ORDER

I. INTRODUCTION

*1 Plaintiff filed a motion on January 12, 2018 to: 1) compel the production of information and testing related to the -212 and -218 EGPWS (hereinafter the -212 and -218 systems); 2) clarify the court's order dated November 13, 2017 (Doc. 168); 3) compel the production of the terms used to search for Honeywell emails. (Doc. 180) Honeywell responded in opposition on February 6, 2018 (Doc. 185), following which plaintiff filed a reply on February 14, 2018 (Doc. 188). For the reasons explained below, plaintiff's MOTION (Doc. 180) IS DENIED.

II. ANALYSIS

A. Legal Standard

Plaintiff seeks to compel discovery with respect to those matters enumerated 1) and 3) above. The Federal Rules of Civil Procedure provide the following with respect to discovery:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Rule 26(b)(1), Fed.R.Civ.P. “ ‘[T]he scope of discovery [under Rule 26(b)(1)] is within the sound discretion of the trial court,’ and a ‘ruling by the trial court limiting or denying discovery will be not cause for reversal unless an abuse of discretion is shown.’ ” S.S. v. Eastern Kentucky University, 532 F.3d 445, 451 (6th Cir. 2008)(citation omitted); see also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)(“[T]he trial court is given wide discretion in balancing the [discovery] needs and rights of both plaintiff and defendant.”).

B. Demand for -218 EGPWS Software Product Documents (Doc. 180-1, ¶ II.B, pp. 10-11)

Plaintiff asserts that, “[w]hile [he] maintains ... the performance of the -218 software product is entirely irrelevant to any determination of whether the -212 software ... was unreasonably dangerous as designed, to the extent that Honeywell is seeking to use the purported performance of the -218 software product as a defense ... [he] is entitled to discovery relating to that software.” (Doc. 180-1, p. 10) More particularly, plaintiff argues that:

If Honeywell wants to try to rely on the -218 product in this litigation, then Plaintiff is entitled to discover information that Honeywell created about how that product would have performed on the subject flight, and in other situations, based on tests Honeywell performed. While Honeywell has produced some discovery on the -218 software, it has not produced any internal documents, information or test results including any internal emails concerning the design and performance of the -218 software.

*2 (Doc. 180-1, p. 11)

1. Internal -218 System Documents

Honeywell argues in response that it has “produced materials regarding the design and performance of the -218 software, the differences between the -212 and -218 software versions, and Honeywell's analysis during the NTSB investigation of how the -218 software would have performed during the subject flight ....” (Doc. 185, pp. 5-6) Honeywell asserts further that it has provided plaintiff with: 1) its Service Bulletin releasing the -218 software; 2) drafts and related materials for the Service Bulletin releasing the -218 software; 3) FAA certification materials for the -218 system; 4) Honeywell's 2003 Safety Conference and Operators Conference Agenda and presentation discussing -218 system enhancements; 5) emails and attachments between Honeywell and UPS “discussing a wide variety of issues, including the -218 software”; 6) “[t]he entirety of Honeywell's investigation file for the subject accident, including all of Honeywell's communications with the NTSB and materials submitted to the NTSB, some of which discuss the design and performance of the -218 software ....” (Doc. 185, p. 6) In addition to the foregoing, Honeywell also asserts that, “[c]ontrary to Plaintiff's assertions, parties to a litigation may rely on factual findings in NTSB Reports ....”[1] (Doc. 185, p. 4) Finally, Honeywell asserts that, “in addition to other materials discussed .... Plaintiff possess relevant materials and testimony regarding Honeywell's defense that had UPS upgraded to the -218 software, the pilots would have received an earlier ‘too low terrain’ alert.” (Doc 185, p. 5) In his reply, plaintiff merely repeats that he “is entitled to discovery concerning the design of the -218 product.” (Doc. 188)

*3 The record shows that the parties resolved some of their discovery disputes by stipulation on February 5, 2018. (Doc. 185-9) In particular, the parties' agreement “resolve[d] ... some of the requests in Section II.B of Plaintiff's motion to compel” addressed here. (Doc. 185-9) As noted above, plaintiff does not dispute the discovery that Honeywell asserts it already has provided. (Doc. 188) Given the detail of Honeywell's response, the stipulation regarding having “resolv[ed] . . some of he requests in Section II.B of Plaintiff's motion to compel,” the lack of any specifics in plaintiff's reply to narrow the documents sought, the -218 system simulated flight profile discussed below in ¶ II.B.2 at p. 5, and for reasons discussed more fully below in ¶ III at pp. 10-11, the undersigned is forced to conclude that plaintiff's demand for the production of internal -218 system documents is nothing more than a fishing expedition. See Surles, 474 F.3d at 305 (plaintiff is not be permitted “to ‘go fishing’ and a trail court retains discretion to determine that a discovery request is too broad”). Accordingly, this part of plaintiff's motion will be DENIED.

2. Test Results

Plaintiff argues that, if Honeywell wants to rely on the -218 system as a defense, then plaintiff is entitled to discover “how that product would have performed on the subject flight.” (Doc. 180-1, p. 11) For the reasons explained below at ¶¶ II.C and III at pp. 5-6 and 10-11, plaintiff's motion pertaining to this issue will be DENIED as moot.

