Opinion
No. 00-2171-KHV.
May 16, 2001
MEMORANDUM AND ORDER
Pending before the Court are the following motions:
1. Motion to Compel Production of Documents filed by Plaintiff Airport System International, Inc. ("ASII" or "Plaintiff") (doc. 29);
2. Motion for Oral Argument filed by Plaintiff (doc. 30);
3. Second Motion to Compel Production of Documents filed by Plaintiff (doc. 41); and
4. Motion for Leave to File Surreply by Defendant AIRSYS ATM, Inc. ("Defendant" or "AIRSYS") (doc. 43).
Plaintiff seeks to compel Defendant to produce documents withheld in response to Requests 10, 11, 12, 13 and 18 of Plaintiff's First Request for Production of Documents ("First Request") and Requests 1 through 7 of Plaintiff's Third Request for Production of Documents ("Third Request"). For the following reasons, Plaintiff's motion for oral argument is denied, Plaintiff's motions to compel are granted or denied to the extent ordered herein and Defendant's motion to file surreply is granted.
I. Factual Background
Plaintiff ASII designs, markets and installs ground-based radio navigation equipment to aid in-flight navigation and ground movement of aircraft. Defendant AIRSYS directly competes with Plaintiff on a national and international basis in the manufacture and sale of navigational aids and instrument landing systems.
In its Complaint, Plaintiff ASII brings the following four claims against Defendant AIRSYS: (1) unfair competition; (2) injunctive relief (prohibiting further disclosure of confidential information and requiring return of trade secrets and confidential information); (3) violation of the Kansas Trade Secrets Act; and (4) tortious interference with a prospective business relationship. The Complaint reflects that all four of these claims are based upon actions allegedly taken by Defendant while negotiating two contracts for airport landing systems, one in Egypt and one in Turkey.
In its Answer, Defendant AIRSYS denies Plaintiff's claims and brings the following counterclaims against Plaintiff ASII: (1) tortious interference and/or prospective business advantage; and (2) unfair competition in violation of 15 U.S.C. § 1125, The Lanham Act. Based on the facts alleged in the counterclaim, both of these counterclaims are based upon actions allegedly taken by Plaintiff while negotiating two airport landing systems contracts, both in Egypt.
II. Discussion
The document requests at issue state as follows:
Plaintiff's First Request for Production of Documents
• All documents evidencing any communication within the last five years between AIRSYS (or its agents or distributors) and any customer or potential customer of AIRSYS in which ASII or ASII's products are mentioned.
• All documents evidencing any communication within the last five years between AIRSYS and its agents or distributors in which ASII or ASII's products are mentioned.
• All FAA documents which reference ASII or ASII's products.
• All documents evidencing or referring to any communication between ARISYS (or its agents or distributor) and FAA personnel which reference ASII or ASII's products.
18. All documents evidencing or referencing any communication between or among AIRSYS's employees, AIRSYS's agents, AIRSYS's distributors, the United States Air Force, or the Egyptian Air Force relating to the Ismailia project discussed in AIRSYS's counterclaims.
Plaintiff's Third Request for Production of Documents
1. All documents identified in Section B of AIRSYS's initial disclosures served on September 12, 2000.
2. All documents AIRSYS provided to, or received from, the Egyptian Civil Aviation Authority relating to the projects discussed in the Complaint and in ARISYS's counterclaims.
3. All documents AIRSYS provided to, or received from, its agents or distributors relating to the Egypt and Turkey projects discussed in the Complaint and AIRSYS's counterclaims.
4. All documents AIRSYS provided to, or received from, EKO or Turkish government officials relating to the instruments landing system project for the Sabiha Gokcen International Airport.
5. All documents evidencing or recording communications between AIRSYS personnel relating to the Egyptian and Turkey projects discussed in the Complaint and AIRSYS's counterclaims.
6. All internal AIRSYS documents referencing the Egypt and Turkey projects discussed in the Complaint and AIRSYS's counterclaims.
7. AIRSYS's bid and project files on the Egypt and Turkey projects discussed in the Complaint and AIRSYS's counterclaims.
