Minge et al v. TECT Corporation et al

Filing 352

MEMORANDUM AND ORDER denying 220 Motion for Protective Order; taking under advisement 244 Motion to Compel while granting request for en camera review; denying 257 Sealed Motion; granting 300 Motion to Quash; granting in part and denying in part 320 Motion to Compel. Order further RECOMMENDS that Motion for Sanctions (Doc. 246) be denied. Signed by Magistrate Judge Kenneth G. Gale on 5/8/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA EX REL. )
MINGE, et al.,
)
)
Relators,
)
)
vs.
)
)
TECT AEROSPACE, INC., et al.,
)
)
)
Defendants.
)
___________________________________ )

Case No. 07-1212-MLB

MEMORANDUM AND ORDER ON
MULTIPLE MOTIONS OF THE PARTIES
Before the Court are the following various motions filed by the parties in the
above-captioned matter:
1.

“Joint Motion for Protective Order” (Doc. 220)
filed by Defendants Turbine Engine Components
Technologies Corp., TECT Aerospace, Inc., TECT
Aerospace Wellington, Inc., and Hawker
Beechcraft Corporation;

2.

“Motion to Compel the Production of Documents”
(Doc. 244) filed by Defendant Hawker Beechcraft
Corporation;

3.

“Motion for Sanctions” (Doc. 246) filed by
Defendant Hawker Beechcraft Corporation;

4.

“Motion for Sanctions Against Relators For
Failing to Provide Court-Ordered Discovery”
(Doc. 257, sealed) filed by Defendant Hawker

Beechcraft Corporation;
5.

“Motion to Quash the Subpoena Issued to
Engineering Systems, Inc.” (Doc. 300) filed by
Defendants Turbine Engine Components
Technologies Corp., TECT Aerospace, Inc., TECT
Aerospace Wellington, Inc.; and

6.

“Motion to Compel Interrogatory Responses”
(Doc. 320) filed by Defendant Hawker Beechcraft
Corporation.

Each of the motions is ripe for the Court’s decision. Each will be addressed in
turn.1
BACKGROUND
Relators bring this qui tam action under the False Claims Act, 31 U.S.C. §
3730(b). They have also alleged a claim of retaliatory discharge from employment
under 21 U.S.C. § 3730(h).
After Relators filed a Third Amended Complaint (Doc. 18), Defendants filed
motions to dismiss (Docs. 36, 38). The District Judge notified the parties of his
intent to view those motions as motions for summary judgment under Rule 56, and

1

Also pending is the “Motion to Compel Responses to Relators’ Third Requests
for Production to HBC and Second Requests for Production to TECT Defendants” (Doc.
264, sealed), “Relators’ Motion for an Order Compelling Hawker Beechcraft Corporation
to Produce Documents and for an Order Extending the Period for Discovery” (Doc. 333,
sealed), “Defendants Turbine Engine Components Technologies Corp, TECT Aerospace,
Inc., and TECT Aerospace Wellington, Inc.’s Motion to Compel Interrogatory
Responses” (Doc. 343), and “Defendant Hawker Beechcraft Corporation’s Motion to
Compel Interrogatory Responses” (Doc. 345). These motions will be addressed in
separate Order(s) from this Court.

then issued a Memorandum and Order denying Defendants’ motions as to the
retaliation claim, but dismissing the qui tam claims on the grounds that Relators
had not plead fraud with the particularity required under Rule 9(b). The Court
ruled that the Third Amended Complaint failed to specify whether any aircraft
were equipped with the allegedly defective parts and, if so, which parts and which
planes. The Court also found that the complaint failed to adequately plead false
claims for payment. (Doc. 65, pages 19, 22).
Thereafter, Relators filed a motion to file a Fourth Amended Complaint
(Doc. 69). The proposed amendments included allegations concerning specific
aircraft (paragraphs 293 and 294 of the Fourth Amended Complaint, referred to
here as “exemplar” aircraft) which relators contend were manufactured and sold to
the government with defects and false representations. The Court allowed the
amendment over Defendants’ objections (Doc. 79) and ruled that the additional
information provided in the information cured the previous Rule 9(b) deficiencies.
In granting the motion the District Judge provided the following guidance to
the parties and the Magistrate Judge concerning the management of this case:
The court recommends that discovery be initially limited
in this case to determining whether non-conforming parts
were in fact present on the planes identified in the fourth
amended complaint and the extent of the false statements
provided to the government at the time of the claim for
payment. At the close of the initial discovery period,
defendants may file a motion for summary judgment, if

one is appropriate at that time.