Plaintiff also seeks to discover how the -218 system would have performed “in other situations, based on tests Honeywell performed.” (Doc. 180-1, p. 11) Plaintiff's demand to discover how the -218 system would have performed in “other situations” is vague and overly broad. It also amounts to a fishing expedition given plaintiff's own admission, above at p. 2, that the “performance of the -218 software product is entirely irrelevant to any determination of whether,” under the facts that gave rise to this action, “the -212 software ... was unreasonably dangerous as designed ....” Moreover, how the -218 system performs up and away, and on approach to other airports, is irrelevant to whether the -212 was negligently designed or whether its design contributed to the crash of UPS Flight 1354 on August 14, 2013. Neither is it relevant to Honeywell's claim that the -218 system would have provided an earlier warning to the flight crew under the circumstances that resulted in the crash of UPS Flight 1354 on approach to BHM. Plaintiff's vague demand to discover how the -218 system performed “in other situations” will be DENIED.

3. Internal Emails

Plaintiff demands the production of internal emails pertaining to the -218 system. For the reasons explained below at ¶¶ II.E-F at pp. 7-10, this request will be DENIED.

C. Demand for -218 Software Testing (Doc. 180-1, ¶ II.C, pp. 11-12)

Plaintiff seeks “to compel Honeywell to perform a ... control test using the data downloaded from the subject flight and an EGPWS loaded with -218 software to simulate the performance of the -218 software on the subject flight.” As discussed above, the parties executed a joint stipulation on February 5, 2018. In that stipulation, “Honeywell agree[d] to allow Plaintiff and his expert to test the performance of a verifiable -218 software version using the data from the accident flight from the subject EGPWS.” (Doc. 185-9) It was noted in the stipulation that “[t]his agreement resolves all of the requests in Section II.C” of plaintiff's motion. (Doc. 185-9, p. 1)

Honeywell noted in its response to plaintiff's motion that the test at issue was completed during “the week of January 22, 2018 at Honeywell's facility in Redmond, Washington.” (Doc. 185, p. 3) Although plaintiff repeats his demand for additional unspecified testing of the -218 system in his February 14, 2018 reply (Doc. 188), he does not dispute Honeywell's assertion that the test at issue has been completed, nor does he challenge the validity of the February 2018 stipulation to that end. For the reasons explained above, plaintiff's demand for the testing at issue will be DENIED as moot.

D. Demand for Control Validation Testing With the Unaltered -212 Software (Doc. 180-1 ¶ II.D, pp. 12-13)

*4 Plaintiff seeks to “run ... modified -212 software ... through some of the flight profile tests used to certify the software product with the FAA, to show that his alternative design could be certified by the FAA.” (Doc. 180-1, pp. 12-13) Plaintiff asserts that “[t]his testing is specifically contemplated by the Protective Order No. 2.” (Doc. 180-1, p. 12) Honeywell argues in opposition that “Plaintiff's case focuses on alleged defects in Honeywell's EGPWS -212 software,” but now he “seeks to expand Protective Order No. 2 to require Honeywell to rerun the tests [it] previously performed for FAA certification approximately 18 years ago under the applicable FAA Technical Standard Order [TSO]” at the time. (Doc. 185, pp. 8-9)

The undersigned has reviewed Protective Order No. 2. The only part of the order that might apply to plaintiff's demand is the following statement: “Other flight profiles may be requested by Plaintiff's expert, and Honeywell shall make every reasonable effort to run such flight profiles using the available equipment and capabilities of its Batch Oriented Simulation System equipment.” (Doc. 122, ¶ 6.2.j, p. 11)

Honeywell's argument is well taken. The testing authorized under Protective Order No. 2 was to provide plaintiff the opportunity to demonstrate whether the -212 software was negligently designed and, if so, if it were possible to modify the -212 software to eliminate any hypothetical defect. Running the “modified -212 software ... through some ... [unspecified] ... flight profile tests used to certify the software product with the FAA” was not “specifically contemplated” by Protective Order No. 2. Moreover, such tests are not required to demonstrate that the -212 system was negligently designed nor, given the availability of the applicable FAA TSO, are they necessary to determine whether software fixes available at the time been certified by the FAA.

The undersigned concludes that the flight profile tests at issue are irrelevant, and that the value of any data obtained would be outweighed by the burden and costs to Honeywell. Accordingly, plaintiff's request for these additional -212 flight profile tests will be DENIED.

E. Clarification of the Court's November 13, 2017 Order (Doc. 190-1, ¶ E, p. 13)

Plaintiff again seeks clarification of the court's November 13, 2017 order (Doc. 168) in which the undersigned granted plaintiff's motion to compel discovery of emails pertaining the -212, but not to the -218 system. (Doc. 180-1, p. 13) The history of this request is covered in the court's December 20, 2017 order denying plaintiff's previous request to clarify, in which the undersigned wrote the following:

At each stage ... the issues were argued at length, both verbally and in writing, and decided with great care given to the parties' positions. In reviewing the foregoing, the undersigned is of the view that the guidance provided ... is both sufficient and clear, and that no further clarification is required.

(Doc. 174)

To answer plaintiff's question, the undersigned was fully aware at the time that plaintiff had moved to compel with respect to both the -212 and -218 systems. Omitting reference to the -218 system in the November 13, 2017 order (Doc. 168) was a conscious decision on the undersigned's part as evidenced by the ellipsis in the quotation at p. 4 of the order. As discussed during the earlier November 8, 2017 telephone conference, and with the parties throughout the course of this litigation, the issue in this case is whether the -212 system was negligently designed. As discussed more fully below at ¶ III at pp. 10-11, the issue regarding -218 does not go beyond Honeywell's claim that the -218 system would have given an earlier alert to the flight crew under the circumstances that led to the crash of UPS Flight 1354, which has been demonstrated – or not – by the tests run at Honeywell's Redmond facility on January 22, 2018.

