Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001 v. Spirit Aerosystems, Inc.

Filing 42

MEMORANDUM AND ORDER granting in part and denying in part 35 Defendant's Motion to Amend Scheduling Order. Dispositive motion deadline 9/3/2015; proposed pretrial order due by 8/7/2015; final pretrial conference set for 8/14/2015 at 11:00 A M by telephone; granting 21 Plaintiff's Motion to Compel; granting 21 Plaintiff's Motion for Protective Order; granting in part and denying in part 22 Defendant's Motion to Compel. See Memorandum and Order for details and important deadlines. Signed by Magistrate Judge Karen M. Humphreys on 6/1/15. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SOCIETY OF PROFESSIONAL ENGINEERING
EMPLOYEES IN AEROSPACE, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND
TECHNICAL EMPLOYEES, LOCAL 2001,
Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC.,
Defendant.

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) Case No. 14-1281-MLB
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MEMORANDUM AND ORDER
This matter is before the court on three motions:
1) Plaintiff’s motion to compel the return of inadvertently produced attorney-client
communication and for protective order (Doc. 21);
2) Defendant’s motion to compel plaintiff to produce documents responsive to
defendant’s document requests (Doc. 22); and
3) Defendant’s motion to amend the Scheduling Order (Doc. 35).
On May 20, 2015, the court conducted a telephone conference to discuss and clarify the
issues presented in the briefs. Plaintiff appeared through counsel, M. Jeanette Fedele,
Thomas B. Buescher, and Thomas E. Hammond. Defendants appeared through counsel,
Boyd A. Byers and Sarah E. Burch. For the reasons set forth below, plaintiff’s motion to
compel and for protective order (Doc. 21) shall be GRANTED; defendant’s motion to
compel (Doc. 22) shall be GRANTED IN PART and DENIED IN PART; and

defendant’s motion to amend the scheduling order (Doc. 35) is GRANTED IN PART and
DENIED IN PART.

Background
Plaintiff Society of Professional Engineering Employees in Aerospace,
International Federation of Professional and Technical Employees, Local 2001
(“SPEEA”) and defendant Spirit Aerosystems, Inc. (“Spirit”) are, respectively, a labor
union and a commercial aircraft components manufacturer who have been long-term
parties to a collective bargaining agreement (“CBA”). That agreement provides to the
represented employees of Spirit a mechanism by which they may bring grievances to the
company through a four-step process.

If the employee is unsatisfied with Spirit’s

response to a grievance, it may be subject to binding arbitration.
The parties are no strangers to litigation. In 2012, SPEEA filed a federal lawsuit
seeking to compel arbitration of a class-wide grievance involving Spirit’s processes for
evaluating employee performance. On cross-motions for summary judgment, the district
court found that the dispute was not arbitrable because the CBA “precludes the
arbitration of broad disputes between union and company involving hundreds or
thousands of employees.”1 Citing to Section 3 of the CBA, Judge Marten found that
“each grievance must be considered on an individualized basis in ‘a separate and distinct
arbitration hearing’” and that class-wide issues are subject to arbitration “only if they

1

Soc'y of Prof'l Eng'g Employees in Aerospace, Local 2001, Int'l Fed'n of Prof'l & Technical
Employees v. Spirit Aerosystems, Inc., No. 12-1180-JTM, 2012 WL 5995552, at *6 (D. Kan.
Nov. 30, 2012).
2

involve a dispute over a lockout.”2 The Tenth Circuit upheld that decision on September
17, 2013.3
On July 8, 2013, Spirit employee William Hartig made an oral Step One grievance
to his first level manager regarding what he believed to be inappropriate medical
premium deductions from his pay.4 After his request was denied, Hartig proceeded to
Step Two of the grievance process by emailing his supervisor. Spirit again dismissed his
complaint and on Hartig’s behalf, SPEEA mailed a Step Three grievance on September
16, 2013 – one day prior to the Tenth Circuit’s decision regarding class-wide issues.
After Spirit refused to hold a Step Three grievance meeting with SPEEA representatives,
SPEEA demanded arbitration of Hartig’s grievance which Spirit rejected. SPEEA then
filed this action to compel arbitration of the grievance.
Spirit not only challenges the grievance on its merits, but denies that the grievance
is subject to the CBA’s arbitration provisions. Spirit admits that the CBA addresses the
employees’ contributions to the medical plan.

