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Objections to Written Discovery Requests in Kansas

The material portion of the statute Kan. Stat. Ann. § 60-237 provides:

“(B) To compel a discovery response. A party seeking discovery may move for an order compelling an answer, designation, production or inspection. This motion may be made if:

(iii) a party fails to answer an interrogatory submitted under K.S.A. 60-233, and amendments thereto; or

(iv) a party fails to produce documents or fails to respond that inspection will be permitted, or fails to permit inspection, as requested under K.S.A. 60-234, and amendments thereto.

Since the Kansas rules mirror the Federal rules we can look to the Federal decisions for guidance since cases have held that in the absence of controlling authority, we look to the substantively identical federal rule, Federal Rule of Evidence 702 (F.R.E. 702). See Fredricks v. Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976) (finding federal interpretations persuasive where state and federal rules are similar); State v. Johnson, 19 Kan.App.2d 315, 318, 868 P.2d 555 (1994) (finding federal authority “uniquely persuasive” where Kansas’ statute is a “mirror image” of a federal rule). Smart v. BNSF Ry. Co., 369 P.3d 966, 973 (Kan. App. 2016).

Objections to be valid must be stated with specificity and must provide precise reasons for the objections.

 “All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown.” Fed.R.Civ.P. 33(b)(4). Several courts have concluded that this provision means “[a] party who fails to file timely objections waives all objections, including those based on privilege or work product.” Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409 (C.D.Cal.2005) (citing cases). Cargill, Inc. v. Ron Burge Trucking, Inc., 284 F.R.D. 421, 424 (D. Minn. 2012). Although Rule 34 does not contain an automatic waiver provision for untimely objections as does Rule 33(b)(4), “courts have reasoned that Rule 33(b)(4) type waiver should be implied into all rules involving the use of the various discovery mechanisms.” Horace Mann Ins. Co. v. Nationwide Mut. Ins. Co., 238 F.R.D. 536, 538 (D.Conn.2006) (citing Byrd v. Reno, No. 96–2375(CKK)(JMF), 1998 WL 429676, at *6 (D.D.C. Feb. 12, 1998); Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 661 (D.Colo.2000); and Deal v. Lutheran Hosp. & Homes, 127 F.R.D. 166, 168 (D.Alaska 1989)). This Court agrees that the same waiver provision found in Rule 33(b)(4) applies to document requests under Rule 34. See Deal, 127 F.R.D. at 168 (concluding that “on principle, except to avoid manifest injustice, procedures under Rule 45(d)(1) and under Rules 33, 34, and 36 should be similar, if not identical”); Byrd, 1998 WL 429676, at *4 (concluding that there is “no reason to give [Rule 34] a dissimilar interpretation” than that given to Rule 33(b)(4)).” Cargill, Inc. v. Ron Burge Trucking, Inc., 284 F.R.D. 421, 424 (D. Minn. 2012) (emphasis added)

“…the party (or nonparty, as in the present case) objecting to discovery must provide precise reasons for the objection to discovery.” Kansas Med. Mut. Ins. Co. v. Svaty, 244 P.3d 642, 666 (Kan. 2010) (emphasis added).

          The Defendants often do not state the objections with specificity nor state the precise reasons for the objections. Instead, we receive a plethora of objections. It appears instead of making specific objections for precise reasons Defendants list all possible objections just so they didn’t leave out any. The objections often offered by the Defendants are boilerplate objections.

Boilerplate Objections are Improper

You often get objections alleging that the Interrogatories violate among other things attorney client privilege and work product, not reasonably calculated to lead to the discovery of admissible evidence, calls for a narrative response, does not seek any specifically identifiable information with any degree of particularity, calls for speculation, privacy, assumes facts not in evidence, overbroad in scope, relevance, exceeds scope of K.S.A. 60-226, not proportional to the needs of this case, peer review , risk management and quality assurance privileges, fishing expedition, harassment, are premature, are “vague,” “ambiguous,” “overly broad,” and “unduly burdensome.”

