Dahl et al v. University of Kansas Hospital Authority et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JADE DAHL, COURTNEY ZACHARIAH,
JESSICA MOORE, CHRISTINA
MERREIGHN, BRANDIE MCBRIDE,
RENEE QUINTANILLA, LORI
MCSORLEY, ANGELA HAGGARD, and
ERIKA TURK, individually and on behalf of
all others similarly situated,
Plaintiffs,
v.
UNIVERSITY OF KANSAS HOSPITAL
AUTHORITY d/b/a UNIVERSITY OF
KANSAS HEALTH SYSTEM, LAWRENCE
MEMORIAL HOSPITAL d/b/a LMH
HEALTH, and EPIC SYSTEMS
CORPORATION,
Defendants.
Case No. 25-cv-2200-HLT-JBW
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Compel Further Deposition
Testimony and for Remedial Relief Regarding Defendant KU Health’s Improper Deposition
Objections (Dkt. 55). Plaintiffs request an order, pursuant to Fed. R. Civ. P. 37(a)(3)(B)(i),
compelling Defendant University of Kansas Hospital Authority d/b/a University of Kansas Health
System (“KU Health”) to produce its employee, Terri Thompson, to answer questions she did not
answer during her deposition as fact witness and Rule 30(b)(6) witness for purposes of
jurisdictional discovery. As explained below, Plaintiffs’ motion is granted in part and denied in
part. The deposition of Ms. Thompson shall be reconvened within thirty (30) days of this Order
at a mutually-agreed date, time, and location, and it shall not exceed four (4) hours in length. At
the reconvened deposition, Ms. Thompson shall answer Question Nos. 1–3, 5–7, 9, 14, and 17 as
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identified in Plaintiffs’ Exhibit 5 (Dkt. 61-2), and related follow-up questions. In addition, counsel
for KU Health is directed not to make improper speaking objections as described in more detail in
this Order.
I. 	Nature of Case and Background of Discovery Dispute
Plaintiffs were patients of Plastic Surgery Specialists of Lawrence, an affiliate of Lawrence
Memorial Hospital d/b/a LMH Health (“LMH”). They filed this lawsuit, alleging their protected
health information, medical files, and clinical plastic surgery photographs were accessed by an
athletic trainer employed by KU Health (“Clinician”), who had no affiliation with LMH or its
plastic surgery clinic and who never provided treatment to Plaintiffs.1 Plaintiffs allege that over
the course of more than two years, Clinician used his credentials issued by KU Health to perpetrate
the privacy invasions by accessing their files through an electronic health records (“EHR”) portal
developed by Epic Systems Corporation (“Epic”) that permitted patient data sharing between
unrelated health systems. 2
All three defendants filed motions to dismiss on October 17, 2025 (Dkts. 31, 32, 33). KU
Health’s motion (Dkt. 32) is at issue here. KU Health sought dismissal in part for lack of subject-
matter jurisdiction by asserting a factual challenge to Plaintiffs’ Article III standing.3 KU Health
contends it did not possess or have access to Plaintiffs’ plastic surgery photographs, and Clinician
did not access those photographs through KU Health’s EHR system. KU Health argues therefore
any alleged injury resulting from Clinician’s viewing of the plastic surgery photographs is not an
1 Second Am. Compl. (Dkt. 23) at ¶ 1.
2 Id. at ¶¶ 2–5.
3 KU Health’s Mot. to Dismiss (Dkt. 32) at 5–6.
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injury traceable to KU Health or its EHR system.4
Important for this Motion to Compel, KU Health attached the Declaration of Terri
Thompson (Dkt. 32-1) in support of its motion to dismiss. She is its System Director, Privacy
Service & Privacy Officer. Ms. Thompson stated in her declaration that she is responsible for,
among other things, the oversight of KU Health’s Privacy Services Department and the monitoring
of access to KU Health’s EHR and that department’s investigation of and reporting related to
incidents involving KU Health’s EHR. 5 She also stated:
As part of [Clinician’s] employment, [KU Health] provided Clinician with
credentials to access KU Health’s [EHR] system licensed by [Epic] but did not
provide Clinician with credentials to access any other health record systems.
The [KU Health] EHR System has a feature known as Care Everywhere, which
facilitates continuity of care by allowing separate hospitals and provider entities to
share medical records across their separate electronic record system instances.
LMH separately provided Clinician with credentials to access LMH’s electronic
health record system licensed by a separate third-party vendor, not Defendant Epic
Systems Corporation.
[KU 	Health] 	has 	no 	visibility 	into 	or 	control 	over 	LMH’s 	EHR 	System.
Accordingly, [KU Health] had not visibility into Clinician’s activity while utilizing
the Clinician’s LMH credentials to access the LMH EHR System.6
The Clinician only accessed the following types of information through the [KU
Health] EHR System: “name, date of birth, address, phone number, insurance and
billing information, social security number, and clinical information” . . . Clinician
did not access any Plastic Surgery Photos of [Plaintiffs].7
4 Id.
5 Thompson Decl. (Dkt. 32-1) at ¶ 3.
6 Id. at ¶¶ 8–11.
7 Id. at ¶¶ 12–13, 17, 21, 25, 29, 33, 35, 39, 42.
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In order to respond to KU Health’s motion to dismiss, on November 12, 2025, Plaintiffs
filed an Unopposed Motion for Limited Jurisdictional Discovery (Dkt. 36) requesting an order
permitting limited jurisdictional discovery related to KU Health’s factual challenge to Plaintiffs’
standing, as raised in its motion to dismiss. 8
On November 14, 2025, the Court entered an Order (Dkt. 37) granting Plaintiffs leave to
serve the requested unopposed discovery upon KU Health. The Court deferred ruling at that time
on any disagreements regarding the appropriate scope and time frame for the jurisdictional
discovery and whether non-jurisdictional discovery should proceed prior to a ruling on the motions
to dismiss.
