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 CORP. as Intervenor. 14
15 Petitioner Lufthansa Technik AG’s (“Lufthansa”) recently moved to enforce (Dkt. No. 16 265) portions of prior orders compelling discovery from Intervenor Astronics Advanced 17 Electronic Systems Corp. (“AES”) and to seal (Dkt. No. 264).1 Following in camera review and 18 supplemental briefing, (see Dkt. Nos. 287, 293, 295, 300), the Court GRANTS in part and 19 DENIES in part Lufthansa’s motion to enforce (Dkt. No. 265) and GRANTS its motion to seal 20 (Dkt. No. 264) for the reasons explained herein.2 21 In response to Lufthansa’s discovery petition in support of foreign litigation (and 22
23 1 AES also moves to strike portions of Lufthansa’s reply brief in support of its motion to enforce. (See Dkt. No. 286.) As the Court did not rely on any of the information subject to AES’s motion 24 in reaching the ruling below, the motion to strike (Dkt. No. 286) is DENIED as moot. 25 2 The Court finds oral argument unnecessary in reaching a ruling on each motion. Further, given the lengthy motion practice which has already transpired between these parties, the Court 26 dispatches with a recitation of background facts. 1 resulting subpoena), the Court previously ordered AES to, among other things, provide 2 Lufthansa with an updated master parts list (“MPL”) and engage in a comprehensive ESI search 3 for meeting protocol documentation. (See Dkt. Nos. 224 at 2–3, 254 at 1–2.) In now moving to 4 enforce these orders (and for sanctions), Lufthansa asserts (1) the MPL remains deficient, (2) 5 cost information which AES previously provided for certain part sales is incorrect, and (3) AES 6 inappropriately withheld from production certain meeting protocol documentation. (See Dkt. 7 Nos. 265 at 6–14, 297 at 2–9.) Based on these deficiencies, Lufthansa asks the Court to compel 8 further production from AES and to award Lufthansa attorney fees in bringing this motion. (Id. 9 at 9–14.) Separately, Lufthansa moves to seal its motion to enforce. (Dkt. No. 264.) 10 1. AES Must Produce Technical Documents but MPL Revisions are not Required 11 Lufthansa contends that the current version of the MPL is deficient because it (a) 12 excludes certain DC parts capable of use in EmPower system(s) (which are potentially 13 infringing), (b) lacks an accurate description of the systems for which certain parts were used, 14 and (c) fails to provide necessary technical information about certain parts. (Dkt. No. 265 at 5–7, 15 12–13.) The first two critiques are not well taken. The final one is. 16 According to the discovery rules, the producing party must produce documents “as they 17 are kept in the normal course of business” or “organize and label them to correspond to the 18 categories in the request [for production].” Fed. R. Civ. P. 34(b)(2)(E). The requirement to 19 organize and label documents is not without limits, though. See MGA Ent., Inc. v. Natl. Prods. 20 Ltd., 2012 WL 12884021, slip op. at 4 (C.D. Cal. 2012) (describing a party’s obligation to 21 organize records when the “system used by the producing party [in the ordinary course of 22 business] ‘is so deficient as to undermine the usefulness of production’”) (quoting Pass & 23 Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 n.2 (N.D.N.Y. 2008); see also F.T.C. v. 24 Johnson, 2012 WL 2138108, slip op. at 2 (D. Nev. 2012) (describing Rule 34’s limitations in 25 mandating the organization and labeling of documents collected solely for production purposes). 26 Because AES did not maintain a comprehensive parts list in the manner Lufthansa 1 sought, AES compiled the MPL. It then repeatedly revised the MPL, based on Lufthansa’s 2 requests and the Court’s orders. (See, e.g., Dkt. Nos. 152 at 3, 163 at 2, 224 at 2.) This has 3 resulted in significant work for AES. (See, e.g., Dkt. Nos. 162 at 2–4, 183 at 4, 197 at 2–3, 218 at 4 4–5, 223 at 1–6.) Commanding AES to perform additional work, given the efforts already taken 5 to gather information in a form not ordinarily kept, strains the boundaries of what the rules 6 require, particularly given the fact that Lufthansa is, largely, speculating that additional 7 supplementation is required. 