(Doc. 79, at 5.)
This Court interprets the purpose of the District Judge’s recommendation as
a “litmus test” for Relators’ theories, intended to allow the parties to conduct
discovery limited to determine whether Relators can support their claims as to the
exemplar aircraft sufficient to survive a summary judgment challenge. The intent
of this initial procedure is to require Relators to establish their basic claims
concerning the exemplar aircraft before allowing the more extensive discovery
which may be required to prove their broader claims. By recommending limited
discovery in this initial phase, and by providing Defendants an earlier opportunity
to file a dispositive motion, the District Judge intended to require Relators, whose
claims had been resuscitated only by the fourth amendment to the complaint, to
establish that the parts installed on the exemplar aircraft were defective, before
allowing broader discovery and litigation covering the entire manufacturing
program.
This period of limited discovery was recommended by the District Judge,
and constructed by the Magistrate Judge, to be limited in scope and time. Before
allowing this complex and far-reaching case to expand into general discovery, the
parties were to be allowed limited discovery and an early dispositive motion

opportunity to test the specifically-plead claims. This was designed to avoid
broad-reaching discovery into the program if the Realtors are unable to support
their allegations concerning the exemplar aircraft.
This Court has generously interpreted the recommended discovery
limitation, allowing an expanded inquiry into areas beyond, but related to, the
claims concerning the exemplar aircraft. The Court has extended the period of
initial discovery at least twice at Relators’ request over Defendants’ objections.
The Court recently declined to extend the deadline again, allowing only such time
as is needed to implement Orders on pending motions. (Doc. 330.) Even so, as
mentioned supra, Relators have requested yet another extension of discovery
deadlines. (See n.1, supra; see also Doc. 333.)
This Court remains concerned and disappointed that, despite the procedure
devised by the District Court to streamline the case, the parties’ approach to
discovery has unnecessarily complicated matters. Throughout the period of initial
discovery, through the discovery and motions process, the Defendants have
maneuvered to limit, and the Relators to expand, discovery based on competing
interpretations of the discovery limitation recommended by the District Judge and
applied by this Court. This has resulted in a plethora of discovery disputes. Since
the entry of the first Scheduling Order (Doc. 98) more than 17 months ago, this
Court has issued rulings on seven discovery motions filed by the parties (Docs.

154, 172, 175, 189, 203, 219; 11/3/11 oral motion). These disputes have, no doubt,
hampered the progress of discovery. In addition, there are at least ten other
discovery motions currently pending before the Court, including the six addressed
in this Order. See, supra.
Additional details regarding the extensive procedural background of this
case were recently summarized in this Court’s April 3, 2012, Memorandum and
Order (Doc. 330) granting in part and denying in part Relators’ Motion to Amend
Scheduling Order. That summary is incorporated herein by reference. Any
additional facts necessary to the determination of the various motions will be
discussed in the context of the particular motion, infra.
A.

General Provisions on Discovery.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any

matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.
“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University,

932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “Relevance is
broadly construed at the discovery stage of the litigation and a 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.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
“discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the
proponent has failed to specify how the information is relevant, the Court will not
require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D.
649 (D.Kan.1995). Even so, courts look “with disfavor on conclusory or

boilerplate objections that discovery requests are irrelevant, immaterial, unduly
burdensome, or overly broad.” Id., 650. “Unless a request is overly broad,
irrelevant, or unduly burdensome on its face, the party asserting the objection has
the duty to support its objections.” Sonnino v. University of Kansas Hosp.
Authority, 221 F.R.D. 661, n. 36 (D.Kan.2004) (citing Hammond v. Lowe's Home
Ctrs., Inc., 216 F.R.D. 666, 670 (D.Kan. 2003)); 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 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”). Thus, “the objecting party
must specifically show in its response to the motion to compel, despite the broad
and liberal construction afforded by the federal discovery rules, how each request
for production or interrogatory is objectionable.” Sonnino, 221 F.R.D. at 670–71
(internal citation omitted).
B.