On November 20, 2025, Plaintiffs served their jurisdictional discovery requests upon KU
Health, which included: its First Set of Interrogatories and First Set of Requests for Production of
Documents (together, the “Jurisdictional Discovery Requests”); a Notice of Deposition of Terri
Thompson; and a Notice of Corporate Representative Deposition pursuant to Fed. R. Civ. P.
30(b)(6).9 This initial Rule 30(b)(6) Notice identified four deposition topics inquiring about KU
Health’s and LMH’s collaboration to provide services to athletes, the Clinician’s access to
protected health information for each Plaintiff, any investigation conducted regarding the privacy
invasions, and the factual and legal bases for KU Health’s interrogatory responses.10 While KU
8 Defendant KU Health did not oppose Plaintiffs’ motion for limited jurisdictional discovery.
9 Pl. Certif. of Service of Disc. (Dkt. 40). Pl.’ Notice of Rule 30(b)(6) Dep. (Dkt. 58-8). Plaintiffs
initially sought and were granted leave to serve six interrogatories and ten requests for production upon KU
Health. See Pl. First Set of Interrogs. to KU Health (Dkt. 58-6); Pl. First RFPs to KU Health (Dkt. 58-4).
10 Pl. Notice of Rule 30(b)(6) Dep. (Dkt. 58-8) at 6-7. Topics 1-2 each had three subparts and Topic
3 had four subparts.
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Health apparently made objections to the initial Rule 30(b)(6) Notice,11 those objections were not
provided to the Court.
On December 2, 2025, the Court conducted a telephone status conference regarding the
scope and timeframe for limited jurisdictional discovery. Following the conference, on December
5, 2025, the Court issued a Status Conference Order (the “Status Conference Order”), which stated,
in part:
Highly summarized, the Court indicated its view that the scope of jurisdictional discovery
must be limited to KU Health’s Article III standing factual attack in its motion to dismiss
that it did not possess or have access to Plaintiffs’ plastic surgery photographs, and this
would necessarily include discovery into statements included in the Thompson Declaration
(ECF No. 32-1) offered in support of KU Health’s motion to dismiss. 12
The Status Conference Order required KU Health to serve its responses, answers, and objections
to the Jurisdictional Discovery Requests and the Rule 30(b)(6) Notice deposition topics by
December 22, 2025. The Status Conference Order required the parties to “confer in good faith
regarding their jurisdictional discovery disputes both before and after KU Health serves its
responses, answers, and objections.”13 Any motion to compel discovery was due within 30 days
after KU Health served its responses, answers, and objections to the Jurisdictional Discovery
Requests and the Rule 30(b)(6) Notice deposition topics.
On December 8, 2025, Plaintiffs served amended Jurisdictional Discovery Requests upon
11 KU Health’s counsel began the Thompson deposition by stating “I want to incorporate our
objections to the first amended set of deposition topics. I know that a second set of topics was served
yesterday afternoon. Obviously we haven’t had a chance to issue objections to the same. I want to
incorporate our objections to the first set. I don’t anticipate that that's going to be an issue.” Thompson Dep.
Tr. at 8:15-22 (Dkt. 58-3). Although Dkt. 58-3 only contains excerpts of the deposition transcript, counsel
provided the full transcript at the Court’s request.
12 Dec. 5, 2025 Status Conf. Order (Dkt. 48).
13 Id.
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KU Health consisting of eight requests for production and two interrogatories.14 On December 22,
2025, KU Health served its responses and objections to Plaintiffs’ amended Jurisdictional
Discovery Requests.15 On January 20, 2026, Plaintiffs served their second amended deposition
notices setting the depositions of Ms. Thompson and KU Health’s Rule 30(b)(6) corporate
representative for January 21, 2026. Plaintiffs’ second amended notice for KU Health’s Rule
30(b)(6) corporate representative (“Amended 30(b)(6) Notice”) identified four deposition topics:
1. 	The electronic Systems that the Clinician had access to at KU Health and the
Clinician’s credentials to access Lawrence Memorial Hospital’s EHR System.
2. 	The steps You took to confirm that the Clinician did not access Plaintiffs’
Plastic Surgery Photographs via Your EHR System and the basis for Your
understanding 	that 	the 	Clinician 	accessed 	Plaintiffs’ 	Plastic 	Surgery
Photographs through Lawrence Memorial Hospital’s HER System.
3. 	Your investigation into or determination of where Plaintiffs’ Plastic Surgery
Photographs were stored and how You determined the Clinician did not access
Plaintiffs’ Plastic Surgery Photographs via Your EHR System.
4. The factual and legal bases of KU Health’s Responses to Plaintiffs’ Amended
Interrogatories Nos. 1-2, including the factual bases, documents, and individuals
relied upon in formulating each response.16
Other than KU Health counsel’s statement at the beginning of Ms. Thompson’s deposition
incorporating the objections to the first set of deposition topics, 17 the record does not indicate that
any objections were made to the Amended 30(b)(6) Notice. The Amended 30(b)(6) Notice states
in footnote 1 that it is being served “[i]n light of the Court’s Order and the parties’ conferral, and
14 Certif. of Service (Dkt. 49). See Pl. Am. First Set of Interrogs. to KU Health (Dkt. 58-7); Pl. Am.
First RFPs to KU Health (Dkt. 58-5).
