International Brotherhood of Teamsters, Airlines Division et al v. Allegiant Air, LLC et al
Filing
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ORDER granting in part and denying in part 98 Motion to Compel, in accordance with the foregoing provisions of this order. Signed by Magistrate Judge George Foley, Jr on 11/13/2014. (Copies have been distributed pursuant to the NEF - DKJ)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AIRLINES DIVISION, et al.,
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Plaintiffs,
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vs.
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ALLEGIANT TRAVEL COMPANY and
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ALLEGIANT AIR, LLC,
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Defendants.
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__________________________________________)
Case No. 2:14-cv-00043-APG-GWF
ORDER
Motion to Compel - #98
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This matter is before the Court on Defendants’ Motion to Compel Production of Rule
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30(b)(6) Deponent (#98), filed on September 5, 2014. Plaintiff filed its Response (#106) on
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September 22, 2014 and Defendants filed their Reply (#109) on September 29, 2014. The Court
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conducted a hearing on this motion on October 9, 2014.
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BACKGROUND
The Court hereby incorporates the Background and Discussion set forth in Order (#119)
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regarding Defendant’s Motion to Compel Responses to Written Discovery (#97). Plaintiff
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International Brotherhood of Teamsters, Airline Division/Airline Professionals Association of the
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International Brotherhood of Teamsters, Local Union No. 1224 (“IBT” or “ Union”) has brought
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this action seeking to enjoin Defendants Allegiant Travel Company and Allegiant Air, LLC
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(“Allegiant”) from unilaterally eliminating or changing provisions of the Pilot Work Rules, which
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the Union alleges is a binding collective bargaining agreement that was negotiated by the Allegiant
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pilots’ former collective bargaining representative, the Allegiant Air Pilots Advocacy Group
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(AAPAG). Allegiant denies that the AAPAG was the pilots’ collective bargaining representative or
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that the Pilot Work Rules constitutes a binding collective bargaining agreement. On July 22, 2014,
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the District Judge granted the Union’s motion for preliminary injunction. Order (#79).
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Allegiant has served the Union with a Notice of Deposition (hereinafter “Notice”) to take
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the deposition of the Union in accordance with Fed.R.Civ.Pro. 30(b)(6). The Notice directed the
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Union to designate one or more officers, directors, or managing agents, or other persons who
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consent to testify on its behalf, to testify regarding 42 topics listed in the notice of deposition. The
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Union has objected to the Notice on the grounds that many of the topics are over broad and
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irrelevant. The Union has also objected to the Notice to the extent Allegiant seeks to discover
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information protected from disclosure under the First Amendment associational privilege.
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Topics 1 through 8 of the Notice request a deponent to testify about (1) IBT’s campaign to
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represent the Allegiant pilots; (2) the identity of all members of the IBT’s organizing committee
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during its campaign to represent the Allegiant pilots; (3) and (4) the methods of communication
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used by IBT, or its organizing committee, to communicate with pilots during its campaign; (5) all
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discussions or communications between IBT and members of its organizing committee relating to
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IBT’s campaign to represent the Allegiant pilots, “including but not limited to any and all
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communications regarding or referencing the Pilot Work Rules (‘PWR’) or the Allegiant Air Pilots
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Advocacy Group (‘AAPAG’);” (6) all documents provided to IBT by Allegiant pilots during its
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campaign to represent the pilots, “including but not limited to any and all documents regarding or
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referencing the PWR or AAPAG;” (7) all communications from IBT’s organizing committee (or
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members thereof) to Allegiant pilots relating to IBT’s campaign to represent the Allegiant pilots,
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“including but not limited to any and all communications regarding or referencing the PWR or
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AAPAG;” and (8) all communications from IBT to the Allegiant pilots during the IBT’s campaign
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to represent the Allegiant pilots, “including but not limited to any and all communications
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regarding or referencing the PWR or AAPAG.” Motion to Compel (#98), Exhibit 1.