However, Spirit asserts that SPEEA

encouraged Hartig and other employees to act as “straw men” to bring individualized
grievances seeking class-wide remedies in an effort to circumvent the Tenth Circuit
decision. Spirit argues that SPEEA lacks standing to pursue this claim because the CBA

2

Id. at *6.
Soc'y of Prof'l Eng'g Employees in Aerospace v. Spirit Aerosystems, Inc., 541 F. App'x 817
(10th Cir. 2013).
4
On July 1, 2013, Spirit converted from a fully insured medical plan with a private insurance
carrier to a self-funded plan. The parties’ CBA requires that employees contribute a percentage
of the “medical premium cost.” (Compl., Doc. 1 at 5). Hartig asserts that, because the medical
plan is now self-funded, there are no “premium” costs which should be deducted from his
paycheck.
3

3

does not authorize SPEEA to bring a grievance and that the agreement prohibits
grievances seeking to address class-wide issues.5

I.

Plaintiff’s Motion to Compel the Return of Inadvertently Produced
Attorney-Client Communication and for Protective Order (Doc. 21)

Following the Tenth Circuit’s September 2013 decision, long-time SPEEA
counsel Tom Buescher emailed Bob Brewer, SPEEA’s Midwest Director, to advise him
on how to handle future grievances in light of the Circuit’s opinion. Brewer reportedly
referenced that email frequently when reviewing union employee grievances.6

On

December 8, 2014, Brewer mailed a letter—unrelated to this litigation—to two members
of Spirit’s senior management. Unbeknownst to Brewer, the attorney-client email was
inadvertently picked up off his desk and mailed to the Spirit managers along with the
letter. Spirit did not immediately notify SPEEA that it received the attorney-client
document, but more than a month later, on January 12, 2015, SPEEA counsel discovered
the email in Spirit’s document production in this case. That same day, SPEEA’s counsel
immediately notified Spirit, asking that the email be destroyed and any references to the
privileged material be removed from Spirit’s files. Spirit refused, and after multiple
discussions between the parties, SPEEA filed this motion to compel return of the email.
At the outset, the court notes that although Spirit asserts multiple arguments
against the retention of the privilege, it acknowledges that the document is attorney-client
communication. Given the parties’ long-standing relationship, it would have been clear
to Spirit that Tom Buescher was (and remains) SPEEA’s counsel and the email from him

5
6

Def.’s Answer, Doc. 7 at 5.
Brewer Aff. 3, Pl.’s Motion, Doc. 21, Ex. B.
4

constituted legal advice to his client. Spirit’s assertion that the privilege was waived
because SPEEA failed to assert an objection in its discovery responses or include the
email on its privilege log is addressed in Section II, infra7; and that rationale is rejected.
Spirit also claims that Fed. R. Civ. P. 26(b)(5)(B), Fed. R. Evid. 502 and the
Scheduling Order do not apply to “claw back” the document because the inadvertent
disclosure occurred outside of discovery. It is correct that the inadvertent disclosure
occurred outside the normal course of discovery. However, Spirit included the email as a
part of its discovery responses and also argues that the email is relevant as evidence of
the “scheme concocted” by SPEEA to bring grievances on class-wide issues. Because
Spirit is attempting to use the document in the course of litigation, this issue is clearly
governed by the broad scope of Fed. R. Civ. P. 268 and the court frankly finds Spirit’s
argument rather disingenuous.9 The sole issue to decide, then, is whether SPEEA’s
inadvertent disclosure of the email amounts to a waiver of the privilege.
The parties agree that the five-factor test often utilized in this district should be
applied to determine whether the inadvertent disclosure constitutes a waiver of the

7

See discussion infra of Def.’s Motion to Compel (Doc. 22).
Cf. Weeks v. Samsung Heavy Indus., Ltd., 1996 WL 288511, at *1 (May 30, 1996, N.D. Ill.).
9
Absent from the parties’ briefing is a discussion of the Kansas Rules of Professional Conduct—
in particular KRPC 4.4(b). This rule necessitates that “a lawyer who receives a document . . .
relating to the representation of the lawyer’s client and knows or reasonably should know that
the document . . . was inadvertently sent shall promptly notify the sender” (emphasis added).
The comments to Rule 4.4 make clear that section (b) applies to a situation where a document “is
accidentally included with information that was intentionally transmitted.” The Rule “requires
the lawyer to promptly notify the sender in order to permit that person to take protective
measures.” KRPC 4.4, Comment [2] (emphasis added). By failing to do so, defense counsel may
have “proceeded at their and their client’s peril” and failed to appreciate any “ethical obligations
that may surpass the limitations implicated by the attorney-client privilege and that apply
regardless of whether the documents in question retain their privileged status.” Burt Hill, Inc. v.
Hassan, No. CIV.A. 09-1285, 2010 WL 419433, at *4 (W.D. Pa. Jan. 29, 2010).
8

