United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
Spirit AeroSystems' dismissal of 200 employees in July
and August of 2013, some of the dismissed employees
instituted the present action, alleging the
reduction-in-force dismissals disproportionately affected
older employees. The present action was filed in July 2016,
and plaintiffs advance claims under the Age Discrimination in
Employment Act (ADEA), the Americans with Disabilities Act
(ADA), and the Family and Medical Leave Act (FLMLA).
matter is before this court on objections filed by the
plaintiffs to a decision by the magistrate judge (Dkt. 233)
granting Spirit's Motion for Protective Order as to two
caches of internal Spirit documents, including privileged and
confidential materials, which were mysteriously delivered to
plaintiffs' Denver counsel in 2014. Judge Birzer
addressed the issue after a hearing and the submission of an
extensive evidentiary record. The record fully supports the
factual findings of the magistrate judge. The court adopts
and incorporates those findings here. The court finds Judge
Birzer's decision to issue the protective order, and
approving limited sanctions, is not clearly erroneous or
contrary to controlling law. The plaintiffs' objections
reviewing a magistrate judge's order relating to
nondispositive pretrial matters, the district court does not
conduct a de novo review. The court instead applies
a more deferential standard, and will affirm the order unless
the objecting party shows that the order is “clearly
erroneous or contrary to the law.” 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a). This is a high burden.
“The clearly erroneous standard ‘requires that
the reviewing court affirm unless it on the entire evidence
is left with the definite and firm conviction that a mistake
has been committed.'” U.S. Fire Ins. Co. v.
Bunge N.A., Inc., 244 F.R.D. 638, 641 (D. Kan. 2007)
(quoting Ocelot Oil Corp. v. Sparrow Indus., 847
F.2d 1458, 1464 (10th Cir. 1988)). Under this deferential
standard, the court will affirm a determination by the
magistrate judge “on any grounds for which there is a
record sufficient to permit conclusions of law, even grounds
not relied upon” by the magistrate judge. Shroff v.
Spellman, 604 F.3d 1179, 1187 n. 4 (10th Cir.2010). In
contrast, a party opposing the imposition of sanctions waives
any additional arguments which were not presented to the
magistrate judge. ClearOne Commc'ns, Inc. v. Biamp
Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011);
Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir.
1996); see also Burton v. R.J. Reynolds Tobacco Co.,
177 F.R.D. 491, 494 n.3 (D. Kan. 1997).
evidence presented to Judge Birzer establishes, and she
properly determined, that the documents are not directly
relevant to the original focus of the lawsuit - the layoff of
some 200 workers in July and August of 2013. Rather, the
documents were created as a part of an initiative by Spirit
beginning in late 2012 to modify its performance improvement
plan. Spirit's in-house counsel directed the
company's HR department to consult with the Foultson,
Siefkin law farm to give advice as to the new plan, which
proceeded from October 2012 to March 2013.
point during March, 2014, an unknown person delivered the
first cache of internal documents to the Wichita office of
the Society of Professional Engineering Employees in
Aerospace (SPEEA), the union which had represented the
plaintiffs. SPEEA Midwest Director Bob Brewer promptly gave
the package to Diane King, of King & Griersen, LLP, a
Denver, Colorado law firm. King had traveled to Wichita to
conduct a press conference to announce the filing of an EEOC
complaint over the 2013 layoffs.
read the entire file, including the documents in the file
which were explicitly marked as privileged or confidential.
Some documents were not marked as privileged or confidential
- but they were interspersed with many that were. In addition
to explicit markings of privilege and confidentiality, the
documents also repeatedly reference by name attorneys for
Spirit and its outside counsel, Foulston Siefkin. Owing to
frequent litigation between Spirit and SPEEA, Brewer and King
knew the named attorneys worked for Spirit.
testified that it would be “inappropriate” for a
Spirit worker to take HR documents, and that confidential
documents should not be shared outside the intended
recipients. However, he forwarded the documents to King
because he believed they “might be helpful” to
of the package was a pink sticky note addressed to
“Bob.” The note asserted the material “is
from a good source.” Only a photocopy of the sticky
note has been produced by the plaintiffs, and this contains a
redaction which strongly suggests the original note was
signed, and the signature removed. Brewer asserts that he
does not know what was on the original note, and that he has
“no idea” where the original note is now. Brewer
and King deny knowing the identity of the person who gave the
documents to the union.
reviewed the documents and saw that some were marked
privileged. She returned to Denver, and asked an attorney in
her firm to research applicable Kansas Ethics Rules and Tenth
Circuit authority. This review was apparently limited, and
did identify any of the relevant decisions.
did seek a fuller explanation of her responsiblity. She did
not hire outside counsel to review the documents. And, most
importantly, she did not inform counsel for Spirit.
King gave the packet to Dianne Von Behren, a paralegal in her
law firm. Von Behren, who has had no legal training in
identifying privileged legal documents, was given the task of
physically pulling out from the packet those documents which
were expressly marked as privileged. Von Behren separated
pages which were otherwise connected. These papers marked
privileged were then placed under seal. This had the effect
of destroying the original order of the documents. This also
allowed Denver counsel access to the remaining information
for some two years as they prepared for litigation.
anonymous source sent King another set of stolen Spirt
documents, similar to the first, on May 14, 2014. King had
Von Behren treat the second set of information the same way.
Denver counsel did not attempt extended consultation on the
issue until immediately before filing the July 11, 2016,
complaint. The complaint filed by the plaintiffs includes
references to the anonymously delivered Spirit information.
7, 2016, a few days before the Complaint, King contacted Alec
Rothrock, who suggested that King speak to Kansas attorneys
Nick Badgerow and Mike Matula. He also attached a copy of
Burt Hill, Inc. v. Hassan, No. 09-1285, 2010 U.S.
Dist. LEXIS 7492 (W.D. Pa. Jan. 29, 2010). Burt
Hill, discussed extensively by Judge Birzer in her
Order, extends the ethical rule which requires prompt
notification of opposing counsel in the event of an
inadvertent disclosure of confidential information
to cases in which the disclosure has occurred through the
intentional wrongful action of a third party.
the Complaint, on July 11, 2016, King contacted Terry Mann,
of the Martin, Pringle law firm in Wichita, Kansas. Mann
responded that KRPC 4.4 provided no direct guidance, since it
explicitly dealt with inadvertent disclosures, and suggested
the documents be presented to the court for in camera review.
about the same time, King consulted Kansas Deputy
Disciplinary Administrator Kimber Knoll, who told her that
she should get the matter “in front of the judge as
quickly as you can, ...