International Brotherhood of Teamsters, Airline Division v. Frontier Airlines, Inc. et al
Filing
78
ORDER granting in part and denying without prejudice in part 54 Plaintiff's Motion to Compel Subpoena Compliance by Frontier Airlines Pilots Association; granting in part and denying without prejudice in part 62 Non-Party Frontier Airline Pilots Association's Motion to Quash or Modify Subpoena in Part, or for Protective Order Motion to Compel. Discovery due by 6/18/2012. Dispositive Motions due by 7/18/2012, by Magistrate Judge Kristen L. Mix on 05/16/2012.(wjcsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02007-MSK-KLM
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION,
Plaintiff,
v.
FRONTIER AIRLINES, INC.,
REPUBLIC AIRWAYS HOLDINGS, INC., and
FAPAINVEST, LLC,
Defendants.
FRONTIER AIRLINES PILOTS ASSOCIATION,
Interested Party.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Compel Subpoena
Compliance by Frontier Airlines Pilots Association [Docket No. 54; Filed March 14,
2012], and Non-Party Frontier Airline Pilots Association’s Motion to Quash or Modify
Subpoena in Part, or for Protective Order [Docket No. 62; Filed April 9, 2012]
(collectively, the “Motions”).1 The Motions are referred to this Court for resolution. [## 55,
63]. The content of Non-Party Frontier Airline Pilots Association’s (“FAPA”) Motion to
Quash parallels nearly identically the content of its Response filed on April 9, 2012 in
opposition to Plaintiff International Brotherhood of Teamsters, Airline Division’s (the
1
The parties initially complied with the undersigned’s discovery dispute procedures by
calling Chambers, and the undersigned gave the parties permission to file appropriate written
discovery motions.
1
“Teamsters Union”) Motion to Compel. Resp., [#61]. On April 23, 2012, the Teamsters
Union submitted a Reply in support of its Motion to Compel. Reply, [#70]. The Teamsters
Union’s Response in opposition to FAPA’s Motion to Quash incorporates by reference its
Reply filed in support of its Motion to Compel. Resp., [#71]. FAPA submitted a Reply in
support of its Motion to Quash. Reply, [#75]. The Motions are thus ripe for review.
I. Background
The Court incorporates the case background as set forth in its Order issued April 24,
2012 [#72]. The Motions at issue concern production of documents responsive to a
subpoena served on FAPA by the Teamsters Union on December 5, 2011. See [#54-2]
(requested documents). FAPA served its objections to the subpoena on January 16, 2012.
[#54-1]. FAPA produced 94 emails on February 10, 2012, [#54] at 3, and a privilege log
on February 29, 2012 [#54-4]. The Teamsters Union challenges FAPA’s objections to
production premised on 1) internal union privilege as to 91 documents; 2) undue burden
regarding documents post-dating June 28, 2011; and 3) overbreadth and relevance to
Requests 3, 5, 6, 13, 14, and Modified Request 4. See [#54] at 3-4; see also [#62] at 2
(agreeing to characterization of three categories of documents at issue). The Teamsters
Union requests that the Court issue an order compelling FAPA to produce all documents
responsive to the subpoena. [#54] at 16.
In its Motion to Quash, FAPA asks the Court to quash or modify the subpoena at
issue, by limiting its required production to those documents already produced. See [#62]
at 12. FAPA contends that “the gravamen of each [claim at issue] is what RAH and
Frontier knew and intended when they entered into LOA 67 and the Commercial
Agreement.” Id. at 14. Thus, FAPA avers that it should not have to produce documents
that concern solely FAPA, and it has produced all documents related to RAH and Frontier.
2
See id. at 16. FAPA characterizes the discovery requests at issue as “a highly invasive
fishing expedition.” Id. at 42-43. As FAPA agrees with the categories of objections
delineated by the Teamsters Union, see id. at 2, the Court addresses each of the three
areas of dispute in turn.
II. Analysis
A.
