Aramburu v. Boeing Co.

• Decision Date: 14 March 1995
• Docket Number: No. 93-4064-SAC.,93-4064-SAC.
• Citation: 885 F. Supp. 1434
• Parties: Santiago ARAMBURU, Plaintiff, v. The BOEING COMPANY d/b/a Boeing Commercial Airplane Group, Wichita Division Boeing Corporation, and Larry Whitesell, Defendants.
• Court: U.S. District Court — District of Kansas

885 F. Supp. 1434

Santiago ARAMBURU, Plaintiff, v. The BOEING COMPANY d/b/a Boeing Commercial Airplane Group, Wichita Division Boeing Corporation, and Larry Whitesell, Defendants.

No. 93-4064-SAC.

United States District Court, D. Kansas.

March 14, 1995.

Harold S. Youngentob, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for plaintiff.

Gloria G. Flentje, J. Steven Massoni, Foulston & Siefkin, Wichita, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

On March 22, 1993, the plaintiff, Santiago Aramburu, commenced this action against his former employer, The Boeing Company (Boeing). Aramburu's amended complaint seeks to recover damages and secure equitable relief to redress the deprivation of rights secured by the Civil Rights Act of 1991, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, Title I of the American with Disabilities Act of 1990 (ADA), and the Kansas Act Against Discrimination. The plaintiff claims that the defendants have discriminated against him on the basis of his Mexican American ancestry, as well as his work-related disability of carpal tunnel syndrome. Aramburu claims to have suffered discrimination at the hands of Larry Whitesell, his supervisor. The plaintiff's discrimination claims are based upon both disparate treatment and disparate impact theories. Boeing denies the plaintiff's allegations, arguing that the plaintiff was terminated based upon his failure to maintain acceptable attendance.

On December 28, 1993, this court entered a memorandum and order dismissing the plaintiff's ADA claim and his protected speech claims under the First and Fourteenth Amendments of the United States Constitution. See Aramburu v. The Boeing Co., No. 93-4064-SAC, 1993 WL 544567, 1993 U.S.Dist. LEXIS 18620 (D.Kan. Dec. 29, 1993).

On September 22, 1994, the magistrate judge entered two separate memorandum and orders. See (Dk. 87 and 88). Each order addressed certain issues presented by Aramburu's motion to compel discovery (Dk. 39). While certain portions of the plaintiff's requests for discovery were denied, in large part, those orders were generally favorable to the plaintiff. The plaintiff did not seek review of those orders.

On October 6, 1994, pursuant to Fed. R.Civ.P. 72(a) and D.Kan.Rule 604, Boeing filed objections to the September 22, 1994, memorandum and orders entered by the magistrate judge. Boeing advances these objections to those orders: (1) The magistrate judge committed error by failing to recognize the self-critical analysis privilege; and (2) The magistrate judge committed error by allowing voluminous discovery of irrelevant material. Specifically, Boeing contends that permitting "Plaintiff's counsel to fish through approximately 1,700 personnel files for some evidence to support his client's discrimination claims is unwarranted, and will make this lawsuit wholly unwieldy."¹

Aramburu responds, arguing that the magistrate judge's decisions were correctly decided. Aramburu contends that "the defendants have simply not negotiated in good faith to resolve discovery disputes." The plaintiff contends that in light of the defendants' attempts to "stonewall" the discovery process, and in the absence of convincing evidence to support the defendants' arguments against discovery, the magistrate judge's rulings correctly reflect the broad scope of discovery permitted by the Federal Rules of Civil Procedure.

Standard of Review

As to nondispositive pretrial matters, the district court reviews the magistrate judge's order under a clearly erroneous or contrary to the law standard. 28 U.S.C. § 636(b)(1)(A); Continental Bank, N.A. v. Caton, 136 F.R.D. 691, 693 (D.Kan.1991).

Discovery Under the Federal Rules of Civil Procedure

Fed.R.Civ.P. 26(b) provides in pertinent part:

Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(2) Limitations.... The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).

The "Notes of Advisory Committee Rules" concerning the 1946 Amendment to 26(b) state:

The amendments to subdivision (b) make clear the broad scope of examination and that it may cover not only evidence for use at trial but also inquiry into matters themselves inadmissible as evidence but which will lead to the discovery of such evidence. The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case.

In Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), the Supreme Court stated:

The key phrase in this definition — "relevant to the subject matter involved in the pending action" — has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451 (1947). Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Id., at 500-501, 67 S.Ct. at 388-389, 91 L.Ed. 451. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits. (footnote omitted).

Id. at 351, 98 S.Ct. at 2389.

The Tenth Circuit has held that "the trial court has broad discretion as to the control of discovery, ... and rulings will not set aside short of an abuse of discretion." Marsee v. U.S. Tobacco Co., 866 F.2d 319, 326 (10th Cir.1989) (quoting Shaklee Corp. v. Gunnell, 748 F.2d 548, 550 (10th Cir.1984) (citations omitted)). "In particular, rulings on relevancy of material sought for discovery are within the trial court's discretion." Marsee, 866 F.2d at 326.

The party opposing the discovery has the burden of proving its lack of relevance. Koch v. Koch Industries, Inc., No. 85-1636-C, 1992 WL 223816, 1992 U.S.Dist. LEXIS 14094 (D.Kan. Aug. 24, 1992) (citing Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C. 1978)).

Self-Critical Analysis Privilege

Boeing contends that the magistrate judge committed error by failing to recognize the self-critical analysis privilege. Boeing contends that forcing it to disclose portions of its affirmative action plans and related documents reflecting its subjective analysis of its own performance in meeting its objectively established affirmative action goals will have a chilling effect on all employers' full compliance with equal employment opportunity laws. Boeing contends that Magistrate Judge Rushfelt's opinion in Hoffman v. United Telecommunications, 117 F.R.D. 440, 442 (D.Kan.1987) (Magistrate Judge Rushfelt upholds employer's invocation of the self-critical analysis privilege), correctly states the law of the District of Kansas. Boeing contends that, contrary to the magistrate judge's analysis, the self-critical analysis privilege is well recognized among the lower courts and that this court should recognize the privilege for sound policy reasons.

Aramburu responds, arguing that the magistrate judge correctly refused to recognize the privilege of self-critical analysis. Aramburu contends that the magistrate judge's memorandum and order correctly states the law and should be affirmed for the reasons articulated in that opinion.

Under Fed.R.Civ.P. 26(b)(1), parties may obtain discovery regarding any matter which is not privileged that is relevant to the action or appears reasonably calculated to lead to the discovery of admissible evidence. The Federal Rules of Evidence acknowledge the authority of the federal courts to continue the evolutionary development of new privileges "in light of reason and experience." Fed.R.Evid. 501;²Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 911, 63 L.Ed.2d 186 (1980).

The Supreme Court has recognized that the existence of privileges "contravene the fundamental principle that `the public ... has a right to every man's evidence.'" Trammel, 445 U.S. at 50, 100 S.Ct. at 912 (quoting United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950)). As such, privileges are "not lightly created nor expansively construed, for they are in derogation of the search for the truth." United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974); see Univ....