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Raymond v. Spirit AeroSystems Holdings, Inc.

United States District Court, D. Kansas

September 6, 2017

Donetta Raymond, et al., Plaintiffs,
v.
Spirit AeroSystems Holdings, Inc., et al., Defendants.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Following 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.[1] 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).

         The 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 are overruled.

         In 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).

         The 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.

         At some 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.

         Brewer 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.

         Brewer 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 her.

         On top 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.

         King 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.

         King 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.

         Instead, 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.

         An 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.

         Plaintiff's 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.

         On July 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.

         After 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.

         At 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, ...


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