15 Certif. of Service (Dkt. 53).
16 Pl. Second Am. Notice of Rule 30(b)(6) Dep. (Dkt. 61-1).
17 See fn. 11 supra.
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in the interests of compromise.”18 Plaintiffs’ counsel stated on the record that the Amended
30(b)(6) 	Notice 	tracked 	the 	agreed 	scope 	of 	topics, 	apparently 	in 	reliance 	on 	written
communications between counsel.19
On January 21, 2026, KU Health produced Ms. Thompson, and she was deposed both in
her individual capacity and as KU Health’s corporate representative. During Ms. Thompson’s
deposition, Plaintiffs’ counsel asked 18 questions to which counsel for KU Health objected and
instructed Ms. Thompson not to answer based on the Court’s order limiting the scope of
jurisdictional discovery. Plaintiffs filed their motion the following day on January 22, 2026.
II. 	Timeliness and Duty to Confer
Plaintiffs acknowledge that January 21, 2026 was the deadline for filing motions to compel
in connection with jurisdictional discovery but argue they understood the deadline to apply to
written discovery disputes (e.g., interrogatories and requests for production) and did not anticipate
the need for motion practice regarding deposition testimony. KU Health does not raise
untimeliness as grounds for denying the motion. The Court excuses Plaintiffs’ minor one-day delay
in filing the motion to compel. KU Health, however, does argue the motion should be denied
because Plaintiffs failed to confer before filing it.20
The Court notes there would have been only a short amount of time for Plaintiffs to confer
after Ms. Thompson’s deposition concluded at 4:15 p.m. on January 21, 2026, which was the same
18 Pl. Second Am. Notice of Rule 30(b)(6) Dep. (Dkt. 61-1).
19 Thompson Dep. Tr. 32:9–24 (Dkt. 58-3).
20 KU Health also states Plaintiffs refused to request a pre-motion conference. However, the Court’s
Status Conference Order stated the December 2, 2025 status conference satisfied the D. Kan. Rule 37.1(a)
pre-motion requirement and no additional conference was required prior to filing the motion. Dkt. 48 at 3
n.3.
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day as the deadline for filing any motion to compel jurisdictional discovery. Moreover, based upon
its review of the deposition transcript, the Court finds counsel repeatedly conferred on these issues
on the record during the deposition. Shortly after the first time KU Health’s counsel instructed Ms.
Thompson not to answer, Plaintiffs’ counsel proposed contacting the magistrate judge’s
chambers:21
We may want to see if we can reach [the magistrate judge’s] chambers. I just – I’m
worried if we’re going to go down this path all day, it’s going to be a waste of time.
And I don’t want to make everyone leave and come back. So maybe we should try
to get her on the phone.22
Counsel for KU Health agreed to contact Chambers but suggested deferring until later:
I think that we’re probably going to run into this throughout the deposition today.
So it might make sense to keep a list of questions and topics that you’re trying to
question on that I’m instructing not to answer, so we can get clear instruction on
the outstanding issues, because I’m kind of worried that if we bring one thing to the
Judge’s attention now, we might end up with something later in the afternoon.23
***
We’re instructing the witness not to answer. If you want -- so the question, if you
guys want to go to the Judge, I personally don’t want to either. But if you want to
go to the Judge, I think it might make sense to make a list of things that we need to
ask the Judge about to get some specific clarification because I anticipate that we’re
going to disagree probably repeatedly throughout this deposition today. So I would
say let’s keep going. Let’s see where we end up. And then we can get the Judge on
the phone maybe after lunch or something. 24
Counsel also attempted to confer at the conclusion of the deposition regarding the objections.25 In
21 Thompson Dep. Tr. 50:2–51:17.
22 Id. at 50:2–7.
23 Id. at 50:8–19.
24 Id. at 51:5–18.
25 Id. at 207:11–209:9. At the conclusion of the deposition, counsel attempted to confer over the
objections but due to the lack of Realtime transcription, they could not reference all the questions at issue
and no one had kept a running list of questions to discuss.
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light of these exchanges during the deposition and the short period of time between the conclusion
of the deposition and Plaintiffs filing their motion, the Court will not deny Plaintiffs’ motion for
failure to confer prior to filing it.
III. 	Summary of the Parties’ Arguments
Plaintiffs identify 18 instances at Ms. Thompson’s deposition where counsel for KU Health
objected and instructed her to not answer, and they move to compel further testimony from Ms.
Thompson as to the questions asked.26 Plaintiffs argue all the questions Ms. Thompson was
instructed not to answer were within the appropriate scope of the jurisdictional discovery allowed
under the Court’s Order and she should have answered. Plaintiffs also allege counsel for KU Health
repeatedly interrupted the deposition with improper speaking objections that were argumentative,
suggestive, and rose to the level of coaching the witness.
KU Health argues, to the contrary, that the questions where counsel instructed the witness
not to answer were outside the scope of the limited jurisdictional discovery allowed by the Court.