The articulation of mere conclusory objections are insufficient to carry the resisting party’s burden.  The Defendants must make, “More than a conclusory statement that the discovery is irrelevant must be offered, the opposing party must show specifically how the request is not reasonably calculated to lead to the discovery of admissible evidence” when objecting. The Kansas rules mirror the Federal rules so we can look at Federal decisions for guidance. Teichgraeber v. Mem’l Union Corp. of Emporia State Univ., 932 F. Supp. 1263, 1266 (D. Kan. 1996). The Defendants, “…cannot rely on its boilerplate objections alone, but rather must provide specific support for these objections. As this Court has previously explained, “The familiar litany of general objections, including overly broad, burdensome, or oppressive, will not alone constitute a successful objection to an interrogatory, nor will a general objection fulfill the objecting party’s burden to explain its objections.”16 The Court requires the objection party to “show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each question is overly broad, burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden.” Design Basics, L.L.C. v. Strawn, 271 F.R.D. 513, 519 (D. Kan. 2010).

The responding party must make a specific showing of reasons why the relevant discovery should not be had: “The party opposing discovery shoulders the burden of showing that discovery request is overly broad and burdensome, Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204 (Ind.1990), and the written objection must allege facts which demonstrate the extent and nature of the burden imposed by preparation of a proper response.” Mead Corp. v. Riverwood Natural Resources Corp., 145 F.R.D. 512, 515-16 (D. Minn. 1992).

The Discovery Objections Should Be Deemed Waived

Defendant has not met its burden. lack the requisite specificity for discovery objections and should therefore be deemed waived. Allianz Ins. Co. v. Surface Specialties, Inc., No. CIV.A.03-2470-CM-DJW, 2005 WL 44534, at *2 (D. Kan. Jan. 7, 2005).

Responses are Evasive

          Defendants often object then then end with “subject to and without waiving” its objections. Courts have repeatedly found that such a response is evasive and “serves only to obscure potentially discoverable information and provides no mechanism for either plaintiffs or the Court to review defendant’s decisions.” Athridge v. Aetna Casualty and Surety Co., 184 F.R.D. 181, 190 (D. D.C. 1998); see also Heller v. City of Dallas, 303 F.R.D. 466, 477 (N.D. Tex. 2014); Rowell v. N.C.O. Fin. Sys., Inc., No. 13-2514-CM, 2014 WL 2154422, at *1 (D. Kan. May 22, 2014); and Tomlinson v. Combined Underwriters Life Ins. Co., No. 08-CV-259-TCK- F.H.M., 2008 WL 4601578, at *1 (N.D. Okla. Oct. 16, 2008).

          In Network Tallahassee, Inc., v. Embarq Corp., 2010 WL 4569897, * 1 (N.D. Fla, Sept. 20, 2010), the Court advised and warned:

“A party met with a response of this kind may insist that the objections be explicitly waived or withdrawn in writing and, if they are not, may move to compel.  The motion will always be granted, and fees will always be assessed, at least absent a reasonable explanation that is difficult to imagine.  But this order provides fair warning: a party cannot properly engage in this practice.  The party may object to discovery or not, but the party cannot have it both ways.”

          The Network Tallahassee court explained the policy reasons underlying its order:

“The reason is this. A full response to a discovery request waives an objection.  When an ethical attorney fully responds to a discovery request, the assertion that the response is made “subject to and without waiving the objection” is simply meaningless language.  That apparently is the situation in this case.  But an unscrupulous attorney could withhold properly discoverable information—a smoking-gun document, for example—and assert later that he did nothing dishonest because he had, after all, objected to the discovery request and simply withheld the information based on the (unwaived) objection.” Id. at *1.

 A defendant’s decision to assert boilerplate objections and then respond “subject to and without waiving” the objection results in undue delay, expense, and uncertainty about whether Defendant has additional documents it simply has decided not to search for or produce.

Evasive Responses Must Be Treated as a Failure to Answer

  K.S.A 60-237 prohibits such evasive responses:

“(4) Evasive or incomplete disclosure, answer or response. For purposes of this subsection, an evasive or incomplete disclosure, answer or response must be treated as a failure to disclose, answer or respond.”  Kan. Stat. Ann. § 60-237

The law considers such an answer as evasive and and evasive answer is considered a Failure to disclose, answer or respond.

