Opinion
CIVIL ACTION No: 00-2366-JWL
August 10, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the following motions: (1) Plaintiff's Motion to Compel Discovery from Learjet, Inc. (doc. 78); and (2) Defendant Learjet Inc.'s Motion for Protection (doc. 85).A hearing was held on these motions on June 12, 2001, at which time the Court took the motions under advisement. Plaintiff Carolina Industrial Products ("Industrial Products") appeared by Edward McConwell. Defendant and Counterclaimant Learjet Inc. ("Learjet") appeared by Ron Sprague. Defendant National Union Fire Insurance Company appeared by John Cowden. Cross-Claim Defendant and Counterclaimant Raytheon Aircraft Services, Inc. appeared by Michael Jones. The Court now makes the following rulings.
I. Factual Background
This lawsuit arises out of Industrial Products' ownership of an aircraft manufactured by Learjet (" the Aircraft"). The Aircraft was constructed from component parts of other planes serial numbered) 25D-212 and 25-D263. It was registered with the Federal Aviation Administration ("FAA") as N825D. Learjet has refused to service or support the Aircraft on the basis that it is unairworthy under FAA Regulations.
Plaintiff asserts numerous causes of action against Learjet, including claims for tortious interference, deceptive trade practices, common law product disparagement, abuse of monopoly power under 15 U.S.C. § 2, negligence, fraud, promissory estoppel, and negligence.
II. Plaintiff's Motion to Compel Discovery from Learjet, Inc. (doc. 78)
A. Depositions
Industrial Products moves the Court for an order compelling Learjet to produce the following witnesses for their depositions: (1) James Tidball, (2) Roger Toeppen, (3) Randy Martin, and (4) Dave VanCoevering. Industrial Products provides the following information in support of its motion:
Industrial Products noticed depositions of these individuals for February 27, 2001, but agreed with Learjet to postpone them for two weeks. Industrial Products re-noticed Barry Martin's deposition for; March 5, 2001. Learjet then "failed to produce the remaining witnesses at the rescheduled time, and has failed to file a motion for protective order." Doc. 79 at 2. Learjet, in response, states that Industrial Products never re-noticed the depositions, and that the only reason the witnesses have not been produced is due to scheduling difficulties. Learjet asserts that is has never failed to produce witnesses whose depositions have been noticed.
Counsel for Industrial Products recently informed the Court that the motion to compel is moot as to Randy Martin and James Tidball in that (1) Mr. Martin's deposition has been taken; and (2) Mr. Tidball's deposition is scheduled for August 9, 2001. In light of this information, the Court will deny, as moot, the motion to compel with respect to these two individuals.
Counsel for Industrial Products has also informed the Court that the parties have agreed that Mr. VanCoevering's deposition will take place on August 13, 2001. The Court will therefore also deny the motion as moot with respect to Mr. VanCoevering. While Industrial Products' Counsel has informed the Court that there remains a dispute as to whether Mr. VanCoevering's deposition should be taken in Wichita, Kansas or in Dallas, Texas, this issue was never raised in the instant motion to compel or in any of the briefing. This issue is therefore not before the Court.
This leaves pending before the Court only the issue of Mr. Toeppen's deposition. The only deposition notice of record for Mr. Toeppen set his deposition for February 27, 2001. Neither the Court file nor the parties' briefs reveal that any other deposition notice has been served setting Mr. Toeppen's deposition. With what little information the Court possesses about Mr. Toepperi's deposition, the Court can only surmise that scheduling difficulties have prevented Mr. Toeppen from being deposed. The Court therefore orders the parties to confer and to schedule Mr. Toeppen's deposition to be taken within eleven (11) days of the date of filing of this Order.
B. Industrial Products' Requests for Production
Industrial Products seeks to compel Learjet to answer Requests for Production No. 6, 15, 17, 18, 20, 21, and 24.
1. Analysis a. Request for Production No. 6
Learjet objects to this request on the basis that it seeks "confidential marketing and/or proprietary information." It also objects on the basis that it seeks irrelevant information.
The Court will overrule Learjet's relevancy objection. Relevancy is broadly construed, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. 583, 585 (D. Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999) A request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing" on the claim or defense of a party. Scott, 190 F.R.D. at 585 (quoting Snowden v. Connaught Lab., 137 F.R.D. 336, 341 (D. Kan. 1991) (emphasis added by Scott) When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott, 190 F.R.D. at 585 (citations omitted). The potential for harm caused by allowing the discovery in many situations may be eliminated or greatly reduced by producing the documents pursuant to a protective order. Lawrence v. First Kansas Bank Trust Co., 169 F.R.D. 657, 660 (D. Kan. 1996).
