eDiscovery Daily Blog

• May 6, 2016

In Digital Ally, Inc. v. Utility Associates, Inc., No. 14-2262-CM-GEB (D. Kan. Apr. 15, 2016), Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Case Background

In this case for tortious interference stemming from the defendant’s hiring of a former sales manager of the plaintiff, the two parties were able to successfully resolve early disputes regarding discovery.  However, during the deposition of the defendant’s former vice president in November 2015, twelve categories of unproduced documents were identified which the plaintiff believed to be responsive to its First Requests for Production.  Communications between the parties resolved discussions regarding six of the categories, but when the parties could not agree on the other six categories, the plaintiff filed a Motion to Compel, seeking the remaining six categories of documents.  Subsequently, the plaintiff agreed to withdraw its motion regarding four of the requests, leaving requests for two categories for the court to address.

The defendant argued the motion to compel should be denied because it was filed more than ten months after the plaintiff served its initial Requests and was untimely under D. Kan. Rule 37.1(b). The defendant also maintained that the plaintiff failed to properly confer before filing its motion, as required by D. Kan. Rule 37.2.  With regard to the individual requests, the defendant argued the first request was “neither relevant nor proportional to the issues in this case” and also objected to the request as overbroad for failure to identify custodians of, and provide search terms for, any alleged e-mails as required by the Scheduling Order.  The defendant objected to the second request on the basis of relevance.

Judge’s Ruling

With regard to the defendant’s objection regarding the timeliness of the request, Judge Birzer disagreed, finding that, although the plaintiff failed to file its motion within 30 days after the defendant’s initial discovery responses, “the motion was filed within 30 days of the defendant’s final communication regarding production of the six categories of documents which became an issue after [the former VP’s] deposition”.  With regard to the defendant’s contention that the plaintiff failed to properly confer before filing its motion, Judge Birzer also disagreed with that, ruling that “[b]ecause the parties communicated both in writing and by phone regarding the disputed requests, the Court finds the duty to confer under Rule 37.2 is satisfied”.

With regard to the defendant’s objection to the first request, Judge Birzer stated:

“Aside from simply stating the terms, Defendant has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1), and those objections are overruled. Because Plaintiff brings multiple claims of tortious interference with its business, the information sought by the request appears relevant on its face, and Defendant has not met its burden to demonstrate otherwise.  Additionally, any concerns regarding overbreadth or proportionality may be addressed by following the guidelines of the Scheduling Order.”

With regard to the defendant’s objection to the second request, Judge Birzer determined that the defendant “has not met its burden to demonstrate lack of relevance; therefore the objection is overruled.”  With all objections overruled, Judge Birzer granted the motion to compel with instructions for the plaintiff to resubmit the first request following the terms of the Scheduling Order.

So, what do you think?  Do you think we’ll see more cases where objections are overruled because they don’t provide specificity regarding the objections?  Please share any comments you might have or if you’d like to know more about a particular topic.

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