West v. Bell Helicopter Textron, Inc. et al

Filing 79

WRITTEN ORDER/OPINION granting in part and denying in part 71 Motion to Compel; Order denying as moot 75 Motion for Leave to File s Supplemental Affidavit. So Ordered by Chief Judge Joseph N. Laplante.(cmp)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kurt West
v.

Civil No. 10-cv-214-JL
Opinion No. 2011 DNH 217

Bell Helicopter
Textron, Inc. et al.
MEMORANDUM ORDER
This is a products liability action arising out of a
helicopter crash in which the pilot, plaintiff Kurt West,
survived but suffered injuries.

West has sued the manufacturer

of the helicopter, defendant Bell Helicopter Textron, Inc., the
manufacturer of its engine, defendant Rolls Royce Corporation,
and the manufacturer of certain other components, including the
electronic control unit (“ECU”) and hydromechanical unit (“HMU”),
defendant Goodrich Pump & Engine Control Systems, Inc.

This

court has jurisdiction over this action between West, a
Massachusetts citizen, and the defendants, corporations with
their states of incorporation and principal places of business
elsewhere, under 28 U.S.C. § 1332(a)(1) (diversity).
West alleges that the crash occurred when the helicopter
experienced an “uncommanded shutdown,” in which the flow of fuel
to the engine was suddenly cut off without warning due to a
malfunction with the aircraft’s ECU, part of its “Full Authority
Digital Engine Control” (“FADEC”).

During this event, West says,

“the computer seized control of the engine” and caused a
malfunction in the HMU, which interfaces with the FADEC to
control the flow of fuel to the engine.

West asserts claims for

breach of warranty, negligence, and strict products liability
against each defendant.
West has served the defendants with requests for the
production of documents, see Fed. R. Civ. P. 34, concerning,
among other things, other accidents involving helicopters,
engines, and components manufactured by the defendants.

The

defendants have objected to a number of these requests on various
grounds, including that these accidents involved products that
were different from those involved in West’s accident, or that
they occurred for reasons different from those he alleges as the
cause of his accident.
While the parties were able to resolve much of their
disagreement through this court’s informal procedure for handling
discovery disputes, see Order of Nov. 19. 2010 (document no. 52),
at 2-3--which, in this case, included a lengthy in-person
conference in chambers--they remain at odds over certain
requests.

Accordingly, this court ordered West to file a motion

to compel the production of documents in response to those
requests, see Fed. R. Civ. P. 37(a)(1), together with a
supporting memorandum, and the defendants to file an objection.
2

After reviewing those submissions, this court grants West’s
motion to compel in part and denies it in part.

Analysis
A.

Relevance objections
The defendants object to a number of the document requests

remaining in dispute on the ground that they are not “reasonably
calculated to lead to the discovery of admissible evidence” and
therefore outside the permissible scope of discovery.
Civ. P. 26(b)(1).

Fed. R.

These requests (designated with their original

numbers, and set forth to reflect the parties’ agreed-upon
modifications) ask the defendants to produce “[a]ll documents
discussing or referring to” the following subjects:
10. any reported (confirmed or unconfirmed) shutdown
allegedly caused, in whole or in part, by (a) the model
of the Subject ECU, (b) the model of the Subject HMU,
and/or (c) the model of the Subject FADEC.
14. (a) the fatal crash of Bell 407 Helicopter that
prompted the National Transportation Safety Board
(“NTSB”) in or about 2003 to request that the Federal
Aviation Administration (“FAA”) address an allegedly
“catastrophic failure mode” with the FADEC system in
the Bell 407 and (b) [defendants’] efforts to correct
the problem with the FADEC system.
19. the Reversionary Governor ECU referenced in the
Rolls-Royce January 29, 2007 Commercial Engine Bulletin
entitled “Engine, Fuel and Control--Introduction of
Reversionary Governor Electronic Control Unit (“the
Reversionary Governor ECU”) including (a) the reasons
for the introduction of the Reversionary Governor
ECU . . . .
3

In the document requests, the term “Subject” is used to denote
the helicopter--a Bell 407--and component parts involved in
West’s crash, which is referred to as the “Accident.”
The defendants argue that each of these requests includes
documents about products different from those involved in West’s
crash, or accidents that occurred for reasons different from
those he alleges as the cause of that crash, so that the
documents are not “relevant to any party’s claim or defense”
under Rule 26(b)(1).

