Earl v. Boeing Co.

Decision Date27 January 2021
Docket NumberCivil Action No. 4:19-cv-507
Citation515 F.Supp.3d 590
CourtU.S. District Court — Eastern District of Texas
Parties Damonie EARL, et al., Plaintiffs, v. The BOEING COMPANY, et al., Defendants.

Mazzant, District Judge

Pending before the Court is PlaintiffsMotion to Compel Boeing to Produce Information Withheld Based on Annex 13 (Dkt. #203). Having considered the Motion, the relevant pleadings, and the arguments of counsel, the Court finds it should be GRANTED .


This case arises out of allegations made by Plaintiffs that Defendants The Boeing Company ("Boeing") and Southwest Airlines Co. ("Southwest") colluded to cover up fatal defects in Boeing's 737 MAX 8 aircraft and encourage public confidence to fly aboard these aircrafts while aware of the defects (Dkt. #165). Defendants deny these allegations (Dkts. #191–92).

The current dispute concerns discovery to which Plaintiffs allege they are entitled. Plaintiffs assert that, throughout the discovery process, Boeing "has produced documents containing redactions that simply state that the redactions are made pursuant to ‘Annex 13’ " (Dkt. #203, Exhibit A at p. 2). And according to Plaintiffs, with the exception of two documents (see Dkt. #203, Exhibit E at p. 2), "Boeing has never produced a log of documents it has withheld or redacted in its production" under this Annex 13 privilege (Dkt. #203, Exhibit A at p. 2). Boeing does not deny these allegations and instead argues that Annex 13 precludes it from disclosing otherwise discoverable material to Plaintiffs. The Court heard arguments on the matter at an October 19, 2020 discovery hearing and subsequently permitted the parties to brief the issue.

On October 30, 2020, Plaintiffs filed their Motion to Compel Boeing to Produce Information Withheld Based on Annex 13 (Dkt. #203), currently before the Court. On November 9, 2020, Boeing filed its response (Dkt. #225). On November 13, 2020, Plaintiffs filed their reply (Dkt. #231). On November 17, 2020, Boeing filed its sur-reply (Dkt. #234). And on December 8, 2020, the Court held a hearing on the Motion (Dkt. #269).


Together with pretrial procedures, the tools of discovery serve to make trial "less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co. , 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (citing Hickman v. Taylor , 329 U.S. 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ). Discovery conducted in a manner that identifies and narrows the relevant factual considerations is "of the utmost importance" in "our justice system" to "promot[e]...efficiency...and demonstrate[ ] a respect to the sacrifice a call to service imposes on a summoned jury." Weatherford Tech. Holdings, LLC v. Tesco Corp. , No. 2:17-CV-00456-JRG, 2018 WL 4620634, at *3 (E.D. Tex. Apr. 27, 2018). The Federal Rules of Civil Procedure govern discovery, operating to streamline the interparty exchange of information. The Rules are "liberally construed to encourage full and fair disclosure of the facts," Gen. Elec. Co. v. Mitsubishi Heavy Indus., Ltd. , No. 3:10-CV-276-F, 2011 WL 13202145, at *3 (N.D. Tex. Sept. 14, 2011), report and recommendation adopted in part , 2011 WL 13201877 (N.D. Tex. Dec. 21, 2011), and a presumption exists in favor of broad disclosure, Merrill v. Waffle House, Inc. , 227 F.R.D. 467, 473 (N.D. Tex. 2005).

Parties "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1). Nonprivileged material is relevant when the request is reasonably calculated to lead to the discovery of admissible evidence. Id. ; Crosby v. La. Health & Indem. Co. , 647 F.3d 258, 262 (5th Cir. 2011). Per the Court's scheduling order, the parties must produce all "documents containing, information ‘relevant to the claim or defense of any party " as part of their initial disclosure (Dkt. #52 at p. 4). Moreover, the Local Rules provide further guidance, instructing that information is "relevant to any party's claim or defense [if]...it includes information that would not support the disclosing parties’ contentions;...[or]...it is information that deserves to be considered in the preparation, evaluation or trial of a claim or defense." E.D. TEX. LOCAL RULE CV-26(d). It is well established that "control of discovery is committed to the sound discretion of the trial court." Williamson v. U.S. Dep't of Agric. , 815 F.2d 368, 382 (5th Cir. 1987).