Scott and Etienne were decided under the prior version of Fed.R.Civ.P. 26(b)(1), which provided that, parties could obtain discovery regarding any matter "that is relevant to the subject matter involved in the pending action" (Emphasis added.) Fed.R.Civ.P. 26(b)(1) was amended effective December 1, 2000, to provide that parties may obtain discovery regarding any matter "that is relevant to the claimor defense of any party." (Emphasis added.) For good cause shown, the court may also order discovery of "any matter relevant to the subject matter involved in the action." Id. (emphasis added) Despite the change in the Rule, the standard enunciated in Scott and Etienne still applies.
Applying these principles, the Court concludes that the documents sought are relevant to Industrial Products' claims. Furthermore, the Court finds that any potential for harm caused by Learjet producing these allegedly confidential documents will be eliminated by the Protective Order that was entered in this case on June 13, 2001. See doc. 88. That Protective Order protects the confidentiality of any documents produced by Defendants that are designated as containing confidential, proprietary or trade secret information.
The Court makes no ruling here with respect to whether any of the requested information is indeed) proprietary or trade secret. The Court is only ruling that the parties already have in place a procedure for handling documents and information that they contend should be kept confidential.
The Court will also overrule Learjet's objection that the request seeks "confidential marketing and/or proprietary information" Proprietary and confidential information and trade secrets are not, by their nature, exempt from discovery. Custom Energy v. Liebert Corp., No. 98-2077-GTV, 2000 WL 307316, *2 (D. Kan. Mar. 21, 2000); Lawrence, 169 F.R.D. at 660. In any event, the Protective Order will protect the confidentiality of this alleged proprietary information.
The motion to compel is therefore granted as to Request for Production No. 6.
b. Request for Production No. 15
At the June 12 hearing, Learjet indicated that it has no "Attrited File," as sought in this request.
Learjet stated that it would revise its response to indicate that no such file exists. If Learjet has not already done so, it shall serve such a supplemental response to this request within eleven (11) days of the filing of this Order.
c. Request for Production No. 17
Learjet objects to this request on the grounds that "it is overbroad and intrudes upon the attorney client privilege, the work product privilege, and the investigative privilege. . . ." The Court will overrule these objections, for the reasons set forth below.
(1) Attorney-client and investigative privileges and work product immunity
As the party asserting a privilege or work product protection, Learjet has the burden of establishing that the privilege or work product immunity applies. See McCoo v. Denny X Inc., 192 F.R.D. 675, 683 (D. Kan. 2000); Boyer v. Board of County Comm'rs, 162 F.R.D. 687, 688 (D. Kan 1995). To carry that burden, Learjet must make a "clear showing" that the asserted privilege/protection applies. See McCoo, 192 F.R.D. at 683; Ali v. Douglas Cable Communications, Ltd. Partnership, 890 F. Supp. 993, 944 (D. Kan. 1995).Fed.R.Civ.P. 26(b)(5) provides that when a party withholds documents or other information based on a privilege or work product protection, the "party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." As the party asserting the privilege/protection, Learjet must also provide sufficient information to enable the court to determine whether each element of the privilege/protection is satisfied. Jones v. Boeing Co., 163 F.R.D. 15, 17 (D. Kan. 1995). A "blanket claim" as to the applicability of the privilege or work product doctrine does not satisfy the burden of proof. McCoo, 192 F.R.D. at 680. A party's failure to meet this burden when the trial court is asked to rule upon the existence of the privilege/protection is not excused because the document is later shown to be one that would have been privileged if a timely showing had been made. Peat, Manvick, Mitchell Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984).
Here, Learjet has failed to make any showing, let alone a "clear showing" that the asserted attorney-client privilege, "Investigative privilege," or work product protection applies. Learjet has provided no privilege log and has made no attempt to describe the nature of the documents so as to enable Industrial Products or this Court to assess the applicability of the asserted privileges/protection. Furthermore, the Court does not agree with Learjet that the request is so overly broad on its face so as to relieve Learjet from providing a privilege log or otherwise describing the documents. The Court will therefore overrule Learjet's assertion of the attorney-client privilege, "investigative privilege," and work product protection.
Learjet has not explained the basis for its asserted "investigative" privilege, and the Court is unaware of any case law or rule recognizing such a privilege. To the extent Learjet may be using the term to refer to work product immunity, the above-cited rules apply.
