224 F.R.D. 677 | D. Kan. | 2004
MEMORANDUM AND ORDER
Pending before the Court are Motions to Compel filed by Defendant Bill Strauss and William Turner (“Defendants”) (doc. 158 and 159). Also before the Court are Defendants’ requests for Rule 26(g), 37(a)(4), and 37(b)(2) sanctions.
I. Background Information
According to the Pretrial Order entered in this case, this lawsuit “involves the surreptitious possession and use of illegal devices and equipment designed to intercept and decrypt [Plaintiff] DIRECTV’s protected satellite communications, ultimately allowing for the free viewing of television programming.”
More specifically, Plaintiff claims that each Defendant purchased from Vector Technologies a device that can be used to access Plaintiffs satellite programming without authorization (“Satellite Piracy Device”). Plaintiff has “packing slips” which allegedly show that a Satellite Piracy Device was shipped to Strauss in November 2000 and to Turner in April 2001.
Defendants deny engaging in any of the alleged illegal activities and deny purchasing, receiving, paying for, or using any Satellite Pirate Devices or other similar devices. Furthermore, Defendants dispute the accuracy of the packing slips.
II. Defendants’ Motions to Compel
A. Introduction and Duty to Confer
Strauss and Turner served identical interrogatories and requests for production on Plaintiff. The interrogatories and document requests at issue concern evidence of Defendants’ alleged purchases of the Satellite Piracy Devices, the records custodians Plaintiff intends to use at trial to authenticate the packing slips, testing of the alleged Satellite Piracy Devices, evidence of Defendants’ alleged visits to satellite piracy websites, and prior communications between Plaintiff and Defendants. Although Strauss and Turner have filed separate motions to compel, the motions are identical.
Plaintiff argues as a threshold matter that the motions should be denied because Defendants have not satisfied the duty to confer imposed by Federal Rule of Civil Procedure 37 and D. Kan. Rule 37.2. The Court has reviewed the information provided by Defendants in their motions and in their reply briefs, and finds that the duty to confer has been met. The Court will therefore proceed to rule on the merits of Defendants’ motions.
B. The Alleged Satellite Piracy Devices
1. Interrogatory No. 1 — Identity of the Satellite Piracy Devices
This interrogatory asks Plaintiff to identify each Satellite Piracy Device that Plaintiff claims Defendants possessed. Plaintiff responded to the interrogatory by stating: “Plaintiff refers defendant to its Complaint and Fed.R.Civ.P. 26(a)(1) disclosures.”
Defendants assert that Plaintiff is not allowed to refer Defendants to previously produced or identified documents in lieu of providing a written answer. The Court agrees.
In Zapata v. IBP, Inc.,
In some instances defendant answers the interrogatories simply by referring plaintiffs to documents. The court generally finds such practice unacceptable. An answering party may affirmatively elect to produce its business records in accordance with Fed.R.Civ.P. 33(d) as its response. It may also refer to documents attached to its answers to the interrogatories. In this instance defendant has not exercised an option under Fed.R.Civ.P. 33(d). Nor has it referred to documents attached to its answers. Absent compliance with Rule 33(d) or attachment of appropriate documents, defendant may not direct plaintiffs to find answers from previously produced documents or identified witness lists.7
Plaintiff has not exercised its option under Rule 33(d) to provide Defendants with business records from which this information may be obtained. Nor does it appear that Plaintiff has attached any documents to its interrogatory answer that are identified as being responsive to this particular interrogatory. Plaintiff may not merely refer Defendants to other pleadings or its disclosures
In light of the above, the Court will grant the Motions to Compel as to this interrogatory. Within ten (10) days of the date of filing of this Order, Plaintiff shall provide an amended written response to this interrogatory.
2. Request for Production Nos. 1, 4-7
Request No. 1 asks Plaintiff to produce all documents which support its contention that Defendants purchased Satellite Piracy Devices. Request Nos. 4, 5, and 6 ask Plaintiff to produce documents that show the dates on which Defendants allegedly possessed or had access to a DIRECTV compatible satellite dish, DIRECTV compatible satellite receiver, and DIRECTV compatible smart card, respectively.
Plaintiff objected to all four of these requests on the grounds that the requests “invade the work-produet, investigative and consulting expert privileges by seeking information or documents which have been developed by DIRECTV or its counsel or their agents in anticipation of litigation and is an intrusion upon the trial strategy and the thought processes of DIRECTV’s counsel.” Plaintiff also objected on the basis of attorney-client privilege. In addition, Plaintiff objected to each request on the basis that:
[Each] request necessarily seeks to obtain information contained in confidential communications relating to the claims make [sic] for the basis of this lawsuit which may have been made between or among DIRECTV and its agents, representatives, and employees, subsequent to defendant’s illegal use of satellite programming, in connection with the prosecution or investigation of claims arising out of defendant’s illegal conduct.
After asserting these various objections, Plaintiff then stated: “Subject to and without waiving the foregoing objections, see documents produced with plaintiffs disclosures.”
The Court will overrule Plaintiffs assertion of work product immunity, attorney-client privilege, investigative and consulting expert privilege, and confidentiality. Plaintiff does not reassert any of these objections in its response to the Motions to Compel. The Court therefore deems these objections abandoned.
