IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAVID BEATY and DB SPORTS, LLC,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
KANSAS ATHLETICS, INC.,
Defendant.

Case No. 19-2137-KHV-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel (ECF No. 54). The
Court has considered the parties’ oral arguments at the December 4, 2019 hearing,
Plaintiffs’ written Motion, and Defendants’ Opposition to Plaintiffs’ Motion to Compel
(ECF No. 56) and is now prepared to rule. For the reasons set forth below, Plaintiffs’
Motion is GRANTED.
I.

Background1
On November 4, 2018, Plaintiff David Beaty was the coach of Kansas Athletics,

Inc. (“KAI”)’s football program when Jeff Long, Chief Executive Officer of KAI,
terminated Beaty’s multi-year employment contract without cause. Mr. Long informed
Beaty that KAI would honor its obligation to pay out the $3 million remaining on his

1

Unless otherwise noted, the information recited in this section is taken from Plaintiffs’ Complaint
(ECF No. 1); Defendant’s Answer (ECF No. 34); and the briefing regarding Plaintiffs’ Motion to
Compel (ECF Nos. 54, 56). This background information should not be construed as judicial
findings or factual determinations.
1

 contract and released a media statement saying the same. Beaty contends KAI officials
then began searching for a way to avoid paying the contractual obligation. Before the first
payment was due on the $3 million, the University of Kansas’ (“KU”) General Counsel
wrote a letter to Beaty informing him that KAI would not make the first payment owed
under the contract. The basis for the refusal was because KAI was being investigated by
the NCAA2 regarding whether a football staff member (not Beaty) violated a NCAA rule
during Beaty’s tenure. KAI’s letter to Beaty indicated any severance payments would be
suspended until completion of the investigation, and at that time KAI would determine
whether Beaty’s termination would be for cause. Plaintiffs contend KAI used the selfinitiated investigation to justify failure to comply with its duty to pay out his contract.
In connection with Beaty’s employment agreement, KAI correspondingly entered
into a multi-year professional services agreement with DB Sports, LLC, under similar
termination terms. Following KAI’s refusal to pay, on March 12, 2019, Plaintiffs Beaty
and DB Sports, LLC filed suit against Defendant KAI alleging breach of contract and
violation of the Kansas Wage Payment Act, KSA § 44-315(b).
In its Answer, Defendant admits it terminated Beaty without cause and maintains it
did not know of the allegations leading to the present NCAA investigation until conducting
exit interviews of employees. (ECF No. 34 at 4, 34.) Among other defenses, Defendant
argues Plaintiffs are not entitled to any relief based upon the affirmative defense of the
“after-acquired-evidence doctrine.” (ECF No. 34 at 14, ¶ 4.) KAI’s general defense is

2

National Collegiate Athletics Association.
2

 Beaty is not owed any further money because he violated NCAA rules, which would
constitute a termination with cause.
Following a scheduling conference in September 2019 (ECF No. 37), this case has
continued to progress through discovery.
II.

Plaintiffs’ Motion to Compel (ECF No. 54)
On December 4, 2019, this Court held a conference to discuss a discovery issue

raised by the parties. Following that conference, the undersigned established briefing
deadlines for a motion to compel encompassing the arguments presented by counsel during
the conference, leading to the instant motion. (Order, ECF No. 52.) After review of both
the oral and written arguments, the Court is prepared to rule.
A.

Discovery at Issue

Plaintiffs propounded discovery to Defendant directed at eliciting information about
other NCAA violations by head coaches and the resulting treatment of the coaches by KAI.
Plaintiffs contend no other head coaches neither had their pay suspended nor had they been
fired for cause despite the presence of NCAA violations. According to Plaintiffs, this
includes the current head football coach who was accused of violating the same NCAA
rule as Beaty—allowing analysts to instruct players. The discovery Plaintiffs seek falls
into three main categories:
(1) KAI’s actions and employment decisions in the wake of the NCAA
alleging multiple Level 1 violations against Kansas basketball that relate
to a federal criminal conviction secured in the Southern District of New
York that featured references to multiple Kansas basketball coaches—
who are still employed by KAI—during the trial;

3

 (2) KAI’s actions and employment decisions in the wake of the Kansas City
Star publishing a detailed account of Kansas football having multiple
analysts engaging in impermissible coaching activities in 2019 under Les
Miles; and
(3) KAI’s actions and employment decisions in the wake of the NCAA
alleging and then determining that Kansas football had engaged in
academic fraud under Mark Mangino, leading to Kansas being placed on
probation and losing multiple scholarships between 2007 and 2009.
(Pls.’ Motion to Compel, ECF No. 54 at 3).
Plaintiffs’ written discovery requests to Defendant seek: 1) communications
concerning the events described in these categories; 2) any investigations they spawned; 3)
contracts for the relevant coaches; and 4) information exchanged by and between KAI and
the Big 12 Conference or the NCAA relating to these events. (Id.) Some requests for
production and requests for admission also expand the scope of this inquiry to determine
whether KAI has ever terminated a coach for cause or suspended their pay and, if so, the
reason for such employment action.
B.