Internal Union Privilege
The Teamsters Union asserts that an internal union privilege does not protect
documents related to “labor negotiations and union representation of grievants in
disciplinary proceedings.” [#54] at 5. The Teamsters Union contends that FAPA should
not be able to assert the internal union privilege as a blanket reason to withhold production
of all documents related to internal union communications. Id. at 7. It believes that FAPA
is not entitled to a protective order precluding production, because as of June 28, 2011, the
Teamsters Union, not FAPA, is the exclusive bargaining representative of Frontier pilots.
Id. at 8-9.
In Response (and in its Motion to Quash), FAPA attests that “it produced documents
reflecting communications between FAPA and the Company Defendants [RAH and
Frontier] regarding LOA 67 and the Commercial Agreement.” [#61] at 15. However, FAPA
concedes that it has not produced “documents reflecting purely internal FAPA strategies,
or communications with FAPA members not shared with [RAH and Frontier].” Id. FAPA
objects to the production of these documents on the basis of relevance, id. at 16-17, and
privilege, id. at 18-19. Regarding privilege, FAPA asserts that legal authority supports the
existence of privilege protecting the disclosure of internal union strategy, which is referred
to as “labor relations evidentiary privilege,” or, as reflected in the privilege log, “internal
union” privilege. Id. at 19. FAPA emphasizes the importance of this privilege to ensuring
3
unions’ abilities to meaningfully function as a bargaining representative and employees’
rights to organize and associate with each other. Id.
Alternately, FAPA asks the Court to protect disclosure of this information as
confidential. Id. at 28. FAPA states that public policy and federal labor law recognize the
importance of protecting materials related to collective bargaining strategy to the
effectiveness of collective bargaining. Id. at 28-29. FAPA contends that its status as the
former bargaining representative does not nullify the confidentiality protections which apply
to the internal communications that occurred before the Teamsters Union became the
exclusive representative. Id. at 30. FAPA asserts that internal union bargaining strategies
are analogous to confidential business strategy and trade secrets. Id. at 31. FAPA avers
that it and its supporters have the right to pursue resuscitation of its status as the exclusive
bargaining representative for Frontier pilots, and disclosure of the internal communications
at issue would allow an unfair advantage to the Teamsters Union as a potential competitor.
Id. at 32. In sum, FAPA asks the Court to prevent the disclosure of the 91 documents it
contends are subject to the internal union privilege, because the information within those
documents is irrelevant, and public policy dictates “preserving the collective bargaining
process and internal union communication” as confidential. See [#62] at 25-26.
In Reply (and in Response to FAPA’s Motion), the Teamsters Union argues that the
information it seeks is directly relevant to the allegations stated in its proposed Amended
Complaint. See [#70] at 2-3. The Teamsters Union filed its Motion for Leave to Amend
Complaint and Revise Scheduling Order on April 6, 2012 [#59], just eight days after the
District Judge’s order on the previously pending Motion to Dismiss [#57]. The Motion for
Leave to Amend is referred to this Court and ripe for resolution as of May 11, 2012. See
[#76].
4
The Teamsters Union states that documents regarding FAPA’s internal
communications are relevant to its claims. [#70] at 9. For example, the Teamsters Union
explains that the President of FAPA, Jeffrey Thomas, is also the sole member of Defendant
FAPAInvest. Id. at 5. “If FAPA’s President Jeffrey Thomas sent an internal FAPA email
to its Vice-President Scott Gould reporting that Company defendants’ CEO, Bryan Bedford,
stated to Thomas in a telephone conversation that the purpose of separating LOA 67 and
the Commercial Agreement was to promote and preserve FAPA’s representation of Frontier
pilots,” such an email would be directly relevant to the crux of this matter, which is that the
parties to and the effects of the LOA 67 and Commercial Agreement impede the Teamsters
Union’s abilities and rights as the Frontier pilots’ exclusive bargaining representative. Id.
at 9.
