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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN WAYNE FISH, et al., on behalf
of themselves and all others similarly
situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
KRIS KOBACH, in his official capacity as )
Secretary of State for the State of Kansas, et )
al.,
)
)
Defendants.
)
)

Case No. 16-2105-JAR-JPO

PLAINTIFFS’ MOTION FOR SANCTIONS
AND SUGGESTIONS IN SUPPORT
Plaintiffs Steven Wayne Fish, Donna Bucci, Charles Stricker, Thomas J. Boynton,
Douglas Hutchinson, and the League of Women Voters of Kansas (collectively, “Plaintiffs”),
hereby move the Court for sanctions due to Defendant Kobach's failure to comply with his
discovery obligations under Fed. R. Civ. P. 37, seeking the following relief: (1) attorneys’ fees in
connection with their January 23, 2017 motion to compel and all related filings, see Docs. 272,
273, 294, 324, and 332, including this motion; (2) an order compelling Defendant to remove the
“confidential” designation from the two responsive documents produced to Plaintiffs on May 12,
2017 (“the responsive documents”)—namely a document Defendant carried into a meeting with
then-President-Elect Donald Trump (the “Photographed Document”) and a document containing
draft amendments to the National Voter Registration Act (the “Draft Amendments”); (3) an order
re-opening discovery for the limited purpose of taking the deposition of Defendant Kris Kobach

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(“Defendant”) regarding issues related to the responsive documents; and (4) all other relief this
Court deems appropriate.
This motion arises from a dispute over the responsive documents, which this Court
directed Defendant to produce, in orders dated April 17, 2017, Doc. 320, and May 10, 2017,
Doc. 338. In the first of these orders, this Court found that Defendant had engaged in “wordplay meant to present a materially inaccurate picture of the documents,” and further suggested
that Plaintiffs could consider a motion for “sanctions” against Defendant after the documents had
been produced. Doc. 320 at 7 n.22. Having now reviewed the documents, Plaintiffs bring this
motion seeking three forms of relief, and any other relief this Court deems appropriate.
First, Plaintiffs request that Defendant be ordered to bear Plaintiffs attorneys’ fees for
Plaintiffs’ underlying motion to compel and related filings. Defendant improperly delayed
production of the responsive documents for months, first by denying that any responsive
documents existed, and when that charade would no longer hold, by claiming a variety of
inapplicable privileges. This discovery dispute was a simple matter that should have been
resolved quickly, but was prolonged unnecessarily by Defendant’s decision to “assert frivolous
arguments” and to take “an unsupportable position.” Id. at 8 n.22.
Second, Plaintiffs request an order to compel Defendant to remove the “confidential”
designation from the responsive documents, a designation that Defendant has improperly
deployed to try to shield the documents from public scrutiny—even though this Court has
already found that the documents are not subject to any protective order. There is no basis for
designating the responsive documents as confidential under the terms of the Protective Order,
which provides that a document may only be deemed confidential upon a showing of
“necessity,” because “disclosure and use is restricted by statute or could potentially cause harm

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to the interests of the disclosing party or nonparties.” Doc. 55 at 7, 2-3. Defendant comes
nowhere close to meeting that exacting standard here.
And third, Plaintiffs respectfully request to re-open discovery for the limited purpose of
taking the deposition of the one person who, by Defendant's own admission, can speak to the
responsive documents—Defendant Kobach. Because of Defendant’s tactics, Plaintiffs did not
obtain or have an opportunity to review the responsive documents until after the close of
discovery. Defendant was plainly motivated by a desire to avoid the additional discovery to
which these documents would lead. But having successfully delayed production of the
responsive documents until after the close of discovery, Defendant should not now be permitted
to use the discovery deadline as a shield to prevent deposition discovery that naturally arises
from the production of these “unquestionably relevant” documents. Doc. 320 at 2.
SUGGESTIONS IN SUPPORT
FACTS
1. On November 22, 2016, Plaintiffs served their Sixth Request for Production of
Documents (the “Sixth Request”), which sought “All documents and communications related to
draft amendments to the NVRA, including but not limited to any amendments related to the
purported purposes of preventing, deterring and/or identifying noncitizen registrations and/or
attempted registrations, registration fraud, and/or voter fraud.” Doc. 273-2.
2. On December 13, 2016, counsel for Plaintiffs, Angela Liu, conferred via telephone
with counsel for Defendant, Garrett Roe, about outstanding discovery. Mr. Roe stated his view
that the Sixth Request fell outside the bounds of relevance, and further stated that Plaintiffs
should withdraw the Sixth Request or he would move to quash.
3. On December 16, 2016, counsel for Plaintiffs, Ms. Liu, Sophia Lin Lakin and Orion
Danjuma, conferred via telephone with Mr. Roe and explained that the Sixth Request was
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relevant to reopened discovery as evidence that Defendant was seeking to alter the legal test
governing Plaintiffs’ NVRA claims. Potential amendments to the National Voter Registration
Act (“NVRA”) would also be relevant to whether Kansas had valid alternatives besides
documentary proof of citizenship (“DPOC”) to assess the eligibility of a voter registration
applicant. Mr. Roe said he would confer with his team but would likely file a motion to quash.
4. On December 22, 2016, Defendant sent Plaintiffs objections to the Sixth Request, and
included a Privilege Log in which he identified one responsive document described as
“Preliminary, non-final, draft language to the National Voter Registration Act shared only with
Brian Caskey and Garrett Roe.” Doc. 273-4. The log provided no date for the document.
5. On January 6, 2017,counsel for Plaintiffs, Ms. Liu, Ms. Lakin, Mr. Danjuma, and
Daphne Ha, conferred via telephone with counsel for Defendant, Mr. Roe and Bethany Lee. Mr.
Roe stated Defendant’s position that the Sixth Request sought information that was not relevant.
Mr. Danjuma reiterated Plaintiffs’ position on relevance, but stated that Plaintiffs would be
willing to narrow the request to documents regarding potential amendments or changes to the
NVRA that would affect how states may assess the eligibility of voter registration applicants.
Mr. Roe stated that he did not think that Defendant had any documents that are responsive. Mr.
Danjuma said, “I’m surprised to hear that.” Ms. Liu and Mr. Danjuma then mentioned a
document photographed in Defendant’s hands while Defendant stood next to then-PresidentElect Donald Trump, which had been described in press accounts of the meeting. See Doc. No.
273-5. Mr. Roe was aware of the document and replied, “You want that document?”
6. On January 11, 2017, Mr. Danjuma sent an email with a revised version of the Sixth
Request seeking “all documents and communications regarding potential amendments or
changes to the National Voter Registration Act affecting how officials may assess the eligibility