8 This does not apply to the technical information Lufthansa seeks. AES does not suggest, 9 for instance, that this information is not available in its native (or ESI) format within AES’s 10 records. (See Dkt. No. 277 at 9.) Therefore, it would seem that the burden of production is low. 11 Instead, AES suggests the information is of little value to Lufthansa because it would not (on its 12 own) be sufficient to determine a part’s AC versus DC compatibility (which is at the heart of the 13 parties’ discovery dispute). (Id.) Fundamentally, it is AES’s responsibility to produce records— 14 not explain them. The compatibility determination is for Lufthansa to make. Therefore, absent 15 applicable attorney-client or work product protections, AES must produce whatever technical 16 documents Lufthansa seeks, so long as they are available to AES and have not otherwise been 17 produced in this or the European proceedings. 18 2. AES Need Not Reconcile Cost Information Between Productions 19 Lufthansa next contends that the cost information for AES’s sales has varied by 20 production. In other words, cost information for the same part sale was higher in an earlier 21 production than in a later production. (Dkt. No. 265 at 7–8, 13–14.) Therefore, the earlier 22 production must be incorrect, says Lufthansa, and the Court should compel the production of 23 corrected cost information. (Id.) The Court disagrees. As AES explains, it does not track actual 24 costs for individual parts. Rather, it approximates those costs. (See Dkt. No. 277 at 10.) To the 25 extent those approximations have changed, they are reflected in the final cost estimate, which are 26 included in AES’s records as kept in the ordinary course of business, which it already produced. 1 (See Dkt. No. 275 at 2–7.) To the extent cost estimates vary across productions, AES has no 2 obligation to reconcile the two, at least for purposes of Rule 34. It is Lufthansa’s burden to 3 establish with the European courts which cost is more representative in determining damages. 4 This Court need not assist Lufthansa in making this determination. 5 3. AES’s Meeting Protocol Production is Adequate 6 In moving to enforce, Lufthansa suspected that AES’s meeting protocol privilege log was 7 overbroad. (See Dkt. No. 265 at 4–5.) It asked that the Court perform an in camera review. (See 8 id. at 12.) In response, the Court reviewed a sample of AES’s log (including the underlying 9 documents) and found that the vast majority comported with attorney-client and work-product 10 protections. (See Dkt. Nos. 293 at 1–2, 295 at 1–2.) And to the extent the Court did find 11 deviations, it ordered AES to produce those documents, along with others that similarly lacked 12 protection(s), as well as a revised privilege log. (Id.) However, the Court declined to engage in 13 an in camera review of all documents withheld, given the largely compliant nature of AES’s log.
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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 CORP. as Intervenor. 14
15 Petitioner Lufthansa Technik AG’s (“Lufthansa”) recently moved to enforce (Dkt. No. 16 265) portions of prior orders compelling discovery from Intervenor Astronics Advanced 17 Electronic Systems Corp. (“AES”) and to seal (Dkt. No. 264).1 Following in camera review and 18 supplemental briefing, (see Dkt. Nos. 287, 293, 295, 300), the Court GRANTS in part and 19 DENIES in part Lufthansa’s motion to enforce (Dkt. No. 265) and GRANTS its motion to seal 20 (Dkt. No. 264) for the reasons explained herein.2 21 In response to Lufthansa’s discovery petition in support of foreign litigation (and 22
23 1 AES also moves to strike portions of Lufthansa’s reply brief in support of its motion to enforce. (See Dkt. No. 286.) As the Court did not rely on any of the information subject to AES’s motion 24 in reaching the ruling below, the motion to strike (Dkt. No. 286) is DENIED as moot. 25 2 The Court finds oral argument unnecessary in reaching a ruling on each motion. Further, given the lengthy motion practice which has already transpired between these parties, the Court 26 dispatches with a recitation of background facts. 