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Sieber v. Delta Air Lines, Inc

United States District Court, E.D. Louisiana

May 20, 2019

JOHANNES MARKUS SIEBER ET AL.
v.
DELTA AIR LINES, INC. ET AL.

         SECTION “M” (2)

          ORDER AND REASONS ON MOTIONS

          JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE

         This a breach of contract and 42 U.S.C. § 1983 action that arises from an incident aboard a Delta Air Lines, Inc. ("Delta") flight before its departure from Louis Armstrong New Orleans International Airport. Record Doc. No. 80. Plaintiffs' Motion to Compel Mandatory Initial Disclosures from Defendants Delta and Katherine Weems (collectively, "Delta defendants"), Record Doc. No. 88, is before me. Delta Defendants filed a timely opposition memorandum. Record Doc. No. 109. Plaintiffs were permitted to reply. Record Doc. Nos. 117-19. Plaintiffs' Motion to Compel Mandatory Initial Disclosures from Defendants Sheriff Joseph P. Lopinto and Deputies Jesse Steer and Erroll Harris (collectively, "the sheriff defendants") is also before me. Record Doc. No. 89. The sheriff defendants filed a timely opposition memorandum. Record Doc. No. 101. Plaintiffs were permitted to reply. Record Doc. Nos. 111, 113, 114.

         The sheriff defendants jointly submitted their initial disclosures to plaintiffs. Record Doc. No. 89-1. Likewise, Delta defendants jointly submitted their initial disclosures to plaintiffs. Record Doc. No. 88-1. Plaintiffs argue in both motions that defendants' initial disclosures are incomplete under Fed.R.Civ.P. 26(a)(1) and request that defendants be compelled to provide full and complete supplemental disclosures certified pursuant to Fed.R.Civ.P. 26(g). Plaintiffs additionally request an award of attorneys' fees for bringing both motions. Having considered all of the submitted materials, the record and the applicable law, plaintiffs' motions are GRANTED IN PART and DENIED IN PART for the following reasons.

         A party must provide initial disclosures to other parties without awaiting a discovery request. Fed.R.Civ.P. 26(a)(1). The required initial disclosures are set out in the four subparts of Rule 26(a)(1)(A). An incomplete disclosure is treated as a failure to disclose and permits any other party to file a motion to compel disclosure. Fed.R.Civ.P. 37(a)(3)(A) and (a)(4). Plaintiffs contend that defendants made incomplete disclosures required by the first and fourth subparts of Rule 26(a)(1)(A). Under the first subpart,

[A] party must . . . provide to the other parties: the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Fed. R. Civ. P. 26(a)(1)(A)(I). Under the fourth subpart,

[A] party must . . . provide to the other parties . . . for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Fed. R. Civ. P. 26(a)(1)(A)(iv).

         Defendants' disclosures are incomplete under the first subpart of Rule 26(a)(1)(A). The sheriff defendants' disclosures failed to provide the addresses of two individuals and provided no phone numbers for any of the listed individuals. Record Doc. No. 89-1. Similarly, Delta defendants failed to provide in their disclosures the addresses of four individuals and provided no phone numbers for any of the listed individuals. Record Doc. No. 88-1. Attorneys are required to sign all disclosures to certify that the disclosures are complete and correct at the time they are made. Fed.R.Civ.P. 26(g). Defendants' failure to provide addresses and phone numbers of the listed individuals or to state that this information is unknown to them assures neither plaintiffs nor this court that their disclosures are complete and correct. For the foregoing reasons, plaintiffs' motions are granted insofar as they seek to compel defendants to supplement and certify their initial disclosures to include the addresses and phone numbers of all listed individuals, if this information is known to defendants. If defendants do not know some or all of these addresses and phone numbers, they must say so in certified disclosures.