Even if the Court were to consider the vague arguments that Plaintiff makes on page 5 of its response to the Motions to Compel as an attempt to reassert its objections, the Court would still overrule them as unsupported. In Sonnino v. University of Kansas Hospital Authority,
[T]he party asserting the objection must “describe in detail” the documents or information sought to be protected. The objecting party must also provide sufficient information to enable the court to determine whether each element of the asserted objection is satisfied. A “blanket claim” as to the applicability of the privilege/work product doctrine does not satisfy the burden of proof. Moreover, the objecting party has the burden to establish the existence*682 of the privilege/immunity prior to the time that the Court is asked to determine its sufficiency and applicability.11
Applying these standards, the Court finds Plaintiffs assertion of attorney-client privilege and work product immunity to be unsupported. At no time has Plaintiff provided any type of privilege log or made an attempt to describe the nature of any of the alleged privileged or work product documents so as to enable Defendants (or the Court) to assess the applicability of the claimed privilege or protection. In short, Plaintiff has failed to make any showing that documents responsive to this request are protected by a privilege or the work product doctrine. The Court will therefore overrule these objections.
Also, to the extent that Plaintiff is attempting to assert an objection based on confidentiality, that objection will be overruled. This Court has held on many occasions that “a concern for protecting confidentiality does not equate to privilege.”
Finally, to the extent Plaintiff has attempted to partially answer these requests by referring Defendants to “documents produced with Plaintiffs disclosures,” the Court agrees with Defendants that such an answer is improper. Federal Rule of Civil Procedure 34(b) provides that a party producing documents “shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” Plaintiffs partial responses to these requests do not comply with Rule 34(b). There is no indication Plaintiff produced any of the requested documents as they are kept in the usual course of business. Absent such a production, Plaintiff was required to identify the particular documents or to organize and label them to correspond to these specific requests. There is nothing in the record indieating that Plaintiff did so. Thus, Plaintiffs partial responses to these requests did not comply with Rule 34(b).
To summarize, the Court overrules all of Plaintiffs objections and the assertion of any privileges to these requests. Within ten (10) days of the date of filing of this Order Plaintiff shall (1) serve amended responses to these requests which comply with Rule 34(b), and (2) produce all documents responsive to them. Plaintiff shall not withhold any responsive documents on the basis of privilege or work product immunity or on any other basis.
C. The Records Custodians
1. Interrogatory No. 12 — Identity of Record, Custodians
This interrogatory asks Plaintiff to “state the identity” of each “Custodian of Records.” The interrogatories define “Custodian of Records” as “all persons who can authenticate any documents that show Defendant purchased an alleged piracy device.” The interrogatories define the term “identity” as “the full name, residence and business addresses and residence and business phone numbers of the person or entity, not his attorney.”
Plaintiff objected to this interrogatory on the grounds it is overly broad and seeks information that is neither relevant nor likely to lead to the discovery of admissible evidence. Plaintiff then stated that it had obtained “the information pertinent to Defendant through a raid on the entity identified in plaintiffs complaint.” Plaintiff indicated that further information regarding the entity could be found in Plaintiffs initial disclosures.
Some time after asserting these objections, Plaintiffs counsel sent a letter to defense counsel providing the name of the person who would authenticate the packing slips. Plaintiffs counsel indicated that this individual “has been operating through an attor
Defendants state that they seek this information in order to subpoena the records custodians for deposition. They indicate that their counsel has contacted the attorney identified in Plaintiffs counsel’s letter and that he refuses to return calls and will not accept service of subpoena on behalf of his client.
The Court will overrule Plaintiffs objections to this interrogatory. The Court finds that it seeks relevant information and is not overly broad. Defendants are entitled to know the residence and business addresses and phone numbers of this witness (assuming they are known by Plaintiff) and not just the address and phone number of the witness attorney. Although Plaintiffs answer to the interrogatory indicates that this information may be found in Plaintiffs initial disclosures, as the Court stated with respect to Interrogatory No. 1 (see Part II.B, supra), the party responding to an interrogatory may not merely refer the requesting party to its disclosures or other pleadings previously served. And even if such a response were proper, the Court notes that, contrary to Plaintiffs assertion, this information is not provided in Plaintiffs disclosures.
In light of the foregoing, the Court will grant the Motions to Compel as to Interrogatory No. 12. Plaintiff shall serve an amended response to Interrogatory No. 12 within ten (10) days of the date of filing of this Order.
2. Interrogatory No. 13 and Request No. 18
Interrogatory No. 13 asks Plaintiff to “fully describe” the terms of any civil or criminal settlement that Plaintiff has reached with each “Custodian of Records.” Request No. 18 asks Plaintiff to produce all documents that show the terms of any such civil or criminal settlements.
