Kannaday v. Ball

• Decision Date: 03 April 2013
• Docket Number: Case No. 12-2742-RDR
• Parties: RACHEL KANNADAY, Plaintiff-Garnishor, v. CHARLES BALL, Special Administrator of the Estate of Stephanie Hoyt, Defendant, v. GEICO INDEMNITY INSURANCE COMPANY, Garnishee-Defendant.
• Court: U.S. District Court — District of Kansas

RACHEL KANNADAY, Plaintiff-Garnishor,

v.CHARLES BALL, Special Administrator of the Estate of Stephanie Hoyt, Defendant,

v.GEICO INDEMNITY INSURANCE COMPANY, Garnishee-Defendant.

Case No. 12-2742-RDR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: April 3, 2013

MEMORANDUM AND ORDER

This matter comes before the Court upon Plaintiff Rachel Kannaday's Motion to Compel (ECF No. 21). For the reasons set forth below, Ms. Kannaday's Motion to Compel is hereby granted.

I. Procedural Conference Requirement

Fed. R. Civ. P. 37(a)(1) and D. Kan. Rule 37.2 require a moving party, in good faith, to confer with opposing counsel about any discovery disputes before filing a motion to compel. When a motion to compel is filed, it "must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." ¹ The duty to confer generally requires counsel to "converse, confer, compare views, consult, and deliberate, or in good faith attempt todo so."² Ms. Kannaday's Motion states and correspondence confirms that counsel for the parties have tried to informally resolve the present discovery dispute. The parties, however, have reached an impasse concerning the production of a certain file held by Garnishee Defendant Geico Indemnity Insurance Company ("Geico"). Based on this information, the Court finds that Ms. Kannaday has satisfied the procedural conference requirement.

II. Background

The procedural history of this case is extensive and, therefore, the Court only provides a summary of the facts that are material to the current discovery dispute. This action arises from a July 13, 2005, motor vehicle accident involving an 18-wheel semi-trailer and an automobile. The accident resulted in the death of the automobile driver, Stephanie Hoyt, and caused life threatening injuries to Ms. Hoyt's passengers.

On March 17, 2006, Ms. Kannaday, one of the injured passengers, initiated a lawsuit against Charles Ball, the special administrator of Ms. Hoyt's estate. The lawsuit was filed in the District Court of Wyandotte County, Kansas, and was based on Ms. Hoyt's negligence that led to the automobile accident and Ms. Kannaday's injuries. Geico, Ms. Hoyt's liability insurer, hired counsel to defend this action on behalf of Ms. Hoyt's estate. On March 18, 2009, the court entered a judgment for $7,219,064.37 in favor of Ms. Kannaday. Ms. Kannaday proceeded to file a garnishment action to recover the judgment from Geico for its alleged negligence and bad faith acts while defending Ms. Hoyt's estate against Ms. Kannaday's lawsuit. Geico subsequently removed the case to the United States District Court for the District of Kansas.³

On June 18, 2010, while the garnishment action was pending in federal court, the Kansas Court of Appeals reversed in part the underlying District Court of Wyandotte County judgment and remanded the case for a trial on the merits. As a result, the garnishment action in federal court was dismissed without prejudice.⁴ On May 23, 2012, after a three-day trial on the merits, judgment was rendered in favor of Ms. Kannaday for $4,723,368.60.⁵ Initially, Ms. Kannaday appealed this judgment but dismissed the appeal in November 2012. Ms. Kannaday then initiated the present garnishment action to recover the entire judgment from Geico based on Geico's alleged negligence and bad faith acts while defending Ms. Hoyt's estate against Ms. Kannaday's lawsuit. On November 26, 2012, the present garnishment action was removed from the District Court of Wyandotte County, Kansas, to the United States District Court for the District of Kansas.⁶

The present issue before the Court is Ms. Kannaday's Motion to Compel Geico to fully produce the documents requested in Request No. 1 of Plaintiff's First Request for Production of Documents to Garnishee Defendant. Request No. 1 requests Geico to produce the "claim file with regard to the claim of Rachel Kannaday against the Estate of Stephanie Hoyt."⁷ Request No. 1 "does not include the documents previously produced from the claim file in Case No. 09-cv-02255-JWL/JPO," the first garnishment action removed to federal court.⁸ Ms. Kannaday states that "[t]he request does not cover the claim file with regard to the bad faith/negligence claimsagainst Geico."⁹ Geico objects to Ms. Kannaday's request stating that the remaining documents in the claim file of Ms. Kannaday against the Estate of Stephanie Hoyt are protected by the attorney-client privilege, protected by the work-product doctrine, and are irrelevant.