*5 To the extent that plaintiff's request to clarify is intended to renew his demand for production of emails pertaining to the -218 system, that motion will be DENIED.

F. Production of Terms Used to Search Honeywell's Emails (Doc. 180-1,¶ F, pp. 13-14)

Plaintiff filed a motion on October 3, 2017 seeking – among other things – to compel Honeywell to produce emails pertaining to the -212 and -218 EGPWS system design. (Doc. 152) More particularly, plaintiff asked the court to order Honeywell to “produce emails responsive to Plaintiff's requests relating to [the] design of EGPWS software versions -212 and -218 or alternatively [to] provide an affidavit describing what records were searched for email communication and how those searches were performed ....” (Doc. 152, p. 18)(bold added) As explained in ¶ II.E above, the Magistrate Judge limited his ruling on these emails to those that pertained to the -212 system.

Honeywell argued in its October 17, 2017 response that they had “more than satisfied its requirements under FRCP 26 and 34” through the sworn declaration of Steve Johnson that “he and the other relevant engineers ha[d] searched for design related e-mails from that time period and [had] not found any.” (Doc. 156, p. 15) The Magistrate Judge expressed the opinion during the related November 8, 2017 telephone conference with the parties that Honeywell's argument “didn't pass the laugh test.” Thereafter, the Magistrate Judge ordered Honeywell to comply with the following in his November 13, 2017 order on the matter:

[F]ile an affidavit of the person best able to provide the information plaintiff seeks regarding the -212 system not later than November 30, 2017. The affidavit provided shall include: 1) the nature of the searches conducted; 2) the results of those searches; 3) Honeywell's archiving and destruction policies and procedures, and any written policies and procedures pertaining to archiving and destroying emails. If the undersigned determines that the affidavit is ‘stingy,’ plaintiff may serve notice to depose the affiant in accordance with Rule 30, Fed. R. Civ. P....

(Doc. 168, pp. 5-6)

Honeywell filed the affidavit of Kathleen Timothy on December 14, 2017. (Doc. 172) Ms. Timothy identified herself at the “Global Records Manager in the Department of records and Information Management for Honeywell International Inc.” (Doc. 172, ¶ 2, p. 1) Ms. Timothy discussed at length the policies in the exhibits attached to her affidavit. (Doc. 172, ¶¶ 9-15, pp. 2-4) Honeywell Bulletin dated September 11, 2000 sums up Honeywell's retention policies best: “Honeywell's corporate-wide Records Retention Policy is to keep the records that we need for as long as we need them. This also means that we keep only the records that we need only for as long as we need them.” (Doc. 172, Ex. B, p. 10 of 154)(Italics in the original)

Ms. Timothy concluded her affidavit as follows after explaining Honeywell records retention policy set forth in Exhibits A through E to her affidavit:

As stated by Mr. Johnson in his October 16, 2017 Declaration, Honeywell engineers searched the locations where they would normally maintain e-mails regarding the design of the -212 EGPWS software, and there are no such e-mails in those locations.

*6 In addition, Honeywell worked with an e-Discovery vendor, Ernst & Young, to identify all of the e-mails of these Honeywell engineers from 1998-2012 and search[ed] those e-mails using keywords to capture any e-mails responsive to the issues discussed ... regarding the -212 EGPWS software. Ernst & Young performed keyword searches on those e-mails, using terms as broad as ‘212’ and ‘software’, and compiled all of the e-mails containing the keyword search terms. Those e-mails then were reviewed for anything responsive to the requests discussed above, but no responsive e-mails were found discussing those issues.

(Doc. 172, ¶¶ 16-17, p. 4)

The undersigned has read – and reread – Ms. Timothy's affidavit, and examined the exhibits attached thereto. Ms. Timothy's affidavit is fully responsive to plaintiff's demand that Honeywell “provide an affidavit describing what records were searched for email communication and how those searches were performed ....” Plaintiff's demand that Honeywell now provide the search terms used will be DENIED.

III. CONCLUSION

The make-or-break issue in plaintiff's case is whether the -212 system was negligently designed, and whether that design was the proximate cause of the crash of UPS Flight 1354. The central issue in plaintiff's case is not whether the -218 system also was negligently designed. The only issue pertaining to the -218 system is whether, as Honeywell has stated frequently, the -218 system would have provided an earlier warning to the flight crew under the circumstances that resulted in the crash of UPS Flight 1354. It is apparent from Honeywell's response to plaintiff's motion that a simulated flight profile already has been run to make that determination. Although the undersigned has not been made privy to the results of that test, the bottom line is whether the - 218 system performed in the simulated flight profile as Honeywell claimed it would. The answer is either “Yes” or “No.” As the results of that test apparently are known to plaintiff, and as plaintiff has not voiced any objection as to the conduct of that test, further discovery of -218 system design and performance specifications, internal Honeywell communications, and simulated flight profiles up and away and at other airports are not required to answer the question. In short, the simulated flight profile conducted “the week of January 22, 2018 at Honeywell's facility in Redmond” should end plaintiff's -218 system discovery demands. Any additional discovery requests pertaining to the -218 system will be denied unless narrowly tailored, articulated with specificity, supported by an affidavit of plaintiff's expert, and good cause shown.