As the defendants point out, “the party

seeking information in discovery over an adversary’s objection
has the burden of showing its relevance.”

Caouette v. OfficeMax,

Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005) (citing cases).
This burden, however, should not be overstated.

As the

court of appeals has instructed, “district courts are to
interpret liberally the discovery provisions of the Federal Rules
ov Civil Procedure to encourage the free flow of information
among litigants.”

Heidelberg Ams., Inc. v. Tokyo Kikai

Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003).

This

philosophy extends to the relevance standard of Rule 26(b)(1),
which “[m]ost courts [to] have addressed the issue find . . . is
extremely broad.”

8 Charles Alan Wright et al., Federal Practice

and Procedure § 2008, at 133 (3d ed. 2010).

4

This liberal approach extends to products liability cases
like this one.

As one treatise notes, “[c]ourts routinely permit

discovery of similar, if not identical models in products
liability litigation, provided they share with the accidentcausing model at least some characteristics pertinent to the
legal issues in the litigation,” as well as “[i]nformation
regarding whether other purchasers or users experienced similar
problems with the product.”

3 Louis R. Frumer & Melvin I.

Friedman, Products Liability § 17.01[1][c][I], at 17-6 (rev. ed.
2001 & 2011 supp.) (footnotes omitted).

In light of these

standards--which the defendants have not questioned--their
remaining relevance objections to the document requests fail.

1.

Request no. 10

First, the defendants argue that request no. 10 encompasses
the ECU, HMU, and the FADEC in the Kiowa, a version of the Bell
407 used by the United States military, so that those components
have “significant differences” from the versions of the
components in the commercial 407 involved in West’s accident.
But the defendants simply list those differences without
explaining how--or even directly asserting that--they might

5

affect a shutdown of the kind alleged by West.1

Nor do the

defendants claim that the Kiowa features different models of ECU,
HMU, or FADEC from those in its commercial counterpart (if they
did, the Kiowa would fall outside the scope of request no. 10,
which is limited by its terms to reported shutdowns allegedly
caused by the same model of each of those components that was
contained in West’s helicopter).
Instead, the defendants protest that West has failed to
carry his burden to show the relevance of those reports because
the only support for his position that the commercial and
military versions of the 407 have the same components is his
proffer of “an undisclosed expert who would testify that the
components of the FADEC system are identical.”

The defendants

maintain that West should have to submit an affidavit from the
expert to that effect--or even produce him for an evidentiary
hearing, at which the defendants will call their own expert to
elucidate “the differences between the two systems and why

1

According to the defendants, the Kiowa differs from the
commercial version of the Bell 407 in that the Kiowa has “a
certain Overspeed Trip Point in the ECU, a modification of the
Overspeed Hysterisis in the ECU, a Watchdog Timer PAL in the ECU,
a specific Manual Mode Engagement and Piston Slew Rate timing in
the HMU, and modified Piston orifice opening diameters in the
HMU” (formatting altered). But the defendants do not state that,
let alone explain why, any of these features would make the Kiowa
subject to shutdowns in ways the commercial version would not so
as to affect the relevance of reports of shutdowns in the Kiowa
to the alleged shutdown of West’s helicopter.
6

information about the Kiowa is unlikely to provide information
that is reasonably calculated to lead to the discovery of
admissible evidence.”
Leaving aside the defendants’ objection to West’s recent
attempt to do exactly what they said he should have done, i.e.,
submit an affidavit from his expert,2 the court simply cannot
accept this time- and resource-consuming approach to assessing
the relevance of information for purposes of discovery.

Indeed,

the defendants’ view seems to be not only that admissible
evidence is needed to support a discovery request (which is, of
course, one of the principal mechanisms a party uses to obtain
admissible evidence in the first place), but that the supporting
evidence must show the relevance of the request by a

2

About two weeks after filing the motion to compel and its
supporting documentation, West filed a motion for leave to
supplement that filing with an affidavit from the yetunidentified expert. The defendants, however, object to this
submission on the ground that allowing it after they have already
filed their objection to the motion to compel would deprive them
of their opportunity to respond. That problem could be easily
corrected by simply giving the defendants such an opportunity
(which they could use to submit an affidavit from their own
expert) but, by the same token, it could have been avoided
altogether had West simply submitted the affidavit with his
original moving papers (the only explanation he gives for not
doing so is that he would have “prefer[red] not to identify his
expert at this point in the proceedings”). But the court need
not decide who is more in the right (or less in the wrong) on
this point because, as is explained here, there is no basis for
demanding expert testimony to resolve relevancy objections to
discovery requests, at least in this case. West’s motion for
leave to file the affidavit is denied as moot.
7

preponderance of the evidence.