Plaintiff asserted the following objections to this interrogatory and request for production: (1) work product immunity, (2) investigative and consulting expert privilege, (3) invasion of Plaintiffs trial strategy and other thought processes of Plaintiffs counsel, (4) attorney-client privilege, (5) “seeks to obtain information contained in confidential communications relating to the claims made in the basis of this lawsuit which may have been made between or among DIRECTV and its agents, representatives, and employees, subsequent to defense of illegal use of satellite programming, and in connection of [sic] the prosecution and investigation of claims arising out of defendant’s illegal conduct,” (6) overly broad, (7) unduly burdensome, (8) not reasonably calculated to lead to the discovery of admissible evidence, (9) settlement communications privilege, and (10) “seeks information subject to constitutional privacy concerns and disclosure [that] ... would, in effect, impede and shield valid settlement pursuits in contravention of federal procedure rules and rules of evidence.” The Court construes this tenth and final objection as one asserting that settlement negotiations and agreements should not be discoverable based on policy reasons, particularly the policy reasons behind Federal Rule of Evidence 408, which bars the admissibility of certain evidence regarding settlements when offered to prove liability for or invalidity of the claim or its amount.
In its response to the Motions to Compel, Plaintiff reasserts only a few of these objections, namely, relevancy, confidentiality, settlement communications privilege, and non-discoverable based on the policy reasons supporting Rule 408. The Court will therefore address the merits of those four objections. The Court, however, will not address the other six objections because they were not reasserted in response to the Motions to Compel. As noted previously, objections initially raised in response to discovery requests that are not reasserted in response to a motion to compel are deemed abandoned.
The threshold question is whether the requested discovery, including the disclosure of any settlement agreements, is relevant to this lawsuit. Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery. It provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”
Relevancy is broadly construed, and a request for discovery should be considered relevant if there is “any possibility” that the information sought may be relevant to the claim or defense of any party.
The Court does not find that these discovery requests seek relevant information on their face. Thus, Defendants have the burden to show that they seek relevant information or that they are reasonably calculated to lead to the discovery of admissible evidence. Defendants explain that Plaintiff has filed lawsuits against the individuals who are most likely to be the “Custodians of Records” and that Defendants believe Plaintiff has resolved those lawsuits by entering into settlements “that required [the records custodians] to cooperate with DIRECTV’S campaign in exchange for leniency.”
Plaintiff counters that Defendants have “zero factual support” that Plaintiff has settled lawsuits against the records custodians by entering into settlement agreements requiring them to cooperate with Plaintiff in exchange for leniency. Plaintiff, however, does not deny that Plaintiff has entered into settlement agreements with the potential records custodians.
The Court agrees with Defendants that the settlement agreements and information regarding their terms are relevant because they may establish the bias or prejudice of the records custodians who will testify regarding the packing slips and their authenticity. As Defendants point out, Defendants deny purchasing the alleged Satellite Piracy Devices and they dispute the accuracy of the packing slips. Thus, the packing slips appear to be an important issue in this case. Similarly, a records custodian who will testify regarding the authenticity and accuracy of the packing slips appears to be a potentially important witness. The Court therefore finds that Defendants have established the possible relevance of this material, and the Court will overrule Plaintiffs relevancy objections to Interrogatory No. 3 and Request No. 18.
b. Confidentiality
With respect to confidentiality, Plaintiffs arguments are rather vague. To the extent that Plaintiff is objecting to providing these materials on the basis of confidentiality, the Court overrules the objection As noted above, a general concern for protecting
c. Settlement communications privilege
The Court will next turn to Plaintiffs objections that the discovery is barred by a so-called settlement communications privilege. In support of its assertion of a settlement communications privilege Plaintiff cites Goodyear Tire & Rubber Company v. Chiles Power Supply, Inc.
d. Federal Rule of Evidence k08 and policy reasons barring discovery
Plaintiffs fourth and final objection is based on Federal Rule of Evidence 408 and the policy reasons supporting that rule. Rule 408 provides as follows:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.28
Plaintiff first argues that evidence of the settlement agreements should not be discoverable because it is inadmissible under Federal Rule of Evidence 408. Plaintiff fails to recognize that Rule 408 is a rule regarding admissibility and not discoverability. Federal Rule of Civil Procedure 26(b)(1) provides that “[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Moreover, Federal
Plaintiff appears to implicitly recognize this principle and argues that because a strong public policy favors settlement and the confidentiality of settlement agreements, Defendants should be required “to make a heightened and particularized showing of a likelihood that admissible evidence will be generated by the dissemination of the terms of the agreement.”
Some courts have held that a party must meet a heightened standard to discover information contained in and related to settlement agreements in deference to Federal Rule of Evidence 408 and the public policy encouraging settlements.
This Court need not decide which of these standards to apply here,
While Plaintiff argues that allowing Defendants to discover this information would frustrate the policy encouraging confidential settlements, Plaintiff does not support this argument. The Court cannot conceive of any way in which allowing discovery of this information would serve to discourage settlement under the circumstances of this case. Defendants have alleged that the lawsuits involving these records custodians have been resolved through the settlements, and there is no evidence or argument from Plaintiff that the settlement negotiations are still ongoing. Thus, this is not a situation where the records custodians might be discouraged from settling by the fear that their settlements may come back to haunt them before a jury. Nor has it been demonstrated, or even argued, that any other party might be discouraged from settling because of the disclosure of these purported settlements. In other words, the Court does not see how the discovery of the terms of these purported settlements would have any chilling effect on any other settlements or how it would frustrate the policy of encouraging settlements.
