Raymond et al v. Spirit AeroSystems Holdings, Inc. et al

Filing 202

MEMORANDUM AND ORDER denying 193 Defendants' Motion for Protective Order. See Memorandum and Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 2/22/17. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONETTA RAYMOND, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
SPIRIT AEROSYSTEMS HOLDINGS, INC. , and )
SPIRIT AEROSYSTEMS, INC.,
)
)
Defendants.
)
)

Case No. 16-1282-JTM-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Protective Order (ECF
No. 193). On January 31, 2017, the Court convened an in-person hearing to address the
pending motion. Plaintiffs appeared through counsel, Randall K. Rathbun. Defendants
appeared through counsel, James M. Armstrong.

After consideration of both the

arguments of counsel and the parties’ briefing, Defendants’ Motion (ECF No. 193) is
DENIED for the reasons outlined below.

I.

Background
A.

Nature of Suit

In July and August, 2013, defendant Spirit AeroSystems (“Spirit”)1 conducted a
“reduction in force” (“RIF”) which terminated the employment of the named Plaintiffs 2

1

Throughout this Order, the use of “Spirit” will refer to defendant Spirit AeroSystems, as well as
its parent company, defendant Spirit AeroSystems Holdings, Inc.

and more than two hundred other workers. (Compl., ECF No. 1, at 5.) Plaintiffs claim
the RIF eliminated a disproportionate number of Defendants’ older employees. Plaintiffs
filed this collective action in July 2016, claiming Defendants wrongfully terminated their
employment and/or later failed to consider them for new job openings as a result of their
age and, in some cases, the older employees’ (or family members’) medical conditions
and related medical expenses. In addition to the collective action claims under the Age
Discrimination in Employment Act3 (“ADEA”), some Plaintiffs also assert individual
ADEA claims, and some Plaintiffs claim their termination violated the Americans with
Disabilities Act4 (“ADA”) and/or the Family and Medical Leave Act5 (“FMLA”).
Defendants allege Plaintiffs and others like them were discharged, and not
considered for rehire, for lawful reasons—primarily their poor performance. Defendants
claim, in order to help lessen the effects of employment, they offered every laid-off
employee a severance package that included both monetary benefits and career services.
(ECF No. 194, at 1.) Most of the terminated employees accepted the offered benefits in
exchange for signing a release of claims against Spirit. (Id.) However, with the exception
of approximately nine Plaintiffs,6 the terminated employees now claim the releases are
invalid, in addition to their wrongful termination claims.

2

The initial Complaint was filed by 24 named Plaintiffs. In October 2016, a number of Consents
to Opt In were filed (ECF Nos. 31-103; 104-152, 154), bringing the number of Plaintiffs to more
than 70.
3
29 U.S.C. § 621 et seq.
4
42 U.S.C. § 12101 et seq.
5
29 U.S.C. § 2601 et seq.
6
This number was reported by the parties during oral argument on January 31, 2017.
2

B.

Procedural Posture

This matter has progressed in a unique manner. Following an in-person status
conference on October 19, 2016, the Court entered, at the parties’ request, a phased
discovery plan (Phase I Scheduling Order, ECF No. 153). The initial discovery phase is
intended to focus solely on the validity of the releases signed by Plaintiffs. Once the
validity of the releases is resolved through dispositive motions, as anticipated by the
parties, the case will progress to a second phase of discovery, which will focus on
Plaintiffs’ wrongful termination claims.
On September 20, 2016, as part of the initial discovery phase, Plaintiffs served
initial written discovery on Defendants (ECF No. 29). Since that date, Defendants
received multiple extensions of the response deadline. Although Plaintiffs agreed to the
first three requested extensions, they were not willing to agree to a fourth extension (see
Pls.’ Mem. Opp’n to Defs.’ Mot. for Extension, ECF No. 186). Following a disputed
motion for the most recent extension of time (ECF No. 192), this Court ordered
Defendants to respond to Plaintiffs’ discovery by January 31, 2017 (Order, ECF No.
192).
The agreed Phase I Scheduling Order did not contain specific discovery protocols
regarding production of electronically stored information or the handling of materials for
which the parties assert privilege or work product protection.