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Topics 9-21 of the Notice request a deponent to testify about (9) and (10) discussions or
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communications between IBT and AAPAG prior to and after IBT’s certification by the NMB, (11)
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IBT’s representation application and other submissions filed with the NMB during its efforts to
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become the representative of the Allegiant pilots; (12) communications from the NMB to the
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parties during the IBT’s efforts to become the representative of the Allegiant pilots and IBT’s
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response thereto; (13) IBT’s position before the NMB regarding whether the Allegiant pilots were
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already represented for purposes of collective bargaining; (14) IBT’s position before the NMB
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regarding whether the Allegiant pilots were subject to a collective bargaining agreement; (15)
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IBT’s claim in paragraph 8 of its complaint that AAPAG represented the Allegiant pilots for
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purposes of collective bargaining under the RLA; (16) IBT’s claim in paragraph 8 of its complaint
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that AAPAG was voluntarily recognized by Allegiant as the elected and representative body of the
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pilot group of Allegiant Air; (17) IBT’s claim that AAPAG collected dues from its members and
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represented their interests against Allegiant; (18) IBT’s claim that the PWR was a collective
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bargaining agreement; (19) IBT’s claim in paragraph 14 of its complaint that Allegiant refused to
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negotiate a system board of adjustment; (20) IBT’s position regarding whether AAPAG was a
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representative of the pilots under the Railway Labor Act (“RLA”), whether the PWR was a
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collective bargaining agreement, whether PWR was enforceable, and/or whether Allegiant could
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unilaterally make changes despite the PWR; and (21) the letter sent by the IBT to Allegiant on
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September 11, 2012, including but not limited to the basis for the positions stated by IBT in that
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letter. Id.
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Topics 22-30 of the Notice request a deponent to testify about the injuries or damages
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allegedly suffered by the Allegiant pilots as a result of the elimination or modification of provisions
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in the Pilot Work Rules; the provisions of the PWR that were allegedly violated by Allegiant; IBT’s
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ability to compensate Allegiant pilots who are engaged in collective bargaining negotiations with
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Allegiant; and how IBT-represented employees at other airlines are compensated for time spent in
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negotiating collective bargaining agreements or conducting other business on behalf of IBT.
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Topic 31 of the Notice requests a deponent to testify about items sought in Allegiant’s
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Request for Production No. 9 which is addressed in Order (#119). Topic 32 requests a deponent to
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testify about all disputes or appeals ever filed by AAPAG, IBT or any individual pilot pursuant to
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Section 8 (the Open Door Policy) of the PWR, any response by Defendants to such disputes or
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appeals, and any correspondence between AAPAG or IBT and pilots (individuals or groups) related
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to those disputes or appeals. Topic 33 requests a deponent to testify about the source and substance
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of any and all information, documents or data that came into the possession or control of IBT
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between June 29, 2012 and September 11, 2012 that led to or related to IBT’s change of position
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regarding whether the Allegiant pilots were previously represented by AAPAG and whether the
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PWR is a collective bargaining agreement, including when and how such information, documents
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and data came into IBT’s possession, and any discussions relating to such information, documents
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and data.
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Topics 34-39 of the Notice request a deponent to testify about matters relating to IBT’s
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efforts to be certified as the collective bargaining representative for the pilots of Horizon Airlines.
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Topics 40-42 of the Notice request a deponent to testify about the documents produced by
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IBT in response to Allegiant’s requests for production of documents, IBT’s responses and
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objections to Allegiant’s interrogatories, and IBT’s responses and objections to Allegiant’s requests
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for admissions.
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DISCUSSION
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Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that a party may obtain
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discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.
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Relevancy under the rule is liberally construed. Philips v. Clark County School District, 2012 WL
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135705, *4 (D.Nev. 2012), citing E.E.O.C. v. Caesars Entertainment, Inc., 237 F.R.D. 428, 431-32
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(D.Nev. 2006). The party opposing discovery has the burden of showing that the discovery is
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overly broad, unduly burdensome or not relevant. Graham v. Casey's General Stores, 206 F.R.D.
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251, 253–4 (S.D.Ind. 2000). To meet this burden, the objecting party must specifically detail the
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reasons why each request is irrelevant. Id., citing Schaap v. Executive Indus., Inc., 130 F.R.D. 384,
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387 (N.D.Ill. 1990); Walker v. Lakewood Condominium Owners Assoc., 186 F.R.D. 584, 587
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(C.D.Cal. 1999). When a request for discovery is overly broad on its face or when relevancy is not
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readily apparent, however, the party seeking the discovery has the burden to show the relevancy of
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the request. Rezaq v. Nalley, 264 F.R.D. 653, 656 (D.Colo. 2010).