As for plaintiff's new demands pertaining to the -212 system, in particular his demand to conduct simulated FAA certification flight profiles, the undersigned has been very patient in granting plaintiff's requests for -212 system discovery, often over Honeywell's strong objections. Protective Order No. 2 does not “specifically contemplate[ ],” as plaintiff asserts, that simulated FAA certification flight profiles would be permitted. On the contrary, Protective Order No. 2 envisioned only that plaintiff's expert would have the opportunity to examine the -212 system design and performance specifications, to direct that specific changes be made to the -212 system software, to run simulated flight profiles with those changes to demonstrate whether design options were available to Honeywell that would have provided the flight crew with an earlier warning, and to request “[o]ther flight profiles” in connection with the very specific effort covered by Protective Order No. 2. Inasmuch as the discovery and production envisioned in Protective Order No. 2 apparently has concluded, or nearly so, this should end any further -212 system discovery demands. Any additional discovery requests pertaining to the -212 system will be denied unless narrowly tailored, articulated with specificity, supported by an affidavit of plaintiff's expert, and good cause shown why plaintiff did not request or complete the discovery when he had the chance.

*7 Plaintiff is advised in the strongest possible terms that the undersigned will not permit this litigation to become sidetracked by demands for discovery that go beyond what is permissible and required. Plaintiff's attention is invited to Local Rule LR16.01(f)(2)(b) should he wish to pursue the matter with respect to either the -218 system or the -212 system.

The Clerk is instructed to terminate Docs. 151 and 155 administratively.

It is so ORDERED.

ENTERED this the 12th day of March, 2018.

Footnotes

[1]

Plaintiff cites Hickson Corp. v. Norfolk Southern Railway Co., 124 Fed.Appx. 336, 341 (6th Cir. 2006) for the proposition that “factual excerpts from an N.T.S.B. report should not ... come before the jury.” (Doc. 180-1, p. 3) 49 C.F.R. § 835.2, to which Honeywell refers specifically, provides the following pertaining to the admissibility of NTSB materials:

Board accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer formal (‘briefs’ of accidents). Pursuant to section 7601(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports.

Factual accident report means the report containing the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports.

(bold added)

Although the Sixth Circuit stated in dicta in Hickson that “it would have been better for neither the Hall letter nor the Board Report to come before the jury ... [and] ... [t]hat both should have been excluded,” the evidentiary error in Hickson was resolved in the context of the “invited error rule,” not statutory inadmissibility. Hickson, 124 Fed.Appx. at 341. More importantly, the Sixth Circuit's statement in dicta referred to the “Board Report” which, as shown above, is inadmissible under § 835.2. Hickson, did not address the factual findings of the report which, as also noted above, the board does not object to, nor is there a statutory bar against, admitting into evidence.

The fact is that no Sixth Circuit decision has addressed whether NTSB factual findings are admissible in civil actions. However, several other circuit courts, as well as numerous district courts within the Sixth Circuit, have held that they are. See Chiron Corp. & PerSeptive Biosys., Inc. v. Nat Trans. Safety Bd., 198 F.3d 935, 940-41 (D.C. Cir. 1999)(recognizing that NTSB factual reports are admissible in civil litigation under § 835.2); Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir. 1986)(only the parts of NTSB reports that contain agency conclusions on probable cause are inadmissible); Curry v. Chevron, U.S.A., 779 F.2d 272, 274 (5th Cir. 1985)(factual portions of NTSB reports admissible); cf Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 243 (4th Cir. 1999)(admissibility improper where NTSB evidence did not involve factual determinations); In re Air Crash at Lexington, KY., Aug. 27, 2006, 2008 WL 2796875 **2-3 (E.D. Ky., July 18, 2008)(Forester J.)(citing Chiron for the proposition that factual findings of the NTSB are admissible); Correll v. Consolidated Rail Corp., 266 F.Supp.2d 711, 714 (N.D. Ohio May 2, 2003)(Carr J)(NTSB factual findings admissible); Hickson Corp. v. Norfolk Southern Ry. Co., 277 F.Supp.2d 903, 908 (E.D. Tenn., September 19, 2001)(Collier J)(NTSB factual findings admissible); Petition of Cleveland Tankers, Inc., 821 F.Supp. 463, 465 (E.D. Mich. December 10, 1992)(Duggan J.)(NTSB factual contents are admissible). Based on the foregoing, the undersigned finds that the factual reports of the NTSB in the crash of UPS Flight 1354 are admissible in this action.

Fanning v. Honeywell Aerospace

Citation: 2018 WL 10140413 (M.D. Tenn. 2018)

Summary: The court denied plaintiff's motion to compel the production of information and testing related to the -212 and -218 EGPWS systems, as well as the terms used to search for Honeywell emails. The court found that Honeywell had already provided sufficient information regarding its search for emails and that the demands for further discovery of the -212 and -218 systems were too broad. The court also found that factual reports of the NTSB in the crash of UPS Flight 1354 were admissible in this action.

Court: United States District Court, M.D. Tennessee, Nashville Division

Date decided: March 12, 2018

Judge: Brown, Joe B.

