Rowan v. Sunflower Elec. Power Corp. (D. Kan. June 2, 2016)
Why this Case is Important
In this case, the Plaintiff filed a motion to compel discovery of privileged documents, claiming PCI waived them, then the Plaintiff argued that PCI failed to object to producing documents on the basis of Privilege in its privilege logs. According to Hon. John Facciola, retired US Magistrate Judge in the District of Columbia, “we don’t know too much about the fundamental facts of this case, other than it's a battle between two lawyers who aren't getting along. It's really a matter on whether they had clearly communicated with each other, and whether or not some privileges were waved, none of which is terribly important. What is important about this case is its approach to discovery: although the lawyers did not brief the issue of proportion, the court did and said ‘I am only permitted to allow proportionate discovery.’”
Judge Facciola adds, "The failure to get a 502d order borders on malpractice. It is such a useful device. You can shape the privilege issue as reasonably and as intelligently as you and your opponent want to, and why lawyers don't do that more often is beyond me."
- Untimely Motion by Plaintiff: Court denied plaintiff’s motion based on the motion not being timely and that privilege was not waived.
- Automatic Waiver of Privilege Doesn’t Result for Failure to Comply with 26(b)(5): “Although waiver may result from a party's failure to timely respond to a Rule 34 request, in this case the claimed waiver arises from an alleged failure to comply with Rule 26(b)(5), which does not automatically result in waiver of the privilege.”
- Court has Obligation to Limit Discovery if Disproportionate: The important point about proportionality is that it’s a function of the definition of legitimate discovery. Now, the only discovery permitted by the new rule is as to matters that are relevant to the claim or defense. “Under the amended rule, the Court has an obligation to limit the frequency or extent of discovery if (1)“Unreasonably cumulative or duplicative,” (2) “Party seeking discovery has had ample opportunity to obtain the information by discovery in this action,” or (3) “Proposed discovery is outside the scope permitted by the rule.”