“To the Extent” Objections are Invalid, and the Objection should be deemed Waived

“(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Kan. Stat. Ann. § 60-233 (West)

A failure to answer is a waiver of the objection. An evasive or incomplete answer is treated as a failure to answer. Defendants objections should be considered waived.

“This Court has on several occasions “disapproved [of] the practice of asserting a general objection ‘to the extent’ it may apply to particular requests for discovery.”13 This *667 Court has characterized these types of objections as “worthless for anything beyond delay of the discovery.”14 Such objections are considered mere “hypothetical or contingent possibilities,” where the objecting party makes “ ‘no meaningful effort to show the application of any such theoretical objection’ to any request for discovery.”15 

Thus, this Court has deemed such “ostensible” objections waived,16 or declined to consider them as objections.17

5 The Court agrees with these cases and holds that a general objection which objects to a discovery request “to the extent” that it asks the responding party to provide documents or information protected by the attorney-client privilege or work product immunity is tantamount to asserting no objection at all. In other words, such a general objection does not preserve the attorney-client privilege or work product immunity.” Sonnino v. U. of Kansas Hosp. Auth., 221 F.R.D. 661, 666–67 (D. Kan. 2004)

It is within court’s discretion to determine that if a party responding to a discovery request fails to timely object or state the reason for the objection, he or she may be held to have waived any objections. Brenford Envtl. System, L.P. v. Pipeliners of Puerto Rico, Inc., 269 F.R.D. 143 (D.P.R. 2010)

When the Defendant’s Attorney did not sign the Objections

The Statute requires that any objection must have a signature. K.S.A. 60-233 provides in material part:

“5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.” Kan. Stat. Ann. § 60-233 (West).

The defense attorney did not initial or sign any objections as required and therefore the objections must be considered waived.

Defendant’s Privilege-Based Objections are Improper

“Attorney-client privilege” and “Work product doctrine.”

Defendant’s boilerplate objections often include several unsupported objections based on “attorney-client privilege” and “work product doctrine.”

Defendants, as the party resisting disclosure, bears the burden of presenting facts to establish the privilege’s existence.  ““Parties objecting to discovery on the basis of the attorney-client privilege bear burden of establishing that it applies. Boyer v. Board of County Comm’rs, 162 F.R.D. 687, 688 (D.Kan.1995). They must make a ‘clear showing’ that the asserted objection applies. Ali v. Douglas Cable Communications, Ltd. Partnership, 890 F.Supp. 993, 994 (D.Kan.1995). To carry the burden, they must describe in detail the documents or information to be protected and provide precise reasons for the objection to discovery. National Union Fire Ins. Co. v. Midland Bancor, Inc., 159 F.R.D. 562, 567 (D.Kan.1994). They must provide sufficient information to enable the court to determine whether each element of the asserted privilege is satisfied. Jones v. Boeing Co., 163 F.R.D. 15, 17 (D.Kan.1995). A claim of privilege fails upon a failure of proof as to any element. Id. A *426 ‘blanket claim’ as to the applicability of a privilege does not satisfy the burden of proof. See Kelling v. Bridgestone/Firestone, Inc., 157 F.R.D. 496, 497 (D.Kan.1994).” 183 F.R.D. at 278–79.” Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 407, 997 P.2d 681, 683 (2000).

          When the Defendant only objects with the “attorney-client privilege” and “work product doctrine” the Defendants have not complied with K.S.A. 60-226 which provides in material part:

“When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial preparation material, the party must:

(i) Expressly make the claim; and

(ii) describe the nature of the documents, communications or things not produced or disclosed, and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Kan. Stat. Ann. § 60-226 (emphasis added)

          Defendant have to produce a proper privilege log regarding the specific documents that it is withholding based on attorney-client privilege or work product.  Without such a log the Defendant’s unsupported privilege objections must be considered waived, withdrawn or stricken.

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