BRET TUCKER FANNING Individually and as the Surviving Spouse and Next of Kin of Shanda Fanning, Plaintiff, v. HONEYWELL AEROSPACE, a division of Honeywell International, Inc.; and Honeywell International, Inc., Defendants No. 3:14-01650 United States District Court, M.D. Tennessee, Nashville Division Filed March 12, 2018 Counsel B. Keith Williams, James R. Stocks, Lannom & Williams, Lebanon, TN, Daniel O. Rose, Evan Katin-Borland, Kreindler & Kreindler (NY Office), New York, NY, for Plaintiff. Andrea S. Freeman, Ortale, Kelley, Herbert & Crawford, Nashville, TN, Austin William Bartlett, Christopher J. Raistrick, Michael G. McQuillen, Adler, Murphy & McQuillen (Chicago Office), Chicago, IL, Nicholas C. Bart, Steven L. Boldt, Tara Shelke, Adler, Murphy & McQuillen, Chicago, IL, Thomas Clifford Corts, Ortale, Kelley, Herbert & Crawford, Nashville, TN, for Defendants Brown, Joe B., United States Magistrate Judge ORDER I. INTRODUCTION *1 Plaintiff filed a motion on January 12, 2018 to: 1) compel the production of information and testing related to the -212 and -218 EGPWS (hereinafter the -212 and -218 systems); 2) clarify the court's order dated November 13, 2017 (Doc. 168); 3) compel the production of the terms used to search for Honeywell emails. (Doc. 180) Honeywell responded in opposition on February 6, 2018 (Doc. 185), following which plaintiff filed a reply on February 14, 2018 (Doc. 188). For the reasons explained below, plaintiff's MOTION (Doc. 180) IS DENIED. II. ANALYSIS A. Legal Standard Plaintiff seeks to compel discovery with respect to those matters enumerated 1) and 3) above. The Federal Rules of Civil Procedure provide the following with respect to discovery: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Rule 26(b)(1), Fed.R.Civ.P. “ ‘[T]he scope of discovery [under Rule 26(b)(1)] is within the sound discretion of the trial court,’ and a ‘ruling by the trial court limiting or denying discovery will be not cause for reversal unless an abuse of discretion is shown.’ ” S.S. v. Eastern Kentucky University, 532 F.3d 445, 451 (6th Cir. 2008)(citation omitted); see also Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)(“[T]he trial court is given wide discretion in balancing the [discovery] needs and rights of both plaintiff and defendant.”). B. Demand for -218 EGPWS Software Product Documents (Doc. 180-1, ¶ II.B, pp. 10-11) Plaintiff asserts that, “[w]hile [he] maintains ... the performance of the -218 software product is entirely irrelevant to any determination of whether the -212 software ... was unreasonably dangerous as designed, to the extent that Honeywell is seeking to use the purported performance of the -218 software product as a defense ... [he] is entitled to discovery relating to that software.” (Doc. 180-1, p. 10) More particularly, plaintiff argues that: If Honeywell wants to try to rely on the -218 product in this litigation, then Plaintiff is entitled to discover information that Honeywell created about how that product would have performed on the subject flight, and in other situations, based on tests Honeywell performed. While Honeywell has produced some discovery on the -218 software, it has not produced any internal documents, information or test results including any internal emails concerning the design and performance of the -218 software. *2 (Doc. 180-1, p. 11) 1. Internal -218 System Documents Honeywell argues in response that it has “produced materials regarding the design and performance of the -218 software, the differences between the -212 and -218 software versions, and Honeywell's analysis during the NTSB investigation of how the -218 software would have performed during the subject flight ....” (Doc. 185, pp. 5-6) Honeywell asserts further that it has provided plaintiff with: 1) its Service Bulletin releasing the -218 software; 2) drafts and related materials for the Service Bulletin releasing the -218 software; 3) FAA certification materials for the -218 system; 4) Honeywell's 2003 Safety Conference and Operators Conference Agenda and presentation discussing -218 system enhancements; 5) emails and attachments between Honeywell and UPS “discussing a wide variety of issues, including the -218 software”; 6) “[t]he entirety of Honeywell's investigation file for the subject accident, including all of Honeywell's communications with the NTSB and materials submitted to the NTSB, some of which discuss the design and performance of the -218 software ....” (Doc. 185, p. 6) In addition to the foregoing, Honeywell also asserts that, “[c]ontrary to Plaintiff's assertions, parties to a litigation may rely on factual findings in NTSB Reports ....”[1] (Doc. 185, p. 4) Finally, Honeywell asserts that, “in addition to other materials discussed .... Plaintiff possess relevant materials and testimony regarding Honeywell's defense that had UPS upgraded to the -218 software, the pilots would have received an earlier ‘too low terrain’ alert.” (Doc 185, p. 5) In his reply, plaintiff merely repeats that he “is entitled to discovery concerning the design of the -218 product.” (Doc. 188) *3 The record shows that the parties resolved some of their discovery disputes by stipulation on February 5, 2018. (Doc. 185-9) In particular, the parties' agreement “resolve[d] ... some of the requests in Section II.B of Plaintiff's motion to compel” addressed here. (Doc. 185-9) As noted above, plaintiff does not dispute the discovery that Honeywell asserts it already has provided. (Doc. 188) Given the detail of Honeywell's response, the stipulation regarding having “resolv[ed] . . some of he requests in Section II.B of Plaintiff's motion to compel,” the lack of any specifics in plaintiff's reply to narrow the documents sought, the -218 system simulated flight profile discussed below in ¶ II.B.2 at p. 5, and for reasons discussed more fully below in ¶ III at pp. 10-11, the undersigned is forced to conclude that plaintiff's demand for the production of internal -218 system documents is nothing more than a fishing expedition. See Surles, 474 F.3d at 305 (plaintiff is not be permitted “to ‘go fishing’ and a trail court retains discretion to determine that a discovery request is too broad”). Accordingly, this part of plaintiff's motion will be DENIED. 