They provide no authority for

this proposition, which (among other problems) is starkly at odds
with the prevailing approach to discovery under the Federal
Rules, particularly discovery of similar products and similar
accidents in products liability cases, as just discussed.3
In any event, in addition to proffering the testimony of his
expert, West has submitted an NTSB “Safety Recommendation”
listing the Kiowa among the “applications” of the FADEC found in
all Bell 407s, so he has something of evidentiary quality to
support his discovery request anyway.

The defendants’ relevance

objection to request no. 10 is overruled.

3

It is possible that such an approach could be warranted to
resolve relevancy objections to discovery requests that would
impose extraordinary burdens on the producing party. But the
defendants have never claimed that the disputed requests impose
such a burden--or, for that matter, any burden beyond the expense
and inconvenience that typically attend litigation--even when the
court specifically, and repeatedly, asked them about that subject
at the discovery conference.
While the defendants have since stated, in their objection
to the motion to compel, that West’s “discovery does not satisfy
the ‘proportionality’ principle” of Rule 26(b)(c)(iii), they
still do not articulate, or even claim, any particular burden in
responding. Instead, they argue that the breadth of the requests
is unjustified in light of West’s “relatively minor injuries.”
In spite of the maxim that “any landing you can walk away from is
a good one,” this court cannot say that the “relatively minor”
nature of West’s injuries (a characterization he disputes anyway)
excuses the defendants from providing discovery that, again, is
routine in products liability cases.
8

2.

Request no. 14

Second, the defendants argue that the 2003 crash referenced
in request no. 14 is also irrelevant, because the NTSB, following
its investigation of that accident, found it had resulted from
the “mechanical failure of the potentiometer, a part mounted on
the HMU,” rather than the “failure of the FADEC ECU software”
that West alleges was the cause of his accident.

Thus, the

defendants argue, the 2003 crash has “nothing to do with [West’s]
theory of the case.”
West, however, argues that the 2003 crash marked “the
beginning of unsuccessful efforts to correct the FADEC system and
its component parts, the HMU and the ECU.”

West alleges that,

during the investigation of the 2003 crash, the NTSB identified
what it called a “‘catastrophic failure mode’ with the FADEC
system in the Bell 407s.”

He states that later that year, Rolls-

Royce issued a “revision for the Bell 407 helicopter ECU,” and
that the aircraft he was flying at the time of his accident “was
probably among the first Bell 407s in which Rolls-Royce employed
the new ECU.”

But West claims that this revision “did not

correct, or at least did not fully correct, the ‘catastrophic
failure mode.’”

Thus, he alleges, Rolls-Royce later (in 2007)

directed that the revised version be switched out for yet another
version of the ECU, known as the “Reversionary Governor ECU,” so

9

as “to reduce incidences described as ‘reversion to manual
mode.’”

West alleges, though, that the owner of the 407 involved

in his accident had not yet received the 2007 version of the ECU
by that point, so that the helicopter he crashed in 2008 still
had the 2003 version of the ECU.
These allegations show that the 2003 crash is potentially
relevant to at least part of West’s theory here, i.e., following
that crash, Rolls-Royce revised the ECU, but did so in a way that
failed to remove the defect that contributed to his accident.

At

a minimum, documents concerning the crash, and Rolls-Royce’s
response, could lead to the discovery of admissible evidence that
it was negligent in redesigning the ECU.

See 3 Frumer &

Friedman, supra, § 17.01[1][c][I], at 17-6 (“Prior accidents
involving different but similar products are relevant in products
liability litigation to show notice to the defendant”).

This

theory of relevance is not negated by the NTSB’s eventual
conclusion--in 2006, some three years after the crash had
occurred and the ECU had been redesigned--that it resulted from a
mechanical failure of the ECU, rather than the software
malfunction that West alleges to have caused his accident.

The

defendants’ relevance objection to request no. 14 is overruled.

10

3.

Request no. 19

For similar reasons, the court also overrules the
defendants’ relevance objection to request no. 19, which seeks
documents concerning the “Reversionary Governor ECU.”