Defendant objects to these requests, asserting (1) First Requests 10, 11, 12 and 13 are overly broad in scope and time, and thus not relevant, in that they seek information for projects other than the specific Egypt and Turkey projects at issue in the Complaint; (2) First Requests 10, 11, 12 and 13 are unduly burdensome with respect to the effort and time expenditure it would take to respond to the requests; (3) First Request 12 is overly broad and unduly burdensome because the term "FAA documents" is vague and fails to identify the documents sought with reasonable precision; and (4) the information sought by First Requests 10, 11 and 18 and Third Requests 1 through 7 constitute trade secrets and/or confidential information. Without waiving these objections, Defendant produced responsive non-confidential, non-trade secret documents from the bid and project files for the Turkey and Egypt contracts, as well as the personal files of all the individuals listed in AIRSYS's Rule 26 disclosures, including high-level marketing and project managers.
Defendant also made several "general objections" to the discovery requests "to the extent" they were applicable. This Court has disapproved the practice of asserting a general objection "to the extent" it may apply to particular requests for discovery. Starlight Int'l Inc. v. Herlihy, 181 F.R.D. 494, 497 (D.Kan. 1998) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., No. Civ. A. 97-2391-GTV, 1998 WL 231135, at *1 (D.Kan. May 6, 1998)). The Court found such ostensible objections "worthless," except to delay discovery. Id. It characterized them as "hypothetical or contingent possibilities." Id. The objecting party makes "no meaningful effort to show the application of any such theoretical objection" to any request for discovery. Id. The Court declined to consider them as objections. Id. Notably, the Court here has not been asked by the parties to determine whether or not to consider Defendant's general objections as valid.
Upon review of the actual responses to Requests 1 through 7 served by Defendant upon Plaintiff, it appears Defendant also objected on the grounds that each of the requests were vague and ambiguous. This objection was not, however, discussed by the parties in their briefs so the Court will not address the issue of whether such objection was validly asserted.
In response to Defendant's objections, Plaintiff agreed to limit First Requests 10, 11, 12 and 13 to projects and bids going back two years prior to the filing of the Complaint, to projects which are in excess of $250,000.00 and to projects upon which ASII and AIRSYS competed. Notwithstanding the limitation, Defendant refused to produce any additional documents.
• Not Relevant; Overly Broad
The Court first will turn to Defendant's objections that First Requests 10, 11, 12 and 13 are overly broad in scope and time and that they seek irrelevant information. "To determine whether discovery is relevant, the court examines the issues raised in the case." Caldwell v. Life Ins. Co. of North America , 165 F.R.D. 633, 638 (D.Kan. 1996). Although relevancy is not limited by the matters stated in the pleadings, they do provide a basis from which to judge relevancy. Pulsecard, Inc. v. Discover Card Services, Inc . , 168 F.R.D. 295, 309 (D.Kan. 1996). Relevancy is broadly construed. Scott v. Leavenworth Unified School Dist. No. 453 , 190 F.R.D. 583, 585 (D.Kan. 1999). Prior to December 1, 2000, a request for discovery would be considered relevant if there was "any possibility" that the information sought may be relevant to the subject matter to the action. Scott v. Leavenworth Unified School Dist. No. 453 , 190 F.R.D. at 585; Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D.Kan. 1999). A request for discovery would be allowed "unless it [was] clear that the information sought [could] have no possible bearing on the subject matter of the action." Scott , 190 F.R.D. at 585 (quoting Snowden v. Connaught Lab . , Inc., 137 F.R.D. 336, 341 (D.Kan. 1991)) (emphasis added by Scott ). When the discovery sought appears relevant, 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). Similarly, a party resisting discovery on the grounds that a request is overly broad has the burden to support its objection, unless the request is overly broad on its face. Etienne v. Wolverine Tube, Inc ., 185 F.R.D. at 656; Hilt v. SFC Inc., 170 F.R.D. 182, 186 (D.Kan. 1997). This includes any objection to the temporal scope of the request. Id . When the relevancy of propounded discovery is not apparent, however, its proponent has the burden to show the discovery relevant. Pulsecard, Inc. v. Discover Card Serv., Inc . , 168 F.R.D. at 309.
