NetJets Association of Shared Aircraft Pilots v. NetJets, Inc. et al
OPINION AND ORDER denying without prejudice 92 Motion to Compel; denying 99 Motion to Compel. Signed by Magistrate Judge Kimberly A. Jolson on 10/12/2016. (pes)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
NETJETS ASSOCIATION OF
SHARED AIRCRAFT PILOTS,
Civil Action 2:14-cv-2487
Judge Michael H. Watson
Magistrate Judge Jolson
NETJETS, INC., et al.,
OPINION AND ORDER
This matter is before the Court on Plaintiff NetJets Association of Shared Aircraft Pilots’
(“Plaintiff” or “Union”) motions to compel. (Docs. 92, 99). For the reasons that follow, the
motions are DENIED without prejudice. In addition, within fourteen days of this Opinion and
Order, Defendants are DIRECTED to amend their discovery responses in accordance with their
promise to do so in their opposition to Doc. 99. (Doc. 113 at 11). Moreover, the parties are
DIRECTED to meet and confer to narrow their areas of disagreement, and to file a joint status
report within twenty-one days of this Opinion and Order regarding the status of any remaining
A. Factual Background
Plaintiff is a labor organization representing approximately 3,000 pilots employed by
Defendant NetJets Aviation, Inc.
(Doc. 86 ¶ 4).
Plaintiff brings suit against two entity
Defendants, NetJets Aviation, Inc. and NetJets, Inc. (collectively, “NetJets”), as well as Steven
Todd Weeber, former Vice President of Operational Quality and Standards for NetJets, and a
number of John Doe Defendants. (Id. ¶¶ 5–9). Plaintiff alleges that Defendants Weeber and
Does gained unauthorized access to a confidential Union message board and obtained private
Union communications. (Id. ¶ 17; see id. (alleging that “NetJets Senior Vice President and
Global General Counsel Colleen K. Nissl admitted that NetJets had obtained specific
confidential communications from the password-protected Message Board”)).
according to the complaint, NetJets has used social media to: coerce, intimidate, and retaliate
against Union members for supporting the Union; interfere with the Union’s internal election
procedures; and ultimately undermine the Union’s ability to represent its members. (Id. ¶ 20; see
id. ¶¶ 21–36).
Based upon these allegations, Plaintiff alleges violations of the Stored
Communications Act, 18 U.S.C. §§ 2701, 2707, the Computer Fraud and Abuse Act, 18 U.S.C.
§ 1030, Ohio Revised Code § 2913.04(B), and the Railway Labor Act, 18 U.S.C. § 2701.
B. Motions to Compel (Docs. 92, 99)
Plaintiff’s two motions to compel (Docs. 92, 99) are ripe and before the Court.
1. Doc. 92
On August 17, 2016, Plaintiff filed a motion to compel concerning Plaintiff’s second set
of requests and second set of interrogatories. (Doc. 92). Plaintiff separates the discovery it seeks
into two categories.
The first pertains to four requests and three interrogatories regarding
internal NetJets’ communications related to the message board content and who provided the
content to Defendants. (Doc. 92-1 at 4–5). Defendants objected on the basis of attorney-client
privilege among other things. (Doc. 92-3 at 57–62, 103–06). Plaintiff contends in its motion
that the privilege has been waived if it even applies. The second category of discovery in Doc.
92 concerns Defendants’ objections on the basis of attorney-client privilege to a range of other
requests and interrogatories from Plaintiff’s second set of discovery. Plaintiff moves to compel
Defendants to produce a privilege log.
Defendants respond by reiterating that the
communications are privileged, explaining that they will produce a privilege log once the
searches are narrowed, and arguing that Plaintiff failed to satisfy its obligation to meet and
confer under Fed. R. Civ. P. 37(a)(1) and S.D. Ohio Civ. R. 37.1 prior to filing its motion.
2. Doc. 99
Shortly after filing Doc. 92, Plaintiff filed another motion to compel on September 2,
2016. (Doc. 99). This second motion concerns Plaintiff’s first set of interrogatories and second
set of requests for production, both served on August 20, 2015.
(See Doc. 99-1 at 3–4).
Defendants responded on September 21, 2015, objecting to the requests and interrogatories on a
number of grounds, including that they were overly broad, and that the information sought was
protected by attorney-client privilege and/or the work product doctrine. (See, e.g., Doc. 99-3 at
50–127). Plaintiff argues that Defendants have not satisfied their pre-motion promise to amend
certain responses and to produce certain documents implicated by the requests. Moreover, the
parties disagree over the proper set of custodians and search terms for finding responsive
documents. Defendants contend again that Plaintiff failed to comply with its obligations under
Fed. R. Civ. P. 37(a)(1) and S.D. Ohio Civ. R. 37.1. To this end, Defendants respond that they
are in the process of amending their responses to a number of Plaintiff’s discovery requests.
Moreover, Defendants reiterate that they have been—and are still—committed to working with
Plaintiff to refine the proposed search terms.
Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Moreover, Rule 37 of the
Federal Rules of Civil Procedure allows for a motion to compel discovery when a party fails to
answer interrogatories submitted under Rule 33 or to provide proper responses to requests for
production of documents under Rule 34. See Fed. R. Civ. P. 37(a)(1), (3).
A. The Motions to Compel
As a threshold requirement, the Rules of Civil Procedure require a party moving to
compel discovery to certify that it “has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort to obtain it without court
action.” Fed. R. Civ. P. 37(a)(1). Similarly, this Court’s local rules forbid filing discovery
motions “under any provision in Fed. R. Civ. P. 26 or 37 unless counsel have first exhausted
among themselves all extrajudicial means for resolving the differences.” S.D. Ohio Civ. R. 37.1
(emphasis added). “This is no idle formality or technical requirement.” Crozin v. Crown
Appraisal Grp., No. 2:10-CV-00581, 2011 WL 3566004, at *2 (S.D. Ohio Aug. 15, 2011). “On
the contrary, . . . obliging attorneys [and pro se parties] to certify to the Court that they have
conferred in good faith results, in a large number of cases, in resolution of discovery disputes by
counsel without intervention of the Court.” Steinmetz v. Harrison, No. 1:14-CV-829, 2015 WL
4514541, at *2 (S.D. Ohio July 24, 2015) (quoting Ross v. Citifinancial, Inc., 203 F.R.D. 239,
240 (S.D. Miss. 2001)).
Here, the parties have not exhausted all extrajudicial means for resolving their
differences. Defendants devote much of their briefing of both motions to explaining why these
issues are not properly before the Court. Their attached communications demonstrate that, at the
time Plaintiff filed the motions, the parties were in the midst of attempting to come to a workable
solution regarding their discovery disputes. (See, e.g., Doc. 92-3 at 126–55 (Plaintiff’s final
letter to Defendants’ prior to filing the motions to compel, which does not reference several
requests for production and all of the interrogatories at issue in Doc. 92); id. at 189 (Defendants’
final letter to Plaintiff before the motions to compel, stating Defendants’ understanding that there
were no outstanding issues concerning Defendants’ responses to Plaintiff’s second set of
interrogatories); id. at 198–204 (Defendants proposing alternative search terms and custodians,
to which Plaintiff did not respond prior to filing the motions to compel); Doc. 107-1 ¶ 11
(declaration from Defendants’ counsel stating that “Plaintiff never responded to NetJets’ August
5 letter or to its . . . proposals for moving discovery forward”); id. ¶ 12 (“Plaintiff provided no
advance notice to NetJets of its intent to file this Motion.”); Doc. 113-1 ¶ 25 (“NetJets received
no response to its proposal in its August 5 letter for searching its servers prior to the filing of this
Motion.”)). The Court is not convinced that the parties’ dispute has reached impasse. For these
reasons, the motions are denied without prejudice as premature.
B. The Parties Are Directed to Meet and Confer Regarding Their Remaining Discovery
Although the motions to compel are denied as premature, Defendants are not absolved of
their discovery duties. Defendants represent in their opposition to Doc. 99 that they are “in the
midst of reviewing and finalizing [their] amended responses” to a number of Plaintiff’s
discovery requests. (Doc. 113 at 11). They are DIRECTED to do so within fourteen days of
this Opinion and Order. Moreover, the parties’ briefing suggests that there is substantial overlap
in their proposals to solve their discovery disputes and narrow their areas of disagreement. (See,
e.g., Doc. 113-1 ¶ 18 (“NetJets has consistently requested further meet and confer efforts to
resolve this and prior discovery disputes without involving the Court and believes the present
Motion was prematurely filed.”); id. ¶ 22 (stating that the parties have identified an “agreed-upon
[set of] custodians”); Doc. 113 at 14 (“NetJets and Plaintiff agree on 12 of Plaintiff’s proposed
15 individual custodians . . . .”); id. at 25 (“NetJets agreed in its August 5 letter that it would
amend its responses to Rog Nos. 12–13, 15, 21–27, 29–31, 34, and 36); see also Doc. 125 at 11;
Doc. 113-1 ¶ 26). The parties are therefore DIRECTED to meet and confer to narrow their
areas of disagreement, and to file a joint status report within twenty-one days regarding the
progress of their conference and the status of any remaining discovery disputes.
Finally, the Court offers the parties additional guidance as they narrow their discovery
issues. First, Plaintiff makes much of Defendants’ failure to provide a privilege log in support of
their objections based on attorney-client privilege. At this stage, the Court is not persuaded by
Plaintiff’s argument that Defendants’ failure to provide privilege logs means necessarily that
they waive the privilege. See Casale v. Nationwide Children’s Hosp., No. 2:11-CV-1124, 2014
WL 1308748, at *8 (S.D. Ohio Mar. 28, 2014) (“If Plaintiff failed to produce the documents or a
timely privilege log after the documents were deemed responsive, waiver could be an
appropriate remedy.” (emphasis in original)); see id. (explaining that Burlington N. & Santa Fe
Ry. Co. v. U.S. Dist. Ct. for the Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005), which Plaintiff
cites to support his waiver argument, “eschewed a per se rule that failure to produce a privilege
log within thirty days constitutes automatic waiver”). And while it understands, at least as to
some of the discovery at issue, Defendants’ argument that the parties must narrow the searches
before Defendants can provide a privilege log, it cautions Defendants that they must eventually
produce a privilege log to support their privilege claims. See Fed. R. Civ. P. 26(b)(5); The Ohio
Org. Collaborative v. Husted, No. 2:15-CV-01802, 2015 WL 7008530, at *4 (S.D. Ohio Nov.
12, 2015) (“That Rule requires that a party who resists discovery based on privilege produce a
privilege log . . . .”); see also Cooey v. Strickland, 269 F.R.D. 643, 649 (S.D. Ohio 2010) (“The
privilege log must be detailed enough to prove that the communications in question were in fact
confidential communications relating to legal advice.”).
Second, the Court understands that Plaintiff would like to discover how Defendants came
about the message-board communications at issue in this case. (See, e.g., Doc. 116 at 4–5). The
Court directs the parties’ attention to Defendants’ amended response and objections to Plaintiff’s
interrogatory number 39. The amended response appears to go a fair distance toward providing
Plaintiff that information and toward settling part of the parties’ discovery dispute. (See Doc.
107-1 ¶ 9 (“The parties proposed the amendment of NetJets’ response to Rog No. 39 as a way to
provide Plaintiff with information requested in its Second Set of Interrogatories without straying
into communications that were likely to be privileged. It therefore made sense that Plaintiff did
not raise any issues regarding its Second Set of Interrogatories in its June 24, 2016 meet and
confer correspondence, because it had previously assured NetJets that its amended response to
Rog No. 39 was a large step toward resolving the disputes involving its attorney-client privilege
objections.”)). To be sure, Plaintiff has reiterated that it wants to discover more than just the
information at issue in interrogatory number 39. However, in the interim, rather than devoting
significant time and resources to premature motions practice, the information provided in the
amended response to interrogatory number 39 gives Plaintiff a path to discover the information it
Third, it is clear from the parties’ briefing and accompanying exhibits, that they have a
habit of speaking past each other when trying to solve issues and a habit of failing to follow
through on requests to narrow their disputes. That needs to stop. Such conduct leads to
unnecessarily contentious communications and motions that impede the progress of this case.
Given the parties’ conduct in discovery thus far, the parties are DIRECTED to contact the Court
for a status conference before filing any discovery motion. Failure to comply will result in the
denial of the motion.
For the reasons stated:
The motions to compel (Docs. 92, 99) are DENIED without prejudice.
Within fourteen days of this Opinion and Order, Defendants are DIRECTED to
amend their discovery responses in accordance with their promise to do so in their
opposition to Doc. 99. (Doc. 113 at 11).
The parties are DIRECTED to meet and confer to narrow their areas of
disagreement, and to file a joint status report within twenty-one days of this Opinion
and Order regarding the status of any remaining discovery disputes.
Motion to Reconsider
Any party may, within fourteen days after this Opinion Order is filed, file and serve on
the opposing party a motion for reconsideration by a District Judge.
See 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); Eastern Division Order No. 14-01, pt. IV(C)(3)(a). The
motion must specifically designate the Order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections are filed and replies by the
objecting party are due seven days after. The District Judge, upon consideration of the motion,
shall set aside any part of this Opinion and Order found to be clearly erroneous or contrary to
law. This Opinion Order is in full force and effect even if a motion for reconsideration has been
filed unless it is stayed by either the Magistrate Judge or District Judge. S.D. Ohio Civ. R. 72.3.
IT IS SO ORDERED.
Date: October 12, 2016
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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