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of a voter registration applicant.” The email noted that “a document is responsive whether or not
it is connected with an actual draft NVRA amendment. Documents that simply discuss the
option or possibility of amending the NVRA should be produced.” Doc. 273-6.
7. On January 23, 2017, Plaintiffs moved to compel production of two documents
related to possible amendments to the NVRA. Doc. 272. As noted, supra, only one of these
documents had been listed on Defendant’s privilege log.
8. On February 7, 2017, Defendant filed a brief opposing Plaintiffs'' motion to compel
production. In his brief, Defendant wrote, “had Plaintiffs actually sought the documents that
they now claim they are seeking, Defendant would have responded that no such documents
exist.” Doc. 288 at 17. Additionally, Defendant stated the “text [of the document in question]
does not propose to ‘amend or alter’ an ‘eligibility-assessment procedures mandated by the
NVRA’ as Plaintiffs now hypothesize[.]” Id. at 18..
9. In an Order dated April 5, 2017, Judge O'Hara issued an order overruling Defendant’s
objection that the documents in question lay outside of the scope of discovery, and ordered
Defendant to submit the documents for in camera review, so that the Court could assess
Defendant’s objections as to relevance and privilege. Doc. 318.
10. In an Order dated April 17, 2017, after reviewing the documents in camera, Judge
O’Hara ordered Defendant Kobach to produce these two documents with the redaction of
irrelevant material, finding that the documents are “unquestionably relevant” and are not subject
to any privilege. Doc. 320 at 2.
11. Judge O'Hara also found that Defendant had made “statements [that], most charitably,
can be construed as word-play meant to present a materially inaccurate picture of the
documents.” Id. at 7 n.22. The Court further found that Defendant had taken “an unsupportable

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position,” and expressed concern that, as an “officer of the court,” Defendant had violated his
“duty of candor and a duty not to assert frivolous arguments.” Id. at 7-8 n.22. The Court also
noted that, “[a]fter plaintiffs review the documents to be provided under this order, the court
leaves it to them to decide whether to seek sanctions against defendant in this regard.” Id. at 7
n.22.
12. On April 19, 2017, Defendant filed a motion for an “Order to Stay Magistrate
O'Hara’s Enforcement Pending Review to Judge Robinson.” Doc. 321. In moving for a stay,
Defendant noted that no “harm to the public interest” would result from “a brief delay in
disclosure of a few redacted portions of two documents.” Doc. 322 at 4.
13. In an order dated April 23, 2017, Judge O’Hara granted Defendant’s motion for a
stay. Doc. 325. In particular, Judge O’Hara noted that Defendant had established the possibility
of irreparable harm absent a stay, holding that, “[w]ere defendant to produce the documents and
then Judge Robinson to deem the documents privileged, defendant undeniably would be
prejudiced,” because “there is no protective order in this case that would limit disclosure of
defendant’s documents.” Id. at 3 (emphasis added).
14. In an Order dated May 10, 2017, Judge Robinson rejected Defendant Kobach’s
objections, and ordered that “Defendant shall produce the two documents, redacted in conformity
with Judge O’Hara’s April 17 Order, by May 12, 2017.” Doc. 338 at 14.
15. On May 12, 2017, at approximately 6:43 pm ET, Defendant produced the responsive
documents. The documents bore the designation “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER.”
16. Later that day, Plaintiffs' counsel Dale Ho sent two emails to Defendant's counsel,
requesting that the documents be produced again without that designation. In particular,

