ALABAMA AIRCRAFT INDUSTRIES, INC., ALABAMA AIRCRAFT INDUSTRIES, INC. – BIRMINGHAM, AND PEMCO AIRCRAFT ENGINEERING SERVICES, INC., Plaintiffs, v. THE BOEING COMPANY, BOEING AEROSPACE OPERATIONS, INC. AND BOEING AEROSPACE SUPPORT CENTER, Defendants Case No. 2:11-cv-03577-RDP United States District Court, N.D. Alabama, Southern Division Signed February 06, 2020 Counsel Laurie Webb Daniel, Webb Daniel Friedlander LLP, Atlanta, GA, E. Berton Spence, Peter Tepley, R. Scott Williams, J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, Rumberger Kirk & Caldwell PC, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, for Plaintiff Alabama Aircraft Industries Inc. E. Berton Spence, Peter Tepley, R. Scott Williams, J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, Rumberger Kirk & Caldwell PC, Birmingham, AL, Reginald L. Jeter, Law Office of Celeste P. Armstrong, Birmingham, AL, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, Laurie Webb Daniel, Webb Daniel Friedlander LLP, Atlanta, GA, for Plaintiff Alabama Aircraft Industries Inc.—Birmingham. E. Berton Spence, Peter Tepley, R. Scott Williams, J. Michael Rediker, Meredith Jowers Lees, Rebecca A. Beers, Rumberger Kirk & Caldwell PC, Birmingham, AL, Patricia C. Diak, Roger A. Brown, Haskell Slaughter Young & Rediker LLC, Birmingham, AL, Reginald L. Jeter, Law Office of Celeste P. Armstrong, Birmingham, AL, Joshua D. Lerner, Pro Hac Vice, Rumberg Kirk & Caldwell PC, Miami, FL, Laurie Webb Daniel, Webb Daniel Friedlander LLP, Atlanta, GA, for Plaintiff Pemco Aircraft Engineering Services Inc. Alexia R. Brancato, Pro Hac Vice, Craig S. Primis, Erin C. Johnston, John C. O'Quinn, Kasdin Miller Mitchell, Tia T. Trout-Perez, Kirkland & Ellis LLP, Washington, DC, John Thomas Richie, Reed Thomas Warburton, Bradley Arant Boult Cummings, LLP, Birmingham, AL, for Defendants. Proctor, R. David, United States District Judge ORDER *1 This matter is before the court on AAI's Emergency Motion for Relief and Sanctions to Rectify Boeing's Rules Violations and to Facilitate an Expeditious Trial. (Doc. # 542). The Motion has been fully briefed. (Docs. # 548, 549). After careful review of all of the materials submitted in relation to the Motion, the court concludes that it is due to be denied. In its Motion, AAI asserts that it asked Boeing to enter into a stipulation that the only copies of the “Rabe Attachment E Documents” (documents which were sequestered by Boeing) were those produced with certain bates numbers (i.e., a particular bates-number range) identified by the parties. Boeing declined to enter into the proffered stipulation. AAI argues that throughout discovery it relied on these documents being the only ones sequestered by Boeing. AAI further contends that Boeing's refusal to stipulate is an attempt to waste AAI's time, that Boeing's discovery responses are misleading, and that Boeing should be sanctioned. AAI seeks to have Boeing (1) precluded from arguing that any documents other than those in the specified bates range were sequestered, or alternatively (2) be required to identify, by bates number, each alleged duplicate provided elsewhere in document production. (Doc. # 542). Boeing responds that “[t]his is a dispute over Boeing's decision not to stipulate to inaccurate facts ....” (Doc. # 548 at 2). It contends that “[t]hroughout this litigation [ ] Boeing has [ ] made clear [ ] that it has produced the same sequestered documents at issue here[,] both in response to early requests for production and again in a sequential bates numbered production, as a courtesy to AAI and to facilitate its use and understanding of those documents.” (Id.). On Thursday, January 30, 2020, the court conducted a telephone conference with counsel regarding this motion. During that call, the court asked AAI to identify the particular discovery requests where it asked for the information that is the subject of its Emergency Motion. In its Reply, AAI has offered its response to that inquiry. AAI points to Interrogatory 1 in its first set of interrogatories. That interrogatory requested Boeing to: Identify and describe all documents and information furnished by AAI to Boeing from October 27, 2000 through June 6, 2006 which Boeing treated as Proprietary Information of AAI. (Doc. # 549-3 at 10). AAI also argues that Interrogatory 4 (contained in the same set of Interrogatories) “expressly required Boeing to provide Bates numbers of all documents relating to Boeing's NDA compliance.” (Doc. # 549 at 4). Interrogatory 4 asked Boeing to “[d]escribe all steps” it took to comply with all Non-Disclosure Agreements. (Doc. # 549-3 at 11). Apparently, AAI relies on one of its own definitions preceding the interrogatories to support its argument that it made a specific request for this information. (Doc. # 549 at 5, 7-8). The court does not read these interrogatories as requiring Boeing to