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Raymond v. Spirit Aerosystems Holdings, Inc.

United States District Court, D. Kansas

February 22, 2017

DONETTA RAYMOND, et al., Plaintiffs,


          GWYNNE E. BIRZER United States Magistrate Judge

         This matter is before the Court on Defendants' Motion for Protective Order (ECF No. 193). On January 31, 2017, the Court convened an in-person hearing to address the pending motion. Plaintiffs appeared through counsel, Randall K. Rathbun. Defendants appeared through counsel, James M. Armstrong. After consideration of both the arguments of counsel and the parties' briefing, Defendants' Motion (ECF No. 193) is DENIED for the reasons outlined below.

         I. Background

         A. Nature of Suit

         In July and August, 2013, defendant Spirit AeroSystems (“Spirit”)[1] conducted a “reduction in force” (“RIF”) which terminated the employment of the named Plaintiffs[2] and more than two hundred other workers. (Compl., ECF No. 1, at 5.) Plaintiffs claim the RIF eliminated a disproportionate number of Defendants' older employees. Plaintiffs filed this collective action in July 2016, claiming Defendants wrongfully terminated their employment and/or later failed to consider them for new job openings as a result of their age and, in some cases, the older employees' (or family members') medical conditions and related medical expenses. In addition to the collective action claims under the Age Discrimination in Employment Act[3] (“ADEA”), some Plaintiffs also assert individual ADEA claims, and some Plaintiffs claim their termination violated the Americans with Disabilities Act[4] (“ADA”) and/or the Family and Medical Leave Act[5] (“FMLA”).

         Defendants allege Plaintiffs and others like them were discharged, and not considered for rehire, for lawful reasons-primarily their poor performance. Defendants claim, in order to help lessen the effects of employment, they offered every laid-off employee a severance package that included both monetary benefits and career services. (ECF No. 194, at 1.) Most of the terminated employees accepted the offered benefits in exchange for signing a release of claims against Spirit. (Id.) However, with the exception of approximately nine Plaintiffs, [6] the terminated employees now claim the releases are invalid, in addition to their wrongful termination claims.

         B. Procedural Posture

         This matter has progressed in a unique manner. Following an in-person status conference on October 19, 2016, the Court entered, at the parties' request, a phased discovery plan (Phase I Scheduling Order, ECF No. 153). The initial discovery phase is intended to focus solely on the validity of the releases signed by Plaintiffs. Once the validity of the releases is resolved through dispositive motions, as anticipated by the parties, the case will progress to a second phase of discovery, which will focus on Plaintiffs' wrongful termination claims.

         On September 20, 2016, as part of the initial discovery phase, Plaintiffs served initial written discovery on Defendants (ECF No. 29). Since that date, Defendants received multiple extensions of the response deadline. Although Plaintiffs agreed to the first three requested extensions, they were not willing to agree to a fourth extension (see Pls.' Mem. Opp'n to Defs.' Mot. for Extension, ECF No. 186). Following a disputed motion for the most recent extension of time (ECF No. 192), this Court ordered Defendants to respond to Plaintiffs' discovery by January 31, 2017 (Order, ECF No. 192).

         The agreed Phase I Scheduling Order did not contain specific discovery protocols regarding production of electronically stored information or the handling of materials for which the parties assert privilege or work product protection. Simultaneous with production of documents, the parties have been working toward an agreement on procedures governing discovery. However, they have been unable to agree on the timing of logging privileged[7] documents, which led to the instant motion.

         II. Defendants' Motion for Protective Order (ECF No. 193)

         A. Arguments

         1. Defendants' Position

         Defendants suggest, if a producing party objects to production of documents on some non-privilege basis (such as relevance or overbreath), the withheld documents need not be immediately included on a privilege log. They propose neither party would waive its privilege objection by excluding information from a privilege log until after the information has been deemed otherwise discoverable, either by agreement or decision by the Court. Defendants argue their proposal comports specifically with the 1993 advisory committee's note to Fed.R.Civ.P. 26(b)(5) and recent caselaw from this District.

         Additionally, Defendants claim as an employer, the majority of privileged documents subject to discovery are primarily in their possession. Therefore, the burden to log such documents falls to them. And, the privileged communications sought by Plaintiffs equates to potentially thousands of documents. Logging them-regardless of their discoverability-would create an unreasonable, disproportionate, and costly burden for Defendants.

         As an example of the potential burden, Defendants contend some of the documents sought by Plaintiffs lie outside the scope of Phase I discovery. Many of Plaintiffs' discovery requests identify a time frame of March 1, 2013 through December 31, 2013. However, because the waivers are the sole issue in Phase I, and the waivers were signed in July and August 2013, Defendants argue information from September to December 2013 is irrelevant and the requests are overbroad. Forcing Defendants to include all of the privileged communications from that time frame, despite their non-privilege objections, would be burdensome and unreasonable.

         Defendants seek two forms of relief: 1) for entry of a Protective Order, specifying failure to log a privileged document also covered by a non-privilege objection when initially responding to discovery, does not automatically waive the privilege objection, until the non-privilege discoverability of the document is determined. Defendants also ask the Court to 2) extend any deadline for production of privilege logs until 21 days after the Court issues a decision on this issue.

         2. Plaintiffs' Position

         Plaintiffs disagree with this method of production, and argue “Rule 26(b)(5)(A)'s privilege log requirement is not delayed or excused when other non-privilege objections are asserted.” (Resp., ECF No. 195 at 8). Plaintiffs cite multiple decisions from the District of Kansas to support their argument that all responsive privileged documents must be identified and a log produced at the time of the initial response, regardless of whether other non-privilege objections are also stated. By failing to produce a privilege log, a responding party would waive its privilege objection.

         Plaintiffs disagree their requests are overbroad or seek irrelevant information, and reveal Defendants asserted general non-privilege objections to all of Plaintiffs' 22 interrogatories. Plaintiffs believe granting Defendants' request could indefinitely postpone identification (and therefore any assessment) of any privileged documents withheld.

         In light of Defendants' previous extensions of their discovery response deadlines, Plaintiffs contend the current request would essentially bifurcate-thus delay-the already-phased discovery, and lead to increased conference and motion practice. Additionally, Plaintiffs believe the parties' initial and well-thought-out discovery agreements would significantly reduce any burden on Defendants.

         3. Compliance with D. Kan. Rule 37.2

         Throughout the briefing, and during the in-person hearing, the parties demonstrated their multiple attempts to resolve their differences on this and other discovery issues. Therefore, the Court is satisfied they have sufficiently conferred as required by D. Kan. Rule 37.2. However, despite their attempts, the parties could not resolve this specific issue, leading to Defendants' motion for protective order.

         B. Legal Standards

         1. Fed.R.Civ.P. 26

         The parties agree Fed.R.Civ.P. 26 and 34 govern this dispute. The Court first examines Rule 26(b)(5), which outlines a party's duties when withholding documents on claims of privilege. Section 5(A) of the rule states:

When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as ...

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