“Joint Motion for Protective Order” (Doc. 220).
Defendants Turbine Engine Components Technologies Corp., TECT

Aerospace, Inc., TECT Aerospace Wellington, Inc., and Hawker Beechcraft
Corporation bring this motion before the Court seeking a protective order “to
protect Defendants from the undue burden and expense of responding to Relators’
First Request for Admissions and Second Request for Admissions, which total a

combined 2826 requests.” (Doc. 221, at 1.)
Fed.R.Civ.P. 26(c) provides that a party from whom discovery is sought may
move for a protective order to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense ...” After determining the
relevance of discovery at issue, a court “must balance the need for the information
against the claim of injury resulting from disclosure.” Johnson ex rel. Johnson v.
Olathe District Schools, 212 F.R.D. 582 (D.Kan.2003). In doing so, a court must
“consider whether ‘the burden or expense of the proposed discovery outweighs its
likely benefit,’ pursuant to Rule 26(b)(2)(C)(iii).” In re Urethane Antitrust
Litigation, MDL No. 1616, 2011 WL 1327988, at *7 (D. Kan. April 5, 2011).
Defendants argue that the requests at issue “are excessive and of marginal
relevance and little to no apparent materiality.” (Doc. 221, at 4.) This Court has
previously stated that once the party opposing the discovery admits its “‘marginal’
relevance,” that party then has the burden to support its objections. Seed Research
Equip. Sol., LLC v. Gary W. Clem, Inc., No. 09-1282-EFM-KGG, 2011 WL
1743232, at *1 (D.Kan. May 6, 2011) (citing McDonald v. Kellogg Co., No. 082473-JWL, 2011 WL 484191, at *2 (D. Kan. Feb. 7, 2011); Design Basics, L.L.C.
v. Strawn, 271 F.R.D. 513 (D. Kan. 2010)).
Relators argue that Defendants have not adequately supported the
objections. (Doc. 222, at 7-8.) Defendants have grouped Relators requests into

four categories, which Defendants claim “demonstrate[s] the factual minutiae
about which Relators seek admissions.” (Doc. 221, at 4.) The categories of
admissions relate to 1) parts not installed on the aircraft at issue, 2) job quantities
or shipped quantities, 3) actions taken at individual operations of jobs, and 4) direct
quotes from documents. (Id., at 5.)
Relators argue that merely because the requests “have been divided . . . into
bite-sized pieces of information does not mean that what they have asked about is
minutiae.” (Doc. 222, at 7.) They also contend that Defendants have “inaccurately
and very generally without explanation” branded the requests as “factual
minutiae.” (Id.)
In the Court’s purview, Defendants have failed to explain how or why
something characterized as minutiae is necessarily irrelevant or non-discoverable.
This Court anticipates that in a lawsuit involving an alleged conspiracy regarding
aircraft equipped with allegedly defective parts, there would be an abundance of
factual minutiae that would be not only relevant, but specifically material to
Relators’ claims.
It is well-established in this district that the party opposing discovery “must
specifically show . . . , despite the broad and liberal construction afforded by the
federal discovery rules, how each [discovery] request . . . is objectionable.”
Sonnino, 221 F.R.D. at 670–71 (internal citation omitted). Defendants reference

to thousands of requests for admissions they merely group into 4 general categories
of information – which they then label “marginally relevant” minutiae – does not
even approach meeting this burden. Further, it is not in the Court’s province to sua
sponte review all of the individual requests generally referenced in Defendant’s
brief to determine whether each one is in fact objectionable. Simply stated,
Defendants have not met their substantive burden in opposing the discovery at
issue.
As mentioned above, Defendants also generally complain about the sheer
number of requests for admissions at issue. The parties are painfully aware that
this case is very complicated and fact intensive. In fact, that is a large part of the
District Court’s justification for an initial phase of limited discovery. The number
of requests alone, however, does not establish that each specific request is
objectionable.
Neither the Federal Rules of Civil Procedure, nor the
local rules for the District of Kansas, sets a presumptive
limit on the number of requests for admission that may be
propounded by a party. While Rule 33(a)(1) sets a limit
on the number of interrogatories a party may serve, Rule
36 places no limit on the number of requests for
admission a party may serve. Fed.R.Civ.P. 26(b)(2)(A),
however, specifically grants the court the authority to
‘limit the number of requests [for admission] under Rule
36.’
Layne Christensen Co. v. Purolite Co., Case No. 09-2381-JWL-GLR, 2011 WL