Arguments of the Parties

Plaintiffs argue this discovery is relevant because it is aimed at eliciting facts to
show whether Defendant would have actually terminated Beaty for cause, in good faith,
upon alleged NCAA rule infractions prior to Defendant terminating him without cause.
Plaintiffs contend Defendant’s intent and state of mind are at issue for multiple reasons.
Plaintiffs claim Defendant’s assertion of the after-acquired-evidence defense places the
disputed discovery at issue. To utilize the defense, Plaintiffs maintain Defendant must first
demonstrate that Beaty’s wrongdoing was of such severity that he in fact would have been
terminated on those grounds alone if Defendant had known of it at the time of the
4

 discharge.3 Plaintiffs also contend Beaty’s KWPA claim seeks penalties for “willful”
violation under K.S.A. § 44-315(b). Therefore, Plaintiffs should be able to discover
evidence of Defendant’s intent; and finding information regarding Defendant’s handling
of similar situations is relevant to this intent. Finally, Plaintiffs contend Beaty’s breach of
the agreement must have been material and Defendant’s termination must have been in
good faith, based on a theory of rescission. (ECF No. 54 at 4-5.)
Defendant argues this discovery is not relevant because intent is not at issue in a
breach-of-contract action. Defendant states to show a breach of contract, Plaintiffs must
simply establish five elements: (1) the existence of a contract; (2) sufficient consideration;
(3) Beaty’s performance or willingness to perform the contract; (4) KAI’s breach of the
contract; and (5) damages to Beaty caused by the breach.4 Defendant contends Plaintiffs’
claim will fail on the third element because Beaty cannot show he performed in compliance
with his contractual obligation to adhere to NCAA rules, making Defendant’s “state of
mind” with respect to this failure by Beaty irrelevant. (Def.’s Brief, ECF No. 56 at 3.)
Defendant also contends this is not an employment discrimination case where comparing
Beaty’s treatment and conduct to that of other KU coaches might be used to show whether
Beaty’s termination was somehow “pretextual” or a cover for allegedly unlawful
discrimination.

Pls.’ Motion, ECF No. 54 at 4 (quoting McKennon v. Nashville Banner Pub. Co., 513 U.S. 352,
362–63 (1995)).
4
Def.’s Brief, ECF No. 56 at 2-3 (citing Britvic Soft Drinks Ltd. v. ACSIS Technologies, Inc., 265
F. Supp. 2d 1179, 1187 (D. Kan. 2003)).
3

5

 Defendant further argues there is no authority presented to suggest satisfaction of
the elements of a breach-of-contract claim requires Beaty’s performance to be only
“materially” complete. (Id.) In addition, Defendant maintains Plaintiffs are incorrectly
suggesting Defendant is trying to rescind the agreement, but Defendant is not. Defendant
contends there is no good-faith element of a breach-of-contract claim, and Plaintiffs
misinterpret the function of the after-acquired-evidence doctrine in this non-discrimination
context. (Id. at 4.)
C.

Duty to Confer

As a threshold matter, the Court first considers whether the parties have sufficiently
conferred regarding Plaintiffs’ Motion, as is required by Fed. R. Civ. P. 37(a)(1) and D.
Kan. Rule 37.2.5 After discussion with the parties in the December 4, 2019 phone
conference the Court is satisfied counsel have adequately conferred as required.
D.

Legal Standards
1.

Scope of Discovery

Trial “[c]ourts are given broad discretion to control and place appropriate limits on
discovery.”6 And “a magistrate [judge] is afforded broad discretion in the resolution of

5

D. Kan. Rule 37.2 provides the court will not entertain any motion to resolve a discovery dispute
pursuant to Fed. R. Civ. P. 26 through 37, unless the attorney for the moving party has conferred
or has made reasonable effort to confer with opposing counsel concerning the matter in dispute
prior to the filing of the motion. “A ‘reasonable effort to confer’ means more than mailing or
faxing a letter to the opposing party. It requires the parties in good faith converse, confer, compare
views, consult, and deliberate, or in good faith attempt to do so.” D. Kan. Rule 37.2.
6
Semsroth v. City of Wichita, No. 06-2376-KHV-DJW, 2007 WL 2287814, at *1 (D. Kan. Aug.
7, 2007) (citing Kutilek v. Gannon, 132 F.R.D. 296, 297 (D. Kan. 1990) (discussing whether to
stay discovery).
6