5

attorney-client privilege.10 The burden to prove that a waiver did not occur lies with the
party asserting the attorney-client privilege.11 The factors considered include: 1) the
reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the time
taken to rectify the error; 3) the scope of discovery; 4) the extent of disclosure; and 5) the
overriding issue of fairness. A review of each factor follows.
1.

Precautions. With respect to the precautions taken, Brewer described his

awareness of its confidential nature and his efforts to keep the privileged document
segregated from general office documents.12 While it is true that he apparently left the
email lying on his desk after referring to it during a conversation with a potential
grievant, it appears to be simple human error that the email was picked up with other
documents for copying. The use of “reasonable” precautions does not require those
precautions to be fool-proof. At its worst, this factor is neutral and, at its best, it tips the
scales slightly in SPEEA’s favor.
2.

Time lapse. In this case, the time lapse between the inadvertent disclosure

and SPEEA’s discovery of the disclosure was just over one month. Given that Brewer
did not know that the email had been disclosed, and that his office closed for two weeks
over the holidays, any delay is regarded as even less suspicious. “The relevant time for
rectifying any error begins when a party discovered or with reasonable diligence should
have discovered the inadvertent disclosure.”13 Once SPEEA realized the email had been

10

Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL-DJW, 2006 WL 1867478, at *9 (D.
Kan. July 1, 2006)).
11
Id.
12
Brewer Aff. 3, Pl.’s Motion, Doc. 21, Ex. B.
13
Zapata v. IBP, Inc., 175 F.R.D. 574, 577 (D. Kan. 1997) (citing Kansas City Power & Light
Co. v. Pittsburg & Midway Coal Mining Co., 133 F.R.D. 171, 172 (D. Kan. 1989)).
6

disclosed, SPEEA counsel contacted Spirit’s counsel the very day of discovering its
disclosure to request its return, and the court finds that this factor weighs heavily in
SPEEA’s favor.
3.

Scope of discovery. Given the facts of this inadvertent disclosure by a

party rather than a litigant’s counsel, the court finds that this factor is neutral when
applied to these facts. This factor is generally applied to the review of voluminous
discovery by counsel and is not as applicable to a single inadvertent disclosure by the
party itself, during routine communications between the parties outside the formal
discovery process.
4.

Extent of disclosure. Generally, this factor examines both the extent of the

inadvertent disclosure and how widely the item was disseminated by the receiving
party.14 Here, only one page was disclosed to two individuals at Spirit. Spirit assures the
Court that it is holding the document “in confidence.”15 Taking defendant at its word,
this factor weighs against waiver.
5.

Fairness. Spirit knew full well that the email in its possession came from

SPEEA’s attorney with whom Spirit’s managers had dealt for years. Spirit also kept
quiet about the inadvertent disclosure for more than a month, although the document’s
privileged nature and accidental disclosure were reasonably obvious. Most importantly,
the email outlines SPEEA’s approach to handling current and future grievances, and

14

See Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478, at *10 (D. Kan. July 1, 2006);
Wallace v. Beech Aircraft Corp., 179 F.R.D. 313, 315 (D. Kan. Mar. 30, 1998); Monarch
Cement Co. v. Lone Star Indus., Inc., 132 F.R.D. 558, 560 (D. Kan. Oct. 9, 1990).
15
Def.’s Resp., Doc. 32, at 2.
7