Simultaneous with

production of documents, the parties have been working toward an agreement on

3

procedures governing discovery. However, they have been unable to agree on the timing
of logging privileged7 documents, which led to the instant motion.

II.

Defendants’ Motion for Protective Order (ECF No. 193)
A.

Arguments
1.

Defendants’ Position

Defendants suggest, if a producing party objects to production of documents on
some non-privilege basis (such as relevance or overbreath), the withheld documents need
not be immediately included on a privilege log. They propose neither party would waive
its privilege objection by excluding information from a privilege log until after the
information has been deemed otherwise discoverable, either by agreement or decision by
the Court. Defendants argue their proposal comports specifically with the 1993 advisory
committee’s note to Fed. R. Civ. P. 26(b)(5) and recent caselaw from this District.
Additionally, Defendants claim as an employer, the majority of privileged
documents subject to discovery are primarily in their possession. Therefore, the burden
to log such documents falls to them. And, the privileged communications sought by
Plaintiffs equates to potentially thousands of documents. Logging them—regardless of
their discoverability—would create an unreasonable, disproportionate, and costly burden
for Defendants.

7

For the remainder of this Order, the term “privilege” will encompass any information sought
through discovery which is “subject to a claim of privilege or of protection as trial-preparation
material” under Fed. R. Civ. P. 26(b)(5).
4

As an example of the potential burden, Defendants contend some of the
documents sought by Plaintiffs lie outside the scope of Phase I discovery. Many of
Plaintiffs’ discovery requests identify a time frame of March 1, 2013 through December
31, 2013. However, because the waivers are the sole issue in Phase I, and the waivers
were signed in July and August 2013, Defendants argue information from September to
December 2013 is irrelevant and the requests are overbroad. Forcing Defendants to
include all of the privileged communications from that time frame, despite their nonprivilege objections, would be burdensome and unreasonable.
Defendants seek two forms of relief: 1) for entry of a Protective Order, specifying
failure to log a privileged document also covered by a non-privilege objection when
initially responding to discovery, does not automatically waive the privilege objection,
until the non-privilege discoverability of the document is determined. Defendants also
ask the Court to 2) extend any deadline for production of privilege logs until 21 days after
the Court issues a decision on this issue.

2.

Plaintiffs’ Position

Plaintiffs disagree with this method of production, and argue “Rule 26(b)(5)(A)’s
privilege log requirement is not delayed or excused when other non-privilege objections
are asserted.” (Resp., ECF No. 195 at 8).

Plaintiffs cite multiple decisions from the

District of Kansas to support their argument that all responsive privileged documents
must be identified and a log produced at the time of the initial response, regardless of

5

whether other non-privilege objections are also stated. By failing to produce a privilege
log, a responding party would waive its privilege objection.
Plaintiffs disagree their requests are overbroad or seek irrelevant information, and
reveal Defendants asserted general non-privilege objections to all of Plaintiffs’ 22
interrogatories.

Plaintiffs believe granting Defendants’ request could indefinitely

postpone identification (and therefore any assessment) of any privileged documents
withheld.
In light of Defendants’ previous extensions of their discovery response deadlines,
Plaintiffs contend the current request would essentially bifurcate—thus delay—the
already-phased discovery, and lead to increased conference and motion practice.
Additionally, Plaintiffs believe the parties’ initial and well-thought-out discovery
agreements would significantly reduce any burden on Defendants.

3.

Compliance with D. Kan. Rule 37.2

Throughout the briefing, and during the in-person hearing, the parties
demonstrated their multiple attempts to resolve their differences on this and other
discovery issues. Therefore, the Court is satisfied they have sufficiently conferred as
required by D. Kan. Rule 37.2. However, despite their attempts, the parties could not
resolve this specific issue, leading to Defendants’ motion for protective order.

6

B.

Legal Standards
1.

