ROSALYN M. CHAPMAN, United States Magistrate Judge.
PROCEEDINGS: (1) PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF THE UNEDITED RECORDING FROM THE COCKPIT VOICE RECORDER; AND (2) PLAINTIFFS' MOTION TO COMPEL SOUTHWEST AIRLINES CO. TO COMPLY WITH THE COURT'S JANUARY 9, 2002 DISCOVERY ORDER
On May 10, 2002, plaintiffs filed a notice of motion and motion to compel production of the unedited recording from the cockpit voice recorder from Southwest Airlines Flight 1455's overrun of the runway at Burbank Airport on March 5, 2000 ("Burbank crash"), with joint stipulation and exhibits. On May 29, 2002, plaintiffs filed a supplemental memorandum, with the supporting declaration of J. Clark Aristei and exhibits and a supporting appendix of law, and on the same date, defendant filed a supplemental memorandum in opposition to plaintiffs' motion. On June 3, 2002, defendant filed evidentiary objections to the supplemental declaration of Mr. Aristei and exhibits 1 through 5.
The Court notes that most of defendant's objections to Mr. Aristei's supplemental declaration are meritorious, and that Mr. Aristei seems to not understand that a declaration should not be argument. The Court, thus, grants defendant's objections to the following portions of Mr. Aristei's declaration: paragraph 2, on the grounds it lacks foundation and the declarant lacks personal knowledge; paragraph 3, on the grounds it lacks foundation, the declarant lacks personal knowledge, and the statements are argumentative; paragraph 5, lines 18-23, on the ground it is argumentative; paragraph 6, lines 24-27, on the ground it is argumentative; paragraph 6, lines 27-28, on the ground it lacks foundation; paragraph 7, on the ground it lacks foundation; paragraph 11, lines 3-5, on the ground it is hearsay; paragraph 11, lines 5-9, on the ground it lacks foundation; paragraph 11, lines 9-11, on the ground it is argumentative; and exhibits 3 and 4, on the ground the declarant cannot provide competent foundation for these exhibits; however, the Court denies defendant's objections to the following portions of Mr. Aristei's declaration: paragraph 4, lines 16-17, and exhibit 2, which is merely a legal summary.
On May 29, 2002, plaintiffs filed a notice of motion and motion to compel defendant to comply with the Court's January 9, 2002 discovery order, with joint stipulation, the supporting declaration of Mr. Aristei and a supporting index with numerous exhibits, the opposing declaration of Christopher M. Young, and defendant's appendix with several exhibits. On June 5, 2002, plaintiffs filed a supplemental memorandum, with the supporting declaration of Delores A. Yarnall and exhibits. On June 14, 2002, defendant filed evidentiary objections to evidence in coordinated plaintiffs' motion to compel defendant to comply with the Court's January 9, 2002 discovery order.
Unfortunately, due to the tardiness of this document, the Court did not consider it.
Oral argument was held before Magistrate Judge Rosalyn M. Chapman on June 19, 2002. Plaintiffs were represented by J. Clark Aristei, Delores A. Yarnall and Ronald L.M. Goldman, attorneys-at-law, and defendant was represented by Christopher M. Young and Arthur I. Willner, attorneys-at-law.
DISCUSSION I
The cockpit voice recorder ("CVR") from an airplane is discoverable under 49 U.S.C. § 1154 (a), provided certain conditions are met that ensure it will not be publicly disseminated in an inappropriate manner. Specifically, Section 1154 provides, in pertinent part:
Plaintiffs' motion pertains solely to the discoverability of the tape from the CVR; it does not pertain to the admissibility into evidence at trial of the CVR tape — despite plaintiffs' myriad, improper references to the use of the disputed tape at trial. That issue is left solely to the discretion of the trial judge in this matter, District Judge Ronald S.W. Lew.
(1) Except as provided by this subsection, a party in a judicial proceeding may not use discovery to obtain —
(A) any part of a cockpit or surface recorder transcript that the National Transportation Safety Board has not made available to the public under section 1114(c)
or 1114(d)
of this title; and
(B) a cockpit or surface vehicle recorder recording.
* * *
(3) Except as provided in paragraph (4)(A) of this subsection,
a court may allow discovery by a party of a cockpit or surface vehicle recorder recording if, after an in camera review of the recording, the court decides that —
(A) the parts of the transcript made available to the public under section 1114(c) or 1114(d) of this title and to the party through discovery under paragraph (2) of this subsection
do not provide the party with sufficient information for the party to receive a fair trial; and
(B) discovery of the cockpit or surface vehicle recorder recording is necessary to provide the party with sufficient information for the party to receive a fair trial.
