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holding that Rule 45 is not limited to personal service
Summary of this case from Powell v. Time Warner Cable, Inc.Opinion
No. 00-2043-CM
July 23, 2002
MEMORANDUM AND ORDER
Pending before the Court is the Motion of Thomas D. Crowley and L.E. Peabody Associates, Inc. for Protective Order Barring Enforcement of Union Pacific Railroad Company Subpoena (doc. 325). For the reasons stated below, the Motion is granted in part and denied in part.
Relevant Factual Background
Thomas Crowley ("Crowley") is an independent consultant who, since the late 1970's, has advised Western Resources ("WR") from time to time in the areas of coal transportation, coal supply economics, procurement and contract issues. Crowley is President of L.E. Peabody Associates, Inc. ("Peabody"), an economic consulting firm headquartered in Alexandria, Virginia. On May 24, 2001, WR designated Crowley as a testifying expert in this case. In that capacity, Crowley has submitted four expert reports totaling more than 300 pages and covering a range of topics.
The parties have engaged in extensive discovery in this lawsuit. As part of this discovery, Defendant Union Pacific ("UP") issued a subpoena to Peabody and Crowley (collectively "Peabody/Crowley") on May 1, 2001 seeking documents related to Crowley's role as a consultant for WR ("the May 1, 2001 Crowley subpoena"). On November 20, 2001, UP issued a second subpoena to Peabody/Crowley ("the November 20, 2001 subpoena"), this time seeking documents related to Crowley's role as an expert witness in any other case where UP or Burlington Northern Santa Fe ("BNSF") were parties and/or in any other case involving the issue of rail transportation rates. More specifically, and relevant to the pending motion, the following documents were requested in the November 20, 2001 subpoena:
Request 1: All documents that refer, reflect or relate to the retention of Peabody/Crowley as consultant or expert by any party — other than WR — to any litigation or other judicial or regulatory proceeding (state or federal) in which BNSF and/or UP also were parties.
Request 2: All correspondence, studies, analyses, reports, opinions, and presentations prepared by or for Peabody/Crowley or any client of Peabody/Crowley — other than WR — in any litigation or other judicial or regulatory proceeding (state or federal) in which BNSF and/or UP also were parties.
Request 3: All documents provided or shown to Peabody/Crowley by anyone — or provided or shown by Peabody/Crowley to anyone — in connection with any services rendered to a Peabody/Crowley client relating to any subject referenced in Request 2.
Request 4: All notes, letters, outlines, drafts, memoranda, summaries, reports and other documents created by or for Peabody/Crowley or at their request in connection with any services rendered to any Peabody/Crowley client relating to any of the subjects referenced in Request 2.
Request 5: All documents relating to any analysis, study, report investigation, data compilation or calculations prepared by or for Peabody/Crowley in connection with any services rendered to any Peabody/Crowley client relating to any of the subjects referenced in Request 2.
Request 6: All documents that refer, reflect or relate to any testimony on, or analysis of, rail transportation rates prepared by Peabody/Crowley in any of the following proceedings identified within Crowley's May 24, 2001 expert report: (identified proceedings omitted).
Request 7: All documents that refer, reflect or relate to the calculation of, and methodology for, calculating rail transportation rates prepared by Peabody/Crowley in any previous proceeding (including litigation, administrative proceedings and arbitrations) other than the proceedings identified in Request 6.
Request 8: All documents Peabody/Crowley reviewed or otherwise considered in calculating — or establishing the methodology for calculating — rail transportation rates in any proceeding identified in Request 6 or 7.
The requests have been paraphrased by the Court.
On December 5, 2001, counsel for Peabody/Crowley sent a letter to counsel for UP stating they "object to the copying and inspection of any of the documents sought in Exhibit A to the subpoena duces tecum issued on November 20, 2001." The letter did not state grounds for the objection.
On January 17, 2002, Peabody/Crowley filed a Motion for Protective Order with regard to the documents described within the November 20, 2001 subpoena. In support of protection, Peabody/Crowley specifically maintain the November 20, 2001 subpoena duces tecum
A. is overly broad, vague, ambiguous and seeks documents that are not relevant to the claims or defenses in this lawsuit;
is unduly burdensome and oppressive; and
seeks privileged and confidential documents protected from disclosure by previous court order.