As just

discussed, that was the version of the ECU introduced in 2007 to
reduce reversions to manual mode.

The defendants emphasize that

this version of the ECU had not been installed in the helicopter
piloted by West prior to his accident, and that he does not claim
that a reversion to manual mode played any role in it.

Again,

though, evidence that Rolls-Royce modified the ECU to fix one
defect, but did so without acting on the defect alleged by West,
is relevant:

it could show, for example, that the defendants

knew or should have known of the alleged defect but failed to
warn of it.

The defendants’ relevance objection to request no.

19 is overruled.4

4

While the defendants state in their objection to the motion
to compel that request no. 19 encompasses “an extraordinary
volume of documents,” they do not explain any further. It is
unclear, then, whether the defendants are making an objection to
this request under Rule 26(b)(2)(C)(iii). If they are, though,
that objection is insufficiently developed to warrant discussion.
See also note 2, supra.
11

4.

Request nos. 9, 12, and 22

Goodrich, but not the other defendants, also objects to
three of West’s other document requests on relevance grounds.5
Two of these requests (designated with their original numbers,
and set forth to reflect the parties’ agreed-upon modifications)
ask Goodrich to produce:
9.
All documents discussing or referring to,
embodying, or resulting from any complaint, whether
judicial, administrative or in the form of a demand
letter threatening litigation, regarding (a) a
suspected uncommanded shutdown; (b) a fault,
deficiency, or failure of the ECU; (c) a fault,
deficiency, or failure of the FADEC; or (d) a fault,
deficiency, or failure of the HMU, of a Bell 407 or
another Bell helicopter model that employs the same
ECU, HMU, and FADEC as the Subject ECU, Subject HMU,
and Subject FADEC.
22. Copies of the complaint and any final disposition
or resolution on every court action filed against
[Goodrich] or its parent company since January 1, 2000
relating to a helicopter accident involving either
(a) an alleged uncommanded shutdown, or (b) an accident
caused by a failure or non-mechanical fault in the same

5

West claims that he and Goodrich had actually resolved
their disputes over these requests during a conference between
counsel, but Goodrich disagrees. Goodrich states that, after the
conference, counsel for West asked whether Goodrich wanted “to
modify or expand the list” (apparently a list of outstanding
discovery disputes) that West’s counsel had prepared, and that
Goodrich “chose on further review to modify and expand the list”
to include these other objections. This seems contrary to the
spirit of Rule 37(a)(1), requiring parties to make good faith
efforts to resolve discovery disputes, but the court need not
decide whether those efforts here created an enforceable
agreement because the objections Goodrich resurrected “on further
review” are without merit.
12

model of ECU, HMU, and FADEC as the Subject ECU,
Subject HMU, or Subject FADEC.
Goodrich argues that, while it has agreed to produce documents
responsive to request nos. 9 and 22 insofar as the shutdown in
question “occurred due to a fault, deficiency or failure of the
part number ECU and HMU involved in this case,” it objects to
producing responsive documents about shutdowns “not caused by a
fault, defect or deficiency of the ECU or HMU,” or caused by
components with “different part numbers.”
As West points out, request no. 9 does not encompass all
documents regarding uncommanded shutdowns or faults,
deficiencies, or failures of the specified components, but only
documents “discussing or referring to, embodying, or resulting
from any complaint” regarding one of those subject events.

In

addition, at least as the court reads the request, it is further
limited to those subject events in “a Bell 407 or another Bell
helicopter model that employs the same ECU, HMU, and FADEC as the
Subject ECU, Subject HMU, and Subject FADEC.”

Request no. 9,

then, is limited to documents “referring to, embodying or
resulting from” complaints of either (1) uncommanded shutdowns of
Bell helicopters equipped with the same relevant component parts
as West’s helicopter, or (2) faults, deficiencies, or failures of
those components.

Part (b) of request no. 22 is similarly

13

limited to complaints of a “failure or other non-mechanical
fault” in those same components.
As already discussed, information about third parties’
similar problems with the product at issue is relevant to product
liability claims because it may show, among other things, that
the manufacturer knew or should have known of defects in the
product but failed to correct or to warn of them.
& Friedman, supra § 17.01[1][c][I], at 17-6.

3 Frumer

As also already

discussed, this theory of relevance is not negated by the fact
that those problems are different from the particular ones
alleged by the plaintiff.
The only part of request nos. 9 and 22 that sweeps beyond
the same model of ECU, HMU, and FADEC that were involved in
West’s crash is part (a) of request no. 22.