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Plaintiffs’ counsel noted that the documents do not fall into any of the categories of confidential
documents set forth in the Protective Order in this case, and that Judge O'Hara had already
expressly found that the responsive documents are not subject to a protective order. See Ex. A
(email from Dale Ho to Garret Roe, dated May 12, 2017, at 6:35 pm ET; and email from Dale
Ho to Garret Roe, dated May 12, 2017, at 6:43 pm ET).
17. Later that day, counsel for Defendant responded that “the Protective Order protects
from disclosure any documents which would be exempt from disclosure under KORA. These
documents would be exempt under (a)(20) of KORA.” Ex. A (email from Garrett Roe to Dale
Ho, dated May 12, 2017, at 11:42 pm ET).
18. On May 19, 2017, counsel for Plaintiffs, Mr. Ho and Ms. Lakin conferred via
telephone with counsel for Defendant, including Defendant Kris Kobach, Mr. Roe, and Ms. Lee.
The parties discussed the issue of the confidential designation of the responsive documents, and
were unable to reach consensus. Counsel for Defendant indicated that they opposed removal of
the confidential designation, but would consider Plaintiffs’ position and would inform Plaintiffs’
counsel as to their final position later that day or on Monday, May 29. The parties agreed that
this would be sufficient to satisfy their meet-and-confer obligations for this dispute.
19. During that conversation, counsel for the Plaintiffs also raised the issue of re-opening
discovery for the limited purpose of taking a deposition concerning the responsive documents.
Defendant Kobach indicated that he was the only person who could speak to the documents.
Counsel for Defendant indicated that Defendant would oppose any deposition of Mr. Kobach.
20. On May 22, counsel for Defendant Mr. Roe sent an email to Mr. Ho indicating that
Defendant’s positions remained that the confidential designation should not be removed from the
responsive documents, and that Defendant would not consent to a deposition. See Ex. B, Email

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from Roe to Ho, dated May 22, 2017. Counsel for Plaintiff responded with an email confirming
that Plaintiffs would seek relief from this Court.
ARGUMENT
I.

DEFENDANT SHOULD BE SANCTIONED FOR FAILING TO COMPLY WITH
HIS DISCOVERY OBLIGATIONS UNDER RULE 37.
Defendant should be sanctioned for a pattern of misrepresentation and a fundamental lack

of candor directed at obscuring documents that Defendant wished not to disclose. Defendant’s
misleading conduct has not only unnecessarily prolonged this discovery dispute past the close of
discovery, and it has raised basic questions about the integrity of Defendant’s representations to
Plaintiffs and to the Court, and merits sanctions.
The Court has “inherent power to impose a variety of sanctions to regulate its docket,
promote judicial efficiency and deter frivolous filings.” Resolution Trust Corp. v. Dabney, 73
F.3d 262, 267 (10th Cir. 1995) (citing, inter alia, Chambers v. NASCO, Inc., 501 U.S. 32, 50
(1991)); see also Layne Christensen Co. v. Bro-Tech Corp., No. Civ. A. 09-2381-JWL, 2011 WL
4688836, at *7 (D. Kan. Oct. 6, 2011) (same). As Judge Robinson explained in sanctioning a
litigant in Kindergartners Count, Inc. v. DeMoulin, 209 F.R.D. 466, 468–69 (D. Kan. 2002),
The Federal Rules of Civil Procedure give the court “ample tools to deal with a
recalcitrant litigant.” Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Whether
or not to impose sanctions is within the discretion of the court. See National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976). Rule 37(b)(2)
provides a variety of sanctions against a party who fails to cooperate in discovery,
including default judgment. “In determining the appropriate sanction to be imposed, the
court must consider the purposes to be served by the imposition of sanctions.”
Resolution Trust Corp. v. Williams, 162 F.R.D. 654, 660 (D. Kan.1995). Such purposes
include “(1) deterring future litigation abuse, (2) punishing present litigation abuse, (3)
compensating victims of litigation abuse, and (4) streamlining court dockets and
facilitating case management.” Id. “Sanctions under Rule 37 are intended to ensure that
a party does not benefit from its failure to comply, and to deter those who might be
tempted to such conduct in the absence of such a deterrent.” Starbrite Waterproofing
Co., Inc. v. AIM Const. & Contracting Corp., 164 F.R.D. 378, 381 (S.D.N.Y.1996)
(citations and internal quotations omitted). The court should diligently apply sanctions
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under Rule 37 both to penalize those who have engaged in sanctionable misconduct and
to deter those who might be tempted to such conduct in the absence of such a deterrent.
Olcott v. Delaware Flood Co., 76 F.3d 1538, 1555 (10th Cir. 1996).
Sanctions with respect to the underlying motion to compel are clearly warranted here for
several reasons. As an initial matter, the Court overruled all of Defendant’s objections and found
that those objections were not substantially justified. The Court found that Defendant had taken
“an unsupportable position,” and expressed concern that, as an “officer of the court,” Defendant
had violated his “duty not to assert frivolous arguments.” Doc. 320 at 7-8 n.22. That finding, in
itself, justifies sanctions. See Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 387 (D.
Kan. 2005) (awarding attorneys’ fees as a discovery sanction where “the Court has granted
Plaintiffs’ Motion to Compel in its entirety and overruled [the party’s] objections, a significant
number of which the Court finds were not substantially justified”).
But that is not all. When this Court ordered the production of the documents, it also
admonished Defendant for making “statements [that], most charitably, can be construed as wordplay meant to present a materially inaccurate picture of the documents,” and noted that
Defendant may have violated his “duty of candor” in the process. Doc. 320 at 7-8 n.22. This is
not the only time such questionable conduct has occurred in this case. Defendant knew, at very
latest by December 16, 2016, that Plaintiffs were seeking documents reflecting efforts by
Defendant to alter the core provisions of the NVRA implicated in this case. Yet in his privilege
log, Defendant failed even to identify the Photographed Document—despite the fact that it was
clearly responsive to Plaintiffs Sixth Request. Indeed, a contemporaneous press account reported
that, on the Photographed Document, the words “‘Draft Amendments to National Voter—’”
c[ould] be seen, perhaps a reference to the National Voter Registration Act.” Doc. 273-5. And
with respect to the one document that Defendant did identify on his privilege log, the Draft

