DEBORAH BARNES, Magistrate Judge.
This action came before the court on December 22, 2017, for hearing of plaintiff's motion to compel. (ECF No. 37.) Attorney Glenn Guenard appeared on behalf of the plaintiff. Attorney Shelley Hurtwiz appeared on behalf of the defendant. Oral argument was heard and plaintiff's motion was taken under submission.
In the parties' joint statement, defendant asserted that it will be making a production in response to this request. Defendant will, therefore, be ordered to complete this production, including any privilege log, on or before December 29, 2017.
Plaintiff seeks all communications with passengers of the flight at issue, as well as the complete passenger manifest. (ECF No. 58 at 10-11.) In addition to the argument found in the parties' joint statement, defendant asked during oral argument for a "protocol," allowing any passengers an opportunity to object to the production of their identities. Defendant cited in support of this request 14 C.F.R. § 243.9(c), which provides that passenger "contact information . . . shall be kept confidential" and may be released only to certain governmental agencies. "Notwithstanding the federal regulations, courts have held that a passenger manifest may be discoverable pursuant to a confidentiality agreement."
Plaintiff, however, asserts that she seeks this discovery because "[e]ach passenger is a witness and their statements, testimony, and communications" are relevant to the subject case. (ECF No. 58 at 9.) The undersigned disagrees. Plaintiff's amended complaint alleges that as plaintiff "was moving toward the aisle," the flight encountered turbulence that caused her to "fall and hit her head and left shoulder," and then "lifted her up and slammed her into the ceiling of the cabin." (Am. Compl. (ECF No. 20) at 5.) "As she was thrown downward, she again struck her head and shoulder. A door of the overhead bin broke. . . and hit" plaintiff on the head. (
In this regard, while it is likely that a significant percentage of those passengers seated beside or behind the plaintiff witnessed the events at issue, the same cannot be said for those passengers seated in front of the plaintiff.
Plaintiff's discovery request seeks "any other complaints JetBlue Airways Corporation has received alleging injury resulting from a turbulence injury." (ECF No. 58 at 15.) Defendant notes that plaintiff's request "has no temporal limitation and seeks unlimited information that has no relevance to Plaintiff's claim involving this specific JetBlue flight." (
The undersigned agrees, will modify plaintiff's request, and order defendant to produce any other complaints JetBlue Airways Corporation has received within the last 2 years alleging injury resulting from a turbulence injury suffered while the seatbelt sign was not illuminated.
Plaintiff seeks production of the cockpit voice recordings ("CVR"). (ECF No. 58 at 17.) Plaintiff's request is denied as "[t]he NTSB took custody of the CVR immediately following the subject flight pursuant to its authority under 49 C.F.R. Part 831." (
At oral argument, plaintiff confirmed that this request was now limited to requesting just the personnel records for the flight crew. (ECF No. 58 at 19.) Defendant raises privacy concerns. (
Jurisdiction in this action is premised upon diversity. Accordingly, state law governs defendant's privacy claims. Fed. R. Evid. 501;
Here, the undersigned finds that the relevance of the flight crew's personnel records, plaintiff's compelling need for those records, and inability to obtain those records through other means, outweighs the defendant's privacy concerns. Moreover, the undersigned will order that defendant's production be made pursuant to the parties' stipulated protective order to further ameliorate defendant's privacy concerns.
Plaintiff's request for this discovery is denied because, "as was the case with the CVR, the DFDR was collected by the NTSB following the turbulence event." (ECF No. 58 at 22.)
Accordingly, upon consideration of the arguments on file and those made at the hearing, and for the reasons set forth on the record at that hearing and above, IT IS HEREBY ORDERED that:
1. Plaintiff's December 5, 2017 motion to compel (ECF No. 37) is granted in part and denied part;
2. Defendant shall produce documents responses to plaintiff's RFP No. 1 on or before December 29, 2017. All other documents ordered produced by this order shall be produced on or before January 12, 2018;
3. Defendant's discovery production will be made pursuant to the parties' stipulated protective order; and
4. Discovery in this action shall be completed by April 30, 2018.