In light of the above, the Court will grant the Motions to Compel with respect to Interrogatory No. 13 and Request for Production No. 18. Plaintiff shall serve its amended written responses and produce the requested documents within ten (10) days of the filing of this Order.
Although the Court is granting the Motions to Compel as to these settlement materials, the Court is mindful of the settling parties’ concerns regarding confidentiality. The Court will therefore direct the parties to submit an agreed protective order prohibiting (1) the disclosure of this information and documents to non-parties, and (2) the use of such information/documents outside of this lawsuit.
S. Interrogatory No. II
This interrogatory asks Plaintiff to “[identify each case by stating the court and ease number in which the Custodian of Records has testified for [Plaintiff], in person or by declaration.” Plaintiff objected to this interrogatory on the basis that it is overly broad
Defendants generally address this interrogatory and argue that Plaintiffs over-breadth and relevance objections should be overruled. They also argue that Plaintiffs practice of referring Defendants to Plaintiffs disclosures instead of providing the requested information is not acceptable. Plaintiff does not respond to these arguments in its response to the Motions to Compel. In fact, Plaintiff does not even address Interrogatory No. 14 in its response to the Motions. The Court therefore finds that Plaintiff has abandoned its objections to this Interrogatory.
D. Defendant’s Alleged Visits to Websites Dealing with Satellite Piracy
1. Interrogatory No. 16
This interrogatory asks Plaintiff to identify “the exact URL address of all websites [Plaintiff] allege[s] Defendant viewed in connection with his acquisition of any alleged piracy device.” Plaintiff objected as follows:
DIRECTV objects to this request [sic] as overly broad and not reasonably calculated to lead to the discovery of admissible evidence as it is not limited in time or scope. DIRECTV further objects to this request as unduly burdensome as it seeks information more readily available to defendant DIRECTV further objects to this request as discovery is ongoing. Subject to and without waiving the foregoing ..., defendant purchased the device from Vector Technologies, which operated the web site vmw.globalcardprogrammers. com. Additionally, see documents produced at DIRECTV’S initial disclosures.
Defendants indicate in their Motions to Compel that approximately one week after Plaintiff served these objections Plaintiff served a supplemental answer to Turner Interrogatory No. 16 and then two days later served a second supplemental answer to that Interrogatory. In those supplemental answers Plaintiff identified three websites that Turner allegedly visited. Defendants do not provide the Court with Plaintiffs supplemental responses. Thus, the supplemental responses to Turner Interrogatory No. 16 are not part of the record. Pursuant to D. Kan. Rule 37.1(a), however, any motion to compel directed at interrogatory responses must be accompanied by copies of the portions of the responses in dispute. Without Plaintiffs supplemental responses to Turner Interrogatory No. 16, the Court is unable to determine whether there are grounds to grant Turner’s Motion to Compel as to this interrogatory. Turner’s Motion to Compel will therefore be denied as to Turner Interrogatory No. 16.
The Court will now rule on Strauss Motion to Compel as it applies to Interrogatory No. 16. No supplemental answers were filed in response to that interrogatory. The Court finds that the objections Plaintiff asserted to Strauss Interrogatory No. 16 have been abandoned and therefore waived, as Plaintiff did not reassert them in its Response to Strauss’ Motion to Compel.
Plaintiff’s objection that “discovery is ongoing” is not a valid objection. The Court is aware of no rule or case recognizing such a blanket objection. To the extent Plaintiff is concerned that its answer to this interrogatory might change during the course of discovery, then Plaintiff can, and in fact, may have a duty to, supplement its interrogatory answer.
Finally, as noted above, Plaintiff is not allowed to refer Defendant Strauss to documents produced with Plaintiffs disclosures in lieu of providing a written response.
In light of the above, the Court will grant Strauss’ Motion to Compel as to Interrogatory No. 16. Plaintiff shall serve its amended response to Strauss Interrogatory No. 16 within ten (10) days of the filing of this Order.
2. Request for Production No. 20
This request seeks all documents that show the contents of any websites Defendants viewed in connection with their alleged acquisition of the Satellite Piracy Devices. Plaintiff objected on the basis that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff also objected on grounds that the request seeks proprietary business and/or confidential trade secret information.
As in the case of Strauss Interrogatory No. 16, the Court finds that these objections have been abandoned as to both Turner and Strauss Request No. 20, as Plaintiff did not reassert the objections in responding to the Motions to Compel.
Finally, even if the Court were to find that Plaintiff had reasserted its objection that this requests seeks proprietary business and/or confidential trade secret information, the Court would overrule such an objection for several reasons. First, the Court does not understand how documents showing the contents of websites — sites that were open for alleged viewing by Defendants — would contain proprietary business or trade secret information of Plaintiff. Secondly, even if the requested documents somehow did contain such proprietary or trade secret information, that would not render the document privileged or otherwise undiseoverable. It is
When a party is served with a request for production that would require it to produce trade secret or proprietary information, the party may file a motion for protective order under Federal Rule of Civil Procedure 26(c)(7).
Finally, the Court notes that in a supplemental pleading filed in conjunction with the Motions to Compel Plaintiff appears to contend that any documents it has which are responsive to this request are protected work product.