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Amendments themselves, Defendant omitted any date (or approximate date) on the log,
obscuring whether the document was circulated before or after the Tenth Circuit's October 19,
2016 decision affirming this Court's preliminary injunction.
Yet when Plaintiffs reiterated during the January 6, 2017 meet-and-confer that they were
seeking any documents related to efforts to change eligibility assessment under the NVRA,
counsel for Defendant again stated that he didn’t think that Defendant had any documents that
are responsive. And then, in briefing this dispute—a much more formal undertaking than a
telephonic meet-and-confer, and one in which Defendant’s counsel and almost certainly
Defendant himself had ample opportunity to think about and reconsider the representations being
made—Defendant claimed that “no such documents exist” that would be responsive to the Sixth
Request, and that the Draft Amendments “do[] not propose to ‘amend or alter’ an ‘eligibilityassessment procedures mandated by the NVRA.’” As the Court has itself observed from review
of the documents in camera, there is simply no basis for this misrepresentation.
These statements are part of a broader pattern of what Judge Robinson has described as
Defendant’s “gamesmanship” in this case. Doc. 334 at 15-16. There was no legitimate basis for
Defendant’s representations that his documents were non-responsive, or for Defendant’s various
attempts to evade production. The Draft Amendments and the Photographed Document propose
to alter the operative text governing this case, and thereby contain “exactly the type of
information” that Plaintiffs repeatedly made clear was being sought. Doc. 320 at 8. Defendant
may have been entitled to object to producing documents on the grounds of relevance and
privilege. But he was not entitled to mislead Plaintiffs and the Court by presenting what “most
charitably” could be called “a materially inaccurate picture of the documents.” Doc. 320 at 7
n.22. Discovery depends upon forthright representations by counsel. Where, as here, counsel

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endeavors to evade discovery obligations and thus violates his duty of candor toward the Court,
discovery sanctions are appropriate.
At a minimum, Defendant should be ordered to bear Plaintiffs’ attorneys’ fees in
connection with this dispute. See, e.g., Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1,
5-6, 13 (1st Cir. 2005) (affirming attorneys’ fees of $6,538 as discovery sanctions based on
counsel’s “lack of forthrightness” and “[h]alf-truths”), see also 1-800 Contacts, Inc. v. Lens.com,
Inc., 722 F.3d 1229, 1256 (10th Cir. 2013) (affirming discovery sanctions based on defendant's
“dilatory and obstructive responses to request [for] . . . indisputably relevant” documents), cf.
Wesley v. Don Stein Buick, Inc., 184 F.R.D. 376, 379 (D. Kan. 1998) (sanctions imposed under
Fed. R. Civ. P. 11 for making frivolous arguments). In fact, the Court would be amply justified
in imposing far more drastic sanctions—particularly with respect to the misrepresentations to the
Court contained in Defendants’ opposition brief on the motion to compel—than an award of fees
to Plaintiffs’ counsel. See, e.g., Archibeque v. Atchison, Topeka and Santa Fe Ry. Co., 70 F.3d
1172, 1174-75 (10th Cir. 1995) (affirming dismissal of FELA case as discovery sanction where
plaintiff provided false and misleading discovery answers).
In sum, the Court’s previous findings merit sanctions with respect to the underlying
motion to compel the responsive documents, including attorneys’ fees in connection with that
motion and all related filings, and all other relief the Court deems appropriate, including, inter
alia, the additional relief requested by Plaintiffs, as described below. See infra.
II.

