In this case, Boeing filed a "Motion to Compel Compliance with Rule 30(b)(6) Topics Regarding Comair's Spoliation of Evidence," seeking to force Comair to provide a witness to testify about its document preservation and collection processes. The motion was prompted by Comair's alleged failure to produce sufficient electronic documents in response to discovery requests. Boeing argued that Comair had only provided a small number of records—many of which were publicly available—and that critical documents related to the negotiation of the Purchase Agreement and other important materials appeared to be missing. Comair, a South African airline, had entered into a purchase agreement with Boeing for 737 MAX aircraft, but due to the grounding of the 737 MAX after two fatal crashes, the deliveries were halted, and Comair eventually terminated the agreement.

Boeing’s motion centers on the fact that, despite Comair’s agreement to search for documents spanning from January 1, 2013, to June 14, 2022, the production was insufficient. Boeing raised concerns over missing records, particularly financial documents and correspondence between the two parties. Additionally, Boeing criticized Comair’s Rule 30(b)(6) witness, who allegedly lacked knowledge about the airline’s document management processes and failed to provide answers to questions about the preservation, collection, and production of relevant materials. Comair resisted the motion, arguing that Boeing's claims were speculative and that it had not proven any spoliation of evidence. Comair characterized Boeing’s request as an attempt to "depose Comair's lawyers" about how discovery was handled.

Boeing argued that the missing documents were critical to the case, including materials related to Comair’s fraud claims regarding the Purchase Agreement. In fact, the airline had failed to produce essential documents like its proposal to Boeing and a response to Boeing’s terms, which Boeing contended were crucial to understanding the circumstances surrounding the contract's negotiation. Additionally, Boeing noted that portions of the records of Comair's former CEO were missing, which added to the concerns over missing evidence. Boeing did not need to prove spoliation at this stage, only that the discovery process was deficient, and thus, further discovery into the process itself was justified.

While the court emphasized that "discovery on discovery" is disfavored and requires specific and tangible evidence of a material failure in the opponent’s discovery obligations, the court ultimately agreed that Boeing had shown enough to justify further inquiry into the discovery process, particularly because the documents at issue were potentially highly relevant to the case.  In granting Boeing’s motion, the court ruled that Comair must make a 30(b)(6) witness available for a deposition over Zoom, focusing on topics related to Comair's document management and the preservation and collection of relevant materials. 

If your organization is seeking support with eDiscovery, our team has solutions to address all phases of the discovery process. At CODISCOVR, we deliver client-focused, defensible, and scalable solutions using advanced technology and intelligent review practices to meet eDiscovery, document review, and information governance needs in a manner that reduces the risks and costs associated with electronically stored information (ESI). Reach out to Nicole Gill, Chair, Managing Member CODISCOVR. With almost a decade of experience, she manages complex and high-profile eDiscovery projects and routinely navigates data and privacy protection laws across many domestic and foreign jurisdictions.