381611, at *4 (D.Kan. Jan. 25, 2011) (citations omitted). Defendants have failed
to establish that the number of requests for admissions submitted is, on its face,
substantively objectionable given the complexity of this case. Defendants’ motion
for a protective order is, therefore, DENIED. Defendants shall respond to the
requests within forty-five (45) days of the date of this Order.
C.

“Motion to Compel the Production of Documents” (Doc. 244).
The Court next considers the “Motion to Compel the Production of

Documents” filed by Defendant Hawker Beechcraft. (Doc. 244.) Therein,
Defendant HBC contends that Relators incorrectly withheld production of a series
of communications between the individual Relators and an agent for the federal
government based on claims of privilege. (Doc. 245, at 3.)
In a prior Order, this Court specifically held that “[c]ommunications from
the individual Relators to government agents or attorneys are not shown to be
within the protection of Rule 26(b)(3)(A).” (Doc. 154, at 19.) Defendant contends
that “[d]espite the Court’s Order, Relators have continued to withhold certain
communications between Relators and government agents where their own
attorneys are copied or jointly addressed while producing other communications
that appear to have occurred under the same circumstances.” (Doc. 245, at 3-4.)
Defendant also contends that Relators have claimed privilege regarding
“factual discussions between the individual Relators that do not involve counsel or

legal advice.” Finally, Defendant argues that the descriptions in Relators’ privilege
log are “inadequate to allow [Defendant] to determine if privilege has been
appropriately asserted for some documents in light of” this Court’s previous ruling
on privilege issues. (Doc. 245, at 2-3.) Relators respond that the communication
between them is “subject to the attorney-client privilege even though no attorneys
were directly involved” because the communications at issue fall into one of three
categories: 1) the exchange of “facts and information about the case in order to
receive the most effective legal advice,” 2) discussion of issues about which they
would seek legal advice, and 3) the forwarding of information received from/sent
to counsel. (Doc. 269, at 3, 5-6.)
The Court agrees that these categories of information can, under certain
circumstances, constitute communications protected by the attorney-client
privilege. Without reviewing the documents at issue, however, the Court cannot
determine whether they are, in fact, privileged. As such, the Court will GRANT
Defendant’s request for an en camera review of the documents during which the
Court will rule on the discoverability of the same. The substantive portion of
Defendants’ motion is, therefore, taken under advisement pending the en camera
inspection. Relevant documents shall be produced to the Court within 21 days of
this Order.
D.

“Motion for Sanctions” (Doc. 246).

Defendant Hawker also brings its “Motion for Sanctions” against Relators.
(Doc. 246.) Defendant argues that for 38 days following the granting of its motion
to compel on December 19, 2011, Relators failed to “timely respond” to its Second
Set of Interrogatories. (Doc. 247, at 2.) Defendant contends that, as a result, it was
“forced” to engage in depositions without knowing the “basic facts” relating to
Relator’s conspiracy claim, Relator’s contention that Defendants’ “quality systems
were somehow deficient,” and Relator’s “argument that individual aircraft are
exemplars of other aircraft.” (Id., at 2-3.) Defendant requests an Order either
dismissing the claim for Civil Conspiracy in Relators’ Fourth Amended Complaint
or precluding Relators from offering any evidence in support of that cause of
action. (Id., at 3.) Defendant also seeks an Order “barring Relators from arguing
that (a) HBC or TECT failed to provide a ‘repeatable manufacturing process’ or
‘rigorous’ testing, or (b) any aircraft or part is an exemplar of any other aircraft or
part.” (Id.) Finally, Defendant also seeks expenses caused by Relators’ alleged
failure to obey the Court’s previous Order. (Id.)
Relators correctly point out that the Court’s December 19, 2011, Order
granting Defendant’s motion to compel does not include a date by which Relators
were to provide the discovery responses at issue. (Doc. 263, at 1-2.) Further,
Relators state that although Defendant “insisted” that the interrogatory responses
be provided on a certain day, Relators promised to submit the answers four days