THE COURT SHOULD ORDER THAT THE CONFIDENTIAL DESIGNATION
BE REMOVED FROM THE RESPONSIVE DOCUMENTS
After withholding the responsive documents for several months on the basis of

“unsupportable position[s],” Doc. 320 at 7-8 n.22, Defendant has now inappropriately designated
them as “confidential,” in order to shield their disclosure to the public. The Court should order
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that this designation be removed—both because the Protective Order compels that result, and as
a further sanction for Defendant’s conduct.
Defendant takes the position that the Protective Order in this matter “protects [the
responsive documents] from disclosure.” Ex. A (email from Roe to Ho, dated May 12, 2017).
That is incorrect. As an initial matter, the Protective Order provides that “there is a presumption
in favor of open and public judicial proceedings in the federal courts,” and that “this Order will
be strictly construed in favor of public disclosure and open proceedings wherever possible.”
Doc. 55 at 2 (emphasis added). The Order permits the parties to designate certain materials as
“confidential” only where “disclosure and use is restricted by statute or could potentially cause
harm to the interests of the disclosing party or nonparties.” Id. at 2-3. It further provides that
“[t]he designation of any material or document as Confidential Information is subject to
challenge by any party,” and that “[t]he burden of proving the necessity of a confidentiality
designation remains with the party asserting confidentiality.” Id. at 7-8 (emphasis added).
Defendant cannot carry that burden here, because he has not even attempted to establish the
“necessity” of a confidential designation to prevent harm that will come to him as a result of the
public disclosure of the responsive documents in their current redacted form.
In fact, this Court has already made clear that the Protective Order in this case does not
apply to the responsive documents. The April 23 Order granting Defendant’s motion for a stay
was based on a finding that, if Defendant immediately produced the documents to Plaintiffs but
Judge Robinson were to subsequently deem them privileged, then Defendant would be
prejudiced because there was “no protective order in this case that would limit disclosure of
defendant's documents.” Doc. 325 at 3 (emphasis added). Defendant never disputed that
holding, which is law of the case, and cannot be revisited now. See, e.g., Storts v. Hardee's Food

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Sys., Inc., No. 95-1036-MLB, 1997 WL 557310, at *1 (D. Kan. Aug. 20, 1997) (discovery orders
are law of the case); see also Lester v. City of Lafayette, Colo., 639 Fed. App’x. 538, 540-41
(10th Cir. 2016) (magistrate’s prior ruling on discovery was law of the case); see also Lane v.
U.S., Nos. 90-4228-SAC, 90-4229-SAC, 1992 WL 405295, at *9 (D. Kan. 1992) (noting that a
ruling which plaintiffs never sought review of constituted law of the case).
Indeed, Defendant has expressly acknowledged that the order granting the motion to
compel would likely result in disclosure of the responsive documents to the public. In
Defendant’s motion to stay that order, he argued that there would be no “harm to the public
interest” caused by “a brief delay in disclosure of a few redacted portions of two documents.”
Doc. 322 at 4. Defendant thus plainly acknowledged that the public would eventually see the
responsive documents if this Court’s order granting the motion to compel were upheld. Having
effectively conceded that nothing other than his now-rejected claims of privilege could shield the
unredacted portions of the responsive documents from public disclosure, Defendant cannot claim
confidentiality now. And removal of the confidential designation is particularly appropriate
here, given the Protective Order’s presumption in favor of public access, see Doc. 55 at 2; this
Court’s determination that the documents are “unquestionably relevant,” see Doc. 320 at 2; and
the legitimate public interest surrounding this case and these documents in particular.
Nevertheless, Defendant invokes the Protective Order’s provision permitting the parties
to designate as confidential any documents that fall within certain specified categories. The only
category Defendant claims is implicated here includes “[i]nformation that is exempt from
disclosure under the Kansas Open Records Act” (or “KORA”). Doc. 55 at 3. In particular,
Defendant submits that the responsive documents are exempt from disclosure under Section

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(a)(20) of KORA, which provides that a public agency “shall not be required to disclose” certain
categories of documents, including
(20) Notes, preliminary drafts, research data in the process of analysis, unfunded
grant proposals, memoranda, recommendations or other records in which opinions
are expressed or policies or actions are proposed, except that this exemption shall
not apply when such records are publicly cited or identified in an open meeting or
in an agenda of an open meeting.
Kan. Stat. Ann. § 45-221(a)(20). Defendant's argument—even if it were not already barred by
law of the case—is unavailing for two additional reasons.
First, the exemption in Section (a)(20) of KORA does not apply to the responsive
documents. As an initial matter, Defendant’s use of KORA as a “shield to prohibit access to
private records” is at odds with KORA's fundamental purpose as a “sword to obtain access to the
public record.” Hunter Health Clinic v. WSU, 52 Kan. App. 2d 1, 12 (2015). The Act itself,
along with judicial interpretations “reveal that it is to be liberally construed and applied to
promote the public policy of making public records open by any person.” Telegram Publ’g. Co.,
v. Kansas Dep’t of Transp., 275 Kan. 779, 789 (Kan. Sup. Ct. 2003). Thus, although KORA
enumerates classes of documents which may be exempt from the disclosure requirements,
exceptions are “narrowly construed,” and the burden of proving the applicability of the exception
lies with the public entity opposing disclosure. See Telegram Publ’g. Co., 275 Kan. at 789;
Wichita Eagle & Beacon Publ’g Co. v. Simmons, 274 Kan. 194, 209 (Kan. Sup. Ct. 2002)
(citation omitted). The Kansas Legislature has made its intent to facilitate openness in public
records clear, reiterating the criteria by which closure laws should be measured and articulating:
It is the intent of the legislature that exceptions to disclosure under the open
records act shall be created or maintained only if: (1) The public record is of a
sensitive or personal nature concerning individuals; (2) the public record is
necessary for the effective and efficient administration of a governmental
program; or (3) the public record affects confidential information.