On notice to other parties and all affected persons, a discovering party may "move for an order compelling disclosure or discovery." FED. R. CIV. P. 37(a)(1) ; see Crosswhite v. Lexington Ins. Co. , 321 F. App'x 365, 368 (5th Cir. 2009) ("A party may move to compel production of materials that are within the scope of discovery and have been requested but not received."). The moving party bears the burden to show that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence. Exp. Worldwide, Ltd. v. Knight , 241 F.R.D. 259, 263 (W.D. Tex. 2006). Once the moving party establishes that the materials requested fall within the scope of discovery, the burden shifts to the nonmovant to show "how the requested discovery is overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden." Lopez v. Don Herring Ltd. , 327 F.R.D. 567, 580 (N.D. Tex. 2018).

Federal Rule of Civil Procedure 34 governs requests for the production of documents, electronically stored information, and tangible things. This rule requires the nonmovant's responses to request for production to "either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." FED. R. CIV. P. 34(b)(2)(B). "An objection [to the entire request] must state whether any responsive materials are being withheld on the basis of that objection." FED. R. CIV. P. 34(b)(2)(C). If there is an objection only to part of a Rule 34 request, the objection "must specify [which] part and permit inspection of the rest." Id.

After responding to each request with specificity, the attorney must sign their request, response, or objection and certify that it is complete and correct to the best of the attorney's knowledge and that any objection is consistent with the Rules and warranted by existing law or a non-frivolous argument for changing the law. FED. R. CIV. P. 26(g). This rule "simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection." FED. R. CIV. P. 26(g) advisory committee's note to 1983 amendment.

Moreover, even though Rule 26(b)(1) includes only "nonprivileged matter" within the proper scope of discovery, "[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged," the party must "expressly make the claim" and "describe the nature of the documents, communications, or tangible things not produced or disclosed," doing so "in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." FED. R. CIV. P. 26(b)(5)(A). The party asserting a privilege "bears the burden of demonstrating its applicability." In re Santa Fe Intern. Corp. , 272 F.3d 705, 710 (5th Cir. 2001).


The Court's opinion is broken down into three parts. First, the Court addresses the applicability of the Chicago Convention and Annex 13 to the privilege Boeing claims. Next, the Court turns to and examines the relevant statutes and regulations from which Boeing derives its purported privilege. Finally, the Court evaluates various remaining arguments.

I. Domestic Enforceability of Treaty Obligations

Interspersed throughout the arguments of counsel are references to the Chicago Convention and Annex 13. Plaintiffs maintain that these authorities do not affect the Court's analysis (Dkt. #203 at p. 17 n.3; Dkt. #269 at p. 5:7–22). Boeing appears to agree only in part. While also stating that the Chicago Convention and Annex 13 are non-self-executing (Dkt. #269 at pp. 26:19–27:2), Boeing nevertheless offers these documents as justification for the privilege it invokes (Dkt. #225 at p. 17; Dkt. #269 at pp. 30:17–25, 31:8–23). Specifically, Boeing argues that Plaintiffs’ interpretation of the relevant statutes and regulations "would prevent the NTSB from fulfilling the United States's obligations under the [Chicago] Convention" and that, "if the NTSB lacks the authority to prohibit the release of investigative information in connection with international accident investigations," the "United States's ability to meet its treaty obligations" would be threatened (Dkt. #225 at pp. 16–17). But precisely because Annex 13 is non-self-executing, its provisions are not enforceable by law and cannot be considered by the Court.

a. Chicago Convention and Annex 13

Recognizing the existence of a "world lacking in uniform air-traffic rules and providing no adequate political or legal foundation for global flight," fifty-four nations convened in 1944 "to create a framework of international law and politics" for civil aviation. Erwin Seago & Victor E. Furman, Internal Consequences of International Air Regulations , 12 U. CHI. L. REV. 333, 333 (1945). The conference delegates produced the Convention on International Civil Aviation (the "Convention"), which President Truman ratified on the Senate's advice and consent in 1946. Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 1212 [hereinafter Chicago Convention].1 The Convention took effect on April 4, 1947, and continues to govern nearly all global air transportation to this day. See Bd. of Cnty. Comm'rs of Dade Cnty., Fla. v. Aerolineas Peruanasa, S.A. , 307 F.2d...

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