The Court will address each of the Peabody/Crowley objections in turn.
Discussion Overly Broad, Vague, Ambiguous
In support of the argument that the requests are overly broad, vague, ambiguous and not relevant, Crowley argues (1) the requests fail to reasonably identify with precision the documents sought as required by Fed.R.Civ.P. 34; (2) the requests are overly broad; and (3) Crowley neither considered nor relied upon the referenced documents in drafting his expert report.
Imprecise Requests
Upon review of the requests at issue, the Court agrees with Peabody/Crowley and finds the requests are overly broad on their face to the extent they utilize all-encompassing phrases such as "relate to" or "relating to." The federal discovery rules provide that "request[s] shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity." Moreover, "[r]equests should be reasonably specific, allowing the respondent to readily identify what is wanted." Courts may find requests overly broad when they are "couched in such broad language as to make arduous the task of deciding which of numerous documents may conceivably fall within [their] scope." Use of broad terms such as "relate to" or "relating to" provides no basis upon which an individual or entity can reasonably determine what documents may or may not be responsive. Here, as in Cotracom , the phrases "relate to" and "relating to" do not modify a specific type of document, but rather all documents; thus, their very use make the requests overly broad on their face.
Western Resources, Inc. v. Union Pacific Railroad, No. 00-2043-CM, 2001 WL 1718368, *3 (D.Kan. Dec. 5, 2001) (quoting Audiotext Communications v. U.S. Telecom, Inc., No. 94-2395-GTV, 1995 WL 18759, at *1 (D.Kan. Jan. 17, 1995)).
Id.
Cotracom Commodity Trading Co. V. Seaboard Corp., 189 F.R.D. 655, 666 (D.Kan. 1999) (citing Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D.Kan. 1996)).
Despite the overly broad nature of Requests 1, 3, 4, 5, 6 and 7 on their face due to the "relate to" or "relating to" language, Peabody/Crowley have a duty under the federal rules to respond to the extent that discovery requests are not objectionable. The Court, however, will not compel further response when inadequate guidance exists to determine the proper scope of a request for discovery. Although UP utilized omnibus phrases in the requests at issue here, the Court finds the balance of the language used in the requests provides adequate guidance to determine the scope of the requests propounded. Accordingly, the Court rejects Peabody/Crowley's argument that the requests are overly broad, vague and ambiguous to the extent they fail to reasonably identify with precision the documents sought.
Cotracom Commodity Trading Co. V. Seaboard Corp., 189 F.R.D. at 666 (citing Schartz v. Unified School Dist. No. 512, No. Civ. A. 95-2491-EEO, 1996 WL 741384, at *1 (D.Kan. Dec. 18, 1996) (addressing duty to answer interrogatories and respond to requests for production); see, also, Mackey v. IBP, Inc., 167 F.R.D. 186, 198 (D.Kan. 1996) (addressing duty to answer interrogatory)).
Overbreadth
Given the Court's finding above that Peabody/Crowley is able to reasonably identify with precision the scope of documents requested, the Court now will address Peabody/Crowley's argument that the scope of the requests — as reasonably identified — are overly broad. Rule 26(b)(1) provides "[p]arties may obtain discovery regarding any matter . . . that is relevant to the claim or defense of any party." Further, "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."
Id.
When the discovery sought appears relevant, the individual or entity objecting to the discovery on grounds that a request is overly broad has the burden to support its objection, unless the request is overly broad on its face.
EEOC v. Kansas City Southern Railway, 195 F.R.D. 678, 680 (D.Kan. 2000).
Due to the broad and sweeping nature of the requests as written, the Court finds the requests overly broad on their face. These five requests seek documents in all judicial or regulatory proceedings in which Peabody/Crowley, BNSF and/or UP were involved. Notably, the requests are neither limited in time nor confined to any discrete subject matter. In comparing the expansive nature of the requests to the much more limited scope of the claims and defenses presented in this lawsuit, the Court finds Requests 1-5 to be overly broad on their face. Accordingly, Peabody/Crowley's Motion for Protective Order with respect to Requests 1-5 will be granted to the extent that Peabody/Crowley will not be required to respond to those five requests.