Spirit has stated its intention to use the email “in this and other cases”16 which would give
Spirit an unfair advantage in future grievance actions with SPEEA. Spirit’s counsel
admitted during the telephone conference that, had the privileged email not been
inadvertently disclosed, Spirit’s discovery tactics would have been the same. This factor
weighs in favor of SPEEA.
Therefore, after application of all five factors, the court finds that the inadvertent
disclosure of the attorney-client email did not waive its privileged nature. Plaintiff’s
Motion to Compel the Return of Inadvertently Produced Attorney-Client Communication
(Doc. 21) shall be GRANTED. Additionally, plaintiff’s request for a protective order
shall also be GRANTED.
IT IS THEREFORE ORDERED that plaintiff’s Motion to Compel the Return of
Inadvertently Produced Attorney-Client Communication (Doc. 21) is GRANTED.
IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 26(b)(5)(B) and
(c), defendant must promptly return or destroy the inadvertently disclosed email as well
as any copies defendant may have in its possession. Defendant may not use or disclose
the information for any purpose and must take reasonable steps to retrieve the
information if such information was disclosed before defendant was notified of the
document’s privileged nature. Defendant shall file a Certificate of Compliance verifying
its adherence to this order on or before June 10, 2015.

16

Pl.’s Motion, Ex. D, at 2.
8

II.

Defendant’s Motion to Compel Plaintiff to Produce Documents
Responsive to Defendant’s Document Requests (Doc. 22)

On January 7, 2015, Spirit served SPEEA with 12 requests for production of
documents. After discussion between the parties, Spirit agreed to withdraw Request Nos.
7 through 10. SPEEA responded to the eight remaining requests on February 25, 2015.
Spirit claims that SPEEA wrongfully withheld numerous responsive documents and this
motion followed.
Spirit raises three primary arguments: 1) that the “general objections” asserted in
the preface of SPEEA’s responses, based on privilege and relevance are improper and
therefore do not apply to those responses to which the objections are not specifically
asserted; 2) that SPEEA’s response to Request No. 4 contained no objections, so all
responsive documents must be produced; and 3) that SPEEA cannot meet its burden to
show that the discovery sought in Request Nos. 3, 5, 6, 11, and 12 is not reasonably
calculated to lead to the discovery of admissible evidence. Each argument is addressed
as follows.

1.

General objections
Spirit is correct in its interpretation of Rules 26(b)(5)(A)(i)17 and 34(b)(2)18 and

the court normally disapproves of general objections asserted in the preface of discovery

17

Fed. R. Civ. P. 26(b)(5)(A)(i) requires a party who withholds information on the basis of
privilege to expressly make the claim of privilege.
18
Fed. R. Civ. P. 34(b)(2) addresses Responses and Objections. Section (B) requires that for
each item or category, the response must either state that inspection and related activities will be
permitted as requested or state an objection to the request, including the reasons. Section (C)
requires that an objection to part of a request must specify the part and permit inspection of the
rest.
9

responses “to the extent” those objections may apply to particular requests, when the
responding party fails to state a specific objection in each discovery response.19
However, the distinguishing characteristic, which differentiates SPEEA’s responses from
those cases cited by Spirit, is that SPEEA produced both a detailed privilege log and a
detailed “merits log” with its responses. Each log describes those documents withheld
from production by providing identification (Bates) numbers, the document type (email,
letter, presentation, etc.), the date of each item, the author, the recipients of each item,
and a brief description of the topic of each document withheld.20 SPEEA’s individual
responses reference those Bates numbers of the withheld items responsive to each
request. SPEEA asserts that it withheld those documents that “go to the merits of the
grievance, an issue not relevant to this case which is to compel arbitration of that
grievance.”
After review of the logs and after consultation with counsel, the court finds that
any documents which SPEAA withheld are clearly delineated and described on both the
privilege and merit logs in order to inform Spirit of their existence, with enough
information provided to enable Spirit to evaluate those items. While SPEEA’s method
was unconventional and the court certainly does not encourage the use of general
objections, in this specific instance Spirit’s responses provided more than “hypothetical
or contingent possibilities” regarding which documents were withheld and on what

19

See Starlight Int'l, Inc. v. Herlihy, 181 F.R.D. 494, 497 (D. Kan. 1998) (citing Cotracom
Commodity Trading Co. v. Seaboard Corp., No. Civ.A. 97–2391–GTV, 1998 WL 231135, at *1
(D.Kan. May 6, 1998)).
20
See Def.’s Mem. Supp., Doc. 23, Exs. 3 (merits log) and 4 (privilege log).
10

rationale.21

SPEEA’s failure to expressly assert its claim of privilege or relevance

objection to each individual request does not automatically result in a waiver of the
privilege or objection. For good cause, the court may excuse even an untimely objection,
and the harsh remedy of waiver has been “reserved . . . for only those cases where the
offending party committed unjustified delay in responding to discovery.”22
Spirit’s contention that SPEEA’s objections to documents contained on the
privilege or merits logs that are not also specified in each response are waived is
therefore rejected. Because Spirit concedes that the items on the privilege log are, in fact,
privileged, those documents will retain their privileged status and should not be
produced. Those items listed on the merits log will be examined for relevance in Section
3 below.