Fed. R. Civ. P. 26

The parties agree Fed. R. Civ. P. 26 and 34 govern this dispute. The Court first
examines Rule 26(b)(5), which outlines a party’s duties when withholding documents on
claims of privilege. Section 5(A) of the rule states:
When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trialpreparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed--and do so in a manner
that, without revealing information itself privileged or protected, will
enable other parties to assess the claim.
Fed. R. Civ. P. 25(b)(5)(A). In explanation of the rule, the 1993 advisory committee’s
note emphasizes the need for an objecting party to “provide sufficient information to
enable other parties to evaluate the applicability of the claimed privilege” but
acknowledges the “rule does not attempt to define for each case what information must
be provided when a party asserts a claim of privilege or work product protection.”
Although it stops short of articulating the specific description required under Rule
26(b)(5)(ii), the committee opines, “[d]etails concerning time, persons, general subject
matter, etc., may be appropriate if only a few items are withheld, but may be unduly
burdensome when voluminous documents are claimed to be privileged or protected,
particularly if the items can be described by categories.”

By way of example, the

committee explains,
The obligation to provide pertinent information concerning withheld
privileged materials applies only to items “otherwise discoverable.” If a
7

broad discovery request is made—for example, for all documents of a
particular type during a twenty year period--and the responding party
believes in good faith that production of documents for more than the past
three years would be unduly burdensome, it should make its objection to
the breadth of the request and, with respect to the documents generated in
that three year period, produce the unprivileged documents and describe
those withheld under the claim of privilege. If the court later rules that
documents for a seven year period are properly discoverable, the documents
for the additional four years should then be either produced (if not
privileged) or described (if claimed to be privileged).
Fed. R. Civ. P. 26(b) advisory committee’s note to 1993 amendment.
In the event a party wishes to withhold privileged information, but believes
providing the information required under Rule 26(b)(5) would be an unreasonable
burden, the party may seek relief through a protective order under Rule 26(c).8
Subsection (c) allows the court, “for good cause, [to] issue an order to protect a party . . .
from annoyance, embarrassment, oppression, or undue burden or expense.” The Court
then has broad discretion to utilize such a protective order to specifically define and/or
narrow the disclosure or discovery, including the terms, timing, and method of
discovery.9

2.

Fed. R. Civ. P. 34

Though Rule 26 governs the scope of discovery, Rule 34 governs a party’s
response to requests for production of documents. Under Rule 34, the party must either
produce the documents requested “or state with specificity the grounds for objecting to

8
9

Fed. R. Civ. P. 26(b) advisory committee’s note to 1993 amendment.
Fed. R. Civ. P. 26(c)(1)(A)-(H).
8

the request.”10 “An objection must state whether any responsive materials are being
withheld on the basis of that objection. An objection to part of a request must specify the
part and permit inspection of the rest.”11

C.

Analysis

Both parties cite authorities which analyze Rules 26 and 34 in ways they believe to
be persuasive to their arguments. The Court reviewed each authority, but finds none to
be entirely persuasive, as each case cited addresses the issue of privilege in the context of
motions to compel discovery, rather than a preemptive request to relieve a party of its
duty to provide a privilege log. However, the authorities are analogous and are briefly
addressed.
Defendants rely in large part upon the advisory committee note to Rule 26(b),
which they contend describes precisely the relief they seek from the Court. However,
ignored are the distinguishing facts described by the committee in its example. In its
comments, the committee describes a situation where a facially overbroad request seeks
17 years of potentially unnecessary information.12 But the disputed scope in this case is
nothing near the overbreadth described by the advisory committee.
In the instant case, Defendants suggest Plaintiffs’ requests seek information from a
four-month period in 2013, after Plaintiffs’ terminations, which may not be relevant to
the Phase I issue of waiver. Though Plaintiffs argue otherwise, at this juncture, the Court

10

Fed. R. Civ. P. 34 (b)(2)(B).
Fed. R. Civ. P. 34(b)(2)(C).
12
See supra Section B.1, pp. 7-8.
11