2. Test Results Plaintiff argues that, if Honeywell wants to rely on the -218 system as a defense, then plaintiff is entitled to discover “how that product would have performed on the subject flight.” (Doc. 180-1, p. 11) For the reasons explained below at ¶¶ II.C and III at pp. 5-6 and 10-11, plaintiff's motion pertaining to this issue will be DENIED as moot. Plaintiff also seeks to discover how the -218 system would have performed “in other situations, based on tests Honeywell performed.” (Doc. 180-1, p. 11) Plaintiff's demand to discover how the -218 system would have performed in “other situations” is vague and overly broad. It also amounts to a fishing expedition given plaintiff's own admission, above at p. 2, that the “performance of the -218 software product is entirely irrelevant to any determination of whether,” under the facts that gave rise to this action, “the -212 software ... was unreasonably dangerous as designed ....” Moreover, how the -218 system performs up and away, and on approach to other airports, is irrelevant to whether the -212 was negligently designed or whether its design contributed to the crash of UPS Flight 1354 on August 14, 2013. Neither is it relevant to Honeywell's claim that the -218 system would have provided an earlier warning to the flight crew under the circumstances that resulted in the crash of UPS Flight 1354 on approach to BHM. Plaintiff's vague demand to discover how the -218 system performed “in other situations” will be DENIED. 3. Internal Emails Plaintiff demands the production of internal emails pertaining to the -218 system. For the reasons explained below at ¶¶ II.E-F at pp. 7-10, this request will be DENIED. C. Demand for -218 Software Testing (Doc. 180-1, ¶ II.C, pp. 11-12) Plaintiff seeks “to compel Honeywell to perform a ... control test using the data downloaded from the subject flight and an EGPWS loaded with -218 software to simulate the performance of the -218 software on the subject flight.” As discussed above, the parties executed a joint stipulation on February 5, 2018. In that stipulation, “Honeywell agree[d] to allow Plaintiff and his expert to test the performance of a verifiable -218 software version using the data from the accident flight from the subject EGPWS.” (Doc. 185-9) It was noted in the stipulation that “[t]his agreement resolves all of the requests in Section II.C” of plaintiff's motion. (Doc. 185-9, p. 1) Honeywell noted in its response to plaintiff's motion that the test at issue was completed during “the week of January 22, 2018 at Honeywell's facility in Redmond, Washington.” (Doc. 185, p. 3) Although plaintiff repeats his demand for additional unspecified testing of the -218 system in his February 14, 2018 reply (Doc. 188), he does not dispute Honeywell's assertion that the test at issue has been completed, nor does he challenge the validity of the February 2018 stipulation to that end. For the reasons explained above, plaintiff's demand for the testing at issue will be DENIED as moot. D. Demand for Control Validation Testing With the Unaltered -212 Software (Doc. 180-1 ¶ II.D, pp. 12-13) *4 Plaintiff seeks to “run ... modified -212 software ... through some of the flight profile tests used to certify the software product with the FAA, to show that his alternative design could be certified by the FAA.” (Doc. 180-1, pp. 12-13) Plaintiff asserts that “[t]his testing is specifically contemplated by the Protective Order No. 2.” (Doc. 180-1, p. 12) Honeywell argues in opposition that “Plaintiff's case focuses on alleged defects in Honeywell's EGPWS -212 software,” but now he “seeks to expand Protective Order No. 2 to require Honeywell to rerun the tests [it] previously performed for FAA certification approximately 18 years ago under the applicable FAA Technical Standard Order [TSO]” at the time. (Doc. 185, pp. 8-9) The undersigned has reviewed Protective Order No. 2. The only part of the order that might apply to plaintiff's demand is the following statement: “Other flight profiles may be requested by Plaintiff's expert, and Honeywell shall make every reasonable effort to run such flight profiles using the available equipment and capabilities of its Batch Oriented Simulation System equipment.” (Doc. 122, ¶ 6.2.j, p. 11) Honeywell's argument is well taken. The testing authorized under Protective Order No. 2 was to provide plaintiff the opportunity to demonstrate whether the -212 software was negligently designed and, if so, if it were possible to modify the -212 software to eliminate any hypothetical defect. Running the “modified -212 software ... through some ... [unspecified] ... flight profile tests used to certify the software product with the FAA” was not “specifically contemplated” by Protective Order No. 2. Moreover, such tests are not required to demonstrate that the -212 system was negligently designed nor, given the availability of the applicable FAA TSO, are they necessary to determine whether software fixes available at the time been certified by the FAA. The undersigned concludes that the flight profile tests at issue are irrelevant, and that the value of any data obtained would be outweighed by the burden and costs to Honeywell. Accordingly, plaintiff's request for these additional -212 flight profile tests will be DENIED. E. Clarification of the Court's November 13, 2017 Order (Doc. 190-1, ¶ E, p. 13) Plaintiff again seeks clarification of the court's November 13, 2017 order (Doc. 168) in which the undersigned granted plaintiff's motion to compel discovery of emails pertaining the -212, but not to the -218 system. (Doc. 180-1, p. 13) The history of this request is covered in the court's December 20, 2017 order denying plaintiff's previous request to clarify, in which the undersigned wrote the following: At each stage ... the issues were