Yet, while it is

broader than those other requests in that sense, it is narrower
in the sense that it does not seek documents “referring to,
embodying or resulting from” complaints of uncommanded shutdowns,
but only the complaints themselves, and only in court actions
against Goodrich relating to helicopter accidents and filed since
January 1, 2000 (and the disposition of those actions).

Given

the limited scope of this request, and the seemingly
insignificant burden on Goodrich in responding to it, this court
rules that part (b) of request no. 22 is reasonably calculated to

14

lead to the discovery of admissible evidence, even though it
extends to lawsuits over products that are not identical to those
involved in West’s accident.

Again, the universe of relevant

information in a products liability is not limited to the product
at issue, but extends to similar ones, 3 Frumer & Friedman, supra
§ 17.01[1][c][I], at 17-6, and request 22(b) is sufficiently
targeted at that subject to be permissible.
Goodrich also objects to request no. 12, which asks for
“[a]ll documents from January 1, 2002 to January 1, 2009
comprising or discussing or referring to bulletins, advisories,
information letters, or safety warnings regarding the Bell 407,
or the ECU, HMU (non-mechanical), or FADEC comprising component
parts in the Bell 407.”

Goodrich explains that, though it has

agreed to produce such documents “which apply or relate to
‘safety issues or concerns,’” the request extends to “unlimited
correspondence that may casually mention the bulletins etc. even
in a non-substantive way.”

It is not easy to see how documents

that a manufacturer creates as to advisories and other precatory
communications about its products would “casually mention” those
warnings in a “non-substantive way,” and Goodrich does not
elaborate.

In any event, documents containing only “casual”

references to the safety bulletins and the like would seem to
constitute only a small percentage of the documents otherwise

15

responsive to this request--the relevance of which Goodrich does
not further question.

Request no. 12 is reasonably calculated to

lead to the discovery of admissible evidence.

Goodrich’s

objections to request nos. 9, 12, and 22 are overruled.6

B.

Privilege and other protections from discovery
The defendants also object to requests nos. 10 and 14 on the

ground that they both call for documents protected from discovery
in some way.

Specifically, the defendants argue that (1) request

no. 10 encompasses documents prohibited from disclosure under
NTSB regulations and, insofar it seeks information about Kiowa
helicopters, Department of Defense regulations, and (2) request
no. 14 calls for documents protected by the so-called “selfcritical analysis” privilege.

West argues that these objections

have been waived and that, in any event, they do not apply.

This

court agrees that the defendants have waived any “self-critical
analysis” privilege, and any protection afforded by the NTSB
regulations, but disagrees that they have waived the application
of the DoD regulations.

Nevertheless, the defendants have failed

6

While Goodrich raised an objection to request nos. 15 and
17 in its informal written submission to the court, arguing that
it did “not perceive a difference between” them, it does not
reiterate that or any objection to requests no. 15 and 17 in its
objection to the motion to compel and, as West points out,
“overlap between [r]equests is not a basis for withholding
responsive documents.”
16

to describe the nature of the documents responsive to request no.
10, if any, that are protected from disclosure by the fairly
complex scheme of DoD regulations they have invoked, so this
court cannot yet resolve that objection.

1.

Waiver

As the court of appeals has observed, Rule 34(b) “requires
that a party on whom a request for discovery is served respond
within thirty days, either stating its willingness to comply or
registering its objections.

If a party fails to make a timely

objection, or fails to state the reason for an objection, he may
be held to have waived” it.

Marx v. Kelly, Hart & Hallman, P.C.,

929 F.2d 8, 12 (1st Cir. 1991).

Moreover, this “assertion of

privilege . . . must also be accompanied by sufficient
information to allow the court to rule intelligently on the
privilege claim.”

Id.

Here, none of the defendants raised the “self-critical
analysis” privilege in their formal responses to West’s document
requests, either in their “general objections” to the requests as
a whole, or in their specific objections to request nos. 10 and
14.7

Under the Marx decision, that is itself enough to hold that

7

Bell’s “general objections” alluded to “any other
applicable privilege or immunity provided under New Hampshire or
other applicable law” while Goodrich’s invoked “any other
17

any such objections have been waived.

929 F.2d at 12.

But, as

suggested by the Marx court’s language (a party “may be held to
have waived” an objection omitted from its timely discovery
responses), that conclusion is not mandatory.