later (which they then did). (Id.) Relators continue that “[r]ather than wait the
four business days, HBC hurriedly filed a motion for sanctions.” (Id., at 1
(emphasis in original).) Under these circumstances, the Court finds sanctions
unjustified. This Court therefore recommends that the District Court DENY
Defendant’s motion (Doc. 246).
E.

“Motion for Sanctions Against Relators For Failing to Provide CourtOrdered Discovery” (Doc. 257, sealed).
Defendant HBC next moves the Court for sanctions against Relators,

arguing that they failed to identify “the specific nonconforming conditions that
Relators allege are present on the spar caps installed on the aircraft at issue.” (Doc.
258, sealed, at 10.) At issue is a spreadsheet prepared by Relator Minge at the
direction of counsel after reviewing the “Inspection Record Book – Main Spar
Assembly.” (Doc. 291, sealed, at 3.) In addition to using the spreadsheet to
compile and summarize information produced by HBC, counsel for Relators asked
Minge “to provide his mental impressions and suggestions for follow up in
comments about the records as he reviewed them.” (Id.)
Defendant argues that the existence of the spreadsheet establishes, that
despite Relators’ prior discovery responses to the contrary, Relators
did, in fact, have the ability to respond to HBC’s
discovery requests seeking the specific nonconformance
facts for at least some of the spar caps at issue as early as
April 2011 and that they had compiled those same facts

with respect to the remainder of the spar caps at issue by
the time [Relator] Minge completed the spreadsheet in
the months thereafter.
(Id., sealed, at 5.) According to Defendant, this is in violation of the Court’s May
18, 2011, Order, which stated that “[i]f . . . Relators have the specific information
requested, including any knowledge about specific defects in parts in the individual
aircraft identified in the Fourth Amended Complaint (beyond their contention of
general nonconformity), they will supplement their responses to disclose that
information.” (Doc. 154, at 8-9.) HBC requests that the Court sanction Relators
by precluding them “from identifying any nonconforming conditions on the spar
caps . . . beyond what is currently stated in their interrogatory responses” or, in the
alternative, compel Relators to produce the spreadsheet, supplement their
discovery responses, and submit to additional depositions. (Doc. 258, sealed, at
10, 11.)
There are two glaring problems with HBC’s motion. First, the document at
issue is textbook work product and, therefore, protected from discovery.
The work product doctrine, which is embodied in Rule
26(b)(3) of the Federal Rules of Civil Procedure, protects
from discovery documents, things and mental
impressions of a party or its representative, particularly
its attorney, developed for or in anticipation of litigation
or trial. The asserting party has the burden of
establishing work product protection. To carry that
burden, the proponent must make a ‘clear showing’ that
the asserted objection applies. A ‘blanket claim’ as to the

applicability of the work product doctrine does not
satisfy the burden of proof. It is well settled that the
party seeking to invoke work product immunity has the
burden to establish all elements of the immunity and that
this burden can be met only by an evidentiary showing
based on competent evidence.
Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers,
Case No. 10-2008-CM-DJW, 10-2068-CM-DJW, 2011 WL 1102868, at *8 (D.
Kan. March 23, 2011) (citing U.S. Fire Ins. Co. v. Bunge N.Am., Inc., 247 F.R.D.
656, 657 (D.Kan.2007)). The Court is satisfied that Relators have established this
burden. The spreadsheet at issue was created at the request of counsel and contains
the mental impressions of a party, which are being communicated to counsel.
Hillsdale, 2011 WL 1102868, at *8.
Second, other than the mental impressions of Relator Minge (which are
clearly not discoverable), the factual information contained in the spreadsheet was
all gleaned from documents produced by HBC. As such, HBC has no substantial
need for the information and sanctions are clearly not warranted. See Hickman v.
Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (stating that “where the
work product contains evidence essential to the preparation of an adversary's case
and not otherwise available, production will be required in some circumstances”).
The factual information contained in the spreadsheet is equally available to
Defendant. Defendants’ complaint is, in part, that Relators have failed to disclose