2.

Request No. 4
Spirit’s second argument centers on its Request No. 4. In that request, Spirit seeks

“All documents regarding the grievance referenced in [the] Complaint.” Request No. 4 is
very similar to Request No. 3, which seeks SPEEA’s file regarding the grievance
referenced in the Complaint. Spirit argues that SPEEA did not assert any objections to
Request No. 4, so all objections should be considered waived and all responsive
documents must be produced.

21

Starlight Int'l, Inc. v. Herlihy, 181 F.R.D. 494, 497 (D. Kan. 1998) (citing Cotracom
Commodity Trading Co. v. Seaboard Corp., No. 97–2391–GTV, 1998 WL 231135, at *1 (D.
Kan. May 6, 1998)).
22
Robinson v. City of Arkansas City, Kan., No. 10-1431-JAR-GLR, 2012 WL 603576, at *5 (D.
Kan. Feb. 24, 2012) (citing White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning,
Inc., 586 F.Supp.2d 1250, 1266 (D. Kan. 2008).
11

During the motion conference on May 20, 2015, Spirit acknowledged that Request
No. 4 was intended as a safety net to catch any documents related to Request No. 3 that
were omitted from SPEEA’s actual file. Counsel for SPEEA stated that she understood
Request Nos. 3 and 4 to include “anything having to do with Hartig’s grievance” and, to
that end, everything responsive to both requests has either been produced or listed on the
merits log. The court accepts this explanation. Spirit’s challenge to the preservation of
the relevance objections and assertions of privilege has been rejected. Therefore, the
only remaining issue for determination regarding Request Nos. 3 and 4 is the relevance of
those items listed on the merits log.

3.

Relevance
Spirit argues that SPEEA’s relevance objections to Request Nos. 3, 5, 6, 11, and

12 should be overruled, while SPEEA maintains that materials responsive to those
requests clearly lie outside the scope of discovery. With regard to Request Nos. 3, 5, and
6, SPEEA claims to have either produced or included on the merits log all responsive
documents, 23 withholding as irrelevant only those items contained on the merits log. The
court accepts this representation; therefore, the crux of this motion is the relevance of
those items listed on SPEEA’s merit log responsive to Request Nos. 3, 5, and 6 and the
relevance of the information sought by Request Nos. 11 and 12.
23

The parties partially resolved issues regarding Request Nos. 5 and 6 during the May 20, 2015
telephone conference. Those requests seek materials in the possession of Hartig, to which
SPEEA objected, in part, because the materials would have been in another person’s custody and
control. SPEEA disclosed that it has either produced or listed on the merits log everything they
knew to exist from Hartig, and Spirit has since filed a notice of its intent to issue a documents
subpoena directly to Hartig (see Notice, Doc. 41, filed May 20, 2015). Therefore, the only
remaining issue is whether those items on SPEEA’s merits log responsive to Request Nos. 5 and
6 are relevant and must be produced.
12

A. Legal Standards
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.”

Relevance is broadly

construed at the discovery stage24 and discovery relevance is minimal relevance,25 which
means a request should be deemed relevant if there is any possibility that the request will
lead to the discovery of admissible evidence.26
The party requesting discovery bears the low burden of showing the request to be
relevant on its face but, after facial relevance is established, the burden shifts to the party
resisting discovery.27 “The party opposing discovery is required to come forth with more
than a mere conclusory statement that the discovery is irrelevant and must specifically
demonstrate how the request is not reasonably calculated to lead to the discovery of
admissible evidence.”28

The decision to grant a motion to compel is a matter of

discretion for the court.29 “Courts should lean towards resolving doubt over relevance in
favor of discovery.”30

24

Nkemakolam v. St. John's Military Sch., 2013 WL 5551696, at *3 (D. Kan. Oct. 7, 2013)
(citing Smith v. TCI, 137 F.R.D. 25, 26 (D. Kan 1991)).
25
Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265
(D.Kan.1996) (internal citation omitted).
26
Nkemakolam, 2013 WL 5551696, at *3 (citing Smith, 137 F.R.D., at 26).
27
See Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648, 653 (D. Kan. 2006).
28
Jackson v. Coach, Inc., 2008 WL 782635, at *4 (D. Kan. Mar. 20, 2008)(citing Teichgraeber,
932 F.Supp. at 1266)).
29
G.D. v. Monarch Plastic Surgery, P.A., 239 F.R.D. 641, 644 (D. Kan. 2007) (citing Martinez
v. Schock Transfer & Warehouse Co., 789 F.2d 848, 850 (10th Cir. 1986)).
30
Jackson, 2008 WL 782635, at *4 (citing Teichgraeber, 932 F.Supp. at 1266) (internal citations
omitted).
13

B.