49 U.S.C. § 1154 (a) (footnotes added).
One of the major purposes behind the enactment of Section 1154 was to safeguard or protect the National Traffic Safety Board ("NTSB") against premature public speculation regarding the cause of any airline crash so it may "conduct a full and fair investigation." See Senate Report No. 101-450, 1990 U.S.C.C.A.N. 6376, 6381. Since the NTSB has already concluded its investigation and issued its report regarding the probable cause of the Burbank crash, this purpose is not adversely affected by plaintiffs' discovery of the CVR tape.
Further, plaintiffs persuasively argue that the tape is needed for a fair trial since the transcript of the CVR tape of the Burbank crash is insufficient to allow them to prosecute their claims, or to meet their heightened burden regarding punitive damages. See Cal. Civ. Code § 3294(a) ("In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant."); Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1104 (9th Cir. 1992) ("In California, exemplary or punitive damages are available `where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.'" (citation omitted)), cert. denied, 506 U.S. 1080 (1993). First, plaintiffs argue that since the transcript of the CVR tape was reached by the group consensus of several persons listening to the tape at the behest of the NTSB, that consensus might not be accurate; rather, an expert may determine that a word on the tape is different than the word agreed upon by the persons reviewing the tape. Second, plaintiffs note that the tape in incomplete, missing approximately 51 words and deleting approximately 11 words viewed as "expletives." Even more importantly, the tape fails to reflect changes in voice tone, tempo, volume and inflection, all of which are important. Finally, plaintiffs argue that the tape does not accurately reflect the noises heard in the cockpit during the recording, and such noises can help an expert recreate exactly what happened in the cockpit.
Defendant opposes plaintiffs' motion, arguing that the tape is accurate enough for plaintiffs to have a fair trial since, among other things, the pilots, controllers and others who gave statements to the NTSB may be deposed.
The Court, having reviewed all papers and having listened to the CVR tape (all tracks), hereby grants plaintiffs' motion. The Court specifically finds that the tape is one of the few neutral pieces of evidence available to plaintiffs to support their claims, and, as such, it is clearly relevant under Rule 26(b). See In re Air Crash Disaster at John F. Kennedy Int'l Airport on June 24, 1975, 687 P.2d 626, 630 (2d Cir. 1982) ("The CVR tape is an important piece of evidence in an aircrash case."). Moreover, the transcript of the tape is insufficient since, as plaintiffs note, it is not complete and it does not reflect noises that might be meaningful to plaintiffs' experts. In re Air Crash in the Florida Everglades on May 11, 1996, MDL 1131, CV 96-1542-CIV-DAVIS (order filed May 28, 1999); In re Aircrash Near Roselawn, Indiana on October 31, 1994, MDL 1070, 95 C 4593 (N.D. Ill.) (Order filed December 4, 1996). Additionally, the tape may be used to impeach the pilots or controllers, whose recollection of the events may be self-serving. See, e.g., Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 394, 91 L.Ed. 451 (1947) (Non-privileged information in attorney's files is discoverable because "[s]uch written statements and documents . . . might be useful for purposes of impeachment or corroboration."); Advisory Committee Note to the 2000 amendment to Fed.R.Civ.P. 26(b)(1) ("[I]nformation that could be used to impeach a likely witness . . . might be properly discoverable" under revised federal rules). Finally, a protective order will prevent the dissemination of the CVR tape in a manner contrary to Congress' intent in enacting 49 U.S.C. § 1154. If the existing protective order is not sufficient to prevent the tape from being used for sensational or unwarranted purposes, the parties can enter into a more detailed protective order, as has been done in other aircrash cases. See, e.g., In re: Air Crash at Agana, Guam on August 6, 1997, MDL 1237, ML 7211 (C.D. Cal.) (Order Filed February 12, 1999).
This Court ordered defendant Southwest to provide it with a copy of the CVR tape no later than June 14, 2002, at 4:00 p.m. Unfortunately, on June 14, 2002, defendant provided the Court with a CVR tape that was not intelligible, and the Court did not receive an intelligible copy of the tape until June 17, 2002. At the oral argument, the Court afforded defendant until June 26, 2002, to provide declarations regarding why the CVR tape submitted to the Court on June 14, 2002, was not intelligible, and why that was not defendant's fault.