their contentions regarding non-conformity when required to do so in their
discovery responses. Defendants claim that the spreadsheet is evidence of that
failure. If so, that failure by the Relators will carry its own sanction because
Relators will not be permitted to prosecute their claims with evidence secreted
during discovery. It is well-settled that a party is bound by its discovery
representations. J. Vangel Elec., Inc. v. Sugar Creek Packing, Co., No. 11-2112EFM, 2012 WL 1476069, at n.3 (D. Kan. April 27, 2012). The motion is,
therefore, DENIED.
F.

“Motion to Quash the Subpoena Issued to Engineering Systems, Inc.”
(Doc. 300).
The TECT Defendants move the Court to quash Relators’ subpoena issued

to Engineering Systems, Inc., which “seek[s] documents from Chuck Morin, a
consulting, non-testifying expert retained on behalf of TECT in connection with
this litigation.” (Doc. 300, at 1.) TECT argues that, pursuant to Fed.R.Civ.P.
26(b)(4)(D), “a party may not discover facts known or opinions held by an expert
who has been retained by another party in anticipation of litigation and who is not
expected to be called as a witness at trial absent a showing of exceptional
circumstances.”2 (Doc. 300, at 3.) TECT also relies on Fed.R.Civ.P. 45(c)(3),
which states that a court “must quash or modify” subpoenas that require
2

The Court notes that Mr. Morin cannot testify as a witness in this case as it is
uncontroverted that he is now deceased.

“disclosure of privileged or other protected matter, if no exception or waiver
applies.” (Id.)
Relators respond that the motion should fail because 1) TECT did not object
to notice of the subpoena, 2) TECT lacks standing to object to the subpoena, 3)
TECT has failed to establish a sufficient nexus between the retention of Morin and
the present litigation, 4) Morin was consulted in the regular course of business, 5)
TECT did not maintain the confidentiality of Morin or his opinions, and 6)
exceptional circumstances exist that require the production of the documents at
issue. (See generally Doc. 335, sealed.) Procedurally, although a party has the
option to object to the notice of a subpoena, the Court is aware of no requirement
that a party do so prior to filing a motion to quash. See Fed.R.Civ.P. 45(c)(3).
Thus, the Court’s analysis will turn to Relators’ substantive arguments.
Most of Relators substantive arguments boil down to their contention that
Morin’s retention by TECT was not “in anticipation of litigation,” but rather for
other business purposes. Relators argue that although Morin was retained almost
two months after the original Complaint in this case was filed, “the order unsealing
the case and directing the Second Amended Complaint be served on TECT by
Relators (Doc.16) was not entered until March 31, 2009.” (Doc. 335, sealed, at 4.)
Regardless of when the case was unsealed and when TECT was initially
served, the circumstances that existed at the time of Morin’s retention indicate to

the Court that TECT was then anticipating litigation. It is undisputed that TECT
was a party to the prior state court lawsuit that involved many of the same
allegations. (See Doc. 65, at 11.) Thus, regardless of when TECT was served with
the Second Amended Complaint, it could safely surmise that it was implicated in
the original Complaint even before this case was unsealed. Further, the Court
agrees that the investigations by multiple federal government agencies provided
TECT with “reasonable grounds for anticipating litigation.” See Marten v. Yellow
Freight Sys. Inc., No. 96-2013-GTV, 1998 WL 13244, at *11 (D. Kan. Jan. 6,
1998) (holding that a party is “generally justified in believing litigation to be
imminent” upon filing of an EEOC complaint). This does not, however, make
every document generated thereafter privileged. “A party claiming work product
immunity must still establish the underlying nexus between the preparation of the
document and the specific litigation.” Id., citing Burton v. R.J. Reynolds Tobacco
Co., 175 F.R.D. 321 (D. Kan. Aug. 14, 1997).
The Court finds that TECT has adequately established such a nexus.
Relators contend that the subject line on September 20, 2007, correspondence from
Morin’s assistant to counsel for TECT establishes that the purpose of Morin’s
retention was for “TECT Corporation Wing Spar Investigation.” (Doc. 335,
sealed, at 4.) This passing reference to the investigation – which clearly implicates
parts at issue in this lawsuit – by Morin’s assistant is not dispositive of the reason