The Teamsters Union again emphasizes the absence of an applicable privilege
(namely, the inapplicability of the “internal union” privilege) to the documents withheld by
FAPA. Id. at 10. Further, the Teamsters Union contends that FAPA is not entitled to a
protective order precluding disclosure. See id. at 12. It claims that the authority cited by
FAPA is distinguishable from the present matter, because this case does not concern
negotiating parties in “an ongoing relationship in which they would continue to deal with
each other and renegotiate collective bargaining issues repeatedly.” Id. Because the
Teamsters Union is the present exclusive bargaining representative, it believes that FAPA
cannot be harmed by disclosure of its previous bargaining strategies. Id. at 12-13.
Regarding the discovery dispute at issue, the Court’s conclusion is three-fold: 1)
documents identified as protected by “internal union” privilege that relate in any way to the
LOA 67 and Commercial Agreement are relevant to the claims at issue (regardless of the
proposed Amended Complaint); 2) the Court declines to impose the asserted internal union
5
privilege, because such a privilege is not recognized by binding precedent; and 3) the
protective order in place in this lawsuit is adequate to assuage any confidentiality concerns
of FAPA (and, in any event, the protective order may be modified to include a provision for
“attorneys’ eyes only” designations).
1.
Relevance
The scope of discovery is broad and “is not limited to issues raised by the pleadings,
for discovery itself is designed to help define and clarify the issues.” Gomez v. Martin
Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995) (citation omitted). Pursuant to Fed. R.
Civ. P. 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense--including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter . . . subject to the limitations
imposed by Rule 26(b)(2)(C).” See also Williams v. Bd. of County Comm'rs, 192 F.R.D.
698, 702 (D. Kan. 2000) (citations omitted) (noting that “request for discovery should be
considered relevant if there is ‘any possibility’ the information sought may be relevant to the
subject matter of the action”). Considering that “[l]imitations on the discovery process
necessarily conflict with the ‘fundamental principle that the public . . . has a right to every
man's evidence,’” the Federal Rules broadly define the scope of discovery. Simpson v.
Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo. 2004) (citing Trammel v. United States, 445
U.S. 40, 50 (1980)).
The District Judge framed the claims at issue in the Order on Defendants’ Motion
to Dismiss. See [#57]. The District Judge found that the Teamsters Union presents a
plausible claim that Defendants Frontier and FAPAInvest violated the RLA through the
terms of the Commercial Agreement, because “even though [the Teamsters Union] is now
6
the certified representative of the pilots covered by [the Collective Agreement], only
FAPAInvest is permitted to negotiate the final terms of any plans or agreements governing
such benefits,” as stated in the Commercial Agreement. [#57] at 13. This has the effect
of preemptively precluding the Teamsters Union “from being able to negotiate on behalf of
members of the bargaining unit after its certification.” Id. Moreover, the terms of the
Commercial Agreement bestow on FAPAInvest the duty to act as a negotiating
representative, which “plausibly states a claim that the Defendants (excluding RAH), by
setting up this arrangement, are treating with an entity other than the exclusive bargaining
representative for these employees,” which at the present, is the Teamsters Union. Id. at
15.
The definition of relevance is broadly construed for purposes of seeking discovery.
See generally Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377, 382 (D. Kan. 2005)
(“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.” (citations omitted)). “When the discovery sought appears
relevant, the party resisting the discovery has the burden to establish the lack of relevancy
by demonstrating that the requested discovery (1) does not come within the 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.” Simpson, 220 F.R.D. at 359 (citations omitted); see also
Cont'l Ill. Nat'l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 685 (D. Kan. 1991)
(stating that a party resisting discovery based on relevancy grounds bears the burden of
explaining how “each discovery request is irrelevant, not reasonably calculated to lead to
the discovery of admissible evidence, or burdensome”). However, when a request for
7
discovery is overly broad on its face or when relevancy is not readily apparent, the party
seeking the discovery has the burden to show the relevancy of the request. See Paradigm
Alliance, Inc. v. Celeritas Tech., LLC, No. 07-1121-MLB, 2008 WL 678700, at *2 (D. Kan.
March 7, 2008) (citation omitted); Williams, 192 F.R.D. at 705 (noting that when relevancy
of a propounded request is not apparent, the proponent has the burden of establishing it).