Analysis
i.

Request Nos. 3, 5, and 6

SPEEA contends that the information requested in Request Nos. 3, 5, and 6 is not
relevant to this case because the single issue before the court is whether Hartig’s
grievance is arbitrable under the CBA. SPEEA claims that Spirit’s theory that Hartig
acted as a straw man in order to sidestep the Tenth Circuit opinion cannot be true because
of the timing of Hartig’s initial grievance. Hartig brought his Step One and Step Two
grievances in July 2013, and SPEEA filed the Step 3 grievance on Hartig’s behalf on
September 16, 2013. The Tenth Circuit opinion in SPEEA v. Spirit31 was not filed until
September 17, 2013. However, SPEEA completely ignores the fact that the district court
opinion (which the appellate court affirmed) was issued on December 30, 2012.32
Despite the timing of the Tenth Circuit opinion, it is conceivable that the union began
developing its new grievance strategy after the district court opinion was filed, although
the court offers no opinion regarding that topic.
The parties go to considerable length to outline the issues of substantive versus
procedural arbitrability and how each should affect discovery. The Tenth Circuit Court
of Appeals provides authoritative definitions:
Substantive arbitrability deals with whether the dispute relates to matters
that the parties agreed to arbitrate. UAW v. Folding Carrier Corp., 422 F.2d
47, 49 (10th Cir.1970). Procedural arbitrability addresses whether parties
have satisfied conditions that allow them to use arbitration. Howsam v.
31

Soc'y of Prof'l Eng'g Employees in Aerospace v. Spirit Aerosystems, Inc., 541 F. App'x 817,
819 (10th Cir. 2013).
32
Soc'y of Prof'l Eng'g Employees in Aerospace, Local 2001, Int'l Fed'n of Prof'l & Technical
Employees v. Spirit Aerosystems, Inc., No. 12-1180-JTM, 2012 WL 5995552, at *6 (D. Kan.
Nov. 30, 2012).
14

Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d
491 (2002). If the dispute is substantive, the court determines arbitrability;
if the issue is procedural, the arbitrator determines arbitrability. Id.33
Ultimately, the character of arbitrability is a dispositive issue and it will be determined by
the District Judge. But for purposes of discovery, the court is required to take a broad
approach and must apply a minimal relevance standard.
Here, it appears that the issues of procedure and substance are intricately
intertwined. SPEEA oversimplifies the problem by characterizing the case as solely
procedural—involving a condition precedent to arbitration, similar to time limits or
notice, which would be an appropriate decision for the arbitrator. But what the parties,
and particularly Spirit in its defense, are really asking the court is to delve into the deeper
issue of the potential class-wide application of a single grievance.

Substantive

arbitrability—whether the parties have agreed to submit this type of dispute to
arbitration—is applicable to the “narrow circumstance where contracting parties would
likely have expected a court to have decided the gateway matter.”34 The U.S. Supreme
Court describes the need for a decisionmaker with comparative expertise on the issues.35
In light of the 2013 Tenth Circuit decision, it is reasonable for Spirit to expect the court to
interpret its previous order.36
Considering these complicated issues, the court cannot say with certainty that the
merits (or subject) of the grievance and the procedural questions can be divorced from
one another. The potential for class-wide remedy, the existence of the 2012 and 2013
33

Soc'y of Prof'l Eng'g Employees in Aerospace v. Spirit Aerosystems, Inc., 541 F. App'x 817,
819 (10th Cir. 2013).
34
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84 (2002).
35
Id. at 85.
36
Id.
15

orders, and the timing of Hartig’s grievance create layers of analysis which the court
finds impossible to neatly categorize into “substantive” or “procedural” concerns.
Therefore, resolving doubt over relevance in favor of discovery, the court will order
production of those items contained on the merits log, all of which appear to be
responsive to Request Nos. 3, 4, 5, and 6.37

ii.