argued at length, both verbally and in writing, and decided with great care given to the parties' positions. In reviewing the foregoing, the undersigned is of the view that the guidance provided ... is both sufficient and clear, and that no further clarification is required. (Doc. 174) To answer plaintiff's question, the undersigned was fully aware at the time that plaintiff had moved to compel with respect to both the -212 and -218 systems. Omitting reference to the -218 system in the November 13, 2017 order (Doc. 168) was a conscious decision on the undersigned's part as evidenced by the ellipsis in the quotation at p. 4 of the order. As discussed during the earlier November 8, 2017 telephone conference, and with the parties throughout the course of this litigation, the issue in this case is whether the -212 system was negligently designed. As discussed more fully below at ¶ III at pp. 10-11, the issue regarding -218 does not go beyond Honeywell's claim that the -218 system would have given an earlier alert to the flight crew under the circumstances that led to the crash of UPS Flight 1354, which has been demonstrated – or not – by the tests run at Honeywell's Redmond facility on January 22, 2018. *5 To the extent that plaintiff's request to clarify is intended to renew his demand for production of emails pertaining to the -218 system, that motion will be DENIED. F. Production of Terms Used to Search Honeywell's Emails (Doc. 180-1,¶ F, pp. 13-14) Plaintiff filed a motion on October 3, 2017 seeking – among other things – to compel Honeywell to produce emails pertaining to the -212 and -218 EGPWS system design. (Doc. 152) More particularly, plaintiff asked the court to order Honeywell to “produce emails responsive to Plaintiff's requests relating to [the] design of EGPWS software versions -212 and -218 or alternatively [to] provide an affidavit describing what records were searched for email communication and how those searches were performed ....” (Doc. 152, p. 18)(bold added) As explained in ¶ II.E above, the Magistrate Judge limited his ruling on these emails to those that pertained to the -212 system. Honeywell argued in its October 17, 2017 response that they had “more than satisfied its requirements under FRCP 26 and 34” through the sworn declaration of Steve Johnson that “he and the other relevant engineers ha[d] searched for design related e-mails from that time period and [had] not found any.” (Doc. 156, p. 15) The Magistrate Judge expressed the opinion during the related November 8, 2017 telephone conference with the parties that Honeywell's argument “didn't pass the laugh test.” Thereafter, the Magistrate Judge ordered Honeywell to comply with the following in his November 13, 2017 order on the matter: [F]ile an affidavit of the person best able to provide the information plaintiff seeks regarding the -212 system not later than November 30, 2017. The affidavit provided shall include: 1) the nature of the searches conducted; 2) the results of those searches; 3) Honeywell's archiving and destruction policies and procedures, and any written policies and procedures pertaining to archiving and destroying emails. If the undersigned determines that the affidavit is ‘stingy,’ plaintiff may serve notice to depose the affiant in accordance with Rule 30, Fed. R. Civ. P.... (Doc. 168, pp. 5-6) Honeywell filed the affidavit of Kathleen Timothy on December 14, 2017. (Doc. 172) Ms. Timothy identified herself at the “Global Records Manager in the Department of records and Information Management for Honeywell International Inc.” (Doc. 172, ¶ 2, p. 1) Ms. Timothy discussed at length the policies in the exhibits attached to her affidavit. (Doc. 172, ¶¶ 9-15, pp. 2-4) Honeywell Bulletin dated September 11, 2000 sums up Honeywell's retention policies best: “Honeywell's corporate-wide Records Retention Policy is to keep the records that we need for as long as we need them. This also means that we keep only the records that we need only for as long as we need them.” (Doc. 172, Ex. B, p. 10 of 154)(Italics in the original) Ms. Timothy concluded her affidavit as follows after explaining Honeywell records retention policy set forth in Exhibits A through E to her affidavit: As stated by Mr. Johnson in his October 16, 2017 Declaration, Honeywell engineers searched the locations where they would normally maintain e-mails regarding the design of the -212 EGPWS software, and there are no such e-mails in those locations. *6 In addition, Honeywell worked with an e-Discovery vendor, Ernst & Young, to identify all of the e-mails of these Honeywell engineers from 1998-2012 and search[ed] those e-mails using keywords to capture any e-mails responsive to the issues discussed ... regarding the -212 EGPWS software. Ernst & Young performed keyword searches on those e-mails, using terms as broad as ‘212’ and ‘software’, and compiled all of the e-mails containing the keyword search terms. Those e-mails then were reviewed for anything responsive to the requests discussed above, but no responsive e-mails were found discussing those issues. (Doc. 172, ¶¶ 16-17, p. 4) The undersigned has read – and reread – Ms. Timothy's affidavit, and examined the exhibits attached thereto. Ms. Timothy's affidavit is fully responsive to plaintiff's demand that Honeywell “provide an affidavit describing what records were searched for email communication and how those searches were performed ....” Plaintiff's demand that Honeywell now provide the search terms used will be DENIED. III. CONCLUSION The make-or-break issue in plaintiff's case is whether the -212 system was negligently designed, and whether that design was the proximate cause of the crash of UPS Flight 1354. The central issue in plaintiff's case is not whether the -218 system also was negligently designed. The only issue pertaining to the -218 system is whether, as Honeywell has stated frequently, the -218 system would have provided an earlier warning to the flight crew under the circumstances that resulted in the crash of UPS