Minge et al v. TECT Corporation et al
Filing
172
MEMORANDUM AND ORDER granting in part and denying in part 135 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 7/1/2011. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
EX. REL. DONALD MINGE and
DAVID KIEHL, and DONALD MINGE
and DAVID KIEHL, individually,
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Plaintiffs,
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vs.
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TURBINE ENGINE COMPONENTS
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TECHNOLOGIES CORP., et al.,
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Defendants.
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___________________________________ )
Case No. 07-1212-MLB-KGG
ORDER GRANTING IN PART AND DENYING IN PART
RELATORS’ MOTION TO COMPEL RESPONSES
TO SECOND REQUEST FOR PRODUCTION OF DOCUMENTS
Before the Court is Relators’ Motion to Compel Hawker Beechcraft Corporation’s (HBC)
Responses to Relators’ 2nd Request for Production of Documents (Doc. 135). This case is
subject to an order limiting this stage of discovery to particular claims, and much of the parties’
discovery disputes focus on the effect of that limitation. In some instances, Defendant urges an
overly narrow reading of that limitation. Relators, on the other hand, argue that the limitation is
meaningless, allowing an unrestricted exploration of years of manufacturing practices. In some
instances, Relators have failed to adequately demonstrate that some of the requests are within the
scope of discovery.
General Objections
Defendant introduced its responses to Relators’ requests for production with nine
“General Objections,” followed by a tenth which incorporates those objections into each
discovery response. Objections Nos. 1 - 8 object to any request “to the extent” it violates a
stated rule. This type of objection is, at best, worthless and improper. Swackhammer v. Sprint
Corp. PCS, 225 F.R.D. 658, 660-61 (D. Kan. 2004). At worst, such an objection leaves the
discovery proponent unsure whether or not the objection correlates to withheld information.
Objections Nos. 1 - 8, and 10, are overruled. Objection No. 9 is more benign but equally
superfluous. That paragraph warns that producing a document does not concede its admissibility
or relevance – a correct, if obvious, statement which is not a proper objection.
Scope of Limited Discovery
The Court limited discovery in this stage of the case to “determining whether nonconforming parts were in-fact present on the planes identified in the fourth amended complaint
(those aircraft identified in paragraphs 293 and 294) and the extent of the false statements
provided to the government at the time of the claims for payment.” (Doc. 98 at 3). The parties
urge competing interpretations of this limitation.
The discovery limitation must be read together with Relators’ stated theory concerning
how the aircraft parts at issue on the specific aircraft were “nonconforming.” Relators claim that
the nonconformity was an unreliable manufacturing process. The discovery of evidence of the
manufacturing processes and practices used to manufacture the identified aircraft is proper in
this case even if that evidence does not relate exclusively to the identified aircraft. Such
discovery should be limited to information which is probative of identifying processes and
practices used to manufacture the parts at issue on the identified aircraft, but need not be limited
to those aircraft. As a practical solution to this issue, the Court will allow discovery into the
process of manufacture of the type of spar at issue during the time the spars for the identified
aircraft were manufactured and, to help provide context, during a six month period before and
after that time.
When the District Judge suggested the discovery limitation implemented by the Court, he
invited Defendant, at the close of this initial discovery period, to file a motion for summary
judgment on the identified aircraft. (Doc. 79, at 5.) Therefore, for Relators’ to oppose a motion
for summary judgment challenging their claims as to the specified aircraft, they will be required
to provide evidence to supporting their False Claims Act case. Proof of those claims will require
proof of a knowingly false claim submitted to the United States government. See 31 U.S.C.A. §
3729(a). Therefore, discovery, even at this stage of the case, must be broad enough to allow
Relators access to evidence that could reasonably demonstrate scienter. This includes discovery
reasonably targeted to Defendants’ knowledge and intent about alleged untrue statements made
to the government.
Specific Requests
The task now falls to the Court to apply the above-stated principals to the specific
discovery requests at issue. The movant bears the burden of establishing that the requests are
relevant on their face. Learjet Inc. v. MPC Products Corp., No. 05-1074-MLB-DWB, 2007 WL
2287836, at *1 (D. Kan. Aug. 8, 2007) (citing Swackhammer, 225 F.R.D. at 661, 662, 666 (D.
Kan. 2004)). Once the movant meets this low threshold of relevance, the burden shifts to
Defendant as the party opposing the discovery request. Id. (internal citations omitted).
