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In re Air Crash at Belle Harbor


May 9, 2006


The opinion of the court was delivered by: Sweet, D.J.,


The Plaintiffs have moved to strike the objections of Defendant Airbus Industrie G.I.E. ("Airbus") to the Plaintiffs' Fourth Request for the production of documents. For the reasons set forth below, the motion is granted in part and denied in part.

The parties and the prior proceedings have been set forth in the companion opinion in this action filed this date, familiarity with which is assumed.

Airbus initially has challenged the form of the relief sought by the Plaintiffs, contending that Rule 37(a), Fed. R. Civ. P., provides the only relief available to the Plaintiffs. However, Airbus has conceded that the Court could convert the application into a Rule 37 motion.

In any case, Fed. R. Civ. P. 37 contemplates a motion to strike invalid objections,

If the party on whom the request was served responds in a manner that the propounding party considers evasive or incomplete, and if the propounding party has tried unsuccessfully to negotiate a resolution of the dispute, the validity of objections or the adequacy of the responses may be tested by filing a motion to compel discovery.

3D Moore's Federal Practice § Sec. 37.02[5]. Courts have ruled on "motions to strike objections" pursuant to Rule 37(a)(2)). See, e.g., Dunn v. Warhol, 1992 WL 328897 (E.D. Pa. Oct. 26, 1992) (granting in part plaintiff's "Motion to Strike Objections" to requests for documents pursuant to Rule 37(a)(2). See also Meyer v. S. Pac. Lines, 199 F.R.D. 610 (N.D. Ill. 2001) (granting plaintiff's "motion to strike objections" to requests to admit and interrogatories, pursuant to Rule 37(a)(2), and stating that "[a] party may file a motion to compel discovery under Rule 37[(a)(2)] . . . where another party fails to respond to a discovery request, or where the party's response is evasive or incomplete."). Little would be gained by requiring another set of motion papers to present the same issues.

The certification by the Federal Aviation Administration ("FAA") of the aircraft involved in the accident (the "Aircraft") and the basis for the certification is a relevant issue. The Plaintiffs seek the documents on the apparent basis of allegations by a so-called unidentified "whistle blower" (Pltf. Reply Memo, p.1), documents relating to the certification of other Airbus models.

Plaintiffs' requests indicate that Airbus faces an internal leak by one or more current employees and for this reason, Airbus prophylactically asserts trade secret protection over the documents demanded. Should Airbus determine that such documents are privileged, an appropriate privilege log should provide protection.

The Aircraft was an A300B4-605R, a design certified by the FAA on March 28, 1988, and delivered to American Airlines on July 12, 1988 with registration number N14053.

The additional aircraft models for which documents are requested were either certified on the same date as the Aircraft (and responsive certification documents have been provided to Plaintiffs) or certified several years after the Aircraft under differing certification standards (and thus, Airbus argues, certification documents are not relevant to the Aircraft). The A300B4-600 and A300B4-600R were certified by the FAA on March 28, 1988; the A300F4-600R was certified by the FAA on April 27, 1994; the A300C4-600R was certified by the FAA on June 21, 2002. Federal Aviation Administration Type Certificate Data Sheet A35EU, available at and Guidance Library/rgMakeModel.nsf/. One-third of Plaintiffs' requests seek documents concerning only the A300F4-622R aircraft,*fn1 which was certified twelve years after certification of the Aircraft. Many other requests seek documents only concerning certification events surrounding the A300F4-605R, which was certified over six years after certification of the model of the Aircraft. While these models of aircraft share some common design elements, the applicable certification bases and means of compliance are alleged by Airbus to be quite different.

In the absence of any further basis to establish relevance, the motion to strike the objections of Airbus is granted only as to (1) documents related to the Aircraft and (2) documents relating to the certification of and continuous turbulence load calculations for the A300F4-622R. The Plaintiffs are granted leave to move under Rule 37 for additional relief whenever they deem it appropriate.

It is so ordered.


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