(2) Overbreadth objection
The Court will also overrule Learjet's overly broad objection. Unless the discovery request is overly broad "on its face," Learjet, as the party resisting discovery, has the burden to support is overbroad objection. McCoo v. Denny's, Inc., 192 F.R.D, 675, 686 (D. Kan. 2000). The Court does not find the interrogatory facially overly broad. The Court further finds that Learjet has failed to support its objection. The motion to compel will therefore be granted as to Request No. 17.
d Request for Production No. 18
Learje has produced documents in response to this request and has asserted no objections to it. Industrial Products, however, believes that other documents responsive to this request exist and asks the Court to compel their production. In addition, Industrial Products states that it "has been unable to locate a document stamped "LDI#37," which Learjet claims to have produced to Industrial Products. Learjet responds that it has produced all responsive documents "in its possession and control," including the document stamped "LDI#37."
Fed.R.Civ.P. 34(a) requires a party upon whom a request for production is served to produce all responsive documents in that party's "possession, custody or control." Obviously, the Court cannot compel a party to produce documents that do not exist or that are not in the party's "possession, custody or control." Learjet has already stated that it has produced all responsive documents in its possession and control. Out of an abundance of caution, the Court will instruct Learjet to provide a supplemental response to this request indicating that it has no other responsive documents in its possession, custody or control. In addition, Learjet shall re-produce to Industrial Products the document stamped "LDI#37," which Industrial Products claims it never received.
The Court notes that had the parties done a better job conferring on this motion and had they fully cooperated in the discovery process, such minor items as this would not require the Court's attention.
e. Request for Production No. 20
Learjet objects to this request on the basis that it seeks irrelevant information and is not reasonably calculated to lead to admissible evidence. The Court does not find the request to seek irrelevant documents and will grant the motion to compel as to Request No. 20.
f. Request for Production No. 21
This request seeks "[instructions for continued airworthiness provided by Lear[jet] to owners and mechanics for the inspection, maintenance, repair or replacement of Hydraulic Solenoid Valve P/N, 48C486O3." In response, Learjet produced a service bulletin and the "Learjet Maintenance Manual." Industrial Products asserts that because the Manual is a multi-volume set, Learjet should be require* to produce copies of the specific pages and paragraphs from the Manual that are responsive to this request. Neither party has informed the Court as to how many pages are contained in the Manual or whether it contains an index that would allow Industrial Products to find the requested information.
Under Fed, R. Civ. P. 34, a producing party has the burden to select arid produce the documents requested "rather than simply dumping large quantities of unrequested materials onto the discovering party along with items actually sought." Charles Wright, Arthur Miller and Richard Marcus, Federal Practice and Procedure 2d, § 2214 (Supp. 2000). Based on the limited information before the Court, this does not appear to be the case here, Out of an abundance of caution, however, the Court will instruct Learjet to provide a supplemental written response indicating the specific sections, chapters and/or pages of the Manual in which the responsive material is to be found.
The Court observes once again that it appears that had the parties fully conferred and cooperated with each other, such a trivial matter would not require the Court's attention.
g. Request for Production No. 24
Learjet objects on the basis of relevancy to that portion of Request No. 24 which seeks the post-manufacture file on Learjet 24D-242. Learjet also objects to the entire request on the grounds that it seeks information protected by "the attorney work product, attorney client and investigative work product privileges,"
The Court does not find the request for the Learjet 24D-242 file to be relevant on its face, and does not find that Plaintiff has sufficiently explained in what way the requested information pertains to the Aircraft at issue in this case, i.e., N825D. The Court will therefore uphold Learjet's relevancy I objection and will deny the motion to compel as to the Learjet 24D-242 file.
With respect to the remaining portions of the request, i.e., the portions that seek the Learjet 25D-212 and 25D263 files, the Court will grant the motion to compel. For the same reasons cited above with respect to Request for Production No. 17, the Court does not find that Learjet has supportedits assertion of privilege or work product protection.
2. Summary of ruling
For the reasons set forth above, Plaintiff's motion to compel answers to Plaintiff's requests for production is granted in part and denied in part. Any supplemental written responses to Industrial Products' requests for production that are required to be served pursuant to this Order shall be served within eleven (11) days of the date of filing of this Order. In addition, all responsive documents that are required to be produced pursuant to this Order shall be produced to Industrial Products within eleven (11) days of the date of filing of this Order. Said production shall take place at the office of Industrial Products' counsel or at any other location agreed upon by the parties.