Defendant, as the party resisting discovery, is required to support its objections with reasonable
particularity in response to Relators’ motion. See e.g., Continental Ill. Nat'l Bank & Trust Co.
of Chicago v. Caton, 136 F.R.D. 682, 685 (D.Kan.1991) (requiring a party resisting a discovery
request based on relevancy grounds bears the burden of explaining how “each discovery request
is irrelevant, not reasonably calculated to the discovery of admissible evidence, or
burdensome”).
The requests at issue are largely technical and, perhaps overestimating the Court’s
technical savvy, neither party has provided as much explanation as might have been preferred.
The Court will, however, rule based on the information provided, and with the intention of ruling
in conformity with the general principals stated.
This dispute concerns the manufacture of a particular aircraft part known as a “spar.”
The spar is a component of the aircraft wing. The current stage of discovery is limited to the
false statements concerning the manufacture of spars installed on 41 specific aircraft (the
“identified aircraft”). Most of the spars on the identified aircraft were manufactured from April
24, 2006, through June 22, 2007. Defendant concedes that two of the identified aircraft had
spars manufactured prior to that period.
Defendant manufactured the type of aircraft, and predecessor types of aircraft, for years
before and after this period. Relators contend that the history of design and product development
covered a period of 15 years. Relators request access to documents covering the entire period of
production to demonstrate the planned process for manufacturing the spars, the actual process for
manufacturing the spars, and any knowledge that Defendant knew that certain techniques being
used created non-conforming spars.
Documents limited to types of spars installed on identified aircraft, even if installed
on other aircraft or not installed, during limited time period: The Court will allow discovery
of manufacturing techniques intended (planned, contracted, promised) or actually used to
manufacture the types of spars installed on the identified aircraft during, and within 6 months
before or after, the manufacture of any spar installed on an identified aircraft, regardless of
whether the spars were installed on an identified aircraft. The Court grants Relator’s motion to
compel limited to requested documents relating to the types of spars installed on identified
aircraft manufactured within 6 months of the manufacture of any spar installed on an identified
aircraft: Requests Nos. 3, 6, 8, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 31, 32, 33, 36, 37, 38,
40, 46, 47, 48, 56, 57, 58, 59, 63, 66, 71, 72, 79, 80, 81, 82, 83, 85, 86, 94, 96, 97, and 98 .
Documents which address alleged improper techniques on types of spar regardless
of time: Further, the Court will allow discovery into documents which actually address the use
of the techniques alleged as improper as to the of the type of spar at issue throughout the history
of the program, up to the present day. This discovery includes only evidence of the use of “hand
forming” or “hot forming” as alleged in Relators’ Fourth Amended Complaint. (Doc. 80.) Also
allowed is discovery of documents or communications concerning such practices, and changes in
those practices over time, up to the present. The Court grants Relators’ motion to compel
limited to documents, not produced under one of the previous categories, which actually address
the alleged improper manufacturing techniques, regardless of time limitation. Requests Nos. 8,
17, 18, 19, 20, 21, 32, 33, 35, 39, 41, 42, 43, 58, 59, 76, 83, and 84.
The Court DENIES Relators’ motion to compel as to the following requests for
which Defendant’s stated limitation in its response is appropriate: Requests Nos. 1, 2, 65,
and 67.
The Court DENIES Relators’ motion to compel as to the following requests for
which Relators have made an insufficient showing that the request is relevant or may lead
to relevant evidence: Request No. 64.
The Court GRANTS Relators’ motion to compel (and overrules Defendant’s
objections) as to the following requests to which Defendant objected, then stated it would
produce as requested. The following documents are ordered produced as requested: Requests
Nos. 4, 5, 9, 44, 45, 60, 62, 68, 69, 70, and 95.
The Court GRANTS Realtors’ motion to compel without limitation regarding the
following: Requests Nos. 73, 74, 75, 77, and 78.
The Court DENIES Relators’ motion to compel a response to Request 106 as overbroad. The Court agrees with Relators that they would be entitled to a formal response
concerning Electronically Stored Information practices, but that request should be tailored to
cover information properly sought in this case. The request as stated would require an
explanation of all HBC policies and practices.
Relators’ motion is, therefore, GRANTED in part and DENIED in part as more fully
set forth above.
IT IS SO ORDERED.
Dated this 1st day of July, 2011.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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