841 F.Supp. 1119 (D.Kan. 1993), Civ. A. 93-1122, Thomas v. Tyler

Docket Nº:Civ. A. 93-1122
Citation:841 F.Supp. 1119
Party Name:Thomas v. Tyler
Case Date:December 15, 1993
Court:United States District Courts, 10th Circuit, District of Kansas

Page 1119

841 F.Supp. 1119 (D.Kan. 1993)

Betty Jo THOMAS, as Guardian and Conservator for Carmen L. Flores, a minor; Raymond A. Parisza; Janice J. Partridge; David G. Jeffery; Lori L. Ross; Janice J. Partridge, as Executrix of the Estate of Glen E. Jeffery, deceased; and Carol R. Roth, as Administratrix of the Estate of Leta R. Flores, deceased, Plaintiffs,


Ned O. TYLER, Pegler-Sysco Transportation Company; Pegler-Sysco Food Services Company; and their Insurance Carrier, Employers Insurance of Wausau, a Mutual Company, Defendants.

Civ. A. No. 93-1122-MLB.

United States District Court, D. Kansas.

Dec. 15, 1993

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[Copyrighted Material Omitted]

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Gene H. Sharp, Rex A. Sharp, Neubauer, Sharp, McQueen, Dreiling & Morain, Liberal, KS, for Carmen L. Flores, Raymond A. Parisza, Leta R. Flores.

Brian G. Grace, Corlin J. Pratt, Grace, Unruh & Pratt, Wichita, KS, for Janice J. Partridge, David G. Jeffery, Lori L. Ross.

Stephen S. Brown, Niewald, Waldeck & Brown, Kansas City, MO, Paul P. Hasty, Jr., Bernard T. Schmitt, Wallace, Saunders, Austin, Brown & Enochs, Gregory F. Maher, Niewald, Waldeck & Brown, Overland Park, KS, for Ned O. Tyler.

Stephen S. Brown, Niewald, Waldeck & Brown, Kansas City, MO, Paul P. Hasty, Jr., Bernard T. Schmitt, Wallace, Saunders, Austin, Brown & Enochs, Overland Park, KS, Stephen W. Brown, Megaffin & Brown, Pratt, KS, Gregory F. Maher, Niewald, Waldeck & Brown, Overland Park, KS, for Pegler-Sysco Transp. Co., Pegler-Sysco Food Services Co., Employers Ins. of Wausau, a Mutual Company.


BELOT, District Judge.

This matter comes before the court on defendant Ned O. Tyler's in camera brief in support of his assertion of a Fifth Amendment privilege with respect to specific written interrogatories and requests for production of documents (RFPs) propounded by the plaintiffs. Tyler has also submitted a Second Motion for Discovery Stay or in the Alternative for Protective Order. (Doc. 87). Prior to ruling on these important discovery matters,

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a factual and procedural history of this case is in order.


On June 8, 1992, a truck driven by Tyler, who was employed by defendant Pegler-Sysco and insured by defendant Wausau Insurance, collided into a line of vehicles at a road construction stop on U.S. Highway 54 in Kiowa County. Three individuals were killed in the collision, and a number of other individuals were injured. As a result, on July 1, 1992, a criminal action was brought against Tyler in Kiowa County district court. Tyler was charged with vehicular homicide, aggravated vehicular homicide, and other less serious crimes. The case is set for trial in January 1994.

On March 30, 1993, plaintiffs filed this civil action against Tyler, Pegler-Sysco, and Wausau. Shortly thereafter, the attorneys for the respective parties began having difficulties with one another. The attorneys representing the various plaintiffs in this civil action entered appearances in Kiowa County district court as special prosecutors in the criminal action against Tyler.1 The defendants' attorneys became concerned about merging discovery in the criminal and civil actions as a result of the plaintiffs' attorneys' actions. The defendants failed to answer plaintiffs' complaints on time, moved to stay discovery until the criminal action was concluded, and moved for a protective order. The defendants contended that plaintiffs were using civil discovery to assist in the criminal prosecution and that, "[u]ntil the criminal charges are disposed of, defendants will have no alternative but to refuse to respond to discovery on the basis of self-incrimination." (Doc. 15, p. 2). The plaintiffs objected to the defendants' motion to stay discovery and, in turn, moved for default judgment and sanctions. (Doc. 12 & 16). With respect to the defendants' self-incrimination concerns, the plaintiffs acknowledged that "if Mr. Tyler feels obligated to take the Fifth Amendment in answering some of the discovery put to him, that would be his legal right. But he must assert that right to each particular question which he believes, in good faith, could tend to incriminate him." (Doc. 16, p. 2) (emphasis added).

