Alabama Aircraft Industries Inc et al v. Boeing Company, The et al

Filing 304

ORDER-re: Report and Recommendation 261 . The court hereby ADOPTS the Report and ACCEPTS the recommendations of the Special Master. It is ORDERED that to the extent that Boeing's Motion seeks immediate production of the Requested Documents, t he Motion is DENIED. The motion is GRANTED to the extent that Boeing is entitled to any Requested Documents not covered by the work product doctrine. AAI SHALL produce a privilege log that details the application of the work product doctrine on a document-by-document basis by 2/3/2017. If Boeing wishes to challenge any of AAI's work product assertions, it may do, filing challenges by 2/26/2017. Signed by Judge R David Proctor on 1/13/2017. (AVC)

FILED
2017 Jan-13 PM 01:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

)
ALABAMA AIRCRAFT INDUSTRIES,
)
INC., ALABAMA AIRCRAFT
INDUSTRIES, INC. – BIRMINGHAM, AND )
)
PEMCO AIRCRAFT ENGINEERING
)
SERVICES, INC.,
)
)
Plaintiffs,
)
)
)
v.
)
)
THE BOEING COMPANY,
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BOEING AEROSPACE OPERATIONS,
)
INC. AND BOEING AEROSPACE
)
SUPPORT CENTER,
)
)
Defendants.
)

Case No. 2:11-cv-03577-RDP

ORDER
On September 6, 2016, the Special Master issued a Report and Recommendation (Doc. #
261) containing the recommendation that Boeing’s Motion to Compel Documents in Response to
Request for Production No. 31 should be granted in part and denied in part.
AAI filed a limited objection (which was related to evidence) to the Report and
Recommendation. (Doc. # 284). In the Report and Recommendation, the Special Master found
that the information requested in Request No. 31 was relevant because AAI had issued a virtually
identical document request. That is, the Special Master found that “AAI’s Request No. 8 was a
declaration of relevance … .” (Doc. # 261 at 6).
The court agrees. Federal Rule of Civil Procedure 26(b), titled Discovery Scope and
Limits, provides as follows:

(1) Scope in General. Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed.R.Civ.P. 26(b) (emphasis added). Thus, under Rule 26, AAI was entitled to issue discovery
designed to uncover relevant information. In furtherance of that effort, it issued a document
request virtually identical to that to which it now objects. Under any view of this issue, by
issuing such a reciprocal Request, AAI necessarily took the position that the information sought
was relevant. Thus, by issuing its own request for that information, it essentially conceded that it
believed the information was relevant.
The court notes that AAI’s position is that “Documents showing what AAI or its counsel
may have said to parties that Boeing subpoenaed about the subpoenas that Boeing issued in 2015
simply cannot be relevant to these claims (and Boeing’s defenses thereto), which occurred, at the
latest, in 2009.” (Doc. # 284 at 10. But that argument misses the point. The court understands
that the communications took place in 2015, and related to a subpoena that was issued in 2015.
However, that does not mean that they did not also touch on and concern documents responsive
to the underlying subpoenas from a relevant time period and/or facts which may have occurred
during a relevant time period.
After careful consideration of the record in this case and the Special Master’s Report and
Recommendation and briefing on AAI’s limited objection, the court hereby ADOPTS the
Reports of the Special Master. The court further ACCEPTS the recommendations of the Special
Master. It is therefore ORDERED that: To the extent that Boeing’s Motion seeks immediate
production of the Requested Documents, the Motion is DENIED. However, the Motion is
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GRANTED to the extent that Boeing is entitled to any Requested Documents not covered by the
work product doctrine. To that end, AAI SHALL, on or before February 3, 2017, produce a
privilege log that details the application of the work product doctrine on a document-bydocument basis. If Boeing wishes to challenge any of AAI’s work product assertions, it may do
so, filing challenges on or before February 26, 2017, that detail either (1) why the work
product doctrine is inapplicable to the Requested Documents, or (2) why Boeing has substantial
need for the Requested Documents and why Boeing cannot obtain the information contained in
the Requested Documents by other means without undue hardship. After review of Boeing’s
challenges, the Special Master will conduct an in camera review of the Requested Documents, if
necessary.
DONE and ORDERED this January 13, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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