The cases relied on by defendant to oppose the plaintiffs' motion are inapposite. Those cases pertain to requests under the Freedom of Information Act ("FOIA") by newspapers or other media for access to CVR tapes for public dissemination and discussion. For instance, in New York Times Co. v. Nat'l Aeronautics Space Admin., 782 F. Supp. 628 (D.C. D.C. 1991), a New York Times reporter sought access to all voice communication tapes regarding the explosion of the Space Shuttle Challenger, arguing that the tapes were significant because "voice inflections and background noises . . . might reveal something as to whether the astronauts knew about the disaster and their impending deaths," and, therefore, public production of such tapes would contribute significantly to the public's understanding of NASA operations. Id. at 633 (emphasis in original). The district court disagreed, stating the public had already been provided with accurate transcripts of "every word that was spoken in the cabin" and the families of the deceased astronauts had a privacy interest in the tape that clearly outweighs any speculative public interest put forth by the reporter. Id. Here, plaintiffs are not seeking production of the CVR tape under the FOIA, and are not seeking to make the tape publicly available. Rather, plaintiffs will use the CVR tape for the limited purpose of prosecuting their action, and its dissemination is restricted by the protective order.
II
Preliminarily, this Court notes that, in its January 9, 2002 Order, it implicitly overruled defendant's objections to those requests for production of documents for which the motion to compel was granted. However, as to those requests for production of documents to which defendant stated it had no responsive documents, the Court did not reach the merits of defendant's objections. Nevertheless, since those objections were similar to, if not identical to, the objections the Court specifically overruled in granting plaintiffs' motion, it should be clear to defendant that the Court found its objections generally to have no merit. Accordingly, defendant would be wise not to stand by those objections in refusing to produce documents to plaintiffs. Additionally, the Court did not limit discovery to pre-accident documents, as discussed below.
The Court hereby rules as follows on plaintiffs' motion:
1. Documents concerning the pilots' termination or grievance proceedings:
Plaintiffs argue that Set One, Request nos. 1 and 2, require defendant to produce all documents pertaining to the termination or grievance proceedings regarding the pilots on Flight 1455. That is not so, as defendant aptly notes. Rather, these requests pertain solely to the "[m]inutes and proceedings" of any termination or disciplinary hearing or grievance. Certainly, if plaintiffs had wanted documents other than the "minutes and proceedings" they could have asked for all documents pertaining to the pilots' disciplinary or grievance proceedings; however, they did not. Thus, plaintiffs' motion is denied as to these requests.
2. Autobrake documents:
The Court, in its January 9, 2002 Order, accepted defendant's representation that it has no documents responsive to Set One, Request nos. 7-15, and Set Two, Request nos. 18-19, and ordered defendant to verify that fact under Rule 26(g). Plaintiffs now argue that defendant's verification was false since defendant has the following documents, which it has never produced to plaintiffs: (a) manuals from the Boeing Company that were used for training; (b) 13 pages of documents provided to plaintiffs at the deposition of Captain Dulmage, who testified that no one acting on behalf of defendant had ever asked him to review his files to determine whether he had any documents pertaining to autobrakes; (c) various tests of the autobrake system by Captain Greg Crum and others; and (d) a report drafted by Captain Mike Early, who evaluated and analyzed the autobrake system.
As an initial matter, defendant is advised that it has an obligation to conduct a reasonable inquiry into the factual basis of its discovery responses or supplemental responses. Fed.R.Civ.P. 26(g)(1); National Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 554-56 (N.D. Cal. 1987). In the context of a corporation, this may mean that a memorandum should be sent to all corporate employees requesting information regarding the existence and location of documents pertaining to particular topics relevant to the litigation. See Id. at 556 (reasonable inquiry into factual basis for responses to requests for production of documents requires, "at a minimum, a reasonable procedure to distribute discovery requests to all employees and agents of the defendant potentially possessing responsive information, and to account for the collection and subsequent production of the information to plaintiffs"). If defendant has not done that, it has been derelict in its discovery responsibilities. If it has, but did not receive a response from the employees cited by plaintiffs, that is a different matter.