Request Nos. 11 and 12

Request Nos. 11 and 12 present additional concerns. In Request No. 11, Spirit
seeks:
All documents regarding the decision by the United States District Court
for the District of Kansas in Case No. 12-1180 and/or the decision by the
United States Court of Appeals for the Tenth Circuit in Case No. 12-334...
regardless of whether the case is specifically identified or mentioned,
including but not limited to any strategy for filing grievances in light of the
court ruling.
Request No. 12 seeks “All documents regarding or concerning” three grievances filed by
other employees (not Hartig) on different dates, and includes not only SPEEA’s entire
files on each, but “any notes of, and emails involving, Bob Brewer, B.J. Moore, Matthew
Joyce, Brenda Reiling, Bill Hartig, and any other person in any type of past or present
leadership role with SPEEA, as well as all other internal SPEEA documents regarding
any of these grievances.”
SPEEA’s sole objection to both requests was that the documents requested lie
outside the scope of discovery. The initial analysis of the scope of discovery is described
above and will not be repeated. But the court must also examine proportionality as a part
37

SPEEA’s Responses to Request Nos. 3 and 4 encompass all documents contained on the
merits log (Bates Nos. 00117-118, 127-226). Therefore, its Responses to Request Nos. 5 and 6,
while also referencing items on the merits log, appear to overlap.
16

of its inquiry.

Rule 26(b)(2)(C)(iii) instructs the court to weigh the burden of the

proposed discovery with its likely benefit, and the court may consider “the needs of the
case . . . [and] the importance of the discovery in resolving the issues.”38 “The party
resisting the discovery bears the burden of establishing lack of relevance by
demonstrating that the requested discovery either does not come within the broad scope
of relevance as defined under Fed.R.Civ.P. 26(b)(1) or is of such marginal relevance that
the potential harm occasioned by discovery would outweigh the ordinary presumption in
favor of broad disclosure.”39 Although the court resolved its doubts in favor of discovery
regarding the relevance of those items identified on the merits log, documents regarding
unrelated and withdrawn grievances in Request No. 12 have marginal relevance to this
specific grievance by Hartig. Additionally, the court cannot ignore the relationship
between the parties and the effect that such broad disclosure might have. Requiring the
labor union to turn over its entire internal analyses of the earlier case described in
Request No. 11 falls outside the boundaries of discovery on the issue of arbitrability of
Hartig’s grievance, particularly in light of the ordered disclosure of those items identified
on the log.

38

The text of Fed. R. Civ. P. 26(b) will change effective December 1, 2015, absent contrary
Congressional action. The analysis of proportionality will become equally as important to the
analysis of scope of discovery as the information’s relevance to any party’s claim or defense.
The expected amendment to Rule 26(b)(1) reads, in part: “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.”
39
Aramburu v. Boeing Co., No. 93-4064-SAC, 1994 WL 810248, at *2 (D. Kan. Sept. 22, 1994).
(emphasis added).
17

4.

Payment of Expenses
Pursuant to Federal Rule of Civil Procedure 37(a)(5), if a motion to compel is

granted, the court must require the party whose conduct necessitated the motion to pay
the movant’s expenses incurred in making the motion unless circumstances make such an
award unjust. Spirit did not request sanctions and, after review of all discovery motions
currently considered as well as the telephone conference with counsel, the court finds it
appropriate and just for the parties to bear their own expenses incurred in connection with
this motion to compel.

IT IS THEREFORE ORDERED that Spirit’s Motion to Compel Production of
Documents (Doc. 22) is GRANTED IN PART, in that SPEEA must produce all
documents contained on its merits log40 which are responsive to Spirit’s Request for
Production Nos. 3, 4, 5 and 6. The motion is MOOT to the extent that the parties have
agreed upon a resolution to Request Nos. 5 and 6, with the exception that any documents
in SPEEA’s possession or included on the merits log responsive to those requests must
still be produced.
IT IS FURTHER ORDERED THAT the motion is DENIED IN PART in that
SPEEA is not required to produce any documents contained on its privilege log and
DENIED IN PART in that SPEEA is not required to respond to Request Nos. 11 and 12.
IT IS THEREFORE ORDERED that plaintiff shall provide the information
ordered produced on or before June 15, 2015.

40

Def.’s Mem. Supp., Doc. 23, Ex. 3.
18

III.