The pre-December, 2000 version of Rule 26 governs this dispute, as the Scheduling Order in this case was issued prior to December 1, 2000. The conclusions reached by the Court in each of the following subsections, however, would be the same regardless of whether the Court utilized the "old version" of Rule 26(b)(1), which defined the scope of discovery broadly to include any matter, not privileged, that was relevant to the "subject matter" of the litigation, or the "new version" of Rule 26(b)(1), which defines the scope more narrowly as unprivileged facts relevant to the claims and defenses raised in the litigation. This is because the Court's analysis focuses on the information sought as it relates to each of the actual claims alleged in Plaintiff's Complaint.
Defendant argues Requests 10, 11, 12 and 13 are irrelevant and overly broad because they seek information for projects other than the specific Egypt and Turkey projects at issue in the Complaint. Defendant contends Plaintiff currently has no factual support for any claims based upon any contracts other than the ones specifically alleged in its Complaint and Plaintiff's attempt to uncover facts to support potential, unpled claims is prohibited by the federal rules. Given these objections, the Court will examine the relevancy of each of the requests at issue as they relate to each of Plaintiff's alleged causes of action.
Plaintiff asserts all the documents requested are relevant to its claim for unfair competition because they will show "how AIRSYS has used . . . information to disparage ASII's products and engage in other acts of unfair competition." Memorandum in Support of Plaintiff ASII's Motion to Compel Production of Documents at p. 5 (doc. 31). Defendant disagrees, arguing the requests are irrelevant and overly broad because they seek information for projects other than the specific Egypt and Turkey projects at issue in the Complaint.
1. Unfair Competition Count I of Plaintiff's Complaint asserts a claim for unfair competition in violation of 15 U.S.C. § 1125(a)(1) and Kansas common law. As a general matter, the Lanham Act, §§ 15 U.S.C. § 1051 et seq , "protect[s] persons engaged in . . . commerce against unfair competition . . . ." § 15 U.S.C. § 1127. Section 43(a) of the Act, as amended, provides in relevant part that:
Any person who, on or in connection with any goods or services, . . . uses in commerce . . . any . . . false or misleading representation of fact which . . . is likely to cause confusion, or to cause mistake, or to deceive . . . as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or in commercial advertising or promotion misrepresents the nature, characteristics, [or] qualities . . . of . . . another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.§ 15 U.S.C. § 1125(a)(1). Defendant is correct in that the facts alleged in Plaintiff's Complaint to support its claim for unfair competition involve only the specific Egypt and Turkey projects and there are no facts alleged to support a claim for unfair competition in any other project for which the two companies were competing. While Plaintiff is entitled to a full opportunity to discover evidence in support of its claim for unfair competition in the Egypt and Turkey projects, it is not entitled to discovery for the purpose of determining whether or not there may be a factual basis for a claim it has not yet made. Under Fed.R.Evid. 406, however, certain routine conduct of an organization is considered relevant even though the conduct involves different events or does not relate in time to the defendant's conduct at issue in the trial See Fed.R.Evid. 406 (providing that "[e]vidence of . . . the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the . . . the practice of the organization on a particular occasion was in conformity with the . . . routine practice"); Vining v. Enterprise Financial Group, Inc 148 F.3d 1206, 1218-19 (10th Cir. 1998) (); Perrin v. Anderson , 784 F.2d 1040, 1046 (10th Cir. 1986) (affirming district court's admission of habit evidence under Fed.R.Evid. 406)); Meyer v. United States , 638 F.2d 155, 156-57 (10th Cir. 1980) (same). Plaintiff seeks to prove here that Defendant engaged in unfair competition in the Egypt and Turkey negotiations. First Requests 10, 11, 12 and 13 seek evidence related to a routine practice by Defendant of engaging in acts of unfair competition and thus appear "relevant to prove that the conduct on a particular occasion was in conformity with [a] routine practice." Fed.R.Evid. 406 (evidence which tends to reveal the routine practice of an organization is relevant and may well be admissible at the time of trial to demonstrate that the organization acted in conformity therewith.). Accordingly, the Court finds First Requests 10, 11, 12 and 13 are "reasonably calculated" to reveal any pattern or practice which Defendant may have in regard to using information to disparage ASII's products and engage in acts of unfair competition and thus, under Fed.R.Civ.P. 406, appear on their face to be relevant to Plaintiff's specific claims for unfair competition. The Court further finds that such relevance outweighs any potential harm to Defendant occasioned by responding to the discovery See section B, infra (holding Defendant failed to establish that responding to the requests would be unduly burdensome); section D, infra , (holding Defendant failed to present evidence to establish that the information requested is a trade secret or to present evidence to establish how disclosure might be harmful). In its third claim for relief, Plaintiff contends Defendant misappropriated a trade secret in violation of the Kansas Uniform Trade Secrets Act, K.S.A. 60-3320 et seq More specifically, Plaintiff asserts Defendant misappropriated certain information submitted to the Federal Aviation Administration ("FAA") by Plaintiff with regard to the evaluation of its ASII Model 2100. Kansas has adopted the Uniform Trade Secrets Act ("KUTSA") See K.S.A. 60-3320 et seq The KUTSA defines "trade secret" as follows:
(4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.K.S.A. 60-3320(4). (2) "Misappropriation" means:
(i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or
(ii) disclosure or use of a trade secret of another without express or implied consent by a person who
(A) used improper means to acquire knowledge of the trade secret; or
(B) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was
(I) derived from or through a person who had utilized improper means to acquire it;
(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or
(C) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.Under the KUTSA, "improper means" includes conduct such as theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. K.S.A. 60-3320(1). A "person" is defined as a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity. K.S.A. 60-3320(3). A plaintiff bringing a trade secrets claim has the burden of proof to establish the elements of a claim of misappropriation Pulsecard, Inc. v. Discover Card Servs., Inc , No. CIV. A. 94-2304-EEO, 1996 WL 137819 *3 (D.Kan. Mar. 5, 1996) (citations omitted). Thus, "even if the plaintiff establishes the existence of a valuable trade secret which has been subject to reasonable efforts to maintain secrecy, the plaintiff still must establish that there has been a misappropriation of the trade secret by the defendant." Id (citations omitted). Plaintiff alleges in its Complaint that Defendant misappropriated its trade secrets by "improperly acquiring documents containing information submitted to the FAA regarding the ASII Model 2100 and/or other documents generated by the FAA in its evaluation of the ASII Model 2100." Plaintiff's Complaint at p. 8, ¶ 39(a) (doc. 1). The statute defines "misappropriation" in the disjunctive; thus, Plaintiff can prove misappropriation by establishing acquisition of a trade secret by improper means or by establishing improper disclosure or use of a trade secret by another without express or implied consent. K.S.A. 60-3320(2) (emphasis added). Given the relevant facts and the applicable law, the Court cannot rule out the possibility here that the information requested by Plaintiff in First Requests 10, 11, 12 and 13 may bear on Plaintiff's misappropriation claim See Scott v. Leavenworth Unified School Dist. No. 453 , 190 F.R.D. 583, 585 (D.Kan. 1999) (holding a request for discovery would be allowed "unless it [was] clear that the information sought can have no possible bearing on the subject matter of the action) (quoting Snowden v. Connaught Lab . , Inc., 137 F.R.D. 336, 341 (D.Kan. 1991)) (emphasis added by Scott ); Etienne v. Wolverine Tube, Inc., 185 F.R.D. at 656 (same). As noted in the preceding subsection, certain routine conduct of an organization is considered relevant even though the conduct involves different events or does not relate in time to the defendant's conduct at issue in the trial See Fed.R.Evid. 406; Vining v. Enterprise Financial Group, Inc 148 F.3d at 1218-19; Perrin v. Anderson , 784 F.2d at 1046 (affirming district court's admission of habit evidence under Fed.R.Evid. 406)); Meyer v. United States , 638 F.2d at 156-57 (same). Plaintiff seeks to prove here that Defendant misappropriated trade secrets with respect to the Turkey and Egypt project bids. First Requests 10, 11, 12 and 13 seek evidence related to a routine practice by Defendant of misappropriating trade secrets and thus appear "relevant to prove that the conduct on a particular occasion was in conformity with [a] routine practice." Fed.R.Evid. 406 (evidence which tends to reveal the routine practice of an organization is relevant and may well be admissible at the time of trial to demonstrate that the organization acted in conformity therewith.). In further support of this conclusion, the Court notes that Plaintiff can establish misappropriation here by presenting evidence of dissemination of the trade secret to prospective buyers for the Egypt and Turkey projects or406
The Court notes that the touchstone to Plaintiff's discovery requests regarding other instances of unfair competition is not that such discovery will result in evidence which is, or even may be, admissible at trial, but rather that such discovery is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
Moreover, the information requested may bear on Defendant's motive in acquiring the material at issue. In the Complaint, Plaintiff requested an award of attorney fees. If the misappropriation is shown to be willful and malicious, reasonable attorney fees may be awarded pursuant to K.S.A. 60-3323(iii); thus, the requested information again appears reasonably calculated to lead to the discovery of admissible evidence.
