which of course would include privilege logs), it's certified as (i) consistent with the applicable rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. If a certification violates these restrictions without substantial justification, under Rule 26(g)(3), the court must impose an appropriate sanction on the responsible attorney or party, or both; the sanction may include an order to pay the reasonable expenses, including attorney fees, caused by the violation. Therefore, before the parties and counsel serve any discovery requests, responses, or objections in this case, lest they incur sanctions later, the court strongly suggests that they carefully review the excellent discussion of Rule 26(g) found in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008).