9

will not decide on the limited information presented whether the four months of
information is actually relevant to Phase I discovery. Most importantly, the parties agree
nine Plaintiffs make no waiver claims, and their wrongful termination claims will survive
the Phase I dispositive motions and proceed to Phase II discovery. Therefore, the issue of
waiver (and thus Phase I itself) does not pertain to all named Plaintiffs. Even if the fourmonth period of information is determined to be irrelevant or overbroad regarding Phase
I, it will almost certainly be relevant to Phase II discovery.
In addition to the advisory note, Defendants cite one case from this district,
Robinson v. City of Arkansas City, Kan. (“Robinson I”),13 to support their claim that a
privilege log is not required until the ultimate discoverability of information is decided.
In Robinson I, plaintiff Trence Robinson made civil rights and employment claims
against his employer, the City of Arkansas City, after being denied a promotion.
Robinson believed his former supervisor modified personnel records after offering to
promote him, and discovery of electronically stored information became disputed.
Although the City produced a privilege log weeks after its responses, it did not make
privilege objections to Robinson’s discovery requests (except one, Request No. 6)
because it believed “plaintiff’s overly broad requests did not obligate it to produce or
identify privileged information” at the time of its initial responses.14

13
14

No. 10-1431-JAR-GLR, 2012 WL 603576, at *11 (D. Kan. Feb. 24, 2012).
Id. at *10.
10

When ruling on the City’s motion to compel (among other motions), the court
discussed that, except in one “extreme circumstance” where a single request (No. 5) was
“facially objectionable in its entirety,”
. . . Rule 26(b)(5)(A) does not otherwise eliminate the duty to produce nonprivileged documents responsive to the other requests or to identify
privileged documents to the extent the requests are not objectionable. Even
when a request is objectionable as overly broad or unduly burdensome, the
responding party has a duty to lodge its objections, determine the extent to
which the request is not objectionable, and produce unprivileged documents
and identify privileged ones to that extent. Except for atypical requests . . .
that are objectionable in their entirety, the “otherwise discoverable”
language merely affects the scope of the description, if any, required to
comply with Rule 26(b)(5).
Rule 26(b)(5)(A), moreover, does not alter the requirement of Fed.
R. Civ. P. 34(b)(2) that parties timely assert their objections—even
objections of privilege and work product protection. It merely requires
parties to expressly assert their claims of privilege or protection and
describe items not produced.
...
And in extreme cases . . . the breadth of a discovery request may entirely
excuse a failure to assert an objection of privilege, even though waiver
never actually becomes an issue in those cases. But in other circumstances
the breadth of a discovery request does not provide good cause for failing
to assert an objection of privilege or work product.15
Defendants here point to Robinson I’s use of the “to that extent” language
(emphasized above) to support their position. But though the court acknowledged the
City’s position found “marginal support” in the language of Rule 26(b)(5)(A),16 the facts
and analysis of Robinson I are distinguishable. In Robinson I, the City not only produced
no initial privilege log, but asserted no privilege objection to Robinson’s requests (aside

15

Id. at *11 (emphasis added).
Id. (explaining that this rule only applies “[w]hen a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection as trialpreparation material”).
16

11

from Request No. 6). The Robinson I court focused on the timing of the objections,
rather than the production of a privilege log; and found the unasserted objections waived.
The court went on to note, “[p]arties who merely object that a document request is overly
broad or seeks irrelevant documents [without making a simultaneous privilege objection]
take on the risk that the Court disagrees.”17

Although it focused primarily on the

assertion of the objection itself, the court did not allow the City carte blanche to postpone
its Rule 26(b)(5) requirements, but actually found the practice appropriate only in
“extreme circumstances.” Robinson I clearly states, “In general the federal rules do not
contemplate piecemeal objections to discovery requests. The rules provide a specific
time for parties to respond to requests for discovery.”18
The magistrate judge’s opinion in Robinson I was reviewed by the district judge in
Robinson II.19 The district court upheld the earlier decision, but clarifies that Robinson I,
and therefore the district court’s review, was “specifically limited . . . to the failure to
assert the objection, not to any failure to timely produce a privilege log or to adequately
describe documents listed on the privilege log.”20
Although other opinions in this district are also instructive, none appear to address
the precise issue presented by Defendants. For example, in Cooper v. Union Pac. R.R.
Co.,21 Union Pacific argued it did not waive its privilege objections by failing to provide