III. Discussion

Fed. R. Civ. P. 26(b)(1) provides that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." When a party fails to make disclosure of discovery, the opposing party may file a motion to compel. When a motion to compel is filed and asks the court to overrule certain objections, the objecting party must specifically show how each discovery request is objectionable.¹⁰ Objections initially raised but not supported in the objecting party's response to the motion to compel are deemed abandoned.¹¹ Similarly, any objections not asserted in the initial response to a discovery request but raised in response to a motion to compel will be deemed waived.¹² If, however, the discovery request seeks information that does not appear facially relevant, the burden is on the movant to demonstrate how the request is not objectionable.¹³ With this standard in mind, the Court addresses Geico's objections in turn.

A. Attorney-Client Privilege and the Work-Product Doctrine

Geico asserts that the remainder of the claim file requested by Ms. Kannaday is protected by the attorney-client privilege and the work-product doctrine. As the party asserting attorney-client privilege and work-product protection, Geico bears the burden of establishing that either or both apply.¹⁴ To carry that burden, Geico must make a "clear showing" that the asserted objection applies.¹⁵ Geico must "'describe in detail' the documents or information to be protected and provide 'precise reasons' for the objection to discovery."¹⁶ The "Federal Rules of Civil Procedure require a fairly detailed and specific showing to withhold discovery on privilege grounds."¹⁷ Fed. R. Civ. P. 26(b)(5) provides that when a party withholds documents or other information based upon a privilege or subject to protection as trial-preparation materials, the party must "(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible 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."

This detailed and specific showing required under Rule 26 (b)(5) is typically presented in the form of a privilege log.¹⁸ A privilege log under District of Kansas precedent should include the following:

(1) A description of the document explaining whether the document is a memorandum, letter, e-mail, etc.;

(2) The date upon which the document was prepared;(3) The date of the document (if different from # 2);

(4) The identity of the person(s) who prepared the document;

(5) The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney;

(6) The purpose of preparing the document, including an evidentiary showing, based on competent evidence, supporting any assertion that the document was prepared in the course of adversarial litigation or in anticipation of a threat of adversarial litigation that was real and imminent; a similar evidentiary showing that the subject of communications within the document relates to seeking or giving legal advice; and a showing, again based on competent evidence, that the documents do not contain or incorporate non-privileged underlying facts;

(7) The number of pages of the document;

(8) The party's basis for withholding discovery of the document (i.e., the specific privilege or protection being asserted); and

(9) Any other pertinent information necessary to establish the elements of each asserted privilege.¹⁹

Further, Geico must "provide sufficient information to enable the Court to determine whether each element of the asserted objection is satisfied."²⁰ This burden can be met only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege.²¹ Moreover, the objecting party has the burden to establish the existence of the privilege or immunity prior to the time the court is asked todetermine its sufficiency and applicability.²² A party's failure to meet the required showing when the trial court is asked to rule upon the existence of the privilege is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made.²³ "'The applicability of the privilege turns on the adequacy and timeliness of the showing as well as on the nature of the document.'"²⁴

It is well settled that if a party fails to make the required showing under Fed. R. Civ. P. 26(b)(5)(A) by not producing a privilege log or by producing an inadequate one, courts may deem the privilege waived.²⁵ Although this result is not mandated by Rule 26(b)(5)(A) itself, the Advisory Committee clearly contemplated this sanction. The Advisory Committee explains,

A party must notify other parties if it is withholding materials otherwise subject to disclosure under the rule or pursuant to a discovery request because it is asserting a claim of privilege or work product protection. To withhold materials without such notice is contrary to the rule,

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