The Court finds that the Teamsters Union has established the relevance of the
requested documents, in part. As stated, the Teamsters Union seeks “production of all
documents responsive to any subpoena request that have been withheld from production
of the basis of FAPA’s ‘internal union’ privilege/protective order assertions.” See [#54] at
16. This request is rejected as too broad in scope, as not all of the documents withheld on
the basis of internal union privilege appear relevant, and some documents withheld on the
basis of internal union privilege are additionally withheld due to attorney-client or work
product privilege. See Privilege Log, [#54-4]. However, review of the privilege log
demonstrates to the Court that certain documents withheld only pursuant to the internal
union privilege directly concern the LOA 67 or Commercial Agreement; for example, a
document dated June 6, 2011, Bates No. P160, is related to board approval of the LOA,
and is not designated as protected by attorney-client or work product privilege. See [#54-4]
at 10. This document should be disclosed as relevant and not privileged.
On the other hand, the Court finds that the Teamsters Union does not meet its
burden of showing that allegedly privileged documents related to FAPA’s general
bargaining strategy, as opposed to those specifically related to the LOA 67 and Commercial
Agreement, are relevant. The hypothetical example proffered by the Teamsters Union
directly concerns the LOA 67 and Commercial Agreement, which are what this case is
about. Thus, the Court grants this portion of the Teamsters Union’s Motion to Compel (and
8
in turn, denies this portion of FAPA’s Motion to Quash) to the extent that FAPA must
disclose any document directly related to the LOA 67 and Commercial Agreement, even
if such document is limited to internal union communications, or communications with
FAPA’s own membership. This Order does not require the disclosure of documents
designated as protected by the attorney-client or work product privileges, but does require
the disclosure of documents designated only as protected by the asserted internal union
privilege, as long as such documents directly relate to the negotiation, memorialization, and
implementation of the LOA 67 and Commercial Agreement.
2.
Privilege
The Court is not obligated to impose the “internal union” privilege asserted by FAPA.
The Court recognizes that by excluding “privileged” information from the broad parameters
of pre-trial discovery, Rule 26 attempts to strike a balance between conflicting interests.
Privileges further the administration of justice and “should not be set aside lightly.” Horton
v. United States, 204 F.R.D. 670, 672 (D. Colo. 2002). See also McNeil-PPC, Inc. v.
Procter & Gamble Co., 138 F.R.D. 136, 138 (D. Colo. 1991) ("protections of the workproduct privilege are important and should not be set aside lightly"). However, privileges
also have the effect of withholding relevant information from the finder of fact, and for that
reason should be narrowly construed. Montgomery v. Leftwich, Moore & Douglas, 161
F.R.D. 224, 225 (D.D.C. 1995). “Evidentiary privileges are disfavored,” Zander v. Craig
Hospital, 743 F. Supp. 2d 1225, 1230 (D. Colo. 2010), and “are not lightly created nor
expansively construed, for they are in derogation of the search for truth.” United States v.
Nixon, 418 U.S. 683, 710 (1974).
Neither FAPA nor the Teamsters Union cites case law recognizing the existence of
an internal union privilege from this District or Circuit. In light of the Court’s obligation to
9
construe privileges narrowly, and in the absence of binding case precedent indicating the
creation of a federal privilege applicable to union communications, the Court declines to
uphold FAPA’s assertion of an “internal union” or “labor relations” privilege, and this basis
for nondisclosure is rejected. See also Soc’y of Prof’l Eng’g Emp.. in Aerospace v. Boeing
Co., Nos. 05-1251-MLB, 07-1043-MLB, 2009 WL 3711599, at *6 (D. Kan. Nov. 3, 2009)
(rejecting creation of a “bargaining-strategy” privilege); NLRB v. Serv. Emp. Int’l Union,
Local 521, No. C-07-80170MISC-JF, 2008 WL 152176, at *3 (N.D. Cal. Jan. 16, 2008)
(recognizing administrative decisions characterizing bargaining strategy as confidential, in
terms of disclosure to an employer, but rejecting confidentiality of bargaining strategy in the
context of disclosure to the NLRB); Patterson v. Heartland Indus. Partners, LLP, 225 F.R.D.