C. Sanctions
Because the Court is granting in part the motion to compel, it may apportion among the parties the expenses incurred in connection with the motion. See Fed.R.Civ.P. 37(a)(4)(C). Neither party has requested that sanctions be awarded. The Court will decline to enter any award of sanctions, and each party will be responsible for payment of the expenses and fees each has incurred in connection with the motion.
III. Learjet's "First Motion for Protection" (doc. 85)
In this motion, Learjet asks the Court to quash Industrial Product's Rule 30(b)(6) Notice of Deposition, which noticed depositions to be begin June 11, 2001. The deposition notice identifies ten topics of anticipated testimony. Learjet objects to each of the topics on numerous grounds.
A. Proper Characterization of Learjet's Motion
Although Learjet asks for relief in terms of "quashing" the deposition notice, the proper request for relief is through a protective order. When a third party is served with a subpoena, the proper method for seeking relief is through a motion to quash (or modify) the subpoena. See Fed.R.Civ.P. 45(c) ("On timely motion, the court by which a subpoenas was issued shall quash or modify the subpoena [in certain circumstances]."). When, on the other hand, a deposition notice is served on a party to the lawsuit — as is the case here — the proper method for seeking relief is through a motion for protective order. Accordingly, the Court will treat Learjet's motion as one for protective order.
B. Standard for Ruling on a Motion for Protective Order
Fed.R.Civ.P. 26(c) provides that a court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order carries the burden of persuasion to show good cause for it. Reed v. Bennett, 193 F.R.D. 689, 691 (D. Kan. 2000). To establish good cause, that party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981). The decision to enter a protective order is within the court's discretion. Thomas v. Int'l Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995).
A party may request a protective order to prohibit inquiry into areas that are beyond the scope of appropriate discovery. Caldwell v. Life Ins. Co. of North America, 165 F.R.D. 633, 637 (D. Kan. 1996). Fed.R.Civ.P. 26(b) defines the appropriate scope of discovery. As noted above, subparagraph (b)(1) allows a party to obtain discovery regarding any matter, not privileged, that is relevant to a party's claim or defense in the pending action. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1).
C. Analysis of Learjet's Objections
The Court will now proceed to rule on the merits of Learjet's objections to the Rule 30(b)(6) deposition notice.
1. Overbreadth
Learjet asserts that each of the topics of testimony are overly broad. Unless the discovery request is overly broad "on its face," Learjet, as the party resisting discovery, has the burden to support is objection. McCoo v. Denny's, Inc., 192 F.R.D. 675, 686 (D. Kan. 2000). The Court does not find any of the topics to be facially overly broad. Moreover, the Court finds that Learjet has failed to support any of its individual overbroad objections.
Although it is not clear from Learjet's motion, Learjet may also be asserting that the topics have not been identified with "reasonable particularity." Fed.R.Civ.P. 30(b)(6) requires that the 30(b)(6) deposition notice specify the areas of inquiry with "reasonable particularity." The Court finds that the topics have been identified with the required particularity. The Court therefore overrules Learjet's overbroad objections.
2. Undue burden
The Court will also overrule Learjet's burdensome objections. Learjet's makes conclusory assertions that various topics are burdensome. The only information provided to support these assertions is contained in Learjet's general objection that it will be required to prepare at least "a dozen different witnesses for deposition." For the reasons explained below, this is insufficient to meet Learjet's burden.
As the party asserting burdensomeness, Learjet has the burden to show not only "undue burden or expense," but also to show that the burden or expense is unreasonable in light of the benefits to be secured from the discovery. See McCoo v. Denny's, Inc., 192 F.R.D. 675, 686 (D. Kan. 2000), Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 332 (D. Kan. 1991). Thus, even if producing Rule30(b)(6) witnesses to provide this testimony would cause great labor and expense or even considerable hardship, Learjet would still be required to establish that the hardship would be undue and disproportionate to the benefits Industrial Products would gain from the information. See McCoo, 192 F.R.D at 686. Moreover, Learjet, as the party objecting to the discovery as unduly burdensome "cannot rely on some generalized objections, but must show specifically how each requested topic of testimony] is burdensome . . . by submitting affidavits or some detailed explanation as to the nature of the claimed burden." Fears v. Wal-Mart Stores, Inc., No. 99-2525-JWL, 2000 WL 1679418, *3 (D. Kan. Oct. 13, 2000); Kutilek v. Gannon, 132 F.R.D. 296, 300 (D. Kan. 1990).