Finally, the Court finds the relevance of the information requested in First Requests 10, 11, 12 and 13 to the claim of misappropriation of a trade secret outweighs any potential harm to Defendant occasioned by responding to the discovery. See section B, infra (holding Defendant failed to establish that responding to the requests would be unduly burdensome); section D, infra, (holding Defendant failed to present evidence to establish that the information requested is a trade secret or to present evidence to establish how disclosure might be harmful).
3. Tortious Interference with a Prospective Business Relationship
In Count IV of its Complaint, Plaintiff alleges tortious interference with a prospective business relationship. Under Kansas law, the elements of the tort of interference with a prospective business advantage or relationship are:
(1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate result of defendant's misconduct.Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986).
Plaintiff asserts all the documents requested are relevant to its claim for tortious interference with a prospective business relationship because they will show
where else AIRSYS has used ASII's confidential information and which customers AIRSYS was successful in obtaining by doing so. This directly relates to, among other things, the damage ASII has suffered due to AIRSYS's actions. It will also show to whom AIRSYS has provided ASII's confidential information, something which is vital if an injunction is to be entered requiring all of ASII's confidential material to be returned, as ASII has requested.
Memorandum in Support of Plaintiff ASII's Motion to Compel Production of Documents at p. 5 (doc. 31).
For the reasons set forth in the preceding two subsections, the Court finds First Requests 10, 11, 12 and 13 are "reasonably calculated" to reveal any pattern or practice which Defendant may have with regard to tortious interference with a prospective business relationship and thus, under Fed.R.Civ.P. 406, appear on their face to be relevant to Plaintiff's specific claims for this claim. The Court further finds the relevance of the information requested to the claim of tortious interference outweighs any potential harm to Defendant occasioned by responding to the discovery. See section B, infra (holding Defendant failed to establish that responding to the requests would be unduly burdensome); section D, infra, (holding Defendant failed to present evidence to establish that the information requested is a trade secret or to present evidence to establish how disclosure might be harmful).
4. Injunctive Relief
Plaintiff asserts all the documents requested are relevant to its request for injunctive relief because they will show "to whom AIRSYS has provided ASII's confidential information, something which is vital if an injunction is to be entered requiring all of ASII's confidential material to be returned, as ASII has requested." Memorandum in Support of Plaintiff ASII's Motion to Compel Production of Documents at p. 5 (doc. 31).
As a preliminary matter, Plaintiff requests relief in the form of an injunction "requiring Defendant to return to ASII any confidential documents and/or trade secret documents that are in the possession of Defendant or its agents or employees." Plaintiff's Complaint at p. 10 (doc. 1). If Plaintiff ultimately were to prevail on the merits in this case and the Court granted Plaintiff's request for injunctive relief, those individuals and entities to which Defendant transmitted confidential documents and/or trade secret documents would not be required under the order to return the documents at issue to Plaintiff. Only the confidential documents and/or trade secret documents that are in Defendant's possession, custody or control would be subject to the order of return.