204, 207 (N.D. Ohio 2004) (rejecting creation of “NLRA privilege” by administrative
decisions which would preclude disclosure of bargaining strategy); Parra v. Bashas’ Inc.,
No. 02-591-PHX RCB, 2003 WL 25781409, at *5 n.2 (D. Ariz. Oct. 2, 2003) (rejecting
NLRB administrative cases as unsupportive of a federal union-employee communications
privilege).
In sum, this portion of the Teamsters Union’s Motion to Compel is granted, and the
corresponding portion of FAPA’s Motion to Quash is denied, to the extent that FAPA must
produce documents directly related to the negotiation, memorialization, and implementation
of the LOA 67 and Commercial Agreement. The Court rejects the application of an
“internal union” privilege to these documents, but recognizes that some responsive
documents may have also been withheld pursuant to attorney-client or work product
privilege. This Order does not require disclosure of responsive documents that are
withheld as privileged pursuant to the attorney-client privilege or work product doctrine.
The Court notes that this case has a protective order in place, and that the parties may
10
request a modification of the protective order to include an “attorneys’ eyes only”
confidentiality designation.
B.
Undue Burden of Documents Post-Dating June 28, 2011
FAPA states that it objects to production of documents dated after June 28, 2011,
which is the date when the Teamsters Union became the exclusive bargaining
representative of the Frontier pilots. [#62] at 33. FAPA states that any documents in its
possession post-dating June 28, 2011, are duplicative of documents that the Teamsters
Union has obtained or could obtain from FAPAInvest. Id. FAPA expressly represents that
“any such post-June 28, 2011 documents in FAPA’s possession duplicated documents that
should be in the possession of FAPAInvest and reflected on their face the recipients of the
documents.” Id. FAPA emphasizes its status as a non-party to this action, and asks the
Court to find that compelling FAPA to produce duplicative documents would be an undue
burden. Id. at 33-34.
The Teamsters Union attests that FAPA simply does not meet its burden of
demonstrating the undue burden of producing documents post-dating June 28, 2011. [#54]
at 9-10. The Teamsters Union states that, even if FAPA produced duplicative documents,
such duplication is itself relevant “because the fact that FAPA has possession of
documents concerning FAPAInvest’s negotiations with the Company defendants is direct
evidence that FAPAInvest is not some independent administrator of profit sharing and
equity investment plans, but is, in fact, FAPA’s alter ego.” [#70] at 14-15. The Teamsters
Union contends that FAPA has failed to describe with detail any effort production would
require. Id. at 15. The Teamsters Union argues that policy dictates rejecting one party’s
nondisclosure on the basis of another party’s possession, because the Court’s ability to
police such representations is limited. Id.
11
FAPA counters this argument, again emphasizing that its status as a non-party
should weigh in favor of the Court finding that production of duplicative documents is an
undue burden. See [#75-1] at 7. FAPA attests that, “with or without production of the
documents by FAPA rather than one or more of the Defendants, the [Teamsters Union] will
know ‘that FAPA has possession’ of the documents,” based on counsel for FAPA’s
representations to that effect. Id.
The Court may quash or modify a subpoena that imposes an undue burden on the
recipient. See Fed. R. Civ. P. 45(c)(3)(A)(iv). Rule 26 governs the scope of discovery, in
the context of a Rule 45 subpoena or otherwise. 9A Charles Alan Wright, Arthur R. Miller,
Mary Kay Kane, & Richard L. Marcus, Fed. Prac. & Proc. Civ. § 2452 (3d ed.). Pursuant
to Rule 26(b)(2)(C), where the burden of producing relevant discovery outweighs the likely
benefit, the Court has discretion to limit the discovery requested. See Qwest Commc'ns
Int'l v. Worldquest Networks, Inc., 213 F.R.D. 418, 419 (D. Colo. 2003).
FAPA bears the burden to show that responding to the discovery requests at issue
would be unduly burdensome. Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 524
(D. Colo. 2003).