Learjet has provided the Court with virtually no information in support of its burdensome; objections. The mere fact that twelve witnesses might need to be produced does not satisfy Learjet's burden. The Court will therefore overrule Learjet's objections that the requested topics of testimony impose an undue burden on Learjet.
3. Relevancy
Learjet also objects to many of the identified topics as irrelevant and not calculated to lead to the discovery of admissible evidence. With the exception of the following topics, the Court does not find the designated topics to be seeking irrelevant information.
Topic No. 9 seeks testimony regarding the identification and contents of post-manufacturing files on Learjet 24D-242. The Court denied Plaintiff's motion to compel Learjet to answer to Plaintiff's Request for Production No. 24 seeking the post-manufacturing file on Learjet 24D-242, finding that Industrial Products had failed to show the requested information to be relevant. The Court finds the same to be true here. The motion for protective order will therefore be granted as to Topic No. 9 and the Learjet 24D-242 file.
Topic No. 11 seeks testimony regarding market studies "concerning Learjet Model 20 and 30 aircraft during the time frame 1984 to the present." The Court does not find this topic to be relevant on its face nor does it find that Industrial Products has explained the relevancy of this information. The Court will therefore also grant the motion for protective order as it applies to Topic No. 11.
4. Vagueness and lack of clarity
Learjet objects to portions of two topics on the basis of vagueness or lack of clarity. As the party objecting to discovery as vague or ambiguous, Learjet has the burden to show such vagueness or ambiguity. See McCoo, 192 F.R.D. at 694; Pulsecard, 168 F.R.D. at 310. A party responding to discovery requests "should exercise reason and common sense to attribute ordinary definitions to terms and phrases" used in discovery requests. McCoo, 192 F.R.D. at 694 (quoting Pulsecard, 168 F.R.D. at 310).
With respect to Topic No. 5, Learjet asserts that "Plaintiff's request for information concerning factory support of Learjet manufacture aircraft is vague." The Court disagrees. This topic states in pertinent part that the deponent will be expected to describe "Learjet's requirements for providing technical and other support to Learjet manufactured aircraft." Learjet does not explain in what way this topic is vague. To the extent Learjet may be claiming that the term "support" is vague, the Court notes that Learjet itself has used the term in Learjet's Summary of the Case contained in the Report of! Parties' Planning Meeting. There, Learjet states that "Learjet refuses to service, support or test fly" the Aircraft because it is unairworthy. Report of parties' Planning Meeting at 4 (emphasis added). It thus appears that Learjet knows what the term "support" means with respect to the Aircraft. The Court will therefore deny the motion for protective order as to this portion of Topic No. 5.
Learjet also asserts that a portion of Topic No. 6 is unclear. Topic No. 6 is entitled "Repair and/or replacement of wing leading edge skins on Learjet manufactured aircraft." Learjet asserts that the following statement is unclear and does not allow Learjet to identify the appropriate witness or the subject matter inquired about: "The deponent will be expected to identify' all agreements that concern or relate to the approval and/or authorization." The Court agrees with Learjet that this sentence is unclear. Topic No. 6 does not identify the agreements in any way nor does it explain what approval or authorization it is referring to. The Court will grant the protective order with respect to the above-quoted sentence of Topic No. 6. To the extent Learjet may be seeking a protective order with respect to the remaining portions of Topic No. 6, the motion is denied.
5. Proprietary information
Learjet asserts in a conclusory fashion that Topic Nos. 6 and 12 request proprietary information. As noted above, proprietary information is not, by its nature, exempt from discovery. The parties have in place a protective order for maintaining the confidentiality of any alleged proprietary or trade secret information, and the procedures contained therein should be followed to protect the confidentiality of the testimony sought in these Topics.
6. Attorney-client privilege and attorney work product
Learjet objects to Topic Nos. 3 and 10 on the grounds that they "include communications protected by the attorney work product and attorney-client privileges." Topic No. 3 covers inquiries that Learjet has received during a certain time period about Learjet N825D that relate to maintenance, repair, damage, support, airworthiness, technical support, value, or status. It also covers documents that are generated concerning each such inquiry. Topic No. 10 covers written and oral communications between Learjet and Defendant Raytheon relating to Learjet N825D.
The Court does not find that these topics on their face call for testimony invading the attorney-client privilege or attorney work product doctrine. The Court therefore finds no basis at this time to grant the motion for protective order on these grounds. The Court recognizes, however, that during the depositions, specific questions on these topics might be posed that would elicit privileged or protected information. At that time, the deponent may assert the appropriate privilege/protection.