KU Health maintains its counsel appropriately instructed Ms. Thompson not to answer questions,
and in particular, that KU Health interpreted the Court’s Status Conference Order as setting the
narrow scope of whether Clinician accessed Plaintiffs’ plastic surgery photographs through KU
Health’s EMR system. KU Health also argues some of these questions would be inappropriate at
any stage of the litigation and that Plaintiffs previously conceded they were outside the scope of
jurisdictional discovery.
26 See Pl. Dep. Excerpt chart (Dkt. 61-2) and Thompson rough draft Dep. Tr. (Dkt. 55-1 at 4–200)
(sealed). The Court notes the specific page and line numbers on the “rough draft” transcript attached to
Plaintiffs’ motion (Dkt. 55-1) which are cited in the Pl. Dep. Excerpt chart differ from those on the final
version attached to KU Health’s response (Dkt. 58-3). The Court will reference the final version of the
Thompson transcript filed at Dkt. 58-3 (and provided in full to the Court thereafter) unless otherwise
indicated.
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IV. 	Applicable Law Regarding Deposition Objections
Federal Rule of Civil Procedure 30(c)(2) governs deposition objections. It provides that an
objection made during a deposition must be stated “concisely in a nonargumentative and
nonsuggestive manner.”27 While the objection must be stated on the record, “the examination still
proceeds; the testimony is taken subject to any objection.”28 Under Fed. R. Civ. P. 30(c)(2), a
deponent may be instructed not to answer “only when necessary to preserve a privilege, to enforce
a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”29 Relevance is not
an appropriate basis to instruct a witness not to answer a question.30
The District of Kansas Deposition Guidelines augment the rules and “provide ground rules
for an integral piece of the modern federal court lawsuit.”31 Guideline 5(a) covers deposition
objections and states:
Objections shall be concise and shall not suggest answers to or otherwise coach the
deponent. Argumentative interruptions will not be permitted. The only objections
that should be asserted are those involving privilege or work product protection or
some matter that maybe remedied if presented at the time, such as an objection to
the form of the question or the responsiveness of the answer. Other objections shall
be avoided unless the deposition is being taken for the express purpose of
preserving testimony.32
27 Fed. R. Civ. P. 30(c)(2).
28 Id.
29 Id.
30 See Resol. Tr. Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995) (“It is inappropriate to instruct
a witness not to answer a question on the basis of relevance.”).
31 Cerda v. Cillessen & Sons, Inc., No. 19-1111-JWB, 2020 WL 4500721, at *2 (D. Kan. Aug. 5,
2020) (citing In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., No. 17-
md-2785-DDC, 2018 WL 6617105, at *1 (D. Kan. Dec. 14, 2018)). “These Guidelines aren’t aspirational,”
but mandatory.” Cerda, 2020 WL 4500721, at *2.
32 D. Kan. Dep. Guidelines, https://www.ksd.uscourts.gov/deposition-guidelines.
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District of Kansas Deposition Guideline 5(b) allows counsel to direct or request that a deponent
not answer a question in limited circumstances:
(1) counsel has objected to the question on the ground that the answer is protected
by privilege, work product immunity, or a limitation on evidence directed by the
Court; or (2) the direction not to answer is necessary to allow a party or deponent
to present a Fed. R. Civ. P. 30(d) motion to the Court.33
If a deponent fails to answer a question asked under Rule 30, the examining party may
move for an order compelling an answer under Rule 37(a)(3)(B)(i). Rule 37(a)(C) expressly
contemplates that such a motion may be brought after the deposition concludes.34
V. 	Whether the Status Conference Order Contained a “Limitation Ordered by the
Court” as Contemplated by Rule 30(c)(2)
Plaintiffs allege the repeated instructions by counsel for KU Health directing Ms.
Thompson to not answer deposition questions violated Rule 30(c)(2) and fall outside the narrow
exceptions provided by that Rule. They argue the Status Conference Order does not constitute the
type of “limitation ordered by the court” that authorizes instructing a deponent to not answer. Even
if it did, they argue all the questions fell squarely within the scope of jurisdictional discovery the
Court authorized.
KU Health argues to the contrary that the Status Conference Order limited the jurisdictional
discovery sought by Plaintiffs to the precise fact question of “whether or not the Clinician accessed
the plastic surgery photographs.”35
The Status Conference Order did contain a Rule 30(c)(2) “limitation ordered by the court”
33 Id.
34 See Fed. R. Civ. P. 37(a)(3)(C) (“When taking an oral deposition, the party asking a question
may complete or adjourn the examination before moving for an order.”).
35 Thompson Dep. Tr. 49:5–8 (Dkt. 58-3).
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that would authorize instructing a deponent not to answer. The Court, however, disagrees with KU
Health’s overly narrow interpretation of the Status Conference Order. 	The Status Conference
Order set out a “highly summarized” view of the scope of jurisdictional discovery, and then
directed the parties to do the following: (1) confer in good faith regarding their jurisdictional
discovery disputes before KU Health served its discovery responses, answers, and objections to
Plaintiffs’ RFPs, Interrogatories, and Rule 30(b)(6) notice; and (2) then confer again in good faith
regarding their jurisdictional discovery disputes after KU Health served its responses, answers,
and objections by December 22, 2025. Finally, if any disputes remained, Plaintiffs were required
to file any motion to compel within 30 days after KU Health served its responses, answers, and
objections.
Rather than read the Status Conference Order as a whole, KU Health’s counsel cherry-
picked a single line and ran with it throughout the deposition to direct their witness not to answer.