As the defendants

point out, some courts have shied away from treating waiver as
“an automatic consequence of every failure to comply with Rule
34(b)’s time limit for responding to a discovery request with
sufficient detail.”

8 Wright, supra, § 2016.1, at 331.

Instead,

they have “‘reserved the sanction for those cases where the
offending party committed unjustified delay in responding to
discovery.’”

Id. at 330 (quoting Ritacca v. Abbott Labs., 203

F.R.D. 332, 225 (N.D. Ill. 2001)); see also, e.g., Rivera v.
Kmart Corp., 190 F.R.D. 298, 300 (D.P.R. 2000).
Applying this standard, the court concludes that the
defendants have waived their objections to request nos. 10 and 14
under the “self-critical analysis” privilege and the NTSB
regulations, but not the DoD regulations.

The defendants suggest

that the “self-critical analysis” privilege shields their
investigation and response to the 2003 crash on the theory that
allowing them “to candidly assess the source of aviation

applicable protection or immunity from discovery,” but those
assertions were plainly not “accompanied by sufficient
information,” Marx, 929 F.2d at 12, to amount to a proper
assertion of any of the protections now at issue.
18

accidents promotes sufficiently important interests to outweigh”
the need for any resulting information as evidence in subsequent
litigation.

Assuming, without deciding, that such a privilege

exists, its applicability to at least some of the documents
responsive to request no. 14--which, again, asks for “[a]ll
documents discussing or referring to” the 2003 crash, as well as
the defendants’ “efforts to correct the problem with the FADEC
system” that allegedly caused it--should have been readily
apparent from the face of that request itself.
Yet, so far as the record reflects, the defendants did not
even mention the “self-critical analysis” privilege until a
letter to the court on October 3, 2011.

This was more than four

months after their formal responses to the requests, and more
than a month after the discovery conference with the court--at
which the defendants’ relevance objections to the same requests
were extensively discussed, but the “self-critical analysis”
privilege was never raised (either at the conference itself or in
the defendants’ written submissions beforehand).

The defendants

have not explained why they did not raise the privilege earlier.
In the court’s view, their “unjustified delay” in raising the
“self-critical” analysis privilege amounts to a waiver of it
(assuming, again, that it even exists under New Hampshire law, a

19

point on which this court expresses no view).8

See Moloney v.

United States, 204 F.R.D. 16, 21 (D. Mass. 2001) (ruling that
defendant had waived self-critical analysis privilege by omitting
it from other objections raised in its initial response to the
discovery requests and not raising the privilege until its
objection to the motion to compel).
The same is true of the NTSB regulations, which the
defendants say “prohibit parties from disclosing information
concerning [an] accident or incident before initial release by
the [NTSB],” and, as a result, bar them from producing
“information regarding ongoing NTSB investigations” in response
to request no. 10.

While in their formal responses to document

request no. 6 (which is no longer in dispute), Bell stated that
it was “precluded from providing investigative documents to any
entity not a party to the NTSB investigation while the NTSB
investigation is ongoing,” and Rolls-Royce stated, less
specifically, that the requests sought “information about ongoing
investigations that [it] cannot lawfully provide,” they did not
raise this objection to request no. 10 or, for that matter, any

8

While the defendants argue for recognition of the privilege
under federal law, state law controls the issues of privilege in
this diversity case. See Fed. R. Evid. 501; Fashion House, Inc.
v. KMart Corp., 892 F.2d 1076, 1098 n.11 (1st Cir. 1989).
20

other document request.

Goodrich did not raise such an objection

in their formal discovery responses at all.
Moreover, after the defendants failed to even mention the
NTSB regulations in their written submission to the court in
advance of the discovery conference, the court there expressed
the view that the defendants had waived the protection (if any)
of those regulations, pointing out that they had yet even to cite
Cf. Marx, 929 F.2d at 12 (affirming ruling

them to the court.

that an objection to document requests had been waived when its
assertion was both “untimely,” coming more than 30 days after the
requests, and “totally uninformative”).

Yet, at the conference,

the defendants did not attempt to explain that deficiency or
offer to correct it.
Instead, as in the case of the defendants’ objection to
request no. 14 under the “self-critical analysis” privilege, they
did not raise their objection to request no. 10 under the NTSB
regulations to the court until their letter of October 3.

The

defendants have not endeavored to explain that delay (they do not
suggest, for example, that they did not initially realize the
request encompassed information about ongoing NTSB
investigations).9

So, just as in the case of the “self-critical

9

The defendants note that the NTSB regulations’ asserted
prohibition on disclosure of information about accidents under
investigation was “raised in their answers to [West’s] complaint
21

analysis” privilege, the court finds that this delay was
unjustified and amounts to a waiver of whatever protection the
NTSB regulations might have conferred against request no. 10.
The defendants have, however, offered a justification for
the fact that their objection to request no. 10 under the DoD
regulations was late (at least under the 30-day deadline imposed
by Rule 34(b)).

Pointing out that the request does not

specifically mention the military version of the Bell 407, the
defendants argue they had “no reason to raise an objection based
on the [DoD] regulations” until “it became clear that [West] was
seeking information about aircraft that had been built in
accordance with military specifications,” at which point they
“immediately objected.”

The court has no reason to doubt this

explanation, at least based on the materials that have been
submitted over the course of this discovery dispute.
To the contrary, it makes perfect sense that the defendants’
understanding of the scope of West’s discovery requests would
have evolved over the course of their counsel’s efforts to

and discussed at the preliminary pretrial conference.” But such
“a blanket assertion of privilege”--to say nothing of an
anticipatory one--“is generally insufficient.” In re Grand Jury
Subpoena (Mr. S.), ___ F.3d ___, 2011 WL 5153837, at *4 (1st Cir.
Nov. 1, 2011). If anything, the fact that the defendants were
aware of the potential application of the NTSB regulations to
West’s discovery requests before he even made them makes it
harder to understand their failure to raise the regulations as an
objection to his requests after he did make them.
22

negotiate that subject with counsel for West.

Accordingly, the

court finds that the defendants’ assertion of the DoD regulations
in response to request no. 10, while untimely under Rule 34(b),
was not an “unjustified delay” so as to amount to a waiver of
that objection.

See Rivera, 190 F.R.D. at 301 (finding privilege

objection had not been waived, though omitted from party’s
initial response, when the documents’ “relevance and
responsiveness may not have been known” at that time).

2.

DoD regulations

The DoD regulations invoked by the defendants require any
contractor “obtaining export-controlled technical data” from the
DoD to certify, among other things, that--with an exception
discussed infra--“it will not provide access to export-controlled
technical data subject to this Part to persons other than its
employees or persons acting on its behalf.”
§ 250.3(a)(4).

32 C.F.R.

This restriction applies to

[a]ll unclassified technical data with military or
space application in the possession of, or under the
control of, a DoD Component which may not be exported
lawfully without an approval, authorization, or license
under . . . the Arms Export Control Act. However, the
application of this Part is restricted only to such
technical data that disclose critical technology with
military or space application.
Id. § 250.3(a)(1).

The Arms Export Control Act, in relevant

part, authorizes the creation of the “United States Munitions
List,” a designation of “those items which shall be considered as
23

defense articles and defense services” subject to restrictions on
their import and export.

22 U.S.C. § 2778(a).

This list includes “helicopters . . . which are specially
designed, modified, or equipped for military purposes,” as well
as their “specifically designed or modified” engines and certain
“specifically designed” components, including digital engine
controls such as the FADEC.
(b).

22 C.F.R. § 121.1, cats. VIII(a),

Moreover, the list designates these items as “Significant

Military Equipment,” or “SME,” and “technical data directly
related to the manufacture or production of any defense articles
. . . designated as [SME] shall itself be designated SME.”
§ 121.1(a).

Id.

The term “technical data,” in turn, is defined as

information “required for the design, development, production,
manufacture, assembly, operation, repair, testing, maintenance or
modification of defense articles,” including “blueprints,
drawings, photographs, plans, instructions or documentation.”
Id. § 121.10(a)(1).
Thus, the defendants argue, request no. 10 (which, again,
calls for all documents discussing or referring to reported
shutdowns allegedly caused by the same model ECU, HMU, or FADEC
that was in West’s helicopter) encompasses “technical data
directly related to the manufacture or production” of those
components in the Kiowa--data to which the defendants cannot
allow access under 32 C.F.R. § 250.3(a)(4).

24

Based on this

assertion, which is all the defendants have provided at this
point, § 250.3(a)(4) may well prevent them from producing some of
the documents responsive to request no. 10.
It seems unlikely, however, that every document within the
scope of that request, insofar as includes reports of the
specified shutdowns in the Kiowa, falls within the scope of
§ 250.3(a)(4).

As just discussed, that regulation prevents the

disclosure of only that technical data which both “disclose[s]
critical technology with military or space application” and
appears on the Munitions List, 32 C.F.R. § 250.3(a)(1), and the
relevant provisions of the List cover only that data which is
itself both “directly related to the manufacture and production”
of certain “specifically designed” components of the Kiowa, 22
C.F.R. § 121.1(a), and “required for the design, development,
production, manufacture, assembly, operation, repair, testing,
maintenance or modification” of those articles, id.
§ 121.10(a)(1).

Furthermore, as West emphasizes, § 250.3(a)(4)

contains an exception on its ban on the disclosure of such
technical data, allowing its dissemination to “as may be required
by court order.”

32 C.F.R. § 250.5(h)(4).

To enable the proper application of § 250.3(a)(4) to request
no. 10, then, the defendants shall provide West with a privilege
log identifying each document as to which they claim the
regulation applies and describing the document “in manner that,

25

without revealing information itself privileged or protected,
will enable other parties to assess the claim.”
26(c)(5)(A)(ii).

Fed. R. Civ. P.

This description shall include a brief

explanation as to how each document (1) discloses critical
technology with military or space application, (2) directly
relates to manufacture of specifically designed components of the
Kiowa, and (3) is required for the design, development,
production, manufacture, assembly, operation, repair, testing,
maintenance or modification of those components, all of which are
necessary to bring a document within the scope of § 250.3(a)(4).
If West disagrees with any of these designations, he shall
attempt to resolve that disagreement by conferencing with the
defendants, see Fed. R. Civ. P. 37(a)(1), and, if that effort
fails to produce agreement, may seek relief with the court
according to its preliminary pretrial order, see document no. 52.

C.

Documents the defendants claim do not exist
Finally, West moves to compel the defendants to respond to

request no. 21, which seeks “all documents discussing or
referring to (a) the fact that post-Accident downloads from the
Subject ECU did not record faults related to the uncommanded
shutdown, and (b) the reasons that the Subject ECU did not record
faults that could explain the engine flameout or the uncommanded
shutdown.”

The defendants state that they have already produced

26

“the non-privileged documents that exist discussing the FADEC
download from the accident aircraft.”
West does not seem to disagree with this statement.
Instead, he asserts that “the failure of to detect and record
faults is a known defect in the ECU of the Bell 407.”

But even

if this is true, it does not follow that the defendants would
have documents discussing whether this defect manifested itself
in West’s helicopter and, again, the defendants have stated that,
if any such documents exist, they have been produced.

Of course,

West is free to test this assertion through the depositions of
the defendants’ witnesses or other discovery devices, but, so
long as it holds up, this court “cannot compel a party to produce
documents that do not exist.”

Payless Shoesource Worldwide, Inc.

v. Target Corp., No. 05-4023, 2008 WL 973118, at *4 (D. Kan. Apr.
8, 2008) (quotation marks omitted).

Conclusion
For the foregoing reasons, West’s motion to compel10 the
defendants to produce documents is GRANTED over their objections
as to request nos. 14 and 19, GRANTED over Goodrich’s objections
as to request nos. 9, 12, 15, 17 and 22, and GRANTED in part over
the defendants’ assertion of DoD prohibitions on disclosure as an
objection to request no. 10, in that the defendants must provide

10

document no. 71.
27

West with the privilege log described in Part B.2, supra.

The

defendants shall provide West with all of the information
required by this order with 45 days.
DENIED as to request no. 21.

West’s motion to compel is

West’s motion for leave to file a

supplemental affidavit11 is DENIED as moot.
SO ORDERED.
/s/ Joseph N. Laplante
Joseph N. Laplante
United States District Judge
December 20, 2011
cc:

Phillip S. Bixby, Esquire
L. Robert Bourgeois, Esquire
Martha C. Gaythwaite, Esquire
Sara Gutierrez Dunn, Esquire
Joan A. Lukey, Esquire
John P. O’Flanagan, Esquire
Brian M. Quirk, Esquire
Rachel A. Ruberson, Esquire
Annmarie A. Tenn, Esquire
Jason L. Vincent, Esquire
James C. Wheat, Esquire

11

document no. 75.
28