Defendant’s Motion to Amend the Scheduling Order (Doc. 35)

The initial Scheduling Order (Doc. 11) was amended by agreement of the parties
on February 10, 2015 (Doc. 17) because the parties sought additional time to schedule
depositions. After the filing of the cross-motions to compel, the parties agreed to further
suspend depositions pending the court’s ruling on those motions. Spirit now seeks a 60day extension on all remaining deadlines in the event that the ruling on the pending
motions leads to the need for additional discovery.41
SPEEA agrees to extend the deposition deadline to August 3, 2015 and the
dispositive motion deadline to September 3, 2015. However, SPEEA argues that no good
cause exists for reopening unlimited written discovery. SPEEA asserts that the cost
considerations which necessitate extension of the deposition deadline until sometime
after resolution of the pending motions do not apply to written discovery. Although
Spirit was free to send additional written discovery in advance of any discovery rulings, it
failed to do so and SPEEA reasons that this failure demonstrates a lack of diligence. The
law requires that Spirit show good cause for reopening discovery42 and SPEEA contends
that Spirit has not met that burden.
SPEEA concedes that the extension of the deposition deadline may necessitate
additional discovery on topics which might arise for the first time during depositions.
Given that concession, and after thorough consideration of the arguments of counsel

41

Defendant filed its motion (Doc. 35) to which plaintiff responded (Doc. 40). However, after
discussion during the May 20, 2015 telephone conference, counsel for Spirit informed the court
that no reply brief would be necessary.
42
See J. Vangel Elec., Inc. v. Sugar Creek Packing Co., No. 11-CV-2112-EFM-KMH, 2012 WL
5995283, at *2 (D. Kan. Nov. 30, 2012) (citing Fed. R. Civ. P. 16(b)(4)).
19

presented during the May 20, 2015 telephone conference, the court finds that limited
written discovery shall be allowed in consideration of the extended deposition deadline.

IT IS THEREFORE ORDERED that the defendant’s motion to amend the
scheduling order is GRANTED IN PART to the extent that the deposition deadline is
extended to August 3, 2015 and the dispositive motion deadline is extended to September
3, 2015. Defendant’s motion is DENIED IN PART in that all remaining deadlines will
not be extended, with the exception of limited written discovery described below.
IT IS FURTHER ORDERED that limited written discovery will be allowed as
long as the discovery requests: 1) are commenced or served in time to be completed by
August 28, 2015;

2) originate from information discovered for the first time at

deposition; and 3) are otherwise appropriate under Fed. R. Civ. P. 26(b). No party may
serve more than 10 interrogatories, including all discrete subparts, on any other party. No
party may serve more than 10 requests for admissions, including all discrete subparts, on
any other party. The party to whom the request is directed must respond in writing
within 10 days following service of the request. Any objections to discovery responses
shall be communicated to the responding party within 5 days of receipt of the response.
All other parameters described in Section Two of the Scheduling Order (Doc. 11) shall
continue to apply.
IT IS FURTHER ORDERED that, prior to seeking judicial intervention for any
disputes regarding this additional limited discovery, the parties shall confer in person in
an attempt to reach agreement. In the event the parties are unable to reach agreement
after in-person communication, the parties shall submit position statements by email to
20

the chambers of the assigned U.S. Magistrate Judge. Following review of the position
statements, a telephone conference with the Court and oral ruling on the dispute will
follow within a reasonably accelerated timeframe.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 16(e), a pretrial
conference is scheduled for August 14, 2015 at 11:00 a.m; this pretrial conference will
be conducted by telephone unless the judge determines that the proposed pretrial order is
not in the appropriate format or that there are some problems requiring counsel to appear
in person. Unless otherwise notified, the assigned U.S. Magistrate Judge will conduct the
conference. No later than August 7, 2015, defense counsel must submit the parties=
proposed pretrial order (formatted in Word or WordPerfect) as an attachment to an e-mail
sent to the chambers of the assigned U.S. Magistrate Judge. The proposed pretrial order
must not be filed with the Clerk=s Office. It must be in the form available on the court=s
website at http://www.ksd.uscourts.gov/flex/?fc=9&term=5062. The parties must affix
their signatures to the proposed pretrial order according to the procedures governing
multiple signatures set forth in paragraphs II(C) of the Administrative Procedures for
Filing, Signing, and Verifying Pleadings and Papers by Electronic Means in Civil Cases.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 1st day of June 2015.

s/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

21