United States District Court, E.D. Louisiana
JOHANNES MARKUS SIEBER ET AL.
DELTA AIR LINES, INC. ET AL.
ORDER AND REASONS ON MOTIONS
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
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.
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.
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
Fed. R. Civ. P. 26(a)(1)(A)(iv).
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.
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.
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.
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.
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