Bohnel et al v. Jetblue Airways Corporation

Filing 74

ORDER signed by Magistrate Judge Deborah Barnes on 6/14/2021 DENYING 69 Motion to Stay and DENYING 70 Ex Parte Application for an order shortening time. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHELLE HILL, an individual, and
ARIEL EPSTEIN POLLACK, an
individual,

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Plaintiffs,
v.
JETBLUE AIRWAYS CORPORATION, a
Delaware corporation,
Defendant.

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ERICKA BOHNEL, an individual, and
ROSA MARTINEZ, an individual,
Plaintiffs,

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No. 2:17-cv-1604 WBS DB

No. 2:18-cv-0081 WBS DB

ORDER

v.
JETBLUE AIRWAYS CORPORATION, a
Delaware corporation,
Defendant.

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On May 28, 2021, this matter came before the undersigned pursuant to Local Rule

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302(c)(1) for hearing of the parties’ joint motions for discovery. The motions were granted in

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part and denied in part. (Hill ECF No. 72; Bohnel ECF No. 68.) On June 1, 2021, the
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undersigned issued a written order pursuant to the May 28, 2021 hearing, ordering in relevant part

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that within fourteen days “defendant shall produce to plaintiffs the ASAP reports at issue[.]”

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(ECF No. 73 at 2.) On June 11, 2021, defendant filed an “EMERGENCY MOTION” to stay the

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June 1, 2021 order as well as an ex parte application for an order shortening time to hear the

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“EMERGENCY MOTION” to stay. (Hiil ECF Nos. 74 & 75; Bohnel ECF Nos. 69 & 70.)

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Plaintiffs filed an opposition on June 13, 2021. (Hill ECF No. 76; Bohnel ECF No. 71.)

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With respect to defendant’s ex parte application for an order shortening time, Local Rule

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144(e) provides that such an application “shall set forth by affidavit of counsel the circumstances

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claimed to justify the issuance of an order shortening time.” Analysis of defendant’s application

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finds an absence of any such circumstances, let alone anything that could be characterized as an

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“EMERGENCY.” In this regard, counsel’s affidavit asserts that a hearing on shortened time is

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justified because the “request for a stay cannot be noticed on the Court’s motion calendar

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pursuant to Local Rule 230 because the Order compels production . . . by June 14, 2021[.]” (Hill

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ECF No. 75 at 51.)
The undersigned’s ruling issued on June 1, 2021. (ECF No. 73.) The ruling should have

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come as no surprise to defendant as the written order was consistent with the undersigned’s

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statements at the May 28, 2021 hearing. Defendant was represented at that hearing by two

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attorneys, both from a law firm staffed by “more than 1,400 attorneys[.]” See

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https://www.hklaw.com/. Moreover, defendant’s filing misconstrues the Local Rules.
In this regard, defendant asserts that it intends to file “an objection” to the June 1, 2021

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order “before the District Judge.” (ECF No. 75 at 3.) Typically, objections are filed in response

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to findings and recommendations. Presumably defendant intends to file a motion for

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reconsideration before the assigned District Judge. Such motions are governed by Local Rule

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303, which specifies that the undersigned’s order “shall be final if no reconsideration thereof is

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sought from the Court within fourteen days” and that the “timing requirements of L.R. 230 have

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no application to requests for reconsideration under this Rule.” Local Rule 303(a),(e).

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ECF citations hereafter are to the docket in Hill.
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In this regard, defendant has presented no justification for hearing the motion to stay on

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shortened time. As to defendant’s motion to stay, it essentially seeks reconsideration from the

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undersigned of the June 1, 2021 order. Such a request must be supported by “new or different

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facts or circumstances[.]” Local Rule 230(j). In ordering production of the ASAP reports the

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undersigned’s ruling was based on legal research, the parties’ briefing, and oral argument. See

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generally Raub v. US Airways, Inc., CIVIL ACTION NO. 16-1957, 2017 WL 5015525, at *1

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(E.D. Pa. July 6, 2017) (“the objections of US Airways are overruled and the Motion to Compel is

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GRANTED. The ASAP Reports requested by plaintiff shall be produced by US Airways to

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plaintiff’s counsel within ten (10) days from the date of this Order”); In re Air Crash Near

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Clarence Center, N.Y., No. 09-md-2085, 2013 WL 5964480, at *7 (W.D. N.Y. Nov. 8, 2013)

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(“this Court finds that the ASAP reports in Plaintiffs’ Request 12 are not privileged and must be

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produced”); In re Air Crash at Lexington, Kentucky, August 27, 2006, 545 F.Supp.2d 618, 620

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(E.D. Ky. 2008) (adopting MJ’s order “that there was no statutory or regulatory privilege

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protecting the ASAP reports from discovery in litigation”).

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As noted at the May 28, 2021 hearing, defendant’s argument in opposition relied on In re

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Air Crash Near Cali, Colombia on Dec. 20, 1995, 959 F. Supp. 1529 (S.D. Fla. 1997), which

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found “a limited common law privilege for the ASAP materials.” Id. at 1533. However, “[t]he

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Cali decision is the only federal court decision to recognize a privilege for ASAP Reports.”

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Raub, 2017 WL 5015525, at *1. And “federal courts have not followed Cali[.]” Clarence, 2013

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WL 5964480, at *6. Defendant’s motion to stay presents no new or different argument or

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circumstances in opposition to producing the ASAP reports. To the contrary, defendant again

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relies on Cali. (ECF No. 74 at 5.)

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In short, on June 1, 2021, the undersigned issued an order. (ECF No. 73.) Defendant had

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ample time and resources to present a motion for reconsideration to either the undersigned or the

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assigned District Judge. In doing so, defendant would have had to articulate either new facts or

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circumstances or explained why the undersigned’s ruling was “clearly erroneous or contrary to

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law[.]” Local Rule 303(e). Defendant did neither. Instead, defendant waited 10 days to file

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motions—on Friday June 11, 2021, at 7:16 p.m—not seeking reconsideration but to simply
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further delay production. Defendant’s motions fail to justify an order shortening time for hearing

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or to stay the June 1, 2021 order.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s June 11, 2021 motion to stay is denied; and

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2. Defendant’s June 11, 2021 ex parte application for an order shortening time is denied.

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Dated: June 14, 2021

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DLB:6
DB/orders/orders.civil/hill1604.stay.den.ord

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