Regarding autobrake documents, it is clear that the documents cited by plaintiffs should have been produced to them in response to Set One, Request nos. 7, 8 and 13, and Set Two, Request no. 19. Clearly, the documents discussed by Capt. Dulmage and the report by Capt. Early come within these requests. Since Capt. Early's report was not timely produced to plaintiffs, defendant cannot now redact portions of that report on the ground of attorney-client privilege. In any event, the defendant's claims of attorney-client privilege are without merit. "The attorney-client privilege applies to communications between corporate employees and counsel, made at the direction of corporate supervisors in order to secure legal advice." United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996), cert. denied, 520 U.S. 1167 (1997). Here, since the report is neither to nor from an attorney, the defendant has not met its burden of establishing the applicability of the attorney-client privilege. Fisher, 425 U.S. at 403, 96 S.Ct. at 1577. Rather, the defendant merely argues, without providing any evidentiary support, that Capt. Early's "memorandum incorporates information given to a Southwestern employee by Southwest's general counsel." Joint Stip. at 21:11-19. This is manifestly insufficient to meet defendant's burden of demonstrating the applicability of the attorney-client privilege. Hollins, 773 F.2d at 196; Harrelson, 754 F.2d at 1167. Moreover, defendant's initial failure to produce a privilege log when responding to plaintiffs' document requests also waives any privilege. Fed.R.Civ.P. 26(b)(5); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981). Thus, plaintiffs' motion is granted as to these requests.
Because the attorney-client privilege is in derogation of the search for truth, it is "narrowly and strictly construed." United States v. Gray, 876 F.2d 1411, 1415 (9th Cir. 1989), cert. denied, 495 U.S. 930 (1990); Weil v. Investment/Indicators Research Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981); see also Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976) (holding since the attorney-client privilege "has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose"). The burden of establishing that the attorney-client privilege applies rests with the party asserting the privilege. United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995), cert. denied, 519 U.S. 911 (1996); Clarke, 974 F.2d at 129. Moreover, an assertion of privilege without evidence to support it will not prevail. Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985), cert. denied, 475 U.S. 1119 (1986); United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir.), cert. denied, 474 U.S. 908 (1985) and 474 U.S. 1034 (1985); see also Saxholm AS v. Dynal, Inc., 164 F.R.D. 331, 333 (E.D. N.Y. 1996) (Meeting the burden of establishing the applicability of the attorney-client privilege "requires the submission of affidavits or other competent evidence to establish sufficient facts to prove the applicability of the privilege. Conclusory or ipse dixit assertions are not enough." (citations omitted)).
3. Tables of contents and/or appropriate sections of all manuals:
This Court, in its January 9, 2002 Order, required defendant to provide plaintiffs with those portions of manuals pertaining to the approach and landing of the Boeing 737 aircraft and the tables of contents to those manuals, so plaintiffs could determine whether any other portions of the manuals might be relevant to this litigation. See Set Two, Request no. 2 (requesting "[a]ll updates and revisions to the Flight Operations Manual for the Boeing 737 from 1990 through and including the present"). Plaintiffs now contend that defendant has a manual entitled "B[oeing]-737 Operations Manual," which defendant provided to the NTSB more than two years ago, but which defendant has not produced to plaintiffs. Defendant does not deny that the manual at issue exists, but contends that it is one of several "generic" manuals used "as source manuals only to develop the Southwest-specific flight reference manuals and flight operations manuals, as well as training materials." Joint Stip. at 24:20-23. Apparently, this is the reason defendant did not produce the document to plaintiff.
The Court finds that defendant's failure to provide to plaintiffs the approach and landing portions of the manual, as well as the table of contents of this manual, and any other "generic" manuals used to develop defendant's specific manuals, shows lack of compliance with the Court's Order of January 9, 2002, regarding Set Two, Request no. 2. That request was not limited to defendant's manuals, but pertained to all manuals in defendant's possession, custody or control. Fed.R.Civ.P. 34(a). Defendant's failure to produce the disputed document to plaintiffs is sanctionable misconduct. Accordingly, plaintiffs' motion is granted.
4. Documents concerning pilot training on approach, landing and emergency procedures:
This Court, in its January 9, 2002 Order, granted plaintiffs' motion to compel Set Two, Request no. 8, and ordered defendant to provide plaintiff with all documents regarding training of pilots on Boeing 737, including videotapes. Plaintiffs now argue that defendant has a videotape of the Burbank crash, and has used that videotape at least once for training purposes; however, defendant has not produced the videotape to plaintiffs. At oral argument, plaintiffs also brought to the Court's attention that defendant has used an "approach chart" of the Burbank crash to train its pilots since that accident, and that this document has not been produced to them. Defendant argues that the Court, from the bench on January 9, 2002, limited its Order to training materials prior to the Burbank crash. Further, defendant argues this is not a "training" videotape but a "surveillance" videotape. Defendant's argument misses the mark. The initial purpose of the videotape is irrelevant; if defendant has used the videotape or "approach chart" for training purposes, it has become a "training" document. Accordingly, plaintiffs' motion is granted.