This was inappropriate. Deposition questions regarding KU Health’s argument that it did not
possess or have access to Plaintiffs’ plastic surgery photographs were within the appropriate scope
of jurisdictional discovery. But so too were questions inquiring into statements included in the
Thompson Declaration (which was offered in support of KU Health’s motion to dismiss). And so
too were questions encompassed by the four topics listed in Plaintiffs’ Amended 30(b)(6) Notice.
KU Health’s interpretation of the scope of jurisdictional discovery was too narrow.
Had the parties reached out to chambers at their first dispute at the deposition—as they
considered doing—this motion practice could have been avoided. But instead of doing so, the
parties agreed to (and then did not) “keep a list” of the questions and topics where KU Health’s
counsel was instructing the witness not to answer. This was not the most efficient manner of
proceeding and is now going to result in a second deposition for Ms. Thompson to answer some
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of the questions she was instructed to not answer, as discussed below.
VI. 	Deposition Questions Ms. Thompson Was Instructed to Not Answer
Plaintiffs identify 18 instances where KU Health’s counsel directed the witness not to
answer a deposition question. They maintain these questions, identified in Exhibit 5 (Dkt. 61-2) to
Plaintiffs’ Motion to Compel, were within the limited scope of jurisdictional discovery and
necessary to develop the factual record related to Plaintiffs’ standing to bring claims against KU
Health. Plaintiffs assert three reasons why these questions were within the scope of jurisdictional
discovery: (1) they pertain to specific paragraphs in Ms. Thompson’s Declaration; (2) they relate
to a Rule 30(b)(6) deposition topic; and/or (3) they relate to documents produced by KU Health in
the course of jurisdictional discovery.
A. 	Question No. 1
Question No. 1 asked Ms. Thompson: “Using his credentials, [Clinician] could look up the
information of any patient, even if he had no treatment relationship with the patient. Correct?”36
KU Health’s counsel instructed Ms. Thompson not to answer on the basis that this question sought
information outside the scope of the jurisdictional discovery. Plaintiffs assert this question falls
within the scope of the jurisdictional discovery, particularly Ms. Thompson’s statements in her
Declaration at paragraph 8 regarding the Clinician’s credentials and responsive to Topic No. 1 of
the Amended 30(b)(6) Notice served upon KU Health.
The Court agrees with Plaintiffs. The question seeks clarification of the information
Clinician could access with his credentials. KU Health put this topic at issue in its Motion to
Dismiss, and particularly in Paragraph 8 of the Thompson Declaration, which states: “As part of
[Clinician’s] employment, [KU Health] provided Clinician with credentials to access [KU
36 Thompson Dep. Tr. 46:24–47:3.
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Health’s] [EHR] system licensed by Defendant [Epic]. KU Health did not provide Clinician with
credentials to access any other health record systems.”37 In addition, Topic No. 1 in the Amended
30(b)(6) Notice sought information about “[t]he electronic Systems that the Clinician had access
to at KU Health and the Clinician’s credentials to access Lawrence Memorial Hospital’s EHR
System.”38 This topic is appropriately tailored to the jurisdictional discovery and, in any event,
there is no indication that KU Health objected to Topic No. 1 in the Amended 30(b)(6) Notice.
Thus, this deposition question inquiring about Clinician’s credentials is within the scope of
jurisdictional discovery. The Court overrules KU Health’s outside-the-scope objection to Question
No. 1.
B. 	Question Nos. 2, 3 and 5
Question No. 2 asked Ms. Thompson: “And even a single instance of unauthorized access
to that information would be considered significant. Right?”39 Question No. 3 asked: “From a
patient’s perspective, unauthorized access to this kind of information would be a serious breach of
confidentiality. Right?” 40 Question No. 5 asked: “As a privacy officer … at KU, you’d agree that
when there’s unauthorized access to sensitive [protected] health information, patients should be
informed of the full material facts about what information was accessed. Correct?”41
KU Health’s counsel instructed Ms. Thompson not to answer all three questions. Plaintiffs
assert they all fall within the scope of the jurisdictional discovery, particularly Ms. Thompson’s
37 Thompson Decl. (Dkt. 32-1) at ¶ 8.
38 Pl. Second Am. Notice of Rule 30(b)(6) Dep. (Dkt. 61-1).
39 Thompson Dep. Tr. 71:4–7.
40 Id. at 72:3–6.
41 Id. at 77:15–20.
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statements in her Declaration at Paragraph 12 regarding Clinician’s unauthorized access of
information.
The Court again agrees with Plaintiffs. The questions seek clarification about the
information accessed by Clinician. KU Health put this information at issue in its Motion to
Dismiss, and particularly in paragraph 12 of the Thompson Declaration, which states:
On April 20, 2023, [KU Health] sent letters to certain individuals, which notified
them that Clinician accessed their information. [] The Clinician only accessed the
following types of information through the [KU Health] EHR System: name, date
of birth, address, phone number, insurance and billing information, social security
number, and clinical information. 42
There can be no serious dispute that the information KU Health admits was accessed by Clinician
falls within the scope of whether Plaintiffs have standing to assert their claims against KU Health.
The Court overrules KU Health’s outside-the-scope objections to Question Nos. 2, 3 and 5.
C. 	Question No. 4
Question No. 4 asked Ms. Thompson: “The seriousness of all this is precisely why there is
a federal law governing medical information. Correct?”43 KU Health’s counsel instructed the
witness not to answer. Plaintiffs assert this question falls within the scope of the jurisdictional
discovery because it was related to a topic in the Amended 30(b)(6) Notice, though Plaintiffs do
not identify which topic in their Motion.