As the Court overrules all of Plaintiffs objections to Request No. 20, the Motions to Compel are granted as to this request. Within ten (10) days of the date of filing of this Order Plaintiff shall serve its amended written response to this request and produce all documents responsive to it.
E. Device Testing
Interrogatory No. 8 asks Plaintiff to “[s]tate the date of any tests or examinations anyone has conducted of the exact piracy devices” allegedly possessed by Defendants. Interrogatory No. 9 asks Plaintiff to “fully describe” the results of any such tests, and Interrogatory No. 10 asks Plaintiff to identify each person with knowledge of the results of any such tests. Request for Production
Plaintiff objected to these interrogatories on the basis that they are overly broad and unduly burdensome and that they are not calculated to lead to the discovery of admissible evidence. Plaintiff also objected on the basis of work product immunity, “investigative and consulting expert privileges,” and attorney-client privilege. In addition, Plaintiff objected on the basis that:
[Each request] necessarily seeks to obtain information contained in confidential communications relating to the claims made the basis of this lawsuit which may have been made between or among DIRECTV and its agents, representatives and employees, subsequent to defendant’s illegal use of satellite programming, in connection with the prosecution and investigation of claims arising out of defendant’s legal conduct.
Finally, Plaintiff objected to the interrogatories on the basis that they call for expert testimony and a narrative. After stating these objections Plaintiff stated: “Subject to and without waiving the foregoing objections and limitations, plaintiff refers defendant to its expert disclosures in this matter.”
Plaintiff asserted the very same objections to Request for Production No 14, except for the objections that the request calls for expert testimony and a narrative.
In their Motions to Compel, Defendants do not directly address these objections except to assert that it is improper for Plaintiff to refer Defendants to its expert disclosures. Plaintiff also fails to address its objections in its response to the Motions to Compel. In other words, neither side has addressed the objections initially asserted by Plaintiff. The Court must thus decide whether to grant the Motions to Compel based on Plaintiffs failure to reassert the objections, or deny the Motions to Compel based on Defendants’ failure to raise them in the Motions. This Court addressed a similar situation in Sonnino v. University of Kansas Hospital Authority.
[T]he party filing the motion to compel has the initial burden of addressing each boilerplate objection in its motion to compel. By doing so, that brings the objection “into play” and places the burden on the objecting party to support its objections. If the moving party fails to address an objection in its motion to compel, the objecting party need not raise it, and the objection will stand.53
Here, Defendants did not address the various objections asserted by Plaintiff in its responses to the interrogatories and request for production. As Defendants failed to address the objections in their Motions to Compel, Plaintiff was under no obligation to reassert them or discuss them in its response to the Motions. Plaintiffs objections to these discovery requests therefore stand, and the Motions to Compel will be denied as to theses requests.
F. Communications Between Plaintiff and Defendants
1. Interrogatory No. 19
This interrogatory asks Plaintiff to fully describe all oral or written communications between Plaintiff and each Defendant, and to provide the date and contents of any such communications. In response, Plaintiff asserted no objections and referred Defendants “to documents produced herewith.”
Defendants assert in their Motions to Compel that it is improper for Plaintiff to refer Defendants to a group of documents that have been previously produced. Plaintiff counters that it has produced all nonprivileged documents evidencing communications with Defendants.
By indicating that it had produced all non-privileged documents, Plaintiff implies that it has withheld privileged documents. Plaintiff, however, never asserted any privilege to this interrogatory. Thus, to the extent that
The Court agrees with Defendants that it was improper for Plaintiff to generically refer Defendants to a group of documents previously produced, for the reasons set forth in Part II.B, supra. The Court will therefore grant the Motions to Compel as to this interrogatory, and Plaintiff shall either provide a complete, written amended answer to this interrogatory, or identify the particular documents that it asserts it has already produced from which this information may be obtained. If Plaintiff chooses this latter course of action, it should make sure that the documents it produces provide sufficient information to answer all portions of this interrogatory.
2. Requests for Production No. 24, 25, and 26
Request No. 24 seeks all documents relating to any oral or written communications between Plaintiff and each Defendant. Request No. 25 seeks all documents relating to any oral or written communications between each Defendant and the seller of the alleged Satellite Piracy Device. Request No. 26 seeks all documents relating to any oral or written communications between each Defendant and any other person regarding the alleged Satellite Piracy Devices.
Plaintiff objected on the basis of work product immunity, “investigative and consulting expert privileges,” attorney-client privilege, and confidentiality. Plaintiff then stated: “Subject to and without waiving the foregoing objections, see documents produced with plaintiffs disclosures and documents produced herewith.”
In their Motions to Compel, Defendants assert that the communications are relevant, are not work-product, and have nothing to do with settlement communications. Defendants also assert that Plaintiff may not refer defendants to previously produced documents. Defendants fail to address Plaintiffs other asserted objections, i.e., those based on the investigative and consulting expert privileges, attorney-client privilege, and confidentiality.
As discussed above in Part II.E above, Defendants, as the moving parties, have the burden to address each and every objection in their Motions to Compel. Defendants, however, did not satisfy that burden, and the objections that they failed to discuss must stand. Accordingly, the Court will deny the Motions to Compel as to these requests.