Unfortunately, the Court has no recollection of this limitation, and if such comments were made, they undoubtedly addressed non-Burbank crash materials used for training since the Burbank crash.
5. Documents concerning SWA's "quick turn around" or "on time performance" policy:
This Court, in its January 9, 2002 Order, accepted defendant's representation that it had no documents responsive to Set Two, Request nos. 13 and 14, pertaining to defendant's "quick turn around" policy or "on time" policy, and ordered defendant to verify its response under Rule 26(g). Plaintiffs now contend that there are documents pertaining to such "policies" that have been produced in another case; however, plaintiffs do not clearly specify what these documents are, although they cite Exhibit 8 to Mr. Aristei's declaration. In response, defendant argues that it has no "policy" as described by plaintiffs, and that any language regarding "on time" is merely an advertising or industry slogan.
It is difficult to resolve this matter without the Court knowing whether plaintiffs provided definitions of the terminology used in Set Two, Requests for Production of Documents. Further, assuming defendant does not have such "policies," defendant could properly verify under Rule 26(g) that it has no documents responsive to this request. Thus, plaintiffs' motion is denied without prejudice as to these requests.
Surely, plaintiffs can figure out a way to obtain this information without referring to policies which defendant denies exist.
III
The Court is extremely disappointed that the parties are not conducting discovery in a more amicable manner. This Court has now ruled on four detailed discovery motions, and has three additional discovery motions pending on its calendar for next week. Additionally, plaintiffs have attempted to place on calendar, on shortened notice, yet a fourth new discovery motion. When one of the discovery motions pertains to a party's failure to comply with a prior discovery Order, the Court is particularly aggrieved. Such conduct cannot continue.
Discovery orders may be enforced against a party under Federal Rule of Civil Procedure 37(b)(2), which provides, in pertinent part, that the Court may make:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. . . .
Fed.R.Civ.P. 37(b)(2). Sanctions under subsections (A) through (C) of Rule 37(b)(2) are available when "there has been `flagrant, bad faith disregard of discovery duties.'" Porter v. Martinez, 941 F.2d 732, 733 (9th Cir. 1991) (quoting Wanderer v. Johnston, 910 F.2d 652, 655-56 (9th Cir. 1990)); Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815 (1996); Wyle v. R.J. Reynolds Ind., Inc., 709 F.2d 585, 589 (9th Cir. 1983). "`[D]isobedient conduct not shown to be outside the control of the litigant' is all that is required to demonstrate willfulness, bad faith, or fault." Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993) (citation omitted). Subsection (D) of Rule 37(b)(2) provides for contempt instead of, or in addition to, other sanctions.
"To distinguish civil from criminal contempt, the focus of the inquiry is often `not [upon] the fact of the punishment but rather its character and purpose.'" Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983) (citations omitted); Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966). "The primary purpose of criminal contempt is to punish past defiance of a court's judicial authority, thereby vindicating the court. . . ." Falstaff, 702 F.2d at 778; Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535.
Civil contempt is characterized by the court's desire to compel "a party's obedience to a specific and definite court order [after the party has] fail[ed] to take all reasonable steps within the party's power to comply." Go-Video, Inc. v. Motion Picture Ass'n of America, 10 F.3d 693, 695 (9th Cir. 1993); Gifford v. Heckler, 761 F.2d 263, 265 (9th Cir. 1984). Civil contempt is also characterized "by the court's desire . . . to compensate the contemnor's adversary for the injuries which result from the noncompliance." Falstaff Brewing Corp., 702 F.2d at 778; Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535.
A party who has failed to comply with an order of the court to produce documents may be found in civil contempt under subsection (D) of Rule 37(b)(2). See e.g., Lamar Fin. Corp. v. Adams, 918 F.2d 564, 567 (5th Cir. 1990); see also Wright, Miller Marcus, Federal Practice Procedure: Civil 2d § 2289 (2d ed. 1994) ("A party may be found in contempt by the court in which the action is pending for failure to obey any discovery order."). Although the contempt need not be willful, and there is no good faith exception to the requirement of obedience to a court order, "`[s]ubstantial compliance' with the court order is a defense to civil contempt, and is not vitiated by `a few technical violations' where every reasonable effort has been made to comply." Go-Video, 10 F.3d at 695 (citations omitted); Balla v. Idaho State Board of Corrections, 869 F.2d 461, 466 (9th Cir. 1989). Here, plaintiffs have shown "by clear and convincing evidence that [defendant] violated a specific and definitive order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply." Federal Trade Comm'n v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (citation omitted); Go-Video, 10 F.3d at 695. Defendant has not met this burden.