This burden can only be met by providing sufficient details or “a
compelling showing of undue burden” to obviate the overwhelming preference for requiring
that relevant discovery materials be exchanged. Cartel Asset Mgmt. v. Ocwen Fin. Corp.,
No. 01-cv-01644-REB-CBS, 2010 WL 502721, at *15 (D. Colo. Feb. 8, 2010) (citing cases).
The Court must balance the Teamsters Union’s need for the discovery at issue against the
burden imposed on FAPA, and the status of FAPA as a non-party is a factor which weighs
against disclosure. See Spacecon Specialty Contractors, LLC v. Bensinger, No. 09-cv02080-REB-KLM, 2010 WL 3927783, at *3 (D. Colo. Oct. 1, 2010) (citation omitted).
12
Here, the Court concludes that FAPA fails to meet its burden of establishing that
production of allegedly duplicative documents would be unduly burdensome. FAPA does
not include an affidavit outlining the burden on FAPA, and pursuant to the representation
by FAPA, it appears to the Court that FAPA has already reviewed and analyzed the
responsive documents in order to make its argument that such documents are duplicative.
Production of the documents should not take much more effort, as counsel has already
done the heavy lifting.
Furthermore, the Court finds that it would likely be unduly
cumbersome at trial for the Teamsters Union to rely on counsel’s statement that such
documents are duplicative. For example, examination of witnesses about the existence of
documents in FAPA’s records based on counsel’s representation that the documents are
duplicates of those produced by FAPAInvest would be unnecessarily difficult. Thus, in the
absence of a supported showing of burden (as opposed to merely a conclusory allegation
that duplicative production always implicates burden), the Court concludes that FAPA must
produce responsive documents postdating June 28, 2011 regardless of FAPAInvest’s
production, and such production may not be precluded by an assertion of “internal union”
privilege. The Court grants the Teamsters Union’s Motion to Compel and denies FAPA’s
Motion to Quash to this extent.
C.
Overbreadth and Relevance of Six Specific Requests
Regarding the following specific requests, the Teamsters Union moves to compel
production by FAPA of documents responsive to the requests, and FAPA moves for an
order quashing the subpoena at issue to the extent that FAPA need not produce any
documents beyond those which it has already produced. See [#54], [#62]. In large part,
the Teamsters Union’s and FAPA’s arguments on these specific requests mirror those
resolved above. The Court addresses each specific request as follows.
13
1.
Request No. 3: All documents which refer or relate to communications with
RAH, Frontier, FAPA and/or any Frontier pilot regarding any matter related
to LOA 67 and/or the Commercial Agreement.
FAPA contends that production of documents responsive to this request is precluded
by the “internal union” privilege, and because such production would be duplicative to that
requested by Request Nos. 1 and 2. [#62] at 35-36.
The Court orders as follows, for the reasons stated above. FAPA must produce any
nonprivileged document responsive to Request No. 3, and FAPA may not use the “internal
union” privilege as a basis for nondisclosure. To the extent that production is duplicative
to production in response to Request Nos. 1 and 2, FAPA must explicitly delineate which
documents produced in response to Request Nos. 1 and 2 are further responsive to
Request No. 3. To this extent, the Teamsters Union’s Motion to Compel is granted, and
FAPA’s Motion to Quash is denied.
2.
Modified Request No. 4: All documents which refer or relate to
communications on or after June 28, 2011 between or among a person(s)
acting on behalf of FAPA and FAPAInvest, RAH and/or Frontier regarding
any matter, and all documents which refer or relate to communications on or
after June 28, 2011 between or among a person(s) acting on behalf of FAPA
and any Frontier pilot concerning LOA 67 and/or any of its terms, the
Commercial Agreement and/or any of its terms including Company
compliance, FAPAInvest, Frontier becoming a separate carrier not included
within the RAH single transportation system found to exist by the NMB,
and/or FAPA continuing to represent any pilot in dealings with Frontier
concerning any term or condition of employment.