 non-dispositive discovery disputes.”7 Applicable to this dispute is the discovery standard
outlined in Fed. R. Civ. P. 26.
Under Rule 26(b)(1), a party may “obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the
case.” Despite the focus on proportionality in the rule since 2015, relevancy is still to be
“construed broadly to encompass any matter that bears on, or that reasonably could lead to
other matters that could bear on” any party’s claim or defense. 8 In other words, the court
should permit a request for discovery unless “it is clear that the information sought can
have no possible bearing” on a claim or defense.9 Information need not be admissible in
evidence to be discoverable, but the scope of discovery must be proportional to the needs
of the case.10
If the discovery sought appears relevant, the party resisting discovery has the burden
to establish the lack of relevancy by demonstrating that the requested discovery 1) does not
come within the scope of relevancy as defined under Rule 26(b)(1), or 2) is of such
marginal relevancy that the potential harm occasioned by discovery would outweigh the

7

In re Urethane Antitrust Litig., No. 04-1616-JWL, 2014 WL 61799, at *1 (D. Kan. Jan. 8, 2014)
(citing A/R Roofing, L.L. C. v. Certainteed Corp., 2006 WL 3479015, at *3 (D. Kan. Nov. 30,
2006) (other internal citations omitted).
8
Williams v. UnitedHealth Grp., No. 2:18-CV-2096, 2020 WL 528604, at *1-*2 (D. Kan. Feb. 3,
2020) (quoting Gilmore v. L.D. Drilling, Inc., No. 16-CV-2416-JAR-TJJ, 2017 WL 2439552, at
*1 (D. Kan. June 6, 2017)). See also In re EpiPen, No. 17-MD-2785-DDC-TJJ, 2018 WL
1586426, at *2 (D. Kan. Apr. 2, 2018) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978)).
9
Gilbert v. Rare Moon Media, LLC, No. 15-MC-217-CM, 2016 WL 141635, at *4 (D. Kan. Jan.
12, 2016) (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689–90 (D. Kan. 2001) (emphasis in
original)).
10
Fed. R. Civ. P. 26(b)(1).
7

 ordinary presumption in favor of broad disclosure.11 On the other hand, when the relevancy
of the discovery request is not readily apparent on its face, the party seeking the discovery
bears the burden to show the relevancy of the request. 12 Relevancy determinations are
generally made on a case-by-case basis.13
2.

After-Acquired-Evidence Defense

Because the parties’ arguments focus on the defense offered, a brief review of the
doctrine is prudent.

Pursuant to the after-acquired-evidence doctrine, an affirmative

defense asserted by KAI,14 an employee is not entitled to damages for breach of an
employment contract if the employer can show: (1) the employee is guilty of some
misconduct of which the employer was unaware; (2) the misconduct would have justified
discharge; and (3) if the employer had known of the misconduct, the employer would have
discharged the employee.15
Under the after-acquired-evidence doctrine, the employer “must first establish that
the wrongdoing was of such severity that the employee in fact would have been terminated
on those grounds alone if the employer had known of it at the time of the discharge.”16

11

Riley v. PK Mgmt., LLC, No. 18- 2337-KHV-TJJ, 2019 WL 1509861, at *2 (D. Kan. Apr. 5,
2019) (citing Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003)).
12
Id. (citing McBride v. Medicalodges, Inc., 250 F.R.D 581, 586 (D. Kan. 2008)).
13
Id. (citing Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR,
2011 WL 765882, at *3 (D. Kan. Feb. 25, 2011)).
14
Answer, ECF No. 34, p. 14, ¶ 4.
15
See Walker v. Saga Commc'ns, Inc., 11 F. Supp. 2d 1292, 1294 (D. Kan. 1998) (emphasis added);
see also Stouder v. M & A Tech., Inc., No. 09-4113-JAR-KGS, 2012 WL 28066, at *10 (D. Kan.
Jan. 5, 2012); Firestone v. Hawker Beechcraft Int'l Serv. Co., No. 10-1404-JWL, 2011 WL
13233153, at *11 (D. Kan. Sept. 28, 2011) (allowing discovery relevant to an after-acquiredevidence defense).
16
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362–63 (1995) (emphasis added).
8

 Although often utilized in employment discrimination cases since its adoption in the 1995
U.S. Supreme Court case of McKennon v. Nashville Banner Pub. Co.,17 the after-acquiredevidence doctrine has also been applied in breach-of-employment-contract cases where
discrimination is not alleged.18
E.