Based on this reasoning, the Court finds the relevancy of First Requests 10 and 11 — documents evidencing communication between AIRSYS and other individuals and entities — is not apparent on the face of the requests with respect to Plaintiff's claim for injunctive relief and further finds Plaintiff has failed to show how the broad request is relevant to this claim. Conversely, the Court finds First Requests 12 and 13 — which evidence communications between Defendant and the FAA — are relevant to Plaintiff's claim for injunctive relief because there is the possibility that some of those documents could lead to the discovery of admissible evidence. Moreover, the Court finds the relevance of the information requested in First Requests 12 and 13 to Plaintiff's claim for injunctive relief outweighs any potential harm to Defendant occasioned by responding to the discovery. See section B, infra (holding Defendant failed to establish that responding to the requests would be unduly burdensome); section D, infra, (holding Defendant failed to present evidence to establish that the information requested is a trade secret or to present evidence to establish how disclosure might be harmful).
Regardless of whether certain documents were sent by Defendant to the FAA or received by Defendant from the FAA, if they qualify as trade secret information and are still in Defendant's custody and control, the documents will be subject to a return order if an injunction is entered in this matter.
B. Unduly Burdensome
With regard to Defendant's objection to First Requests 10, 11, 12 and 13 based on undue burden, Defendant has submitted no affidavit or other proof demonstrating that responding to the document requests at issue would impose an undue burden. A mere assertion that Defendant does not maintain records in such a way as to be able to easily respond to the requests is insufficient to demonstrate undue burden. Those resisting discovery must demonstrate that the time or expense involved in responding to requested discovery is unduly burdensome. Cf. Sentry Ins. v. Shivers, 164 F.R.D. 255, 257 (D.Kan. 1996) (bald assertions of emotional and financial stress do not show undue burden). Whether reviewing, or making available for review by Plaintiff, the 600 bid files and 200 ongoing project files meets that criterion depends on many factors unknown here. The Court may readily assume, for example, that the bid and project files are all kept in one location — perhaps even in one file cabinet. Reviewing, or making available for review, 800 files all stored in the same file cabinet does not constitute an undue burden. Defendant has the obligation to provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to provide the requested information. This is necessary to enable the Court to determine the burden imposed by the discovery. Defendant has provided no such detail or explanation. The Court will not speculate that the requested discovery causes undue burden and therefore overrules Defendant's objection.
Notably, Defendant does not address the burden simply to locate the files, only their retrieval and review. Defendant may minimize any perceived burden by electing to produce its business records in accordance with Fed.R.Civ.P. 33(d). See Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. at 304.
• Vague and Ambiguous
In addition to the objections set forth above, Defendant asserts Request 12 is objectionable in that it is vague and ambiguous because the term "FAA documents" fails to identify the documents requested with reasonable precision. Defendant does not, either in its objection or in its briefing, describe the different meanings it perceives the term "FAA document" to have and how the alternative meanings may have caused Defendant confusion.
The party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity. McCoo v. Denny's, Inc . , 192 F.R.D. 675, 694 (D.Kan. 2000) (citing Pulsecard, Inc. v. Discover Card Services, Inc . , 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 utilized in interrogatories." Id . If necessary to clarify its answers, the responding party may include any reasonable definition of the term or phrase at issue. Id .
Defendant has not carried its burden to show that the term "FAA documents" is vague and ambiguous. When taken in context, it should be apparent to Defendant that the term refers to documents that Defendant sent to or received from the Federal Aviation Administration. The Court is not aware of any alternative definition which reasonably could cause the Defendants to be confused. Thus, Defendant's objections based on vagueness and ambiguity are overruled.