         Plaintiffs also argue that Delta defendants' disclosures are incomplete under the first subpart Rule 26(a)(1)(A) because they fail to disclose the names and contact information of any of the airline passengers who were potential eyewitnesses of the subject incident. Record Doc. No. 88-2 at p. 1. Delta defendants equivocally and evasively argue that "at this time" they do not intend to call any passengers as witnesses in this matter, and thus they have no obligation to disclose the names and contact information of these individuals. Record Doc. No. 103 at p. 3. However, defendants' argument for non-disclosure does not address the precise requirements of the rule. A disclosing party must disclose the names and, if known, the contact information of individuals that the disclosing party "may use to support its claims or defenses." Fed.R.Civ.P. 26(a)(1)(A)(i) (emphasis added). Plaintiffs' second amended complaint makes a series of allegations about events both involving and occurring in the view of airline passengers on the date of the subject incident. Record Doc. No. 80 at p. 9-12, 15. Delta defendants' answer to plaintiffs' second amended complaint responds with a series of denials as to plaintiffs' version of these events. Record Doc. No. 90 at pp. 8-10, 13. The pleadings in this matter indicate that Delta's passengers may well have information that supports their defenses. Certainly, the Delta defendants have had more than sufficient time since the date of the incident to determine if any of their passengers have information that supports their defenses.

         Courts have concluded that airline passenger lists are subject to initial disclosures under Rule 26(a)(1), "subject to a case-specific protective order." Vaughn v. Sw. Airlines Co., 2010 WL 11617876, at *1 (N.D. Ala. Aug. 5, 2010); see also Nathaniel v. Am. Airlines, 2008 WL 5046848, at *5, *7 (D.V.I. Nov. 20, 2008) (ordered disclosure under Rule 26(a)(1)(A) of defendant airline's passenger manifest accompanied by a protective order so that plaintiff "can obtain the names and addresses of persons who may have witnessed the incident in question, and, at the same time, protect the privacy interests of persons involved is appropriate in this case"); Wallman v. Tower Air, Inc., 189 F.R.D. 566, 568 (N.D. Cal. 1999) (found adequate justification under Rule 26(a)(1)(A) for compelling production of airline passenger list, subject to protective order). Of course, Delta defendants have no obligation under Rule 26(a)(1)(A)(I) to provide the names and contact information of passengers that have information supporting plaintiffs' claims. Instead, they must disclose only those passengers who may be used to support Delta defendants' own defenses. See Federal Civil Judicial Procedure and Rules at p. 147, Fed.R.Civ.P. 26 Advisory Committee's Notes to 2000 amendment (Thomson Reuters 2019 ed.) (scope of Rule 26(a)(1) disclosure obligation "narrowed to cover only information that the disclosing party may use to support its position"). Obviously, plaintiffs may obtain information on passengers who witnessed the subject incident and whose information may support plaintiffs' claims by use of interrogatories in discovery, which is distinct from disclosure.

         "A party who has made a disclosure under Rule 26(a) . . . must supplement . . . its disclosure . . . as ordered by the court." Fed.R.Civ.P. 26(e)(1)(B). Under the contentious and unsatisfactory circumstances in which the parties have conducted disclosure and discovery in this case to date, IT IS ORDERED that Delta defendants must determine expeditiously if they "may use" any of the passengers to support their defenses. Accordingly, plaintiffs' motion is granted insofar as its seeks to compel Delta defendants to supplement and certify their disclosures to state the names and contact information of passengers on the plane on the date of the subject incident, to the extent Delta defendants may use discoverable information gleaned from these passengers to support their defenses, subject to the following protective order, without further delay or equivocation.

         IT IS ORDERED that Delta defendants may designate passenger information of the sort identified above as confidential and subject to this protective order. All such information must be clearly marked and maintained as confidential and used only for purposes of this litigation and must not be disclosed to anyone except parties to this litigation, court personnel, the parties' counsel of record, experts retained in connection with this litigation, and testifying witnesses during depositions, trials or evidentiary hearings in open court. Except for court personnel, all persons to whom such information is disclosed must sign an affidavit that must be filed into the record, agreeing to the terms of the protective order and submitting to the jurisdiction of this court for enforcement of those terms. Confidential material may be submitted to the court only in strict compliance with Local Rule 5.6. Any party challenging the ...


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