17

Id.
Id.
19
Robinson v. City of Arkansas City, Kan. (“Robinson II”), No. 10-1431-JAR, 2012 WL
1674255, at *4 (D. Kan. May 14, 2012)
20
Id.
21
No. 16-1073-EFM-KGG, 2016 WL 6093701, at *2-*3 (D. Kan. Oct. 19, 2016).
18

12

a privilege log in its initial responses, and like Defendants here, believed it was not
obligated to do so until its overbreadth objection was decided. During the briefing on the
motion to compel, Union Pacific provided a privilege log. The Cooper court found
Union Pacific was “slow playing” the production of its privilege log and, while not
finding waiver of the privilege, did issue sanctions. However, due to the production of
the log prior to its ruling, the court did not analyze the burden on Union Pacific to log the
documents that may or may not be otherwise discoverable, or address the comments to
Rule 26(b)(5).
More closely aligned to this case is the ruling in Linnebur v. United Tel. Ass'n
(“UTA”).22 In Linnebur, UTA did not search for the alleged privileged material, or
provide a log, because it believed the requests were otherwise objectionable based on
overbreadth and relevance.

The Linnebur court found that UTA failed to provide

authority for “its position that an objecting party is somehow relieved of its obligation to
substantiate its privilege and work-product objections because it also asserts other
objections” and determined the “proposition is contrary to the plain language of the
Federal Rules.”23
One opinion from this district which addressed the advisory committee’s notes to
Rule 26(b)(5) is Thermal Sols., Inc. v. Imura Int'l U.S.A., Inc.24 There, Thermal Solutions
claimed production of a privilege log was unnecessary, in part because doing so created
an undue burden. The court acknowledged a party may be unduly burdened by creating a
22

No. 10-1379-RDR-KGS, 2012 WL 1183073, at *3 (D. Kan. Apr. 9, 2012).
Id. at *3.
24
No. 08-2220-JWL-DJW, 2010 WL 11431562, at *9 (D. Kan. Apr. 28, 2010).
23

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log “when voluminous documents are claimed to be privileged or protected, particularly
if the items can be described by categories.”25 However, it found that Thermal Solutions
submitted “no affidavit or other evidence explaining . . . why it would be unduly
burdensome for [it] to create a privilege log”26 and therefore failed to support its claim.
In this case, Defendants have made some showing that providing a detailed
privilege log is overly onerous and may create a significant burden. 27

But in this

instance—where the timeframe of asserted overbreadth amounts to only four months, and
relevance is only questioned regarding whether the discovery is appropriate for Phase I or
Phase II of discovery, both of which are likely to occur—the practical burden to
Defendants is diminished.
And, the parties have worked dutifully to reach some agreements28 regarding
production of privilege logs which list documents, withheld on the basis of privilege, in

25

Id. (emphasis added).
Id.
27
See Decl. of Boyd A. Byers, ECF No. 194-1 at 18, Ex. 6.
28
See Pls.’ Mem. Opp’n, ECF No. 195, at 4-5. The parties agreed to minimize the information
included in privilege logs as follows:
1. For activities prior to April 1, 2014, the parties agree that:
a. The producing party need not describe on its privilege log email or other
documented communications that occurred only between and among outside
counsel.
b. For all other documents that are kept in an outside attorneys’ internal paper or
electronic files, other than drafts of training of managers regarding RIF
communication plan or drafts of training of HR personnel, the producing party’s
privilege log may group documents into categories, without the need to
individually list each document. Examples of such categories include “drafts of
release/waiver/severance agreements,” “drafts of OWBPA disclosure statements”
and “documents relating to SPEEA grievances and appeals regarding the August
reduction in force.” A complete list of categories has not been agreed to. If a party
objects to a particular category, the parties will attempt to reach agreement and
26

14

categories rather than individually.

