Lufthansa Technik v. Panasonic Avionics Corporation

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 In the Matter of the Application of CASE NO. C17-1453-JCC LUFTHANSA TECHNIK AG, Petitioner, for 10 an Order Pursuant to 28 U.S.C. § 1782 to Take ORDER 11 Discovery, Pursuant to the Federal Rules of Civil Procedure, of Respondent PANASONIC 12 AVIONICS CORPORATION, for Use in Foreign Proceedings, with ASTRONICS 13 ADVANCED ELECTRONIC SYSTEMS as Intervenor. 14

15 This matter comes before the Court on Lufthansa Technik AG’s (“Lufthansa”) motion to 16 enforce and for sanctions (Dkt. No. 232), along with its motion to seal (Dkt. No. 243). Having 17 thoroughly considered the briefing and the relevant record, the Court finds oral argument 18 unnecessary and hereby GRANTS in part and DENIES in part Lufthansa’s motion to compel and 19 for sanctions (Dkt. No. 232) and GRANTS the motion to seal (Dkt. No. 243) for the reasons 20 explained herein. 21 First,1 in light of Astronics Advanced Electronic Systems’ (“AES”) decision to screen 22 communications and documents located through a recent agreed-upon search of AES’s e-mail 23 and backup tapes for relevancy, Lufthansa asks that the Court order AES to produce the full 24 contents of the search results. (See Dkt. No. 232 at 4–6.) While, under normal circumstances, 25 1 Given the lengthy motion practice between these parties which has already transpired, the 26 Court dispatches with a recitation of background facts for this matter. 1 such a responsiveness screening is expected and appropriate, these are not such circumstances. 2 Throughout the course of this matter, AES has provided Lufthansa with incomplete production, 3 without a valid basis for doing so. (See, e.g., Dkt. Nos. 152, 172, 224.) And the Court previously 4 ordered AES to produce all meeting protocol documentation “responsive to the parties’ 5 previously agreed-upon search terms,” without any further limitation. (Dkt. No. 224 at 4 6 (emphasis added).) Accordingly, within 30 days, AES is ORDERED to produce all 7 communications and documents located during its search of e-mail and backup tapes undertaken 8 in an effort to locate meeting protocol documentation (AES may deem unresponsive documents 9 for attorney’s eyes only) or provide Lufthansa with a log of excluded material. If AES chooses to 10 provide Lufthansa with an exclusion log, AES must describe the nature of each excluded item 11 and the reason it concluded the material does not constitute meeting protocol documentation 12 generated within, or related to, the relevant time period. 13 Second, Lufthansa asks the Court to order that AES now search its e-mails and backup 14 tapes for certain contracts and related documents, in light of AES’s recent discovery of 15 previously undiscovered meeting protocol documents in e-mails and backup tapes. (Dkt. No. 232 16 at 6–7.) This, unlike the last request, is a bridge too far. Given the relatively few meeting 17 protocol documents housed in AES’s Program Management Office database, it was reasonable to 18 conclude that a search outside of this database would uncover significant additional meeting 19 protocol documentation. Whereas here, Lufthansa provides the Court with nothing, other than 20 speculation, to support the assertion that the same would be true for contract materials housed 21 outside of AES’s contract database.2 Moreover, it points to no authority to suggest that AES 22 must engage in duplicative and/or redundant searches, simply to assure it and the Court that it 23 located all responsive documents. 24

25 2 While Lufthansa suggests in its briefing to the Court that it located such a purchase agreement, (see Dkt. No. 241 at 6), it appears this contract was, in fact, included in AES’s contracts database 26 and previously produced, albeit in a different form, (see Dkt. Nos. 248 at 2–3, 253 at 2–3). 1 Third, Lufthansa asks the Court to order that AES produce all sales information for 2 testing equipment sold into Germany. (Dkt. No. 232 at 12.) Based on the evidence presented by 3 Lufthansa, it appears AES limited its production of this information to that equipment designated 4 as “EmTest” equipment. (See Dkt. No. 245 at 8.)3 But the Court previously ordered AES to 5 produce information of German sales for all peripheral parts “at issue in the German 6 proceeding,” which is broader than equipment labeled “EmTest” equipment. (See Dkt. No. 152 7 at 4l; see also Dkt. No. 149 at 3–4 (describing scope of peripheral parts at issue in German 8 proceedings).) Accordingly, within 30 days, AES is ORDERED to produce sales information for 9 all testing equipment subject to damages in German courts—not just those with an “EmTest” 10 label. 11 Lufthansa also asks the Court to find AES in contempt and impose sanctions. (Dkt. No. 12 232 at 12–13.) To do so, Lufthansa must show, through clear and convincing evidence, that AES 13 violated the Court’s specific and definite order. F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 14 (9th Cir. 1999). At least for purposes of AES’s election to excluded non- “EmTest” equipment 15 from production, the Court makes this finding. It does not make this finding with respect to 16 AES’s responsiveness screening of e-mail and backup data relevant to meeting protocol 17 documentation, as the Court did indicate in its prior order that only meeting protocol 18 documentation need be produced. And Lufthansa has yet to demonstrate that the excluded 19 information contained such documentation. Accordingly, AES is ORDERED to pay Lufthansa’s 20 fees and costs associated with the portion of Lufthansa’s motion(s) relating to production of 21 testing equipment sales into Germany. See Fed. R. Civ. P. 37(b)(2)(C) (allowing for the payment 22 of “reasonable expenses, including attorney fees” resulting from the failure to comply with a 23 court order). Lufthansa is DIRECTED to provide the Court with an accounting of these costs 24 within 14 days of this order. 25 Finally, Lufthansa moves to maintain under seal unredacted versions of a declaration in

26 3 AES seems to concede this point. (See Dkt. No. 236 at 11.) 1 support of its reply brief. (See Dkt. No. 243.) AES does not oppose. “[T]here is a strong 2 presumption of public access to [the Court’s] files.” W.D. Wash. Local Civ. R. 5(g)(3). To 3 overcome it, a party must show “good cause” for sealing a document attached to a non- 4 dispositive motion and “compelling reasons” to seal a document attached to a dispositive motion. 5 See Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178–81 (9th Cir. 2006). The 6 redacted portions of the declaration contains information designated for “attorneys eyes only,” 7 and represents proprietary information falling within the scope of the protective orders entered in 8 this case. (See Dkt. No. 244.) Thus, there exists a compelling reason to seal the unredacted 9 declaration and that reason overcomes the presumption of public access. 10 For the reasons described above, the Court hereby GRANTS in part and DENIES in part 11 Lufthansa’s motion to compel and for sanctions (Dkt. No. 232) and GRANTS the motion to seal 12 (Dkt. No. 243). The Clerk is DIRECTED to maintain docket number 244 under seal. 13 14 DATED this 19th day of October 2023. A 15 16 17 John C. Coughenour 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26