7. Insufficient time
Learjet objects to every topic as follows: "[T]he request is not reasonable because it allows insufficient time for LEARJET INC. to investigate the maters inquired about, identify appropriate I witnesses and prepare such witnesses for deposition." Learjet was given seventeen days notice of the Rule 30(b)(6) deposition(s). The Court has not found the topics of anticipated testimony to be overly broad or unduly burdensome, the Court therefore does not agree with Learjet that seventeen days would be insufficient time to locate and prepare the dozen or more witnesses that it asserts would need to be produced. Pursuant to D. Kan. Rule 30.1, the Court may enlarge the amount of notice required for a deposition. See D. Kan. Rule 30.1 (providing that five days is reasonable notice for deposition, but stating that court may enlarge the time). The Court expects Industrial Products' counsel to cooperate with Learjet's counsel and to allow Learjet sufficient preparation and investigation time. In any event, the scheduled June 11 deposition date has long passed, and the 30(b)(6) depositions will need to be rescheduled. Learjet shall be provided with at least eleven (11) days of notice before the re-noticed Rule 30(b)(6) depositions may go forward.
D. Sanctions
Fed.R.Civ.P. 26(c) provides that Rule 37(a)(4) applies to the award of expenses incurred in connection with a motion for protective order. As noted above, where the motion is granted in part and denied in part, the Court may apportion among the parties the reasonable expenses they have incurred in relation to the motion. See Fed.R.Civ.P. 37(a)(4)(C). Neither party has requested sanctions in connection with this motion. The Court will decline to enter any award of sanctions, and each party will be responsible for payment of the expenses and fees each has incurred it connection with Learjet's motion for protective order.
IT IS THEREFORE ORDERED that Plaintiff Industrial Product's Motion to Compel Discovery from Learjet, Inc. (doc. 78) is denied in part and granted in part as set forth herein. Counsel for the parties shall confer and schedule Mr. Toeppen's deposition to be taken within eleven (11) days of the date of filing of this Order. Any supplemental written responses to Industrial Products' requests for production required to be served by this Order shall be served within eleven (11) days of the date of filing of this Order, In addition, all responsive documents ordered to be produced pursuant to this Order shall be produced to Industrial Products within eleven (11) days of the date of filing of this Order. Said production shall take place at the office of Industrial Products' counsel or at any other location agreed upon by the parties.
IT IS FURTHER ORDERED that Defendant Learjet Inc.'s Motion for Protection (doc. 85) is denied in part and granted in part as set forth herein. Industrial Products shall re-notice the Rule 30(b)(6) deposition(s) in accordance with this Order, providing Learjet with at least eleven (11) days notice. IT IS FURTHER ORDERED that each party shall be responsible for payment of the fees and expenses it has incurred in connection with these motions.
IT IS SO ORDERED.
This matter is before the Court on Defendant Learjet Inc.'s Second Motion for Protection (doc. 102). A telephone hearing was held on this motion on August 9, 2001. Plaintiff Carolina Industrial Products ("Industrial Products") appeared by Edward McConwell. Defendant and Counterclaimant Learjet Inc. ("Learjet") appeared by Ron Sprague and Anne Beaurivage. Defendant National Union Fire Insurance Company appeared by John Cowden. Cross-Claim Defendant and Counterclaimant Raytheon Aircraft Services, Inc. appeared by Michael Jones. The Court now makes the following rulings.
Defendant Learjet Inc. ("Learjet") seeks to quash the deposition notices that were served on Learjet by Industrial Products for the following: (1) Rule 30(b)(6) deposition ( see doc. 98); (2) deposition of Tom Street ( see doc. 99); and (3) depositions of Brian Quilty, Gilbert Young, and Mike Straughen ( see doc. 100).
1. Factual Background
This lawsuit arises out of Industrial Products' ownership of an aircraft manufactured by Learjet (" the Aircraft"). The Aircraft was constructed from component parts of other planes serial numbered 25D-212 and 25-D263. It was registered with the Federal Aviation Administration ("FAA") as N825D. Learjet has refused to service or support the Aircraft on the basis that it is unairworthy under FAA Regulations
Industrial Products asserts various claims against Learjet and Raytheon, including claims for negligence. Industrial Products asserts that Learjet was aware of a defect in the main landing gear hydraulic valve installed in the Aircraft, and that as a result of Learjet's negligence the braking system on the Aircraft failed. Second Amended Complaint, ¶ 135, 138. Industrial Products also asserts that Raytheon failed to detect and warn Industrial Products of the unairworthy landing gear hydraulic valve. Id., ¶ 176.
