Lawson v. Spirit Aerosystems, Inc.

Filing 378

MEMORANDUM AND ORDER re 331 Order to Show Cause. See text of order for details. Signed by Magistrate Judge Angel D. Mitchell on 6/25/20. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LARRY A. LAWSON,
Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC.,
Defendant.

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Case No. 18-1100-EFM-ADM

MEMORANDUM AND ORDER
On April 6, 2020, the court ordered plaintiff Larry A. Lawson (“Lawson”) to show cause
why he should not be sanctioned for violating the parties’ agreed protective order governing
discovery. (ECF No. 331.) The court also allowed defendant Spirit AeroSystems, Inc. (“Spirit”)
to file a brief setting forth its position as to what sanctions, if any, were warranted. The court has
now reviewed the parties’ submissions. (ECF Nos. 345 & 348.) For the reasons discussed below,
the court publicly admonishes Lawson’s counsel for violating the agreed protective order. No
further sanctions are warranted.
I.

BACKGROUND
In November 2019, Lawson informed Spirit that it may have inadvertently produced

SPIRIT000045087 (“45087”), an email sent by Spirit’s then in-house counsel to Spirit employees,
with a copy to Spirit’s outside counsel law firm. Spirit confirmed that it had inadvertently
produced 45087, which was attorney-client privileged. Spirit asked Lawson to comply with the
requirements of the protective order governing inadvertent disclosure of privileged material and
promptly destroy all copies of 45087.
In an email dated November 13, Lawson’s counsel confirmed that he had returned 45087
and that all copies would be destroyed. However, in that same email, Lawson’s counsel disputed

Spirit’s claim that 45087 was privileged and, in doing so, included a direct quote from 45087 to
try to explain why Lawson’s counsel did not believe the document was privileged.
On January 17, 2020, Lawson filed a motion to compel Spirit to reproduce 45087 and six
other documents Spirit had clawed back under the agreed protective order. (ECF No. 231.)
Lawson’s brief quoted language from 45087 (ECF No. 232, at 3) and attached the November 13
email as an exhibit (ECF No. 232-1, at 6-7). The court ultimately denied Lawson’s motion, finding
the clawed-back documents were attorney-client privileged. Lawson v. Spirit AeroSystems, Inc.,
No. 18-1100-EFM-ADM, 2020 WL 708021, at *1 (D. Kan. Feb. 12, 2020).
On January 31, Lawson filed another motion to compel, this time regarding certain
documents listed on Spirit’s privilege logs. (ECF No. 261.) Again, Lawson’s brief quoted
language from 45087 and, this time, explicitly referred to 45087 as a “Clawed Back Document.”
(ECF No. 262, at 5.) Lawson again attached the November 13 email as an exhibit to his motion.
(ECF No. 262-1, at 23-24.) Lawson’s January 31 brief also quoted language from an email
produced as SPIRIT000217302 (“217302”). (ECF No. 262, at 9 (citing ECF No. 265, at 71).)
This document 217302 was an email from a Spirit employee to third-party Arconic, Inc. Spirit
had produced several variations of this email thread with inconsistent redactions, and one version
of the email had the quoted language redacted as attorney-client privileged.
In Spirit’s opposition to Lawson’s January 31 motion, Spirit argued that Lawson violated
the protective order by using and quoting clawed-back document 45087, as well as 217302. (ECF
No. 282, at 10-11.) Spirit characterized 217302 as “an inadvertently produced, unredacted version
of a document that Lawson [knew] Spirit produced in redacted form and listed as privileged on its
Logs.” (Id.) Because the court was troubled by Spirit’s allegation that Lawson violated the

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protective order, the court ordered Lawson to show cause why he should not be sanctioned for
violating the agreed protective order. (ECF No. 331, at 2.)
II.

SANCTIONS
An appropriate sanction is “the least severe sanction adequate to deter and punish”

misconduct. White v. Gen. Motors Corp., 908 F.2d 675, 684 (10th Cir. 1990). Lawson suggests
the appropriate sanction is “(1) an admonition from the Court about the conduct; (2) an order
directing the clerk to strike the offending briefs and directing Plaintiff to file briefs redacting or
removing the offending quotes; and (3) sealing the offending exhibits filed by both Plaintiff and
Defendant.” (ECF No. 345, at 1.) Spirit argues the court should impose monetary sanctions. (ECF
No. 348, at 5-6.) The court will address each of these suggestions.
A.