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Kan. Sta. Ann. § 45-229(a)(1)-(3), amended by 2017 Kan. Sess. L. H.B. No. 2301. Accordingly,
the “preference for openness in public records remains the starting place of every KORA issue.”
Theresa Marcel Nuckolls, “Kansas Sunshine Law: How Bright Does It Shine Now?,” 72 J. Kan.
B. Ass’n. 28, 29 (May 2003).
Here, Section (a)(20) exempts from KORA disclosure “notes, preliminary drafts, research
data in the process of analysis, unfunded grant proposals, memoranda, recommendations, or
other records in which opinions are expressed or policies or actions are proposed,” and does not
apply to records that have been “cited in an open meeting or in an agenda to an open meeting.”
Id. Also referred to as the “preliminary working papers exception,” this exception mirrors the
deliberative process privilege and is “intended to protect an agency’s internal pre-decisional
deliberations from early disclosure” so that those deliberations are “protected from premature
public scrutiny.” Nuckolls, 72 J. Kan. B. Ass’n. at 40 (quoting Ted P. Fredrickson, “Letting the
Sunshine In: An Analysis of the 1984 Kansas Open Records Act,” 33 U. Kan. L. Rev. 205
(Winter 1984)).
As this Court confirmed in its April 17 and May 10, 2017 orders, the responsive
documents are not predecisional or deliberative, and they are far afield from drafts or
recommendations preliminary to a final agency decision, the basis for the Section (a)(20)
exception. See Docs. 320, 338. Predecisional documents are those that “assist an agency
decisionmaker in arriving at the decision[,]” and which precede adoption of agency policy.
S.E.C. V. Kovzan, No. 11-2017-JWL, 2013 WL 647300, at *4 (D. Kan. Feb. 21, 2013). But by
Defendant’s own admission, Defendant “would not have the authority to introduce legislation
(let alone vote on it)” as he is “not a sitting member of Congress.” Doc. No. 273-3 at 5. Lacking
any decision-making authority with respect to the Draft Amendments, which are a document

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created by Defendant and shared with co-workers outside of the legislative process, Defendant
cannot reasonably contend that the Draft Amendments reflect the state’s predecisional
determinations that would be entitled to protection. Moreover, Defendant never submitted that
the Photographed Document was predecisional, and has instead described the document as
intended to “advise the President-elect in numerous policy areas” and containing “advice
regarding crucial Department of Homeland Security policy decisions.” Doc No. 327 at 24, 26.
This document does not reflect the state’s preliminary drafts in which “opinions are expressed or
policies or actions are proposed,” but is rather a document Defendant prepared purportedly to
share with the President-elect in Defendant's capacity as a member of the transition team. 1
Accordingly, KORA Section (a)(20)’s preliminary working papers exception does not justify
Defendant’s confidentiality designation.
Second, even if the KORA (a)(20) exception were applicable to the responsive
documents—and, as explained above, it is not—that fact, by itself, would not render the
documents confidential under the Protective Order. By its terms, the Protective Order directs the
parties to “limit their designation of ‘Confidential Information’” to specified categories of
information or documents. Doc. 55 at 3 (emphasis added). In other words, the Protective Order
prohibits the parties from designating anything outside of particular categories of documents as
“confidential.” But it does not follow that all documents within these enumerated categories are
confidential per se. Rather, Defendant must still make a particularized showing of “necessity”
1