See Trunk v. Midwest Rubber and Supply Co., 175 F.R.D. 664 (D.Colo. 1997) (although acknowledging Rule 26 provides for broad discovery of experts as to opinions to be offered at trial, court found conclusions and opinions offered in unrelated litigation does not fall within scope of Rule 26 discovery) (citation omitted).
In reviewing the scope of discovery sought in Requests 6-8, however, the Court comes to a different conclusion. Request 6 seeks documents within Peabody/Crowley's possession that relate to various proceedings Crowley specifically identified within the May 24, 2001 expert report submitted by Plaintiff in this lawsuit. Requests 7 and 8, although not limited to proceedings identified in the May 24, 2001 report, are restricted to documents within Peabody/Crowley's possession regarding calculation of rail transportation rates, a subject discussed at length in Crowley's May 24, 2001 expert report and an issue relevant to WR's $200 million restitution claim in this case. The Court finds these requests are sufficiently narrow and not overly broad. The Court will overrule Peabody/Crowley's objection based on overbreadth with respect to Requests 6-8 and Peabody/Crowley shall be required to respond to such requests.
Rule 26(a)(2)B)
Peabody/Crowley next argue that the documents sought are not relevant to the issues presented in this lawsuit because Fed.R.Civ.P. 26(a)(2) does not require disclosure of documents that an expert neither considered nor relied upon in drafting his expert report. As explained below, Peabody/Crowley's position on this point is not supported by the text of Rule 26 or by the Advisory Committee's commentary to Rule 26(a). In the text, Rule 26(a)(2)(B) provides for the mandatory disclosure of certain expert witness information, even without a request from the opposing party. However, there is no indication on the face of the rule to suggest that a party is absolutely prohibited from seeking any additional information about an opponent's expert witnesses. In fact, Rule 26(b)(1) describes the scope of allowable discovery as follows: "Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense or any party." In addition to the text of Rule 26, the Court finds it to be significant that the Advisory Committee, which created the mandatory disclosure requirement in Rule 26(a)(2)(B), explicitly states that [t]he enumeration in Rule 26(a) of items to be disclosed does not prevent a court from requiring by order or local rule that the parties disclose additional information without a discovery request. Nor are parties precluded from using traditional discovery methods to obtain further information regarding these matters, as for example asking an expert during a deposition about testimony given in other litigation beyond the four-year period specified in Rule 26(a)(2)(B) .
Advisory Comm. Notes for 1993 Amendments to Fed.R.Civ.P. 26(a).
To the extent that Peabody/Crowley object to the disclosure of information not within the scope of Rule 26(a)(2)(B), the Court finds that the specific example used by the Advisory Committee in the above-quoted passage reveals Peabody/Crowley's position to be without merit.
In fact, the Court recognizes that expert testimony is often critical to the outcome of litigation and effective cross-examination may be impossible in the absence of adequate discovery through the use of depositions and requests for production of background documents. Discovery of all material possessed by an expert relating to the matter at hand develops a record which prevents a sanitized presentation at trial, purged of less favorable opinions expressed at an earlier date.
The Court acknowledges that, in the case of All West Pet Supply Co. v. Hill's Pet Products Division, Colgate-Palmolive Co., the court denied a motion to compel the disclosure of documents, such as reports and transcripts of testimony, which were related to the previous case experiences of a party's expert witness. A review of the decision in All West Pet Supply, however, reveals that the court's holding was based upon (1) the fact that the opposing party did not use a procedurally correct method to request the production of the documents at issue and (2) the fact that the opposing party's request was untimely. Thus, the actual holding in All West Pet Supply does not alter the Court's analysis in this matter and thus, in light of the text of Rule 26 and the Advisory Committee Notes, this Court finds Peabody/Crowley may not withhold documents on grounds that Crowley allegedly neither considered nor relied upon the referenced documents in drafting his expert report.
152 F.R.D. 634 (D.Kan. 1993).
Id. at 640.
See id. (stating that "[t]he defendants have simply not followed the applicable procedural rules for obtaining these documents" and that "even if defendants . . . [had made] a proper request for discovery, it was untimely").