• Trade Secrets/Confidential Information The Court next will address Defendant's objections to producing additional documents responsive to First Requests 10, 11 and 18 and Third Requests 1 through 7 in that they seek "complete and unfettered access" to AIRSYS's trade secrets and other confidential information, such as "the identity of customers and potential customers, costing and pricing information and information related to design, manufacturing and installation of its products." In its briefing, Defendant acknowledges that the Court already has entered a Protective Order in this matter and that, pursuant to such Order, any producing party may designate any discovery material as "Confidential" and thus restrict its dissemination after production to the other side. Notwithstanding the existence of this Protective Order, Defendant maintains that given the circumstances surrounding this case, it should not be required to turn over its confidential information and alleged trade secrets at all. Defendant's Memorandum in Opposition to Plaintiff's Motion to Compel at p. 18 (doc. 34) (citing Fed.R.Civ.P. 26(c)(7)). Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, a court "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 has the burden to demonstrate good cause. Sentry Ins. v. Shivers , 164 F.R.D. 255, 256 (D. Kan. 1996). In determining whether good cause exists to issue a protective order that prohibits the dissemination of documents or other materials obtained in discovery, "the initial inquiry is whether the moving party has shown that disclosure of the information will result in a `clearly defined and very serious injury.'" Zapata v. IBP, Inc ., 160 F.R.D. 625, 627 (D.Kan. 1995) (quoting Koster v. Chase Manhattan Bank , 93 F. R. D. 471, 480 (S.D.N.Y. 1982)) (internal quotations omitted). The moving party must also 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). Notably, there is no absolute privilege for trade secrets or similar confidential information. Federal Open Market Comm. of Federal Reserve Sys. v. Merrill , 443 U.S. 340, 362 (1979); Centurion Indus., Inc. v. Warren Steurer Assocs . , 665 F.2d 323, 325 (10th Cir. 1981). To resist disclosure under Rule 26(c)(7), a person must first establish that the information is a trade secret or other confidential research, development, or commercial information and then demonstrate that its disclosure might be harmful. Centurion , 665 F.2d at 325-26. If these requirements are met, the burden then shifts to the party seeking discovery to establish that disclosure of a trade secret or other confidential information is relevant and necessary to the action. Id . Finally, the district court must balance the need for discovery of the trade secrets against the claim of injury resulting from disclosure. Id .
First of all, Defendant's broad confidentiality objections in and of itself do not suffice to shield the requested documents from discovery. Notably, the structure of Rule 26 demonstrates that the means by which protection from discovery of trade secrets is to be obtained is by motion under Rule 26(c)(7). Here, Defendant has not yet requested a protective order permitting Defendant to withhold the discovery at issue in the event the Court overrules its objections to First Requests 10, 11 and 18 and Third Requests 1 through 7 based on trade secret and confidentiality concerns. Without such a request, the Court is not in a position to determine whether good cause exists to issue a protective order and whether Defendant carried its burden to establish with the requisite particularity — as distinguished from stereotyped and conclusory statements — that the information is a trade secret or other confidential research, development, or commercial information and that its disclosure will result in a "clearly defined and very serious injury." See Gulf Oil Co. v. Bernard , 452 U.S. at 102 n. 16; Zapata v. IBP, Inc ., 160 F.R.D. at 627. Without such an initial determination, the Court cannot go on to balance the need for discovery of the trade secrets against the claim of injury resulting from disclosure.
Based on this discussion, the Court will allow Defendant ten (10) days from the date of the filing of this Memorandum and Order to move for a Protective Order permitting it to withhold from discovery the alleged trade secrets and confidential information at issue in First Requests 10, 11 and 18 and Third Requests 1 through 7. Plaintiff shall have five (5) days thereafter to respond. If no motion for protective order is filed, disclosure will be required without the protection of any such order.
III. Conclusion
Based on the discussion above, the following order is hereby entered:
• Plaintiff's Motion to Compel (doc. 29) is granted with the provision that if Defendant, within the time frame set forth in this Order, moves for a Protective Order permitting it to withhold from discovery the alleged trade secrets and confidential information at issue in First Requests 10, 11 and 18, any disclosure pursuant to those three requests shall be deferred until the Court's ruling so that the information may be disclosed, if at all, pursuant to the terms of such protective order;
Plaintiff's Motion to Compel limited the scope of the motion for First Requests 10, 11, 12 and 13 to projects and bids going back two years prior to the filing of the Complaint, to projects which are in excess of $250,000.00 and to projects upon which ASII and AIRSYS competed. Thus, the motion is granted in that context.
(2) Plaintiff's Motion for Oral Argument (doc. 30) is denied; and
(3) Plaintiff's Second Motion to Compel (doc. 41) is granted with the provision that if Defendant, within the time frame set forth in this Order, moves for a Protective Order permitting it to withhold from discovery the alleged trade secrets and confidential information at issue in Third Requests 1 through 7, any disclosure pursuant to those seven requests shall be deferred until the Court's ruling on such motion so that the information may be disclosed, if at all, pursuant to the terms of such protective order.
IT IS SO ORDERED.