Lawson v. Spirit AeroSystems

LARRY A. LAWSON, Plaintiff, v. SPIRIT AEROSYSTEMS, INC., Defendant.

Case No. 18-1100-EFM-ADM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

April 2, 2020

MEMORANDUM AND ORDER

This matter comes before the court on plaintiff Larry A. Lawson's ("Lawson") Motion to Compel the Production of Non-Privileged Documents. (ECF No. 261.) Lawson asks the court to compel defendant Spirit AeroSystems, Inc. ("Spirit") to produce certain documents that Spirit has withheld or redacted as attorney-client privileged and/or protected by the work-product doctrine. These documents fall within the following categories:¹ (1) communications where counsel is copied but Lawson contends they do not involve legal advice; (2) communications between non-attorneys; and (3) communications between Spirit and two third parties, Arconic, Inc. ("Arconic") and Computershare Limited ("Computershare"). Lawson contends that none of these documents are privileged or work product, and that they were improperly withheld or redacted. For the reasons discussed below, Lawson's motion is granted in part and denied in part. It is granted to the extent that the court has reviewed the documents at issue in camera, and the court will order Spirit to remove certain redactions and produce selected documents as set forth below. It is otherwise denied.

I. BACKGROUND

The background of this lawsuit is more thoroughly set forth in this court's prior orders, familiarity with which is presumed. Highly summarized, Lawson is Spirit's former chief executive officer who retired on July 31, 2016. His Retirement Agreement contained non-compete obligations for two years, until July 31, 2018. In early 2017, Lawson engaged in business dealings with non-party investment firms Elliott Associates, L.P. and Elliott International, L.P. (collectively, "Elliott") to provide consulting services in connection with a proxy contest Elliott launched to replace five board members of Arconic. When Spirit learned about this, Spirit notified Lawson that his involvement with Arconic constituted a breach of his non-compete. Spirit stopped paying Lawson and demanded that he repay what the company had already paid him under the Retirement Agreement. Lawson disputes that he breached the non-compete. He filed this lawsuit seeking to recover what he believes Spirit owes him.

Lawson now asks the court to compel production of the following documents, which he contends Spirit improperly withheld or redacted as attorney-client privileged and/or work product:

• Communications copying counsel that Lawson claims do not involve legal advice: PLID_000009, 70-79, 81, 194-195, 222, 223, 250-252, 254, 261-268, 424, 540, 541, 639, 660, 666, 667, 967, 968, 983-986, 1374, 1375, 1484-1490, 1521, 1531-1533, 1641, and 2074;

• Communications between non-attorneys: PLID_000051, 117-119, 172, 176, 177, 193, 202-206, 610, 662, 767, 768, 770, 917, 952-961, 965, 966, 969, 981, 982, 987-991, 1376-1380, 1434-1437, 1449, 1513-1530, 1537-1540, 1578-1584, 1606-1615, 1636, 1651, 1653, 1655, 1656, 1665, 1685-1688, 1700-1702, 1707-1709, 1731-1737, 1739, 1745, 1750, 1753, 1775, 1776, 1779, 1782, 1783, 1791-1794, 1840, 1841, 1867, 1894, 1895, 1922, 1923, 1935, 1936, 1938, 1942, 1950-1957, 1969-1974, 1977-1982, 1984, 1985, 1987, 1988, 1991, 1992, 1995, 2008-2010, 2016, 2017, 2029, 2030, 2048, 2052-2055, 2064, 2067, 2072, 2073, and 2075-2080; and

• Communications between Spirit and third parties Computershare and Arconic: PLID_000662, 917, 1950-53.

(ECF No. 262, at 8 n.4, 9 n.5, 10 n.7, 10-11 n.9.)

Spirit opposes Lawson's motion. Spirit argues the documents Lawson identifies were appropriately redacted or withheld as attorney-client privileged or protected by the work-product doctrine. (ECF No. 282, at 4.) Spirit also contends that Lawson did not fulfill his obligations to meet and confer over some of the documents he seeks and some of the issues raised in his motion. (See id. at 3, 8, 11.)