By a July 14, 1993 order, these matters were assigned to U.S. Magistrate Judge Wooley. (Doc. 29). On July 22, 1993, Judge Wooley entered an Order denying the defendants' motion to stay discovery and granting the defendants additional time to respond to plaintiffs' discovery requests. (Doc. 32). In that Order, Judge Wooley instructed the defendants as follows:

Notwithstanding approval of the motion to extend time, defendants' responses to plaintiffs' outstanding discovery are now completely overdue, without authorization or excuse. Defendants shall have 21 days from this date (until August 10, 1993) to produce records, documents, and substantive responses required by plaintiffs' Request for Production of Documents and Interrogatories served on defendants simultaneously with the Summons and Complaint. Defendants have waived their right to object to plaintiffs' discovery and must answer substantively.

(Doc. 32, p. 2). The defendants, nevertheless, refused to respond to most of the RFPs and written interrogatories presented by the plaintiffs, maintaining that some of the discovery requests had not been received and asserting Fifth Amendment and attorney-client privileges with respect to others. The defendants collectively asserted a Fifth Amendment privilege without responding to each of the plaintiffs' RFPs and written interrogatories in particular or explaining how responding would incriminate them. In response, plaintiffs submitted requests for admission requesting that the defendants admit, with respect to each interrogatory and RFP, that responding would tend to incriminate them. The defendants refused to respond to these requests for admission as well.

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On August 16, 1993, the plaintiffs once again moved for sanctions for discovery abuses, objecting to the defendants' failure to respond and their blanket assertions of the Fifth Amendment privilege in contravention of Judge Wooley's July 22 Order. (Doc. 37). The defendants responded by asserting, inter alia, that the corporate defendants had a Fifth Amendment privilege in this particular case and that some of the documents which were responsive to the plaintiffs' RFPs were in the custody of Tyler's criminal attorney, Steve Joseph. (Doc. 45, pp. 6-7). Plaintiffs then made another motion for sanctions and a motion for an order compelling the defendants to properly respond to their discovery requests. (Doc. 53) Plaintiffs moved for a hearing on the matter. (Doc. 54). The defendants maintained their refusal to respond on Fifth Amendment grounds. (Doc. 57).

On October 13, 1993, the court issued an Order scheduling a hearing on the plaintiffs' motions for sanctions and directing and admonishing the defendants as follows:

On or before October 22, 1993, defendants' counsel shall provide to the court, in camera, fully answered and signed in accordance with the rules and without regard to any objection previously made or privilege asserted, responses to all discovery requests (interrogatories, requests for production of documents and requests for admission) mentioned in the motion for sanctions (Doc. 37) or otherwise unanswered or incompletely answered which have been served upon defendants by plaintiffs. Each discovery request must be responded to separately. "General" or "blanket" responses such as have been made previously will not be tolerated. All documents "loaned" or otherwise furnished to counsel Steve Joseph (or anyone else) shall be retrieved and shall be attached to the answers to the discovery requests. The documents shall be labelled to indicate the request to which they are responsive.

All objections to discovery requests served prior to July 22, 1993 are deemed to have been waived as indicated in Judge Wooley's order, with the sole exception of claims of fifth amendment privilege. Should such claims be reasserted, they shall be made in a separate document. The court will accept only specific, succinct claims which are separately made with respect to each discovery request. "General" or "blanket" claims of privilege will not be tolerated. Each claim of privilege shall state with specificity why and how the answering party claims an answer to a specific request will contravene the privilege. All claims of privilege must be supported by relevant, current authority.

(Doc. 65, pp. 2-3).

Notwithstanding the court's clear orders, the defendants' attorneys mailed a letter dated October 22, 1993 to the court regarding their assertion of the Fifth Amendment and attorney-client privileges. The letter stated that the defendants "respectfully assert their Fifth Amendment privilege to refrain from answering those interrogatories and/or requests for production that may tend to incriminate them. " (emphasis added). The letter offered no relevant authority in support of this collective reassertion of a Fifth Amendment privilege.

At best, the letter demonstrated defendants' attorneys profound misunderstanding of the law regarding the Fifth Amendment and its application to collective entities such as corporations. In all probability, the letter was nothing less than a deliberate attempt by defendants' counsel to continue to ignore this court's orders regarding discovery. Given the fact that Tyler was the only defendant being prosecuted and the Supreme Court's clear pronouncements that corporations do not have a Fifth Amendment privilege, see, e.g., Braswell v. United States, 487 U.S. 99, 105, 108 S.Ct. 2284, 2288, 101 L.Ed.2d 98 (1988) (stating that Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906) settled long ago that "a...

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