Since it appears to this Court that defendant Southwest Airlines has not been substantially justified in the discovery stances it has taken before the Court, and since plaintiffs have failed to move for sanctions against defendant for refusing to produce the CVR tape and for not complying with the January 9, 2002 Order, see Fed.R.Civ.P. 37(a)(4) (A) ("If the motion [to compel disclosure] is granted . . ., the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust."), it falls upon this Court to put all parties on notice that it expects them to comply with all court orders, as well as with both the letter and the spirit of Local Rule 37, and to amicably resolve discovery disputes without burdening the Court.
As an initial warning to defendant, and in the hope it will have a palliative effect, this Court now will award sua sponte monetary sanctions against defendant Southwest for its contumacious conduct by failing to comply with the discovery Order of January 9, 2002. The parties are further warned that the imposition of monetary sanctions is just a first step to ensure compliance with the Court's discovery orders, and that additional steps may be taken in the future under Rule 37(b)(2) if a party again fails to comply with an Order of the Court or its discovery obligations. In addition to awarding sanctions, the Court is amending its General Discovery Order of January 9, 2002, in an attempt to assure that the meet and confer process under Local Rule 37-1 is more successful in resolving discovery disputes than it has been to date.
It also appears to the Court that defendant Southwest's refusal to voluntarily produce the CVR tape, when other defendants have reasonably done so in aircrash cases throughout the country and before this Court, is another example of defendant Southwest's failure to comply with the spirit of Local Rule 37, as well as to substantially justify its discovery stances. However, defendant Southwest is not being sanctioned for this conduct.
ORDER
1. Plaintiffs' motion to compel production of the unedited recording from the cockpit voice recorder is granted, and defendant Southwest shall provide plaintiffs with six (6) copies of that recording no later than July 3, 2002. If the parties believe that the existent protective order(s) is insufficient to comply with 49 U.S.C. § 1154, they should enter into a separate protective order addressing the concerns of that statute, no later than July 3, 2002.
2. Plaintiffs' motion to compel compliance with the discovery Order of January 9, 2002, is granted, in part, and denied, in part, as follows:
a. The motion is granted regarding documents pertaining to autobrakes, Boeing's manuals and the videotape and the "approach chart" of the Burbank crash, and defendant Southwest shall provide plaintiffs with those responsive documents no later than July 3, 2002; and
b. The motion is denied regarding documents pertaining generally to the pilots' discipline and defendant's alleged "on time" and "quick turn around" policies.
3. Defendant Southwest Airlines and its counsel are jointly and severally sanctioned $2,000.00 for each of four instances of noncompliance with the Court's Order of January 9, 2002, and $2,000.00 for not timely providing to the Court the CVR tape, for total sanctions of $10,000.00; however, defendant shall pay $8,000.00 of said sanctions to the Clerk of Court no later than July 3, 2002.
Depending upon the information provided by defendant, as discussed in footnote 8 above, the Court will reconsider the $2,000.00 sanction regarding the CVR tape, and determine whether this portion of the Order should be vacated or a date set by which defendant should pay this amount to the Clerk of Court.
4. The General Discovery Order issued January 9, 2002, is amended, as follows:
(A) The following sentences are added to paragraph 1: The "lead" discovery attorney for each side shall be an attorney designated to represent a party at trial. That attorney shall personally appear at all hearings on discovery motions.
(B) The following sentence is added to paragraph 5: Compliance with Local Rule 37-1 shall require, in all instances, that the conference take place in person, rather than telephonically, between the "lead" discovery attorneys.
5. The discovery motions currently noticed for hearing on June 26, 2002, are taken off calendar and the parties are ordered to again comply with the General Discovery Order, as amended herein. Any resubmission of these motions may be done by the filing of new notices of motion, and incorporation of the already filed joint stipulations, supplemental memoranda, and other documents. The Court will approve a request to shorten notice on the refiled motions to ten (10) days.