At the deposition, Plaintiffs’ counsel argued that this question related to Topic No. 3, which
sought information from KU Health about “Your investigation into or determination of where
Plaintiffs’ Plastic Surgery Photographs were stored and how You determined the Clinician did not
42 Thompson Decl. (Dkt. 32-1) at ¶ 12.
43 Thompson Dep. Tr. 72:21–23.
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access Plaintiffs’ Plastic Surgery Photographs via Your EHR System.” 44 As stated in the Amended
30(b)(6) Notice, this topic is appropriately tailored to the jurisdictional discovery and, in any event,
there is no indication that KU Health objected to Topic No. 3. However, the Court is not persuaded
that this particular question falls within Topic No. 3. The Court therefore sustains KU Health’s
outside-the-scope objection to Question No. 4.
D. 	Question No. 6
Question No. 6 asks Ms. Thompson: “And so based on that, it’s possible that [Clinician’s]
access to clinical information could have included medical images or previews or image-related
content. Right?”45
KU Health’s counsel instructed Ms. Thompson not to answer. Plaintiffs assert this question
falls within the scope of the jurisdictional discovery, particularly Ms. Thompson’s statements in
her Declaration referring to “Plastic Surgery Photographs,” which—though capitalized—is not a
defined term. The term is used in paragraphs 13, 16, 17, 20, 21, 24, 25, 28, 29, 32, 33, 35, 38, 39,
41, 42, and 45.
The Court finds that Question No. 6 falls within the scope of the jurisdictional discovery.
The question seeks clarification about the information that could have been accessed by Clinician.
KU Health put this information at issue in its Motion to Dismiss, and particularly in the above-
referenced paragraphs of the Thompson Declaration. The Court overrules KU Health’s outside-
the-scope objection to Question No. 6.
44 Pl. Second Am. Notice of Rule 30(b)(6) Dep. (Dkt. 61-1).
45 Thompson Dep. Tr. 86:8–11.
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E. 	Question Nos. 7 and 9
Question No. 7 asked Ms. Thompson: “Would you consider any of this [demographic and
clinical] information not sensitive?”46 Question No. 9 asked her view on whether a driver’s license
includes “highly sensitive personal information.”47
KU Health’s counsel instructed the witness not to answer both questions. Plaintiffs assert
both questions fall within the scope of the jurisdictional discovery because they are related to a
document produced by KU Health during the course of jurisdictional discovery.
Like Question Nos. 2, 3 and 5, these questions seek clarification about the information
accessed by Clinician. These questions are within the scope of whether Plaintiffs have standing to
assert their claims against KU Health. The Court overrules KU Health’s outside-the-scope
objections to Question Nos. 7 and 9.
F. 	Question Nos. 8 and 10
Question No. 8 asked Ms. Thompson: “Are there any alerts in KU’s system that would
have been triggered by someone like [Clinician] accessing patient information not related to his
job duties?”48 Question No. 10 asked: “Accessing patient records from home would raise
additional potential privacy and security concerns compared to if he accessed [them] … at a clinic.
Right?”49
46 Id. at 106:24–25.
47 Id. at 139:9–11.
48 Id. at 132:21–24.
49 Id. at 162:5–9.
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KU Health’s counsel instructed the witness not to answer both questions. Plaintiffs assert
these questions fall within the scope of the jurisdictional discovery because they were related to
documents produced by KU Health during the course of jurisdictional discovery.
At the deposition, when discussing Question No. 8, Plaintiffs’ counsel stated: “We think
this is entirely relevant, within the scope of jurisdictional discovery,”50 and KU Health’s counsel
responded: “How?” Plaintiffs’ counsel declined to elaborate. The Court has the same question as
KU Health’s counsel. While perhaps relevant to the case as a whole, the Court is not persuaded
that questions inquiring into KU Health’s potential discovery of Clinician’s activity fall within the
limited scope of jurisdictional discovery and whether Plaintiffs have standing to assert their claims
against KU Health. Nor is the Court persuaded by Plaintiffs’ argument justifying these questions
because they simply relate to documents that KU Health may have already produced as part of
jurisdictional discovery. KU Health’s production of documents, even if in response to a request
for jurisdictional discovery, does not necessarily render deposition questions related to all matters
or issues discussed in those documents within the scope of jurisdictional discovery. The Court
sustains KU Health’s outside-the-scope objections to Question Nos. 8 and 10.
G. 	Question Nos. 11, 12, 16, and 18
Question No. 11 asked Ms. Thompson: “Did KU [Health] report [Clinician] to law
enforcement?”51 Question No. 12 asked: “Did KU [Health] do anything to independently verify
those statements in [Clinician’s] declarations before [Clinician] signed them?”52 Question No. 16
50 Id. at 133:12–13.
51 Id. at 164:9.
52 Id. at 172:15–17.
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asked: “Why did KU [Health] submit this report to the Kansas Board of Healing Arts?”53 Question
No. 18 asked: “Why did KU [Health] wait until June 8, 2023 to submit the report?”54
KU Health’s counsel instructed the witness not to answer all four questions. Plaintiffs
assert these questions fall within the scope of the jurisdictional discovery because they were related
to documents produced by KU Health during the course of jurisdictional discovery. As to Question
No. 11, Plaintiffs also argue the question followed up on the witness’s prior testimony; and as to
Question Nos. 16 and 18, Plaintiffs argue the questions fall within the deposition topics (though
they don’t state which ones).