II. Characterization of Learjet's Motion
Learjet seeks to quash the various deposition notices. As the Court pointed out in its Memorandum and Order of this same date ( see doc. 116), when a deposition notice is served on a party to the lawsuit — as is the case here — the proper method for seeking relief is through a motion for protective order. Accordingly, the Court will treat Learjet's motion as one for protective order.
III. Standard for Ruling on a Motion for Protective Order
Fed.R.Civ.P. 26(c) provides that a court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order carries the burden of persuasion to! show good cause for it. Reed v. Bennett, 193 F.R.D. 689, 691 (D. Kan. 2000). To establish good cause, that party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981). The decision to enter a protective order is within the court's discretion. Thomas v. Int'l Bus. Mach., 48 F.3d 478, 482 (10th Cir. 1995).
IV. Rule 30(b)(6) Deposition
Learjet objects to the three requested topics of testimony on the grounds that they are overly broad and unduly burdensome and that they seek irrelevant information. Specifically, Learjet objects to the Rule 30(b)(6) deposition notice's request for testimony concerning the following topics:
• "Emergency gear blow down system for Model 25D Learjet aircraft and other Learjet aircraft utilizing substantially similar systems."
• "Hydraulic brake failure after use of gear blow down system on Model 25D and Learjet aircraft utilizing substantially similar systems"
• "Cause of the hydraulic braking failure system on N825D on February 25, 2000."
This includes the following subtopic: "[I]dentification of all maintenance manual and flight manual pages dealing with the gear blow down system."
A. Relevance
Learjet asserts that Plaintiff has not made any claim regarding the hydraulic braking system, other than with respect to a single component part, i.e., the landing gear hydraulic selector valve. Industrial Products counters that the above-referenced topics are relevant to its claims against both Learjet and Raytheon. Specifically, Industrial Products states that it has pled "that the hydraulic braking system in Learjet N825D failed on February 25, 2000 after the landing gear had been blown down utilizing the emergency system." Objections to Learjet's Second Motion for Protection, Doc. 102 at 4-5. Industrial Products contends that this information is relevant as to Learjet's alleged negligence in the design of the hydraulic braking system and its failure to provide instructions and warnings. Industrial Products also contends that the requested testimony is relevant as to Raytheon's alleged negligence in failing to properly inspect the Aircraft and maintain the braking system.
Relevancy is broadly construed, and a request for discovery should be considered relevant if there is "any possibility" that the information sought may be relevant to the claim or defense of any party. Scott v. Leavenworth Unified School Dist. No. 453, 190 F.R.D. 583, 585 (D. Kan. 1999); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999). A request for discovery should be allowed "unless it is clear that the information sought can have no possible bearing" on the claim or defense of a party. Scott, 190 F.R.D. at 585 (quoting Snowden v. Connaught Lab., 137 F.R.D. 336, 341 (D. Kan. 1991) (emphasis added by Scott). When the discovery sought appears relevant on its face, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Scott, 190 F.R.D. at 585 (citations omitted).
Scott and Etienne were decided under the prior version of Fed.R.Civ.P. 26(b)(1), which provided the parties could obtain discovery regarding any matter "that is relevant to the subject matter involved in the pending action" (Emphasis added.) Fed.R.Civ.P. 26(b)(1) was amended effective December 1, 2000, to provide that parties may obtain discovery regarding any matter "that is relevant to the claim or defense of any party" (Emphasis added.) For good cause shown, the court may also order discovery of "any matter relevant to the subject matter involved in the action." Id.(emphasis added) Despite the change in the Rule, the standard enunciated in Scott and Etienne still applies.
Applying these principles, the Court will overrule Learjet's relevance objection to the third above-referenced topic, which requests testimony on the "[c]ause of the hydraulic braking failure system on N825D on February 25, 2000." Although Industrial Products' negligence claims against Learjet and Raytheon center on the hydraulic solenoid valve (or as Learjet refers to it, the landing gear hydraulic selector valve), those claims are not so narrow as to limit discovery only to that valve. In its Second Amended Complaint, Industrial Products expressly claims that "[t]he brakes . . . failed to properly engage because of the failure of a hydraulic solenoid valve Part #48C4S603, causing the aircraft to veer off of the runway," and that this brake failure resulted in damage to the Aircraft. Second Amended Complaint, ¶ 81 (doc. 109). The Second Amended Complaint also alleges that "[a]s a direct and proximate result of Lear's negligence, the braking system on N825D failed after the emergency gear extension system was employed by the crew. . . ." Id., ¶ 138. The third requested topic of testimony appears directly relevant to these claims, and Learjet has failed to show otherwise. Learjet j has also failed to show that any potential for harm exists that would outweigh the need for this information.