Furthermore, Defendant has waived any argument that KORA applies to the Photographed
Document. He previously argued that “it is not a document within the custody or control of the
office or the Secretary of the State,” but rather “was created and is maintained in Kobach’s
capacity as a Trump advisor.” Doc. 273-7. Having argued that the Photographed document was
created and maintained in his personal as opposed to his official capacity, he cannot now turn
around and argue the opposite, i.e., that the document is a “public record” maintained by a
“public agency” pursuant to KORA. See Kan Stat. Ann. § 45-217(f)-(g).
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that public disclosure of these documents—here, in their currently-redacted form—would “harm
. . . the interests of the disclosing party or nonparties,” a standard that he cannot satisfy here.
Doc. 55 at 7, 2.
Moreover, the mere fact that these documents may be exempt from mandatory disclosure
obligations under state law pursuant to a KORA request does not establish that they are properly
deemed confidential or otherwise protected for purposes of this federal litigation. “[I]n federal
question cases, privilege determinations depend solely on the application of federal statutes and
general principles of common law as interpreted by federal courts.” Mason v. Stock, 869 F.
Supp. 828, 832 (D. Kan. 1994). And here, in particular, “[t]he fact that [a provision of KORA]
exempts [certain records] from disclosure requirements does not mean that such records are
privileged in a separate legal proceeding.” United States v. Hudson, No. 13-20063-01-JWL,
2013 WL 4768084, at *6 (D. Kan. Sept. 5, 2013) (emphasis added) (citing Doe v. Lyons, No.
CIV. A. 96-0341, 1996 WL 751531, at *3 (Mass. Super. Dec. 23, 1996) (finding the fact that
legislature has designated particular type of report not to be “public” does not mean that
legislature also has circumscribed a litigant’s right to access report under civil discovery rules)).
See also Reliastar Life Ins. Co. v. Warrior, No. CIV. A. No. 06-2486-CM-DJW, 2007 WL
2669558, at *5 (D. Kan. Sept. 7, 2007) (Indeed, “[n]othing in [KORA] prohibits” the production
of documents that are otherwise exempt from the law’s mandatory disclosure requirements).
Accordingly, even if the responsive documents were exempt from mandatory disclosure pursuant
to a KORA request under state law, that would not render them confidential for purposes of the
Protective Order in this case.

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III.

DISCOVERY SHOULD BE RE-OPENED FOR THE LIMITED PURPOSE OF A
DEPOSITION OF DEFENDANT WITH RESPECT TO ISSUES RELATED TO
THE RESPONSIVE DOCUMENTS
This Court should also order that discovery be re-opened, solely for the purpose of a

limited deposition of Defendant Kobach. Such an order would be appropriate on its own terms
given the timing of production of the responsive documents—which occurred after the close of
discovery—and is also appropriate as a sanction for Defendant’s improper conduct.
Plaintiffs sought the responsive documents in a timely manner pursuant to a discovery
request on November 22, 2016. But due to extensive motions practice, the documents were not
produced to Plaintiffs until May 12, 2017, which was after the close of discovery. This Court
has held that these documents are “unquestionably relevant,” Doc. 320 at 2, but Plaintiffs have
had no opportunity to take a deposition concerning topics related to these documents, such as
when and why these documents were created, and by whom; the process that led to their
creation; with whom they were shared, if anyone; how they were used or what information they
relied upon; and other issues related to the responsive documents. According to Defendant, the
only person who can testify about these documents is Defendant Kobach himself.
A court may modify its scheduling order and reopen discovery upon a showing of good
cause. Fed. R. Civ. P. 16(b)(4). “Whether to extend or reopen discovery is committed to the
sound discretion of the trial court[.]” Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)
(citations omitted). A trial court should consider several factors in deciding whether discovery
should be reopened:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the nonmoving party would be prejudiced, 4) whether the moving party was diligent in obtaining
discovery within the guidelines established by the court, 5) the foreseeability of the need
for additional discovery in light of the time allowed for discovery by the district court,
and 6) the likelihood that the discovery will lead to relevant evidence.
Id. (citations omitted). The factors weigh heavily in favor of Plaintiffs.
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First, the trial is not imminent. The trial in this case is not scheduled until March 6, 2018,
nearly ten months away. This Court has permitted the reopening of discovery under shorter time
periods in the past. See Fish v. Kobach, No. 16-2105-JAR-JPO, 2016 WL 6395227 at *3 (D.
Kan. Oct. 28, 2016) (hereinafter Fish) (granting Defendant’s motion to reopen discovery less
than five months before the then-scheduled trial date). And a limited deposition can certainly be
completed well before the dispositive motions deadline of July 7, 2017. Thus, the first factor
weighs in favor of Plaintiffs.
With respect to the second factor, unsurprisingly, Defendant opposes this request. But
that fact by itself cannot be a basis for denial of this motion.
The third factor favors Plaintiffs because Defendant would not be prejudiced. Plaintiffs
seek to re-open discovery for the limited purpose of taking the deposition of Defendant regarding
issues related to the responsive documents, which should have been produced in response to
Plaintiffs’ Sixth Request for Production of Documents. Any additional time and expense
required to attend the deposition are part of the normal course of litigation, and a deposition on
the subject of two documents, both of which Defendant created, would not be unusually
burdensome. See Spacecon Specialty Contractors, LLC v. Bensinger, Civ. A. No. 09-cv-02080REB-KLM, 2010 WL 4823056, at *3 (D. Colo. Nov. 15, 2010) (reopening discovery not
prejudicial when attending deposition not unusually burdensome). Additionally, this Court has
previously granted Defendant’s request for an additional three-month discovery period less than
five months before trial, see Fish, 2016 WL 6395227 at *3, while Plaintiffs ask to reopen
discovery only for the limited purpose of taking one deposition. Granting Plaintiffs’ request
would not prejudice Defendant, and thus the third factor weighs in favor of Plaintiffs.