The Court reiterates its Order stated above regarding production of allegedly
duplicative documents postdating June 28, 2011, in that FAPA must produce responsive
documents postdating June 28, 2011 regardless of FAPAInvest’s production, and such
production may not be precluded by an assertion of “internal union” privilege.
14
3.
Request No. 5: All documents which refer or relate to the June 22, 2011 letter
from “the Company” to the NMB attached to the Complaint as Exhibit 3
including, but not limited to, communications regarding the Company’s
contemplation of making and/or intention to make the requests to the NMB
set forth in Complaint Exhibit 3.
FAPA asserts the “internal union” privilege as a basis for nondisclosure of
responsive documents to this Request. [#62] at 38. As stated above, any documents
responsive to this request withheld by FAPA on the basis of the “internal union” privilege
must be disclosed.
4.
Request No. 6: All documents which refer or relate to the drafting and/or
implementation of the Profit Sharing Program described in Section B of the
Commercial Agreement attached to the Complaint as Exhibit 5.
FAPA objects to this request on the basis of the “internal union” privilege and on the
basis that any responsive documentation post-dating June 28, 2011 is duplicative of
FAPAInvest’s production. [#62] at 38-39. Again, any documents responsive to this request
withheld by FAPA solely on the basis of the “internal union” privilege or duplication must
be disclosed.
5.
Request No. 13: All documents which refer or relate to any contemplated
NMB filing that would exclude Frontier from the single transportation system
the NMB determined to exist in Republic Airlines, Inc., et. al., 38 NMB 138
(2011).
FAPA objects to this Request as irrelevant, because “such an inquiry regarding
events [at] an unknown future time has no relationship to the claims in the lawsuit.” [#62]
at 39. The Court agrees, as to the claims presently pending before the Court, but denies
without prejudice the Teamsters Union’s Motion to Compel as to this request, pending
adjudication of the Teamsters Union’s Motion for Leave to Amend.
15
6.
Request No. 14: All documents which refer or relate to FAPAInvest including,
but not limited to, all financial records pertaining to FAPA expenditures on
behalf of FAPAInvest.
FAPA objects to this Request on the basis of relevance. See [#62] at 40-41. On
April 24, 2012, the Court ordered Defendant FAPAInvest to produce documents responsive
to the Teamsters Union’s request for FAPAInvest’s financial records, including bank
statements and internal accounting records which reflect member contributions, assets,
liabilities, income and/or expenses. Ord., [#72] at 8-12. The Court found that such request
is relevant to the Teamsters Union’s third claim, alleging the existence of an alter ego
relationship between FAPAInvest and FAPA. Id. at 12. The same reasoning applies here.
Thus, the Court grants the Teamsters Union’s Motion to Compel and denies FAPA’s Motion
to Quash to the extent that FAPA must produce documents responsive to Request No. 14,
and may not rely on an assertion of the “internal union” privilege as a basis for
nondisclosure.
III. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Subpoena Compliance
by Frontier Airlines Pilots Association [#54] and Non-Party Frontier Airline Pilots
Association’s Motion to Quash or Modify Subpoena in Part, or for Protective Order [#62]
are GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART as stated herein;
The Court rejects FAPA’s assertion of an “internal union” privilege as a basis for
nondisclosure of documents responsive to the Teamsters Union’s subpoena requests;
FAPA must produce documents directly related to the negotiation, memorialization,
and implementation of the LOA 67 and Commercial Agreement, with the exception of
responsive documents that are withheld as privileged pursuant to the attorney-client
16
privilege or work product doctrine;
FAPA must further produce documents responsive to Request Nos. 3, 5, 6, and 14,
and Modified Request No. 4; and
The Teamsters Union’s Motion and FAPA’s Motion are denied without prejudice as
to a determination regarding Request No. 13.
IT IS FURTHER ORDERED, sua sponte, that the discovery deadline is extended up
to and including June 18, 2012, for the purpose of completing the production of documents
as ordered herein.
IT IS FURTHER ORDERED, sua sponte, that the dispositive motions deadline is
extended up to and including July 18, 2012.
Dated: May 16, 2012
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