1 resulting subpoena), the Court previously ordered AES to, among other things, provide 2 Lufthansa with an updated master parts list (“MPL”) and engage in a comprehensive ESI search 3 for meeting protocol documentation. (See Dkt. Nos. 224 at 2–3, 254 at 1–2.) In now moving to 4 enforce these orders (and for sanctions), Lufthansa asserts (1) the MPL remains deficient, (2) 5 cost information which AES previously provided for certain part sales is incorrect, and (3) AES 6 inappropriately withheld from production certain meeting protocol documentation. (See Dkt. 7 Nos. 265 at 6–14, 297 at 2–9.) Based on these deficiencies, Lufthansa asks the Court to compel 8 further production from AES and to award Lufthansa attorney fees in bringing this motion. (Id. 9 at 9–14.) Separately, Lufthansa moves to seal its motion to enforce. (Dkt. No. 264.) 10 1. AES Must Produce Technical Documents but MPL Revisions are not Required 11 Lufthansa contends that the current version of the MPL is deficient because it (a) 12 excludes certain DC parts capable of use in EmPower system(s) (which are potentially 13 infringing), (b) lacks an accurate description of the systems for which certain parts were used, 14 and (c) fails to provide necessary technical information about certain parts. (Dkt. No. 265 at 5–7, 15 12–13.) The first two critiques are not well taken. The final one is. 16 According to the discovery rules, the producing party must produce documents “as they 17 are kept in the normal course of business” or “organize and label them to correspond to the 18 categories in the request [for production].” Fed. R. Civ. P. 34(b)(2)(E). The requirement to 19 organize and label documents is not without limits, though. See MGA Ent., Inc. v. Natl. Prods. 20 Ltd., 2012 WL 12884021, slip op. at 4 (C.D. Cal. 2012) (describing a party’s obligation to 21 organize records when the “system used by the producing party [in the ordinary course of 22 business] ‘is so deficient as to undermine the usefulness of production’”) (quoting Pass & 23 Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 n.2 (N.D.N.Y. 2008); see also F.T.C. v. 24 Johnson, 2012 WL 2138108, slip op. at 2 (D. Nev. 2012) (describing Rule 34’s limitations in 25 mandating the organization and labeling of documents collected solely for production purposes). 26 Because AES did not maintain a comprehensive parts list in the manner Lufthansa 1 sought, AES compiled the MPL. It then repeatedly revised the MPL, based on Lufthansa’s 2 requests and the Court’s orders. (See, e.g., Dkt. Nos. 152 at 3, 163 at 2, 224 at 2.) This has 3 resulted in significant work for AES. (See, e.g., Dkt. Nos. 162 at 2–4, 183 at 4, 197 at 2–3, 218 at 4 4–5, 223 at 1–6.) Commanding AES to perform additional work, given the efforts already taken 5 to gather information in a form not ordinarily kept, strains the boundaries of what the rules 6 require, particularly given the fact that Lufthansa is, largely, speculating that additional 7 supplementation is required. 8 This does not apply to the technical information Lufthansa seeks. AES does not suggest, 9 for instance, that this information is not available in its native (or ESI) format within AES’s 10 records. (See Dkt. No. 277 at 9.) Therefore, it would seem that the burden of production is low. 11 Instead, AES suggests the information is of little value to Lufthansa because it would not (on its 12 own) be sufficient to determine a part’s AC versus DC compatibility (which is at the heart of the 13 parties’ discovery dispute). (Id.) Fundamentally, it is AES’s responsibility to produce records— 14 not explain them. The compatibility determination is for Lufthansa to make. Therefore, absent 15 applicable attorney-client or work product protections, AES must produce whatever technical 16 documents Lufthansa seeks, so long as they are available to AES and have not otherwise been 17 produced in this or the European proceedings. 18 2. AES Need Not Reconcile Cost Information Between Productions 19 Lufthansa next contends that the cost information for AES’s sales has varied by 20 production. In other words, cost information for the same part sale was higher in an earlier 21 production than in a later production. (Dkt. No. 265 at 7–8, 13–14.) Therefore, the earlier 22 production must be incorrect, says Lufthansa, and the Court should compel the production of 23 corrected cost information. (Id.) The Court disagrees. As AES explains, it does not track actual 24 costs for individual parts. Rather, it approximates those costs. (See Dkt. No. 277 at 10.) To the 25 extent those approximations have changed, they are reflected in the final cost estimate, which are 26 included in AES’s records as kept in the ordinary course of business, which it already produced. 