II. THE PARTIES EFFORTS TO MEET AND CONFER

As an initial matter, the court addresses the parties' efforts to meet and confer regarding the documents at issue in Lawson's motion. Pursuant to D. Kan. Rule 37.2, the court will not entertain a discovery motion "unless the attorney for the moving party has conferred or has made a reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion." See also FED. R. CIV. P. 37(a)(1) (requiring a motion to compel discovery to include "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery"). "A 'reasonable effort to confer' means more than mailing or faxing a letter to the opposing party." D. KAN. RULE 37.2. "It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so." Id. The purpose of the local rule is to "encourage resolving discovery disputes without judicial involvement." Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999). The court examines the quantity and the quality of contacts between counsel to determine whether the moving party's efforts to confer are reasonable. See id.

Spirit contends that the parties did not adequately meet and confer regarding Lawson's challenges to communications not involving counsel or those copying counsel that allegedly do not involve legal advice, and did not confer at all regarding Lawson's challenges to communications involving Arconic. (See ECF No. 282, at 3, 8.) The record before the courtreveals the parties' efforts to confer as reflected in a letter Lawson sent to Spirit on December 31, 2019, to which Spirit responded on January 8, 2020. (See ECF No. 282-1 ¶ 12, at 3; ECF No. 262-1, at 6-11, 13-19.) Lawson's initial letter raises challenges as to documents where no lawyer is included on the communication or a lawyer is not providing legal advice. (ECF No. 262-1, at 9-10.) Lawson also challenged Spirit's claim of work-product protection over certain communications between Spirit and Arconic, but not the communications at issue in this motion. (See id. at 6-7.) Spirit responded to Lawson's challenges and also agreed to produce the Arconic documents that he identified. (Id. at 16-17.)

The parties' efforts to meet and confer regarding these issues did not satisfy the requirements of D. Kan. Rule 37.2. However, considering the motion on the merits will further the "just, speedy, and inexpensive determination" of this action because the parties have genuine disputes about whether the subject documents should be produced, and this case is at an advanced stage with the close of fact discovery rapidly approaching. The court will therefore exercise its discretion and address the merits of Lawson's motion. See Wahlcometroflex, Inc. v. Westar Energy, Inc., No. 11-4017-EFM-JPO, 2011 WL 13237554, at *2 (D. Kan. Aug. 22, 2011) (electing to address the merits of a motion to compel "despite the fact that neither the letter nor the spirit of the meet-and-confer rules were satisfied"); White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc., No. 07-2319-CM-DJW, 2009 WL 722056, at *2 (D. Kan. March 18, 2009) (waiving non-compliance with duty to confer to avoid further delay of resolution of the matter).

III. ANALYSIS

Turning to the substance of Lawson's motion, the court begins with the applicable legal standards. Because this is a diversity case, state law governs attorney-client privilege. FED. R. EVID. 501 ("[I]n a civil case, state law governs privilege regarding a claim or defense for whichstate law supplies the rule of decision."); see also Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 699 (10th Cir. 1998) ("[S]tate law supplies the rule of decision on privilege in diversity cases."). In Kansas,² the attorney-client privilege is codified at KAN. STAT. ANN. § 60-426. Under the statute, with few exceptions, "communications found by the judge to have been between [a] lawyer and his or her client in the course of that relationship and in professional confidence, are privileged." State v. Gonzalez, 234 P.3d 1, 10 (Kan. 2010). The term "communication" includes "advice given by the attorney in the course of representing the client and . . . disclosures of the client to a representative, associate or employee of the attorney incidental to the professional relationship." KAN. STAT. ANN. § 60-426(c)(2). The party asserting attorney-client privilege bears the burden to establish that it applies. In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir. 2010); Cypress Media, Inc. v. City of Overland Park, 997 P.2d 681, 693 (Kan. 2000). This burden includes showing the privilege has not been waived. See Johnson v. Gmeinder, 191 F.R.D. 638, 642 (D. Kan. 2000).

The court analyzes work-product protection under Federal Rule of Civil Procedure 26(b)(3). See Frontier Ref., 136 F.3d at 702 n.10 ("Unlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed. R. Civ. P. 26(b)(3) . . . ."). That rule provides that a party ordinarily "may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." FED. R. CIV. P. 26(b)(3). Like the attorney-client privilege, theparty asserting work-product protection must make a "clear showing" that it applies. U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 247 F.R.D. 656, 658 (D. Kan. 2007).

A. Communications Allegedly Not Involving Legal Advice

The first category of documents Lawson challenges are those involving attorneys for which, according to Lawson, Spirit's privilege logs "do not show that the attorney gave legal advice in the message or after receiving the message." (ECF No. 262, at 10.)

Not all communications...