III. Defendants’ Requests for Rule 37(a)(4), Rule 37(b)(2), and Rule 26(g) Sanctions
In their Motions to Compel, Defendants each request that they be awarded the attorney fees and expenses they have incurred in connection with the filing of their motions, as provided for in Federal Rule of Civil Procedure 37(a)(4). In their motions they also request that Plaintiff be precluded from presenting certain evidence as a result of its failure to provide the requested discovery, as provided for in Rule 37(b)(2). Finally, in their replies to the Motions to Compel, they ask that they be awarded sanctions pursuant to Federal Rule of Civil Procedure 26(g).
A. Rule 37(a)(4) Sanctions
Defendants seek their reasonable expenses, including attorney fees, incurred in preparing the Motions to Compel. Federal Rule of Civil Procedure 37(a)(4)(C) allows a court to impose sanctions where, as here, a motion to compel is granted in part and denied in part. Under that rule, the court may “apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.”
In this ease, the Court has overruled many of Plaintiffs objections, a significant number of which the Court finds were not substantially justified. The Court thus deems it just to allow Defendants to recover a portion, if not all, of the reasonable ex
To aid the Court is determining the proper amount of expenses, Defendants’ counsel shall file, within twenty (20) days of the date of filing of this Order, a pleading in which Defendants set forth the amount of expenses and attorney fees that Defendants seek to recover against Plaintiff and an affidavit itemizing the expenses and fees that Defendants incurred in bringing these Motions to Compel. Plaintiff shall have twenty (20) days thereafter to respond. The Court will then issue a second order, apportioning the expenses and fees and specifying the amount and time of payment.
B. Rule 37(b)(2) Sanctions
Defendants also seek sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2). Defendants fails to recognize that Rule 37(b)(2) provides for the imposition of sanctions only where a party “fails to obey an order to provide or permit discovery.”
C. Rule 26(g) Sanctions
Finally, Defendants seek sanctions pursuant to Federal Rule of Civil Procedure 26(g)(2). That rule sets forth an attorney’s duty as it applies to responses and objections to discovery requests. It provides in pertinent part:
Every discovery request, response; or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated.... The signature of the attorney or party constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; [and]
(B) not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation[.]58
Given the importance of this duty, Rule 26(g)(3) permits a court, upon motion or upon its own initiative, to impose “appropriate sanctions” upon the attorney making the certification and/or the party on whose behalf the objections were made.
Defendants contend that sanctions are warranted under this rule because Plaintiff made frivolous objections to Defendants’ Interrogatory Nos. 11 and 15-18 and Request No. 20. Defendant Turner also complains that Plaintiff supplemented its answer to Turner Interrogatory No. 16 without providing any explanation as to why it did not provide that information in its initial response. Turner contends that Plaintiff intentionally withheld this information when it initially responded to the interrogatory and did not supplement the interrogatory until after Plaintiff had deposed Turner, in an attempt to “sandbag” him.
In addition, Defendant Strauss complains that Plaintiff improperly objected to Strauss Request No. 29 and produced no documents responsive to it, but then later produced a photograph that was responsive to the request, with no explanation for the belated production.
Plaintiff counters that it made valid objections to these discovery requests. It also
As a threshold matter, the Court notes that Defendants have not moved to compel answers to Defendants Interrogatory Nos. 11 and 15-18 and Strauss Request No. 19. Thus, the merits of the objections to those discovery requests have not been addressed by the parties. Furthermore, neither the discovery requests nor Plaintiffs objections/responses have been provided to the Court. The Court is therefore unable to determine whether Plaintiffs objections to these interrogatories are frivolous as Defendants assert.
Only Turner Interrogatory No. 16 remains at issue with respect to Defendants’ request for Rule 26(g) sanctions. As noted above in Part II.D, however, Turner failed to provide the Court with Plaintiffs supplemental answers to Turner Interrogatory No. 16. The Court has thus declined to rule on Turner’s Motion to Compel as it applies to this interrogatory. For the same reason, the Court must also decline to rule on the request for Rule 26(g) sanctions as it applies to this interrogatory.
Even if the Court were to hold otherwise and rule that Plaintiff had engaged in conduct subject to sanctions under Rule 26(g), the Court would find it unnecessary to award sanctions under Rule 26. The Court is already imposing sanctions against Plaintiff and in favor of both Defendants under Rule 37(a)(4). Thus, any award of sanctions under Rule 26(g) would be duplicative and unnecessary. Accordingly, the Court will deny Defendants’ requests for Rule 26(g) sanctions.
IT IS THEREFORE ORDERED that Defendant Bill Strauss and William Turner’s Motions to Compel (doc. 158 and 159) are granted in part and denied in part as set forth herein.
IT IS FURTHER ORDERED that within ten (10) days of the date of this Order, Plaintiff shall serve amended responses to the interrogatories and requests for production that Plaintiff is compelled to answer and shall produce all documents required to be produced. The production of documents shall take place at the offices of Defendants’ counsel or at any other location agreed upon by the parties.
IT IS FURTHER ORDERED that within ten (10) days of the date of this Order, counsel for the parties shall confer and attempt to agree upon a protective order consistent with this Order. If the parties are unable to reach an agreement. Plaintiff shall have five (5) days thereafter to move for a protective order. Defendants shall have five (5) days thereafter to file a response to the motion for protective order.