1 (See Dkt. No. 275 at 2–7.) To the extent cost estimates vary across productions, AES has no 2 obligation to reconcile the two, at least for purposes of Rule 34. It is Lufthansa’s burden to 3 establish with the European courts which cost is more representative in determining damages. 4 This Court need not assist Lufthansa in making this determination. 5 3. AES’s Meeting Protocol Production is Adequate 6 In moving to enforce, Lufthansa suspected that AES’s meeting protocol privilege log was 7 overbroad. (See Dkt. No. 265 at 4–5.) It asked that the Court perform an in camera review. (See 8 id. at 12.) In response, the Court reviewed a sample of AES’s log (including the underlying 9 documents) and found that the vast majority comported with attorney-client and work-product 10 protections. (See Dkt. Nos. 293 at 1–2, 295 at 1–2.) And to the extent the Court did find 11 deviations, it ordered AES to produce those documents, along with others that similarly lacked 12 protection(s), as well as a revised privilege log. (Id.) However, the Court declined to engage in 13 an in camera review of all documents withheld, given the largely compliant nature of AES’s log. 14 (Id.) The Court then afforded Lufthansa an opportunity to revise its motion to enforce based on 15 AES’s additional production and amended privilege log. (See Dkt. No. 295 at 2.) 16 Lufthansa now asks the Court to compel production of additional meeting protocol- 17 related documents. (See Dkt. No. 297.) Lufthansa speculates that, based on the descriptions in 18 the revised privilege log, certain documents could not possibly be subject to attorney-client or 19 work-product protections. (Id. at 4–5.) But as AES explains, and the Court agrees, AES already 20 produced non-privileged versions of some of those documents and mere speculation that the 21 remainder are not protected is insufficient to trigger another round of production or further in 22 camera review. (See Dkt. No. 301 at 2–5.) 23 4. Attorney Fees and/or Other Sanctions are Unwarranted 24 Lufthansa seeks attorney fees and/or sanctions in moving to enforce. (See Dkt. No. 265 at 25 14.) Such an award requires a showing, through clear and convincing evidence, that AES 26 violated the Court’s specific and definite order. F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 1 (9th Cir. 1999). Because the Court finds that Lufthansa’s present request to enforce is largely 2 without merit (and there is no existing order requiring production of the technical documents 3 discussed above), there is no basis for the sanctions Lufthansa now seeks. 4 5. Motion to Seal 5 Finally, Lufthansa moves to maintain under seal unredacted versions of its motion to 6 enforce and certain supporting declarations and exhibits. (See Dkt. No. 264.) AES does not 7 oppose. “[T]here is a strong presumption of public access to [the Court’s] files.” W.D. Wash. 8 Local Civ. R. 5(g)(3). To overcome it, in general, a party must show “good cause” for sealing a 9 document attached to a non-dispositive motion and “compelling reasons” to seal a document 10 attached to a dispositive motion. See Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 11 1178–81 (9th Cir. 2006). The redacted portions of Lufthansa’s motion to enforce, along with 12 supporting declarations and exhibits, contain information designated for “attorney’s eyes only.” 13 They contain proprietary information falling within the scope of the protective orders entered in 14 this case. Thus, there exists a compelling reason to seal the unredacted versions of its motion to 15 enforce and certain supporting declarations and exhibits and that reason overcomes the 16 presumption of public access. 17 For the reasons described above, Lufthansa’s motion to enforce (Dkt. No. 265) is 18 GRANTED in part and DENIED in part, and its motion to seal (Dkt. No. 264) is GRANTED. 19 AES is ORDERED to produce the technical information Lufthansa seeks, subject to attorney- 20 client privilege and work-product protections, in the form which AES normally keeps such 21 information (or in a readily searchable ESI format). The Clerk is DIRECTED to maintain Docket 22 Numbers 265–67 under seal. 23 // 24 // 25 // 26 // 1 DATED this 28th day of October 2024. A 2 3 4 John C. Coughenour 5 UNITED STATES DISTRICT JUDGE
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