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The fourth factor also favors Plaintiffs, who have been diligent in obtaining discovery
within the guidelines established by this Court. On October 28, 2016, this Court issued a
Memorandum and Order reopening discovery for 90 days to allow for discovery regarding the
Tenth Circuit's two-step analysis. Id. at *2 (quoting Fish v. Kobach, 840 F.3d 710, 739 (10th Cir.
2016)). Plaintiffs served their Sixth Request less than a month later, on November 22, 2016,
well within this reopened discovery period. Plaintiffs moved to compel production of the
responsive documents on January 23, 2017, also within the reopened discovery period, and only
after Defendant’s various improper attempts to withhold production of the responsive
documents. As noted, Defendant finally produced the two responsive documents on May 12,
2017, nearly six months after Plaintiffs’ request. Plaintiffs are compelled to seek this relief after
the close of discovery only because Defendant initially withheld and then ultimately did not
produce the responsive documents until after the discovery deadline established by this Court.
The fifth factor favors Plaintiffs because the need for the deposition was not foreseeable
during the discovery period, as Plaintiffs could not have foreseen that Defendant would withhold
responsive documents on an improper basis and fail to produce them until after the reopened
discovery period had closed. And because Plaintiffs’ counsel were not able to review the content
of the responsive documents until May 12, they could not have foreseen that a deposition
concerning the documents would be necessary until just recently—particularly given that,
throughout most of the discovery period, Defendants’ counsel was misrepresenting that no
responsive documents existed.
Finally, the sixth factor favors Plaintiffs because it is highly likely that the discovery will
lead to relevant evidence. As noted, this Court has already held that the responsive documents
are “unquestionably relevant,” Doc. 320 at 2, and it follows that a deposition of Defendant

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concerning issues related to these documents would be equally relevant. Indeed, it is difficult for
Plaintiffs to make use of these documents in these proceedings if they are not permitted to take a
deposition as to their provenance. And by Defendant Kobach’s own admission, that is
something about which only he himself can testify. See supra Statement of Facts at ¶ 19.
Thus, the Smith factors weigh strongly in favor of Plaintiffs, and discovery should be reopened for the limited purpose of allowing Plaintiffs to take the deposition of Defendant
regarding issues related to the responsive documents. Such relief would also be an appropriate
sanction given the circumstances here. Cf. Reed v. Bronson & Migliaccio LLP, No. CIV.A.072363JWLGLR, 2008 WL 687202, at *2 (D. Kan. Mar. 11, 2008) (granting motion to compel
deposition and for sanctions); Dixon v. Certainteed Corp., 164 F.R.D. 685, 692 (D. Kan. 1996)
(granting order to compel re-deposition where parties were unaware of relevant statements by
deponent).
CONCLUSION
The saga of the responsive documents has gone on long enough. For the reasons stated
above, Plaintiffs request that the Court sanction Defendant, by (1) assessing attorneys’ fees in
connection with the underlying motion to compel; (2) ordering that the “confidential”
designation be removed from the responsive documents; (3) re-opening discovery solely for the
limited purpose of deposing Defendant with respect to the responsive documents; and (4)
imposing all other sanctions the Court deems appropriate pursuant to Fed. R. Civ. P. 37.

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Dated May 22, 2017.
Respectfully submitted,
/s/ Stephen Douglas Bonney
STEPHEN DOUGLAS BONNEY (#12322)
ACLU Foundation of Kansas
6701 W. 64th Street, Suite 210
Overland Park, Kansas 66202
(913) 490-4102
dbonney@aclukansas.org

/s/ Dale E. Ho
DALE E. HO*
R. ORION DANJUMA*
SOPHIA LIN LAKIN*
American Civil Liberties Union Foundation, Inc.
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2693
odanjuma@aclu.org
dale.ho@aclu.org
slakin@aclu.org

NEIL A. STEINER*
REBECCA KAHAN WALDMAN*
Dechert LLP
1095 Avenue of the Americas
New York, NY 10036-6797
Phone: (212) 698-3500
Fax: (212) 698-3599
neil.steiner@dechert.com
rebecca.waldman@dechert.com
Attorneys for Plaintiffs

ANGELA M. LIU*
Dechert LLP
35 West Wacker Drive
Suite 3400
Chicago, IL 60601-1608
Phone: (312) 646-5800
Fax: (312) 646-5858
angela.liu@dechert.com
*admitted pro hac vice

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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that, on the May 22, 2017, I electronically filed the
foregoing document using the CM/ECF system, which automatically sends notice and a copy of
the filing to all counsel of record.
/s/ Stephen Douglas Bonney
STEPHEN DOUGLAS BONNEY (#12322)
Attorney for Plaintiffs

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