IT IS FURTHER ORDERED that Defendants’ requests for Rule 37(a)(4) sanctions are granted as set forth herein, and the parties shall follow the briefing schedule set forth herein regarding the amount of sanctions to be awarded.
IT IS FURTHER ORDERED that Defendants’ requests for Rule 37(b)(2) sanctions are denied.
IT IS FURTHER ORDERED that Defendants’ requests for Rule 26(g) sanctions are denied..
IT IS SO ORDERED.
. Pretrial Order (doc. 251), ¶ 2.
. Id. at ¶¶ 6.a, 7.a (1).
. Id. at ¶¶ 6.a, 7.d (1).
. Id. at ¶¶ 6.a, 7.b (1).
. Id. at ¶¶ 6.a., 7.e (1).
. No. Civ. A. 93-2366-EEO, 1997 WL 50474 (D.Kan. Feb.4, 1997).
. Id. at *l.
. This Court has held on numerous occasions that objections asserted in a party's initial response to discovery requests but not reasserted in response to a motion to compel are waived and deemed abandoned. See, e.g., Dolquist v. Heartland Presbytery, 221 F.R.D. 564, 568 n. 16 (D.Kan.2004) (“objections initially raised but not relied upon in response to a motion to compel are deemed abandoned”); Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D.Kan.1999) (The court "generally deems objections initially raised but not relied upon in response to the motion [to compel] as abandoned”).
. 221 F.R.D. 661 (D.Kan.2004).
. Id. at 668 (quoting Fed.R.Civ.P. 26(b)(5)).
. Id. at 668-69 (citations omitted) (emphasis in original).
. Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 642 (D.Kan.2004) (citations omitted).
. Id.
. See Pl.'s Fed.R.Civ.P. 26 Disclosures (attached as Ex. 1 to doc. 174).
. See Dolquist v. Heartland Presbytery, 221 F.R.D. 564, 568 n. 16 (D.Kan.2004) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D.Kan.1999)).
. Fed.R.Civ.P. 26(b)(1).
. McCoy v. Whirlpool Corp., 214 F.R.D. 642, 643 (D.Kan.2003) (citation omitted).
. Id. (citation omitted).
. Id. (citation omitted).
. Defs.' Mots, to Compel (doc. 158, 159) at p. 7.
. Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 642 (D.Kan.2004) (citations omitted).
. Id.
. Sonnino v. Univ. of Kan. Hosp. Auth., No. 02-2576-KHV-DJW, 2004 WL 769325, at *3 (D.Kan. Apr. 8, 2004).
. Id.
. 332 F.3d 976 (6th Cir.2003).
. Id. at 980, 982.
. Id. at 981 (noting that settlement negotiations privilege and Fed.R.Evid. 408 does not bar admission of the settlement agreement itself if offered for a purpose other than to show liability or invalidity of the claim or its amount).
. Fed.R.Evid. 408.
. Pl.'s Resp. to Defs.’ Mots, to Compel (doc. 174) at pp. 3-4.
. See, e.g., Lesal Interiors, Inc. v. Resolution Trust Corp., 153 F.R.D. 552, 562 (D.N.J.1994); Bottaro v. Hatton Assocs., 96 F.R.D. 158, 160 (E.D.N.Y.1982);
. See Lesal Interiors, 153 F.R.D. at 562 (in order to reconcile Fed.R.Evid. 408 with broad discovery rule, party seeking information regarding settlement must make "a greater, more 'particularized showing’ that the evidence sought is relevant and calculated to lead to the discovery of admissible evidence”); Bottaro, 96 F.R.D. at 160 (party seeking discoveiy of settlement agreement must make a "particularized showing of a likelihood that admissible evidence will be generated by the dissemination of the terms of [the] settlement agreement”);
. See, e.g., In re Initial Public Offering Sec. Litig., No. 21 MC 92(SAS), 2004 WL 60290, at *4-5 (S.D.N.Y. Jan. 12, 2004) (rejecting standard requiring requesting party to make a "particularized showing” of relevance and instead applying Fed.R.Civ.P. 26 requirement that the settlement material need only be relevant to a claim or defense in the action); City of Wichita v. Aero Holdings, Inc., 192 F.R.D. 300, 302 & n. 1 (D.Kan.2000) (Belot, J.) (rejecting suggestion that "a higher burden is placed on the party seeking to discover evidence related to settlement negotiations” and holding that the court "must rely on the party opposing discovery [of settlement] to explain why the information sought will not lead to otherwise admissible evidence”); Bennett v. La Pere, 112 F.R.D. 136, 139 (D.R.I.1986) (specifically rejecting "particularized showing” standard).