Flight 1354. It is apparent from Honeywell's response to plaintiff's motion that a simulated flight profile already has been run to make that determination. Although the undersigned has not been made privy to the results of that test, the bottom line is whether the - 218 system performed in the simulated flight profile as Honeywell claimed it would. The answer is either “Yes” or “No.” As the results of that test apparently are known to plaintiff, and as plaintiff has not voiced any objection as to the conduct of that test, further discovery of -218 system design and performance specifications, internal Honeywell communications, and simulated flight profiles up and away and at other airports are not required to answer the question. In short, the simulated flight profile conducted “the week of January 22, 2018 at Honeywell's facility in Redmond” should end plaintiff's -218 system discovery demands. Any additional discovery requests pertaining to the -218 system will be denied unless narrowly tailored, articulated with specificity, supported by an affidavit of plaintiff's expert, and good cause shown. As for plaintiff's new demands pertaining to the -212 system, in particular his demand to conduct simulated FAA certification flight profiles, the undersigned has been very patient in granting plaintiff's requests for -212 system discovery, often over Honeywell's strong objections. Protective Order No. 2 does not “specifically contemplate[ ],” as plaintiff asserts, that simulated FAA certification flight profiles would be permitted. On the contrary, Protective Order No. 2 envisioned only that plaintiff's expert would have the opportunity to examine the -212 system design and performance specifications, to direct that specific changes be made to the -212 system software, to run simulated flight profiles with those changes to demonstrate whether design options were available to Honeywell that would have provided the flight crew with an earlier warning, and to request “[o]ther flight profiles” in connection with the very specific effort covered by Protective Order No. 2. Inasmuch as the discovery and production envisioned in Protective Order No. 2 apparently has concluded, or nearly so, this should end any further -212 system discovery demands. Any additional discovery requests pertaining to the -212 system will be denied unless narrowly tailored, articulated with specificity, supported by an affidavit of plaintiff's expert, and good cause shown why plaintiff did not request or complete the discovery when he had the chance. *7 Plaintiff is advised in the strongest possible terms that the undersigned will not permit this litigation to become sidetracked by demands for discovery that go beyond what is permissible and required. Plaintiff's attention is invited to Local Rule LR16.01(f)(2)(b) should he wish to pursue the matter with respect to either the -218 system or the -212 system. The Clerk is instructed to terminate Docs. 151 and 155 administratively. It is so ORDERED. ENTERED this the 12th day of March, 2018. Footnotes [1] Plaintiff cites Hickson Corp. v. Norfolk Southern Railway Co., 124 Fed.Appx. 336, 341 (6th Cir. 2006) for the proposition that “factual excerpts from an N.T.S.B. report should not ... come before the jury.” (Doc. 180-1, p. 3) 49 C.F.R. § 835.2, to which Honeywell refers specifically, provides the following pertaining to the admissibility of NTSB materials: Board accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer formal (‘briefs’ of accidents). Pursuant to section 7601(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports. Factual accident report means the report containing the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports. (bold added) Although the Sixth Circuit stated in dicta in Hickson that “it would have been better for neither the Hall letter nor the Board Report to come before the jury ... [and] ... [t]hat both should have been excluded,” the evidentiary error in Hickson was resolved in the context of the “invited error rule,” not statutory inadmissibility. Hickson, 124 Fed.Appx. at 341. More importantly, the Sixth Circuit's statement in dicta referred to the “Board Report” which, as shown above, is inadmissible under § 835.2. Hickson, did not address the factual findings of the report which, as also noted above, the board does not object to, nor is there a statutory bar against, admitting into evidence. The fact is that no Sixth Circuit decision has addressed whether NTSB factual findings are admissible in civil actions. However, several other circuit courts, as well as numerous district courts within the Sixth Circuit, have held that they are. See Chiron Corp. & PerSeptive Biosys., Inc. v. Nat Trans. Safety Bd., 198 F.3d 935, 940-41 (D.C. Cir. 1999)(recognizing that NTSB factual reports are admissible in civil litigation under § 835.2); Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir. 1986)(only the parts of NTSB reports that contain agency conclusions on probable cause are inadmissible); Curry v. Chevron, U.S.A., 779 F.2d 272, 274 (5th Cir. 1985)(factual portions of NTSB reports admissible); cf Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 243 (4th Cir. 1999)(admissibility improper where NTSB evidence did not involve factual determinations); In re Air Crash at Lexington, KY., Aug. 27, 2006, 2008 WL 2796875 **2-3 (E.D. Ky., July 18, 2008)(Forester J.)(citing Chiron for the proposition that factual findings of the NTSB are admissible); Correll v. Consolidated Rail Corp., 266 F.Supp.2d 711, 714 (N.D. Ohio May 2, 2003)(Carr J)(NTSB factual findings admissible); Hickson Corp. v. Norfolk Southern Ry. Co., 277 F.Supp.2d 903, 908 (E.D. Tenn., September 19, 2001)(Collier J)(NTSB factual findings admissible); Petition of Cleveland Tankers, Inc., 821 F.Supp. 463, 465 (E.D. Mich. December 10, 1992)(Duggan J.)(NTSB factual contents are admissible). Based on the foregoing, the undersigned finds that the factual reports of the NTSB in the crash of UPS Flight 1354 are admissible in this action.