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The claims asserted and the relief sought by the Union in this action are limited. It seeks an
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injunction to prevent Allegiant from eliminating or modifying provisions of the Pilot Work Rules
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(“PWR”) while the Union and Allegiant are engaged in negotiations for a collective bargaining
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agreement under provision of the Railway Labor Act. The Union also seeks compensation or
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restitution for those pilots who have allegedly suffered injury as a result of Allegiant’s elimination
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or modification of the Pilot Work Rules. In its defense to the Union’s action, Allegiant asserts that
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AAPAG was not the pilots’ collective bargaining representative within the meaning of the Railway
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Labor Act and that the Pilot Work Rules did not and do not constitute a binding collective
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bargaining agreement between Allegiant and the AAPAG, as representative of the pilots. These are
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the claims and defenses on which discovery is appropriate and with respect to which Allegiant is
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entitled to conduct a Rule 30(b)(6) deposition of the Union.
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This action does not provide a legitimate basis for Allegiant to engage in a broad inquiry
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into the Union’s campaign to represent the Allegiant pilots, including an inquiry into any and all
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communications by or among the Union, the AAPAG and the Allegiant pilots. Topics 1through 8
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of the Notice are clearly over broad and irrelevant to the extent that they are not restricted to the
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claims and defenses at issue in this action. The Court therefore denies Allegiant’s motion to
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compel with respect to topics 1-8, to the extent the inquiry under those topics is not specifically
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related to the claims and defenses at issue in this action.
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Topics 9-21 and 31-33 are relevant to the extent they inquire into the basis for the Union’s
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assertions that the AAPAG was the pilots’ collective bargaining representative or that the Pilot
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Work Rules was a binding collective bargaining agreement. Topics 22-30 are also relevant to the
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claims and defenses in this action and a proper subject of the Rule 30(b)(6) deposition. To the
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extent the parties have reached agreement on the scope of the damages or restitution that the Union
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seeks on behalf of individual pilots, however, the inquiry under these topics may be limited by that
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agreement. Allegiant may also appropriately question the Union about its answers to
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interrogatories, responses to requests for production of documents or responses to requests for
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admissions – Topics 40-42. The Union is therefore required to produce a deponent(s) to testify on
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these topics as they relate to the claims and defenses in this action.
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In its defense, Allegiant has cited allegedly contradictory positions taken by the Union,
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before or after its certification by the NMB as the pilots’ collective bargaining representative, as to
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whether the AAPAG was the pilots’ collective bargaining representative or the Pilot Work Rules
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was a binding collective bargaining agreement. Although the District Judge was not persuaded by
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this evidence in ruling on the motion for preliminary injunction, see Order Granting Motion for
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Preliminary Injunction (#79), pg. 12, Allegiant is entitled to depose the Union with respect to its
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statements or positions on these issues. Allegiant, however, also seeks to depose the Union in
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regard to positions it allegedly took during an organizing campaign of Horizon Airlines pilots or
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during proceedings before the National Mediation Board in that matter. The apparent purpose of
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this discovery is to again show that the Union has taken contradictory positions. The Court finds
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that positions taken by the Union in the Horizon matter are irrelevant to the claims and defenses in
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this action. The Union therefore is not required to produce a deponent to testify about the Horizon
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matter. This decision, however, is predicated on the Union not attempting to introduce evidence
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relating to the Horizon matter in support of its position in this case.
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As the Court stated in Order (#119), the First Amendment associational privilege precludes
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Allegiant from generally inquiring into the identity of individual Allegiant pilots who were or are
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members of the AAPAG or the Union, or who have attended organizing or membership meetings
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or taken positions in support of the Union or the AAPAG. The privilege, however, does not bar
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Allegiant from obtaining answers to questions relating the Union’s claims for restitution or
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damages on behalf of individual pilots, or from inquiring into specific instances in which Allegiant
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allegedly violated a pilots’ rights under the Pilot Work Rules, including the identity of the pilots
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whose rights were violated. Nor does it preclude Allegiant from obtaining information which
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identifies officers or representatives of AAPAG or the Union who have made statements on behalf
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of those entities relevant to the issues in this case. The validity of objections based on the First
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Amendment privilege must ultimately be determined on a question-by-question basis.
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Accordingly,
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IT IS HEREBY ORDERED that Defendants’ Motion to Compel Production of Rule
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30(b)(6) Deponent (#98) is granted, in part, and denied, in part, in accordance with the foregoing
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provisions of this order.
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DATED this 13th day of November, 2014.
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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge
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