for Morin’s retention. Further, it does not exclude the litigation as the reason for
Morin’s retention. The only direct evidence provided to the Court is counsel for
TECT retained Morin and his firm for the sole purpose of advising TECT
regarding the litigation. (See Doc. 300-1.)
Finally, Relators contend that “exceptional circumstances” exist which
entitle them to see the materials at issue because TECT no longer manufactures the
spar caps. As such, they argue, their expert “can no longer observe the conditions
that were observed by the non-testifying expert,” Morin. (Doc. 335, sealed, at 10.)
Even so, the Court agrees with TECT’s position that “there is nothing that Mr.
Morin observed that is any different than what Relators have observed and
discovered through documents and depositions” in this case. (Doc. 336, at 5-6.)
TECT’s motion to quash is GRANTED.
G.

“Motion to Compel Interrogatory Responses” (Doc. 320).
Finally, Defendant HBC moves the Court for an Order compelling Relators

to provide supplemental responses to three interrogatories. (Doc. 320; see also
memorandum in support, Doc. 332, sealed.) Each will be discussed in turn.
Interrogatory No. 7 seeks information regarding Relators’ False Claims Act
“conspiracy” cause of action between HBC and TECT. (Doc. 332, at 1; see also
Doc. 332-2, sealed, at 9, et seq.) HBC contends that “Relators answered this
request with a 192-page montage of excerpted text apparently copied verbatim

from documents.” (Doc. 332, sealed, at 5.) HBC argues that the response “makes
no sense,” fails to provide the basic information requested (identity of the
conspirators, when conspiracy formed, the “illicit agreement” reached by the
conspirators, etc.). (Id.)
Interrogatory No. 16 seeks the factual basis for the allegation that HBC had
knowledge before April 2007 “of TECT’s use of alleged non-conforming
manufacturing methods” in certain spar caps. (Doc. 332, sealed, at 7.) Relators
referred HBC to their response to Interrogatory No. 7, discussed above. HBC
contends that “[t]hat answer . . . makes no attempt to identify a single individual or
explain how a particular document provides a basis for their allegation about
HBC’s alleged pre-April 2007 knowledge.” (Id.) Relators contend that “there is
nothing to compel because they submitted responsive information regarding
“communications spanning back to 1999 where HBC and TECT discussed
nonconforming processes, information about parts that were rejected for conditions
attributable to nonconforming processes, incidents that occurred that would have
provided HBC with knowledge about TECT’s nonconforming processes.” (Doc.
327, at 4.)
Having reviewed Relators’ responses to Interrogatories No. 7 and 16, the
Court finds the responses to be largely sufficient. Although HBC may have
preferred additional or different information, this does not necessarily make

Relators’ responses improper. Relators are, however, instructed to provide more
specification as to which portion of the documents produced/referenced are
responsive to the particular interrogatories (and the respective subsections) within
thirty (30) days of the date of this Order. In the context of Defendant HBC’s
criticism that the discovery responses do not provide sufficient evidence to support
Relators’ claims, the Court notes that absent appropriate grounds for
supplementation, Relators will be bound by the information contained in these
responses.
Interrogatory No. 17 requests information regarding Relator Kiehl’s contact
with the Martin Pringle law firm. It is uncontroverted that Kiehl had been
represented by attorneys at Martin Pringle – a firm which was also known by him
to be outside counsel to HBC. (See Doc. 332, sealed, at 2.) At his deposition,
Kiehl apparently responded to certain questions regarding what caused him to
believe that HBC “was somehow responsible for any of the manufacturing
processes that [he was] alleging at TECT.” (Doc. 332, sealed, at 9.) Relator Kiehl
testified that he and Relator Minge “had actually tried to approach, have Martin
Pringle [law firm] approach Hawker Beechcraft and ask if they would like to join
in the suit against TECT because they were doing things improperly.” (Id.) HBC
contends Relators had “no basis for believing that HBC had knowledge of any nonconforming manufacturing processes at TECT at the time he approached the law