Unduly burdensome/Oppressive
Peabody/Crowley assert compliance with the subpoena would require employees of the Peabody firm to review more than 500,000 pages of hard copy documents and an enormous volume of computer-based files — a task which Crowley estimates would take 1000+ person-days. In addition, Peabody/Crowley assert many, if not most, of the documents requested are protected from disclosure by: (1) a protective order entered in another proceeding; (2) the attorney-client privilege and work product doctrine; (3) or non-disclosure agreements — thus, it would be a "massive undertaking" just to categorize the documents in order to prepare a privilege log.
Peabody/Crowley fail to distinguish between Requests 1-5 and Requests 6-8 in their "undue burden" argument. As the individual and/or entity resisting discovery, Peabody/Crowley have the burden to show facts justifying their objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome. This imposes an obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure required to produce the requested documents.
See Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D.Kan. 1991).
Based on the fact that Peabody/Crowley will not be required to respond to Requests 1-5 and the fact that Peabody/Crowley failed to specifically identify the burden in terms of time, expense etc. that would be involved in responding to each of the individual requests separately, the Court is unable to determine whether responding to Request 6, Request 7 or Request 8 would impose an undue burden upon Peabody/Crowley. Accordingly, the Court rejects Peabody/Crowley's argument in support of undue burden.
See, supra, at Section A(2)
Confidential Documents Protected from Disclosure by Previous Court Order
In support of their request for a protective order shielding the subpoenaed documents from disclosure, Peabody/Crowley state many of the requested documents are confidential and/or privileged in nature and remain subject to protective orders issued in other proceedings, orders to which Peabody/Crowley are legally bound to comply.
As a preliminary matter, confidentiality does not equate to privilege. Although information is not shielded from discovery on the sole basis that the information is confidential, one responding to a subpoena may, as Peabody/Crowley do here, request the court enter a protective order pursuant to Fed.R.Civ.P. 26(c) as a means to protect such confidential information.
Roberts v. Shawnee Mission Ford, No. 01-2113-CM, 2002 WL 1162438, *2 (D.Kan. Feb. 7 2002) (citing Folsom v. Heartland Bank, No. 98-2308-GTV, 1999 WL 322691, *2 (May 14, 1999) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979))).
While the decision whether to enter a protective order is within the Court's discretion, Fed.R.Civ.P. 26(c) nevertheless requires that one seeking the protective order provide "good cause" for the order. Specifically, Rule 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The person seeking a protective order has the burden to demonstrate good cause.
Thomas v. International Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995).
Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996).
In determining whether good cause exists to issue a protective order that prohibits the dissemination of documents or other materials obtained in discovery, "the initial inquiry is whether the movant has shown that disclosure of the information will result in a `clearly defined and very serious injury.'" The movant also must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."
Zapata v. IBP, Inc., 160 F.R.D. 625, 627 (D.Kan. 1995) (quoting Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 480 (S.D.N.Y. 1982)) (internal quotations omitted).
Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
The Court finds Peabody/Crowley have failed to make the "particular and specific demonstration of fact" required to establish that disclosure of the documents requested will result in a "clearly defined and very serious injury." Accordingly, the Court will deny the request for protective order shielding the documents from discovery. The nature of the requested discovery, nevertheless, warrants protection from unnecessary dissemination and the Court finds good cause to protect the confidentiality of the requested documents and information. Thus, the Court orders that any documents and/or information provided in response to the referenced requests are hereby deemed confidential. Defendants shall use them for no purpose other than this litigation. At the conclusion of this action and any appeals, Defendants shall return to Peabody/Crowley all such confidential information and copies thereof.
Conclusion
The Motion of Peabody/Crowley for Protective Order Barring Enforcement of Union Pacific Railroad Company Subpoena (doc. 325) is granted to the extent that Peabody/Crowley shall not be required to respond to Requests 1-5 of the subpoena at issue and is denied to the extent that Peabody/Crowley shall be required to respond to Requests 6-8.
It is further ordered that any documents and/or information provided in response to the referenced requests are hereby deemed confidential, Defendants shall use them for no purpose other than this litigation and, at the conclusion of this action and any appeals, Defendants shall return to Peabody/Crowley all such confidential information and copies thereof.
IT IS SO ORDERED.