The Court is not persuaded that these questions fall within the scope of the jurisdictional
discovery, as they do not appear to inquire on issues relevant to whether Plaintiffs have standing
to assert their claims against KU Health. Again, though perhaps relevant to the case as a whole,
the Court is not persuaded that questions about KU Health’s subsequent actions are within the
limited scope of jurisdictional discovery. The Court therefore sustains KU Health’s outside-the-
scope objections to Question Nos. 11, 12, 16, and 18.
H. 	Question No. 13
Question No. 13 asked Ms. Thompson: “Does Maize have an alert system when it detects
risky activity?”55 KU Health’s counsel instructed the witness not to answer. Plaintiffs assert the
question falls within the scope of the jurisdictional discovery because it was related to documents
produced by KU Health during the course of jurisdictional discovery.
53 Id. at 175:4–5.
54 Id. at 198:1–2.
55 Id. at 198:1–2.
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Again, while perhaps relevant to the case as a whole, the Court is not persuaded that
additional questions about the Maize monitoring system fall within the limited scope of
jurisdictional discovery. The Court sustains KU Health’s outside-the-scope objection to Question
No. 13.
I. 	Question Nos. 14 and 17
Question No. 14 asked Ms. Thompson: “Can you please walk me through the steps that
KU [Health] did to determine whether [Clinician’s] access was job related for each patient?”56
Question No. 17 asked: “Hadn’t KU [Health] determined that there were many instances of
[Clinician] accessing KU patients’ EHR unrelated to his job duties?”57
KU Health’s counsel instructed the witness not to answer both questions. Plaintiffs assert
the questions fall within the scope of the jurisdictional discovery because they are related to
documents produced by KU Health during the course of jurisdictional discovery, and also because
they fall within a deposition topic (though they don’t state which one).
Topic No. 2 in the Amended 30(b)(6) Notice sought information from KU Health about
“[t]he steps [it] took to confirm that the Clinician did not access Plaintiffs’ Plastic Surgery
Photographs via [its] EHR System and the basis for [its] understanding that the Clinician accessed
Plaintiffs’ Plastic Surgery Photographs through Lawrence Memorial Hospital’s EHR System.”58
Topic No. 3 sought information about KU Health’s “investigation into or determination of where
Plaintiffs’ Plastic Surgery Photographs were stored and how [it] determined the Clinician did not
56 Id. at 179:15–18.
57 Id. at 196:23–197:1.
58 Pl. Second Am. Notice of Rule 30(b)(6) Dep. (Dkt. 61-1).
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access Plaintiffs’ Plastic Surgery Photographs via [its] EHR System.”59 Both topics are
appropriately tailored to the jurisdictional discovery and, in any event, there is no indication that
KU Health objected to them.
The Court is persuaded that these questions fall within the scope of the jurisdictional
discovery. Like many of the questions discussed above, they seek clarification about the
information accessed by Clinician, a topic that falls within the scope of whether Plaintiffs have
standing to assert their claims against KU Health. The Court overrules KU Health’s outside-the-
scope objections to Question Nos. 14 and 17.
J. 	Question No. 15
Question No. 15 asked Ms. Thompson whether KU Health received “follow-up actions”
from patients after the letter to them went out.60 KU Health’s counsel instructed the witness not to
answer. Plaintiffs assert the question was a follow-up, and in any event, it was related to documents
produced by KU Health during the course of jurisdictional discovery.
Again, while perhaps relevant to the case as a whole, the Court is not persuaded that this
additional inquiry into whether patients reached out to KU Health after they received notice of
Clinician’s access of their information falls within the limited scope of jurisdictional discovery.
The Court sustains KU Health’s outside-the-scope objection to Question No. 15.
VII. 	Reconvened Deposition of Ms. Thompson
For the reasons set out above, the Court will order KU Health to produce Ms. Thompson
for a second deposition to answer certain questions. Plaintiffs have also requested an order
directing that Ms. Thompson’s continued deposition proceed “subject only to proper objection,
59 Id.
60 Thompson Dep. Tr. 186:6–8.
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prohibiting instructions not to answer except as expressly permitted by Rule 30(c)(2) and speaking
objections that are argumentative, suggestive, or coach the witness.”61 As instructed by District of
Kansas Deposition Guideline 5(a), “[o]bjections shall be concise and shall not suggest answers to
or otherwise coach the deponent.” Objections which suggest answers to or otherwise coach the
witness are commonly called “speaking objections.”62 An objection that a question calls for
speculation is a foundation objection and not a form objection. It also tends to coach the witness
to respond that he does not know the answer.63
The Court’s review of the entire Thompson deposition transcript revealed several instances
where counsel for KU Health made improper speaking objections that tended to (and often
successfully did) coach the witness. For example, on page 39 of the deposition transcript, counsel
for KU Health objected to form and then added: “To the extent you understand the question.” The
witness, responding to counsel’s statement, then stated: “Yeah, can you restate that?” Counsel did
restate the question, and counsel for KU Health again objected to form and then added “Lacks
foundation.” The witness, again, apparently responding to KU Health counsel’s statement, then
testified: “I cannot – I cannot answer that with certainty.”64 Counsel’s statements at the end of
these two objections (“To the extent you understand the question” and “Lacks foundation”) both
constituted improper speaking objections that suggested answers and tended to coach the witness.