Admonishment

As it relates to 45087, Lawson’s response to the court’s order to show cause admits “that
his counsel made regrettable briefing mistakes that contravene the Protective Order.” (ECF No.
345, at 1.) The protective order provides that, upon receiving a request to return inadvertently
produced privileged material, “the Receiving Party must return the information or documents
within 10 days, regardless of whether the Receiving Party agrees with the claim.” (ECF No. 236
§ 13, at 14.) This does not allow a receiving party to continue using the content of a clawed-back
document, such as directly quoting privileged language in a public filing, after the producing party
has clawed back the document. Therefore, the court finds that Lawson’s counsel violated the
protective order as to 45087. However, Lawson’s counsel’s acceptance of responsibility persuades
the court that severe sanctions are not needed. Lawson’s counsel knows he made a mistake, and
the court’s recognition of and admonishment for that mistake should be sufficient to deter any

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further similar misconduct. Lawson aptly notes that “[t]he incident itself suffices as a warning that
will discourage similar conduct in the future.” (ECF No. 345, at 8.)
Lawson’s counsel also argues the violation was inadvertent, essentially because the
attorney who drafted the brief was quoting from the November 13 email, not the clawed-back
document itself, and therefore “[i]t did not occur to the attorney drafting the supporting
memorandum that quoting the email implicated the Protective Order.” (Id. at 3.) Having reviewed
the record, the court finds this argument lacks credibility. Lawson’s counsel clearly recognized
that the quotation in the brief came directly from a clawed-back document. Even though the brief
cited the November 13 email and not 45087 itself, the November 13 email contained a direct
quote—in quotation marks—from 45087. And Lawson’s counsel clearly recognized that 45087
had been clawed back because that very document was one of the subjects of Lawson’s January
17 motion to compel (seeking re-production of clawed-back documents), and Lawson’s January
31 motion specifically referred to 45087 as a “Clawed Back Document.” Given this clear record,
the court cannot find that including the quotation from 45087 was inadvertent.
As to Lawson’s counsel’s citation to 217302 in the January 31 brief, the court does not find
any protective order violation. Spirit produced several versions of this email, at least one of which
was redacted as attorney-client privileged, but Spirit never clawed back this document under the
protective order. To the contrary, Spirit’s opposition to Lawson’s January 31 motion conceded
that 217302 was not a privileged email and that the document had been inadvertently overredacted. (ECF No. 345, at 7; ECF No. 282, at 8 & n.29.) So Lawson did not violate the protective
order by relying on 217302 in Lawson’s January 31 brief.
Although the court is not persuaded that Lawson’s counsel’s violations of the protective
order as to 45087 were inadvertent, a public admonishment is still appropriate. Lawson’s counsel

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has not exhibited any sustained pattern of improperly using Spirit’s privileged documents. And,
Lawson has filed numerous discovery motions and appropriately protected hundreds of
confidential documents attached to or discussed in these motions. The court will therefore
admonish Lawson’s counsel for the violation and caution him to exercise care in future filings.
See Zapata v. IBP, Inc., 160 F.R.D. 625, 628 (D. Kan. 1995) (admonishing plaintiffs’ counsel “to
exercise care to avoid any recurring violations of the protective order,” after plaintiffs’ counsel
inadvertently used confidential documents in a separate case); In re Apple Inc. Device
Performance Litig., No. 5:18-MD-02827-EJD, 2019 WL 2491937, at *3 (N.D. Cal. June 14, 2019)
(admonishing counsel to abide by the protective order after he discussed facts derived from
Protected Material during a hearing).
B.

Spirit’s Attorneys’ Fees

Spirit asks for an award of its attorneys’ fees incurred in uncovering counsel’s misconduct
and responding to the April 6 order to show cause. (ECF No. 348, at 5-6.) Where a party has
failed to obey a discovery order, the court must order that party, its counsel, or both “to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV. P.
37(b)(2)(C). Lawson’s counsel’s failure to comply with the protective order was not substantially
justified for the reasons set forth above. However, awarding Spirit its fees would be unjust. The
filings in this case have been extensive. And Spirit itself has not been perfect with respect to
compliance with the protective order. (See, e.g., ECF No. 345, at 4 n.5 (describing documents
Lawson designated confidential that Spirit filed in the public record).) The court will therefore
not award fees.

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C.

Corrections to the Record

Lastly, Lawson asks the court for an order (1) striking the January 17 and 31 briefs and
“directing [Lawson] to file briefs redacting or removing the offending quotes,” (2) “sealing the
offending exhibits filed by both [Lawson] and [Spirit], which disclose the protected information,”
and (3) striking Lawson’s confidential privilege logs filed by Spirit in the public record and
directing Spirit to refile them under seal. (ECF No. 345, at 1, 4 n.5.) But, at this point, these
documents and the briefs have been in the public record approximately five months. “Matters
already made public ‘will not be sealed after the fact absent extraordinary circumstances.’” Flohrs
v. Eli Lilly & Co., No. 12-2439-SAC, 2013 WL 4773515, at *2 (D. Kan. Sept. 4, 2013). Neither
party has established extraordinary circumstances sufficient to warrant such belated after-the-fact
sealing or redactions. The court therefore denies this aspect of Lawson’s request.
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For the reasons discussed above, the court admonishes Lawson’s counsel for violating the
protective order by filing a brief with the court that quoted from a privileged document that Spirit
had clawed back under the protective order and attaching a quotation from that document as an
exhibit. The court cautions Lawson’s counsel to exercise care in future filings in this case. Further
violations may result in the imposition of more serious sanctions.
IT IS SO ORDERED.
Dated June 25, 2020, at Topeka, Kansas.
s/ Angel D. Mitchell
Angel D. Mitchell
U.S. Magistrate Judge

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