Even if Defendants are not relieved of their

obligation to describe the documents withheld on the basis of privilege, the burden to do
so may be simplified by fashioning privilege logs that describe documents categorically.
This “categorized” method of production is referenced specifically in the comment to the
1993 amendment to Rule 26(b)(5) and the Thermal opinion, and would ease Defendants’
burden of production while providing the Plaintiffs (and ultimately, if necessary, the
Court) enough information to assess the validity of the privilege objection.
Caselaw makes it abundantly clear that the court not only has the discretion—but
in fact, should—consider the unique facts of each case when examining issues of
privilege (and waiver of the privilege, as the case may be).29 Under the facts of this case,
the demonstrated burden to Defendants does not outweigh the interest in the case
proceeding without piecemeal discovery.

Due to the unique nature of the phased

reserve the right to request that the court require individual listing of documents
in the disputed category.
c. The parties agree that this process does not waive the attorney-client, attorney
work product, or any other privilege with respect to such internal attorney
documents and communications. This agreement does not apply to copies of such
documents or communications that the attorneys transmitted to their client(s), and
the parties must describe such documents on a privilege log (if they are otherwise
relevant and responsive).
2. From April 1, 2014 forward, any communication between the parties’ attorneys and
their respective clients and consultants relating to the subject matter of this case or any
document created in anticipation of this litigation does not have to be disclosed on a
privilege log. Excluded from this provision is any document or record of communication
regarding preservation or destruction of any documents or any record of communication
regarding the subject matter of this case. The parties agree that they do not waive any
privilege or protection by following this process.
29
See Robinson II, No. 10-1431-JAR, 2012 WL 1674255, at *5 n. 18 (noting “this
determination is to be made on a case-by-case basis”) (citing Mike v. Dymon, No. 95–2405–
EEO, 1996 WL 674007, at *1 (D. Kan. Nov. 14, 1996), and Smith v. MCI Telecommunc'ns
Corp., 124 F.R.D. 665, 686 (D. Kan. 1989)).
15

discovery, the timing of Defendants’ objections and previous extensions, the parties’
discovery agreements which allow the privilege log to list categories of documents, and
the likelihood that the information sought will ultimately be relevant to Phase II
discovery, the Court DENIES Defendants’ request for a protective order. However, the
Court will allow Defendants a reasonable, additional time period to prepare and serve its
privilege log(s).
Although not addressed at the motion hearing, after review of the parties’ briefs
the Court notes with some concern the parties’ complaints regarding the initiation of
discovery prior to either a Rule 26(f) scheduling conference30 or issuance of a scheduling
order setting forth specific discovery protocol. The Court commends the parties for
reaching early pretrial scheduling agreements and proposing the phased discovery; but
the parties are reminded the progress of the case (or lack thereof) thus far is a direct result
of the agreements presented to this Court.31 In order to document the parties’ e-discovery
protocol and privilege log protocol, and to prevent additional litigation on these issues,
the parties are ordered to confer and submit proposed Rule 26(f)(3) discovery
agreements—preferably agreed, but in the form of motions if absolutely unable to do
so—no later than March 17, 2017.

30

See, e.g., email between counsel (Jan. 18, 2017) (ECF No. 194-1, Ex.2) (“since we have not
had a regular scheduling conference in yet in this case”).
31
The Court conducted a scheduling conference, without the benefit of a Rule 26(f) report, at the
parties’ suggestion and agreement, and issued the Phase I Scheduling Order (ECF No. 53) on
October 20, 2016.
16

IT IS THEREFORE ORDERED that Defendants’ Motion for Protective Order
(ECF No. 193) is DENIED as set forth above.
IT IS FURTHER ORDERED that Defendants’ request for additional time to
produce its privilege log to Plaintiffs is GRANTED. Defendants must produce their
privilege log on or before March 17, 2017.

IT IS FURTHER ORDERED that the parties submit proposed discovery
protocol, as described above, no later than March 17, 2017. If the parties need or agree
to additional time for either the discovery agreements or production of the privilege log,
they may notify the Court of any agreements or contact the Court for conference.

IT IS SO ORDERED.
Dated this 22nd day of February, 2017, at Wichita, Kansas.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

17