In contrast, the Court does not find that either the first or second above-referenced topics appear relevant on their face or that they are likely to lead to the discovery of admissible evidence. There is no reference in the Second Amended Complaint to any "emergency gear blow down system" or to "gear blow down." Although Industrial Products claims that it has alleged that the hydraulic braking system failed "after the landing gear had been blown down," Objections at 4-5, the Court finds nothing in the Second Amended Complaint to that effect. The Court will therefore uphold the motion for protective order as to these two topics.
Because the Court has sustained Learjet's relevancy objections to the first and second topics, the Court need not determine whether Learjet's other objections to those topics are valid. The Court does, however, need to determine whether Learjet has any other valid objections to the third above-referenced topic, i.e., the request for deposition testimony about the cause of the hydraulic braking failure system on N825D.
B. Overbreadth
Unless the request is overly broad on its face, Learjet, as the party resisting discovery, has the burden to support its objection. McCoo v. Denny X Inc., 192 F.R.D. 675, 686 (D. Kan. 2000); Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999). The Court does not find that Learjet has supported its overbreadth objection to the third topic. The Court will therefore deny the motion for protective order with respect to Learjet's overbreadth objection to the third topic.
C. Undue Burden
For similar reasons, the Court will overrule Learjet's burdensome objection to the third topic. Again, Learjet has the burden to support this objection. See McCoo, 192 F.R.D. at 686. Learjet has the burden to show not only "undue burden or expense," but also to show that the burden or expense is unreasonable in light of the benefits to be secured from the discovery. Id. Learjet has not even attempted to make such a showing. The Court will therefore deny the motion for protective order with respect to Learjet's burdensome objection to the third topic.
D. Attorney Work Product and Attorney Client Privilege
Learjet also objects to the third topic on the basis that, as it is written, it covers communication; protected by the attorney work product doctrine and attorney-client privilege. The Court disagrees and does not find that third requested topic on its face calls for testimony invading the attorney-client privilege or attorney work product doctrine. The Court therefore finds no basis at this time to grant the motion for protective order on these grounds. The Court recognizes, however, that during the Rule 30(b)(6) deposition(s), specific questions on these topics might be posed that would elicit privileged or protected information. At that time, the deponent may assert the appropriate privilege/protection.
E. Insufficient Time
Learjet objects to the notice in general on the basis that Learjet has been given insufficient time to investigate the matters and to identify and prepare the appropriate witnesses. The noticed July 19, 2001 date has already passed. Because the Court is denying a significant portion of the motion for protective order, Industrial Products will be allowed to renotice the Rule 30(b)(6) deposition(s) in accordance with the Court's rulings herein. The new notice shall, however, provide Learjet with at least eleven (11) days notice.
F. Remaining Objections
The Court overrules Learjet's objections that the requested deposition topics seek information that is barred by the General Aviation Revitalization Act. Such objections go to the merits of Industrial Products' claims and are not grounds for barring discovery. All other remaining objections contained in Learjet's motion for protective order pertaining to the Rule 30(b)(6) deposition notice are denied.
V. Depositions of Tom Street, Brian Quilty, Gilbert Young, and Mike Straughen
Learjet seeks a protective order as to the depositions-of these five individuals, which were noticed for July 19 and 20, 2001. Learjet argues that counsel for Industrial Products unilaterally scheduled these depositions for times when Learjet's counsel was unavailable. To the extent the parties have agreed to reschedule these depositions or have already taken these depositions, the motion for protective order is moot. To they extent they have not been rescheduled or taken, counsel are directed to cooperate and work together to arrive at a deposition schedule.
IT IS THEREFORE ORDERED that Defendant Learjet Inc.'s Second Motion for Protection (doc. 102) is denied in part and granted in part as set forth herein. Industrial Products shall re-notice the Rule 30(b)(6) deposition(s)in accordance with this Order, providing Learjet with at least eleven (11) days notice.
IT IS FURTHER ORDERED that each party shall be responsible for payment of the fees and expenses it has incurred in connection with these motions.