A few pages later, on page 42 of the deposition transcript, counsel for KU Health again
objected to form and then added: “Outside the scope. To the extent you know.” The witness,
61 Pl. Mot. (Dkt. 55) at 13.
62 Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 WL 28071, at *4 (D. Kan. Jan. 5, 2012).
63 Id.
64 Thompson Dep. Tr. 39:11–23.
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responding to counsel’s statement, then stated “I don’t – I don’t know.” 65 Again, counsel’s
statement at the end of the objection (“To the extent you know”) constituted an improper speaking
objection that suggested an answer and tended to coach the witness.
On page 53 of the deposition transcript, Plaintiffs’ counsel asked KU Health’s counsel to
stop making improper speaking objections, and KU Health’s counsel refused:
Q (By Mr. Stueve) Okay. But that statement doesn't mean that KU employees like
[Clinician] never accessed other health records systems as part of their work with
KU. Right?
MS. GREEN: Objection, form. You can answer if you understand.
MR. STUEVE: Cate, so make your objection, but the extra stuff at the end, I mean,
You’re coaching the witness, if you understand, that kind of thing.
MS. GREEN: I obviously disagree.66
The Court agrees with Plaintiffs. KU Health counsel’s statement at the end of the objection (“You
can answer if you understand”) again constituted an improper speaking objection that suggested
an answer and tended to coach the witness.
As a final example, on page 87 of the deposition transcript, Plaintiffs’ counsel asked
whether the clinical information that KU Health concedes Clinician accessed could have included
“image-related content,” and KU Health’s counsel objected that she did not know what he meant
by “image-related content”:
Q (By Mr. Stueve) With respect to the Plaintiffs in this case in particular that you’ve
testified you were part of the investigation into, that paragraph of that declaration,
those paragraphs that you made, you're not saying that those Plaintiffs' clinical
information didn’t contain any image-related conduct. Right?
MS. GREEN: Objection.
Q (By Mr. Stueve) Content?
MS. GREEN: Objection, form. I don't know what you mean by images, image
content.
MR. STUEVE: I know you don’t, but the question is to the witness.
65 Id. at 42:17–19.
66 Id. at 53:3–13.
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MS. GREEN:· Same objections.67
KU Health’s counsel’s statement at the end of the objection that she did not know what the question
was referring to also constituted an improper speaking objection that suggested an answer and
attempted to coach the witness.
These illustrative examples should guide KU Health’s counsel on what not to do at the
reconvened deposition of Ms. Thompson. Counsel should be particularly mindful of District of
Kansas Deposition Guideline 5(a) and keep their objections “concise.” Deposition objections
should not suggest answers to or otherwise coach the deponent.
VIII. 	Costs of Reconvened Deposition and Expenses Incurred Related to this Motion
Plaintiffs request the Court order KU Health to bear the costs of Ms. Thompson’s
reconvened deposition, including court reporter and transcript fees, as remedial relief necessitated
by its improper deposition conduct. In its response, KU Health requests the Court order Plaintiffs
to pay its attorney’s fees associated with preparing its response in opposition to the motion under
Fed. R. Civ. P. 37(a)(5)(B).
As provided by Fed. R. Civ. P. 30(d)(2), the court “may impose an appropriate sanction—
including the reasonable expenses and attorney’s fees incurred by any party—on a person who
impedes, delays, or frustrates the fair examination of the deponent.” In this case, the Court finds
KU Health’s repeated objections during the deposition did impede and delay the fair examination
of Ms. Thompson. The Court therefore will require KU Health to bear the costs of Ms. Thompson’s
reconvened deposition because it was its counsel’s objections and instructions not to answer that
resulted in the need to reconvene Ms. Thompson’s deposition.
If a party files a motion to compel under Rule 37(a)(3)(B)(i) based upon a deponent’s
67 Id. at 87:1–14.
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failure to answer a question asked under Rule 30, and the motion to compel is granted in part and
denied in part, the court may “apportion the reasonable expenses for the motion” under Rule
37(a)(5)(C). Here, the Court orders that Plaintiffs and KU Health shall bear their own expenses,
including attorney’s fees, incurred related to the briefing of this motion.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Compel Further Deposition
Testimony and for Remedial Relief Regarding Defendant KU Health’s Improper Deposition
Objections (Dkt. 55) is granted in part and denied in part. Defendant KU Health’s outside-the-
scope objections are sustained as to Question Nos. 4, 8, 10–13, 15, 16, and 18, and overruled as to
Question Nos. 1–3, 5–7, 9, 14, and 17. Defendant KU Health shall produce Ms. Thompson for her
reconvened deposition to answer Question Nos. 1–3, 5–7, 9, 14, and 17 and related follow-up
questions.
IT IS FURTHER ORDERED that the deposition of Ms. Thompson shall be reconvened
within thirty (30) days of this Order at a mutually-agreed date, time, and location. The
reconvened deposition shall not exceed four (4) hours in length.
IT IS FURTHER ORDERED that KU Health shall bear the costs of the reconvened
deposition, including court reporter and transcript fees. Each party shall bear its own attorney’s
fees related to the reconvened deposition. Plaintiffs and KU Health shall also bear their own
expenses, including attorney’s fees, incurred related to the briefing of this motion.
IT IS SO ORDERED.
Dated April 23, 2026, at Kansas City, Kansas.
Jennifer 	B. 	Wieland
U. S. Magistrate Judge
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