answer in the specific manner which AAI desires. Federal Rule of Civil Procedure 33(b)(4) allows a party to object to an interrogatory. Fed.R.Civ.P. 33(b)(4). Here, Boeing did so. Rule 33(d) allows a party the “Option to Produce Business Records.” That subdivision of the rule reads as follows: *2 If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. Fed.R.Civ.P. 33(d). AAI argues that, pursuant to Rule 34(b)(2)(D), Boeing was required to produce the documents as they are kept in the regular course of business or organize and label them to correspond to the categories. (Doc. # 549). However, the production of the sequentially numbered set of the Rabe Attachment E documents appears to constitute Boeing's compliance with Rule 34(b)(2)(D)’s requirement that it produce the documents as they are kept in the regular course of business (i.e., Boeing produced a copy of the set of documents it sequestered). AAI also argues that Boeing has provided misleading responses to certain requests for admission concerning whether the sequentially numbered set is a true and complete set of those documents sequestered. AAI has submitted certain written correspondence between the parties on this issue that evidences its desire to get the information it now seeks in this Motion. AAI has not presented any request which specifically requested this particular information, nor did it seek relief from the court requiring this particular information in a timely manner. After careful review, the court concludes that AAI's argument that it relied on its own definition of “describe” cuts no ice at all. As to the “emergency” nature of the current motion, the record before the court shows there can really be no dispute that AAI should have been aware that Boeing had already produced documents that had been sequestered in the legal department, and that the production of those documents occurred before AAI ever issued a request for production specific to Rabe Attachment E documents. (Doc.# 542-9; Doc. 548-1 at 3; Doc. # 548-5 at 84-85). Mark Reardon's deposition testimony made it crystal clear that the set of Rabe Attachment E documents with sequential bates numbers were duplicates of previously produced documents: Q. Now, is it Boeing's testimony that the Bates range 649925 to 898532 is inclusive of all of the existing located Rabe Attachment E documents? A. I – I believe that those numbers are additive to other material that had been previously produced and in some cases may be duplicates of those documents that were already produced. So standing by themselves, those docu- – those Bates numbers do not represent the entire production. It is a supplemental production, for lack of a better term. That's my understanding. (Doc. # 548-5 at 3-4) (emphasis added). Moreover, if that were not enough, this issue was explicitly addressed in Boeing's November 13, 2017 response to AAI's Motion for Partial Summary Judgment. In addressing AAI's factual paragraph 199, Boeing responded: Disputed. Boeing disputes any implication that the cited Bates range contains the only copy of “Rabe Attachment E documents” Boeing provided to AAI. In addition to the consecutively numbered Bates range identified in Paragraph 199 (TBC-00649925-898532), Boeing's firewalled documents are also located at TBC-00899842 to 900210, as well as Bates numbers throughout Boeing's production. (Boeing Ex. 303, 3/3/16 Boeing's Resps. to Pls.’ 30(b)(6) Dep. Notice, Topic No. 4 at 3-4.) Boeing explained: “[d]uplicates of the [Attachment E] documents in this bates range can be found throughout Boeing's production, as Boeing had previously produced some Attachment E documents before July 2014 and continued to produce others—such as those containing Boeing confidential/proprietary information that Boeing was ordered to produce in January 2015—after July 2014.” (Id.) *3 (Doc. # 395 at 47) (emphasis added). Based on documents in the court record, AAI knew or should have known, at the latest by November 2017, that duplicates of the Rabe Attachment E Documents had been produced “throughout Boeing's production.” (Doc. # 395 at 47). AAI has not pointed to any discovery request which clearly asks Boeing to clarify that no Rabe Attachment E Documents were produced with any bates numbers other that those consecutively numbered in its production to AAI or requiring Boeing to identify by bates number each duplicate in Boeing's production. There is also no evidence that Boeing agreed to undertake that task or was ordered by the court to do so. And, in any event, it seems that the parties would be equally burdened to undertake the identification of duplicates contained in Boeing's production. For all these reasons. AAI's Emergency Motion for Relief and Sanctions to Rectify Boeing's Rules Violations and to Facilitate an Expeditious Trial (Doc. # 542) is DENIED. DONE and ORDERED this February 6, 2020.