firm – making the date and effect of that approach highly probative as this
information goes to the hear of whether Relators are the original source of any such
information,” which, according to HBC, is “a potential jurisdictional bar under the
False Claims Act.” (Id.) HBC states that it asked similar questions to Kiehl at his
deposition, but that his counsel did not object based on attorney-client privilege
until it asked about the specific content of the conversation Kiehl had with the
Martin Pringle firm. (Id., at 10.) According to HBC, Relators are now
“impermissibly attempting to expand their objection and avoid revealing any
surrounding details about [Kiehl’s] approach” of the law firm. (Id.)
Relator argues that after he attempted to testify at deposition regarding the
date and location of the conversations with counsel, he was instructed not to
answer further questions on the subject. (Doc. 327, at 4-5.) Relators also point out
that HBC did not challenge the attorney-client privilege objection during the
deposition and time to do so has expired. (Id., at 5-6.)
The Court finds that the content of the conversation at issue is protected by
the attorney-client privilege. This would clearly implicate the portion of the
interrogatory inquiring as to “what, if any, role this contact with Martin Pringle had
in Relators’ decision to name HBC as a defendant in their False Claims Act
action.” (Doc. 332, sealed, at 8.) The fact that the conversation took place – in
addition to where and when it occurred – is not, however, protected. This portion

of Defendant HBC’s motion is, therefore, GRANTED in part and DENIED in
part.

IT IS THEREFORE ORDERED that the “Joint Motion for Protective
Order” (Doc. 220) filed by Defendants Turbine Engine Components Technologies
Corp., TECT Aerospace, Inc., TECT Aerospace Wellington, Inc., and Hawker
Beechcraft Corporation is DENIED. Defendants shall respond to the requests
within forty-five (45) days of the date of this Order.
IT IS FURTHER ORDERED that the “Motion to Compel the Production of
Documents” (Doc. 244) filed by Defendant Hawker Beechcraft Corporation is
GRANT to the extent Defendant has requested an en camera review of the
documents during which the Court will rule on the discoverability of the same.
The substantive portion of this motion is taken under advisement pending the
results of that en camera review. Documents shall be produced to the Court for the
purposes of such review within 21 days of the date of this Order.
IT IS THEREFORE RECOMMENDED that the “Motion for Sanctions”
(Doc. 246) filed by Defendant Hawker Beechcraft Corporation be DENIED.
Pursuant to 28 U.S.C. §636(b)(1), Fed.R.Civ.P. 72, and D.Kan. Rule 72.1.4,
Defendants shall have fourteen (14) days after service of a copy of these proposed
findings and recommendations to serve and file with the U.S. District Judge

assigned to the case, their written objections to the findings of fact, conclusions of
law, or recommendations of the magistrate judge. A party’s failure to file such
written, specific objections within the fourteen-day period will bar appellate review
of the proposed findings of fact, conclusions of law, and the recommended
disposition.
IT IS FURTHER ORDERED that the “Motion for Sanctions Against
Relators For Failing to Provide Court-Ordered Discovery” (Doc. 257, sealed) filed
by Defendant Hawker Beechcraft Corporation, is DENIED.
IT IS FURTHER ORDERED that the “Motion to Quash the Subpoena
Issued to Engineering Systems, Inc.” (Doc. 300) filed by Defendants Turbine
Engine Components Technologies Corp., TECT Aerospace, Inc., TECT Aerospace
Wellington, Inc. is GRANTED.
IT IS FURTHER ORDERED that the “Motion to Compel Interrogatory
Responses” (Doc. 320) filed by Defendant Hawker Beechcraft Corporation is
GRANTED in part and DENIED in part. To the extent supplemental discovery
responses have been ordered, the same are required to be served within thirty (30)
days of the date of this Order.
IT IS SO ORDERED.
Dated this 8th day of May, 2012.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge