United States District Court, D. Kansas
SOCIETY OF PROFESSIONAL ENGINEERING EMPLOYEES IN AEROSPACE, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL EMPLOYEES, LOCAL 2001, Plaintiff,
SPIRIT AEROSYSTEMS, INC., Defendant.
MEMORANDUM AND ORDER
KAREN M. HUMPHREYS, United States Magistrate Judge.
This matter is before the court on three motions:
1) Plaintiff’s motion to compel the return of inadvertently produced attorney-client communication and for protective order (Doc. 21);
2) Defendant’s motion to compel plaintiff to produce documents responsive to defendant’s document requests (Doc. 22); and
3) Defendant’s motion to amend the Scheduling Order (Doc. 35).
On May 20, 2015, the court conducted a telephone conference to discuss and clarify the issues presented in the briefs. Plaintiff appeared through counsel, M. Jeanette Fedele, Thomas B. Buescher, and Thomas E. Hammond. Defendants appeared through counsel, Boyd A. Byers and Sarah E. Burch. For the reasons set forth below, plaintiff’s motion to compel and for protective order (Doc. 21) shall be GRANTED; defendant’s motion to compel (Doc. 22) shall be GRANTED IN PART and DENIED IN PART; and defendant’s motion to amend the scheduling order (Doc. 35) is GRANTED IN PART and DENIED IN PART.
Plaintiff Society of Professional Engineering Employees in Aerospace, International Federation of Professional and Technical Employees, Local 2001 (“SPEEA”) and defendant Spirit Aerosystems, Inc. (“Spirit”) are, respectively, a labor union and a commercial aircraft components manufacturer who have been long-term parties to a collective bargaining agreement (“CBA”). That agreement provides to the represented employees of Spirit a mechanism by which they may bring grievances to the company through a four-step process. If the employee is unsatisfied with Spirit’s response to a grievance, it may be subject to binding arbitration.
The parties are no strangers to litigation. In 2012, SPEEA filed a federal lawsuit seeking to compel arbitration of a class-wide grievance involving Spirit’s processes for evaluating employee performance. On cross-motions for summary judgment, the district court found that the dispute was not arbitrable because the CBA “precludes the arbitration of broad disputes between union and company involving hundreds or thousands of employees.” Citing to Section 3 of the CBA, Judge Marten found that “each grievance must be considered on an individualized basis in ‘a separate and distinct arbitration hearing’” and that class-wide issues are subject to arbitration “only if they involve a dispute over a lockout.” The Tenth Circuit upheld that decision on September 17, 2013.
On July 8, 2013, Spirit employee William Hartig made an oral Step One grievance to his first level manager regarding what he believed to be inappropriate medical premium deductions from his pay. After his request was denied, Hartig proceeded to Step Two of the grievance process by emailing his supervisor. Spirit again dismissed his complaint and on Hartig’s behalf, SPEEA mailed a Step Three grievance on September 16, 2013 – one day prior to the Tenth Circuit’s decision regarding class-wide issues. After Spirit refused to hold a Step Three grievance meeting with SPEEA representatives, SPEEA demanded arbitration of Hartig’s grievance which Spirit rejected. SPEEA then filed this action to compel arbitration of the grievance.
Spirit not only challenges the grievance on its merits, but denies that the grievance is subject to the CBA’s arbitration provisions. Spirit admits that the CBA addresses the employees’ contributions to the medical plan. However, Spirit asserts that SPEEA encouraged Hartig and other employees to act as “straw men” to bring individualized grievances seeking class-wide remedies in an effort to circumvent the Tenth Circuit decision. Spirit argues that SPEEA lacks standing to pursue this claim because the CBA does not authorize SPEEA to bring a grievance and that the agreement prohibits grievances seeking to address class-wide issues.
I. Plaintiff’s Motion to Compel the Return of Inadvertently Produced Attorney-Client Communication and for Protective Order (Doc. 21)
Following the Tenth Circuit’s September 2013 decision, long-time SPEEA counsel Tom Buescher emailed Bob Brewer, SPEEA’s Midwest Director, to advise him on how to handle future grievances in light of the Circuit’s opinion. Brewer reportedly referenced that email frequently when reviewing union employee grievances. On December 8, 2014, Brewer mailed a letter-unrelated to this litigation-to two members of Spirit’s senior management. Unbeknownst to Brewer, the attorney-client email was inadvertently picked up off his desk and mailed to the Spirit managers along with the letter. Spirit did not immediately notify SPEEA that it received the attorney-client document, but more than a month later, on January 12, 2015, SPEEA counsel discovered the email in Spirit’s document production in this case. That same day, SPEEA’s counsel immediately notified Spirit, asking that the email be destroyed and any references to the privileged material be removed from Spirit’s files. Spirit refused, and after multiple discussions between the parties, SPEEA filed this motion to compel return of the email.
At the outset, the court notes that although Spirit asserts multiple arguments against the retention of the privilege, it acknowledges that the document is attorney-client communication. Given the parties’ long-standing relationship, it would have been clear to Spirit that Tom Buescher was (and remains) SPEEA’s counsel and the email from him constituted legal advice to his client. Spirit’s assertion that the privilege was waived because SPEEA failed to assert an objection in its discovery responses or include the email on its privilege log is addressed in Section II, infra; and that rationale is rejected.
Spirit also claims that Fed.R.Civ.P. 26(b)(5)(B), Fed.R.Evid. 502 and the Scheduling Order do not apply to “claw back” the document because the inadvertent disclosure occurred outside of discovery. It is correct that the inadvertent disclosure occurred outside the normal course of discovery. However, Spirit included the email as a part of its discovery responses and also argues that the email is relevant as evidence of the “scheme concocted” by SPEEA to bring grievances on class-wide issues. Because Spirit is attempting to use the document in the course of litigation, this issue is clearly governed by the broad scope of Fed.R.Civ.P. 26 and the court frankly finds Spirit’s argument rather disingenuous. The sole issue to decide, then, is whether SPEEA’s inadvertent disclosure of the email amounts to a waiver of the privilege.
The parties agree that the five-factor test often utilized in this district should be applied to determine whether the inadvertent disclosure constitutes a waiver of the attorney-client privilege. The burden to prove that a waiver did not occur lies with the party asserting the attorney-client privilege. The factors considered include: 1) the reasonableness of the precautions taken to prevent inadvertent disclosure; 2) the time taken to rectify the error; 3) the scope of discovery; 4) the extent of disclosure; and 5) the overriding issue of fairness. A review of each factor follows.
With respect to the precautions taken, Brewer described his awareness of its confidential nature and his efforts to keep the privileged document segregated from general office documents. While it is true that he apparently left the email lying on his desk after referring to it during a conversation with a potential grievant, it appears to be simple human error that the email was picked up with other documents for copying. The use of “reasonable” precautions does not require those precautions to be fool-proof. At its worst, this factor is neutral and, at its best, it tips the scales slightly in SPEEA’s favor.
2. Time lapse.
In this case, the time lapse between the inadvertent disclosure and SPEEA’s discovery of the disclosure was just over one month. Given that Brewer did not know that the email had been disclosed, and that his office closed for two weeks over the holidays, any delay is regarded as even less suspicious. “The relevant time for rectifying any error begins when a party discovered or with reasonable diligence should have discovered the inadvertent disclosure.” Once SPEEA realized the email had been disclosed, SPEEA counsel contacted Spirit’s ...