Analysis

Defendant argues the discovery sought by Plaintiffs is irrelevant on its face, but this
Court disagrees. The parties are reminded that discovery is broad. At this case’s inception,
Defendant asserted the after-acquired-evidence doctrine as an affirmative defense.
Therefore, it injected the three McKennon prongs into this case. Although the information
sought through this motion to compel may not be directly relevant solely to the basic
elements of Plaintiffs’ breach of contract claim, it is relevant to the third prong of the afteracquired-evidence doctrine. There exists a question of fact whether, if Defendant had
known of Beaty’s alleged NCAA violation, it would have actually terminated Beaty’s
employment for cause. Given the claims and defenses in this case, it is not far-fetched to
believe a reasonable jury might find Beaty’s conduct did not constitute a true default of his
employment contract because Defendant did not consider similar actions by other coaches
a default.19 But regardless of whether the information is ever admitted to a jury for

17

513 U.S. 352 (1995).
Stouder, 2012 WL 28066, at *10 (citing Gassman v. Evangelical Lutheran Good Samaritan
Soc'y, Inc.,933 P.2d 743, 745–46 (Kan. 1997); see also Walker, 11 F. Supp. 2d at 1294.
19
See, e.g., Stouder, 2012 WL 28066, at *11 (finding a reasonable jury could give weight to trial
testimony regarding whether the terminated employee’s pre-termination conduct actually rose to
the level of misconduct to justify termination under the after-acquired-evidence doctrine).
18

9

 consideration, the information bears on a defense asserted in this case, making it fall
squarely within the scope of discovery permitted under Rule 26(b)(1).
Also, pursuant to K.S.A. § 44-315(b), Beaty has alleged willful nonpayment by
Defendant under the Kansas Wage Payment Act. Therefore, Defendant’s intent is placed
at issue by this claim. If Plaintiffs’ claim is supported—that Defendant concocted this
NCAA violation to avoid paying Beaty when Defendant did not engage in similar behavior
with other coaches—that would tend to show willful conduct by Defendant. Thus, the
discovery sought is at least minimally relevant to Beaty’s claim of willful nonpayment.
Although Beaty also argues his breach of the parties’ contract must have been
“material” and Defendant’s retroactive termination must have been in good faith (ECF No.
54 at 4-5), this Court makes no findings on this claim. Defendant contends this is incorrect,
as it has not asserted a claim for rescission and Plaintiffs provide no authority for this
argument. (ECF No. 56 at 3-4.) Although this Court tends to agree with Defendant on this
point, this is not dispositive of the relevance issue. Regardless of the materiality or good
faith of any breach, as noted above, the Court finds the information relevant to Defendant’s
after-acquired-evidence defense and Beaty’s willful nonpayment claim.
Although not mentioned in the parties’ briefs, during the December 4, 2019 hearing
Defendant argued the disputed discovery is improper for another reason. Defendant
contends Plaintiffs seek the information to gain leverage against it by attempting to explore
topics Beaty believes are uncomfortable for Defendant. However, the parties jointly
submitted a Protective Order, approved by this Court, in which they agreed discovery
regarding NCAA investigations would be confidential. (Protective Order, ECF No. 38.)
10

 The Protective Order states confidential information includes “confidential documents and
information related to investigations, including those obtained by the NCAA or the parties
as part of any NCAA investigation and confidential NCAA case documents.” (Id. at 3).
The parties discussed this issue during the scheduling conference and subsequently drafted
a protective order to keep this information confidential. Therefore, Beaty is prohibited
from disclosing the information regarding NCAA violations to the public in order to
pressure Defendant.

As such, the Court finds Defendant’s argument unconvincing.

Furthermore, if the parties determine through the production of these materials that the
current protective order should to be enlarged in scope to address the information being
produced pursuant to this Order, the parties should confer and discuss amendment of the
protective order accordingly.
III.

Conclusion
As noted above, relevancy is to be “construed broadly to encompass any matter that

bears on, or that reasonably could lead to other matters that could bear on any party’s claim
or defense.”20 Applying this broad standard, it is not at all clear the information sought by
Plaintiffs would have “no possible bearing” on the after-acquired-evidence defense or
Plaintiffs’ claim for willful nonpayment.21 Therefore, in its discretion and for the reasons
stated above, the Court GRANTS Plaintiffs’ Motion to Compel. Defendants are ordered
to respond to Plaintiffs’ discovery requests, and the parties are directed to confer and

20
21

Williams, 2020 WL 528604, at *1 (internal citations omitted).
Gilbert, 2016 WL 141635, at *4 (quoting Sheldon, 204 F.R.D. at 689–90).
11

 determine an appropriate timeline for such production. The Court expects the information
to be produced forthwith.
IT IS THEREFORE ORDERED, for the reasons stated above, that Plaintiffs’
Motion to Compel (ECF No. 54) is GRANTED.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 18th day of February, 2020.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

12