. See, e.g., Vardon Golf Co. v. BBMG Golf Ltd., 156 F.R.D. 641, 650 (N.D.Ill.) (rejecting notion that Federal Rules of Civil Procedure require a party to make a "particularized showing” but requiring party seeking the settlement information to articulate "what kind of information it reasonably expects to find in the documents sought and how this will lead to other admissible evidence”); Fid. Fed. Sav. and Loan Ass’n v. Felicetti, 148 F.R.D. 532, 534 (E.D.Pa.1993) (holding that the only effect of the "particularized showing" requirement "is to switch the burden of proof from the party in opposition to the discovery to the party seeking the [settlement] information”); Morse/Diesel, Inc. v. Trinity Indus., Inc., 142 F.R.D. 80, 84 (S.D.N.Y. 1992) ("particularized showing” requirement "simply places the burden of establishing relevance squarely on the party seeking production of the [settlement] documents withheld.”);
. Plaintiff cites Doe v. Methacton Sch. Dist., 164 F.R.D. 175 (E.D.Pa.1995) for the proposition that in certain circuits settlement agreements are discoverable only to show that the settlement may be collusive. See id. at 176 (citing Thornton v. Syracuse Sav. Bank, 961 F.2d 1042, 1046 (2d Cir.1992); Mars Steel Corp. v. Continental Ill. Nat'l Bank & Trust Co. of Chicago, 834 F.2d 677, 684 (7th Cir.1987)). Plaintiff contends that because no such collusion is alleged here, Defendants are not entitled to discover these settlement agreements. Plaintiff's reliance on Doe is misplaced. Doe, along with the Second and Seventh Circuit decisions relied upon therein, dealt
. See Westside-Marrero Jeep Eagle, Inc. v. Chrysler Corp., Inc., No. CIV-A 97-3012, 1998 WL 186705, at *3 (E.D.La.1998) (allowing discovery of settlement agreements in order to evaluate a witness’ potential bias, interest and credibility); Tribune Co. v. Purcigliotti, No. 93 Civ. 7222(LAP)(THK), 1996 WL 337277, at *2-3 (S.D.N.Y. June 19, 1996) (allowing discovery of settlement-related materials where materials might reveal possible bias of settling witness); Sec. Exch. Comm’n v. Thrasher, No. 92 Civ. 6897(MHD), 1996 WL 94533, at *2 (S.D.N.Y. Feb.27, 1996) (allowing party to discover information disclosed in settlement discussions where party proposed to use information to impeach witness’ credibility).
. See Stewart v. Mitchell Transport, No. 01-2546-JWL, 2002 WL 1558210, at *6 (D.Kan. July 8, 2002) (overruling defendant's confidentiality objections but directing parties to confer and draft a protective order to prevent disclosure of requested documents to non-parties).
. See Dolquist v. Heartland Presbytery, 221 F.R.D. 564, 568 n. 16 (D.Kan.2004) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D.Kan.1999)) (objections initially raised but not relied upon in response to motion to compel are deemed abandoned).
. See id.
. Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666, 672 (D.Kan.2003) (citations omitted).
. Id.
. See Fed.R.Civ.P. 26(e)(2) ("A party is under a duty seasonably to amend a prior response to an interrogatoiy ... if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.").
. As noted above with respect to Interrogatory No. 6, a party objecting on the basis of over-breadth or undue burden has the burden to support the objection with an affidavit or other evidence. See Hammond, 216 F.R.D. at 672 (objecting party must submit affidavits or other evidence demonstrating specifically how discovery is overly broad or burdensome).
. See supra note 37 and accompanying text.
. See Fed. Open Market Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 362, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979) ("there is no absolute privilege for trade secrets and similar confidential information") (citations omitted); Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir.1981) (same).
. Airport Sys. Int’l, Inc. v. Airsys ATM, Inc., No. 00-2171-KHV, 2001 WL 1718274, at *10 (D.Kan. May 16, 2001).
. Under Fed.R.Civ.P. 26(c)(7) a party may move for an order that trade secrets or other confidential research, development, or commercial information not be revealed or be revealed only in a designated manner.
. Centurion Indus., 665 F.2d at 325.
. See Pl.'s Mem. in Opp. to Defs.' Mots, for Sanctions (doc. 219) and Pl.'s Sur-Reply (doc. 308).
. Sonnino v. Univ. of Kan. Hosp. Auth., 220 F. R.D. 633, 647 (D.Kan.2004) (citing Peat, Mar-wick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984); Starlight Int'l, Inc. v. Herlihy, 181 F.R.D. 494, 497 (D.Kan. 1998)).
. West, 748 F.2d at 542.
. See Sonnino, 220 F.R.D. at 647 (holding that defendant waived any claim to work product immunity by failing to assert such immunity in response to the request for production; defendant's assertion of the immunity for the first time in response to the motion to compel was of no effect).
. 221 F.R.D. 661 (D.Kan.2004).
. Id. at 671 n. 37.
. See discussion immediately above in Part II. E.l.
. Fed.R.Civ.P. 37(a)(4)(C).
. In the absence of any evidence indicating that Plaintiff itself was responsible for the sanctionable conduct, the Court will impose the sanctions against the law firm of Plaintiff’s counsel. See Sonnino v. Univ. Kan. Hosp, Auth., 220 F.R.D. 633, 656 n. 91 (D.Kan.2004); McCoo v. Denny’s, Inc., 192 F.R.D. 675, 697 (D.Kan.2000).
. Fed.R.Civ.P. 37(b)(2) (emphasis added).
. Fed.R.Civ.P. 26(g)(2).
. Fed.R.Civ.P. 26(g)(3).
. Id.
