Miles v. U.S.
Miles v. U.S.
2015 WL 11109793 (N.D. Fla. 2015)
October 19, 2015
Kahn, Charles J., Jr., United States Magistrate Judge
Summary
The court granted the defendant's motion for protective order regarding the location of the 30(b)(6) depositions and granted in part and denied in part the plaintiff's motion to compel discovery and/or motion for in camera inspection with regard to ESI. The court found that the plaintiff had not established waiver or insufficiency of the defendant's privilege logs and that the military safety privilege applied to the NTSB report.
Judith A. Miles, as Personal Representative of the Estate of David A. Miles, deceased, Plaintiff,
v.
United States of America, Defendant
v.
United States of America, Defendant
Case No. 3:14cv360/MCR/CJK
United States District Court, N.D. Florida, Pensacola Division
Signed October 19, 2015
Counsel
Jennifer Courtney Anderson, Steven Clay Morgan, Gregory Andrew Anderson, Anderson Glenn LLP, Ponte Vedra Beach, FL, for Plaintiff.Erica Ashley Hixon, Kristen Ann Fiore, Pensacola, FL, James Charles Wilson, Steven Aaron Kirsch, US Department of Justice, Washington, DC, for Defendant.
Kahn, Charles J., Jr., United States Magistrate Judge
ORDER
*1 This suit, brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., is before the court on three discovery motions. See docs. 45, 51, 55, 61, 62, 64, 65, and 70. The case stems from a civil aircraft accident on Eglin Air Force Base (“Eglin AFB”) on June 23, 2011, in which plaintiff's husband and another pilot were killed and certain Air Force property, including two grounded Air Force F-15 fighter aircraft and their canopies, was damaged.[1]The Air Force investigated the accident and classified it as a Class C Safety Mishap.[2] See AFSAS Report No. 114995. The National Transportation Safety Board (“NTSB”) also conducted an investigation. When the NTSB concluded its investigation, the Air Force stored the airplane wreckage at Eglin AFB pursuant to plaintiff's request. When plaintiff inspected the wreckage, she discovered that certain engine parts were missing. Defendant does not dispute that parts were missing and accepts full responsibility for the loss and/or destruction of the evidence.
Plaintiff then brought this action, asserting a claim against defendant for spoliation and/or negligent destruction of evidence. She alleges the Air Force intentionally misclassified the accident and that, pursuant to Air Force policy, it should have been classified as a Class A Safety Mishap, in which case the Air Force would have been required to convene an Accident Investigation Board (“AIB”) and preserve the wreckage. Plaintiff also claims the Air Force was bound by common law, as well as a duty that arose as a result of its knowledge that the evidence might become relevant in future litigation, to preserve the wreckage. According to plaintiff, the Air Force's failure to properly store and maintain the aircraft wreckage impeded her ability to recover damages for her husband's wrongful death.[3]
I. Defendant's Motion for Protective Order
Only July 8, 2015, plaintiff served defendant with interrogatories, requests for production of documents, and requests for admissions; on July 14, 2015, she provided defendant a draft Rule 30(b)(6) notice setting forth anticipated areas of inquiry.[4] Defendant filed a motion for protective order on August 13, 2015 (doc. 45) seeking an order “forbidding the discovery requests set forth in each of these four discovery vehicles that concern whether the Sierra crash damaged Air Force F-15 fighter aircraft, their parking canopies, or other government property on the ground, the extent and cost to repair that damage, and the identity of the military personnel that fly and maintain those F-15 aircraft.”[5] Defendant argues the discovery requests are irrelevant, overly broad, unreasonably cumulative or duplicative, and disproportionately burdensome when compared to their likely benefit. Specifically, and in response to plaintiff's position that the requested information is necessary to determine the propriety of the Air Force's classification of the accident, defendant argues that Air Force policy regarding classification and investigation of accidents does not, as a matter of law, create actionable tort duties under the FTCA, which imposes liability only for torts recognized under applicable state law. Even if the value of the damaged property reached the thresholds to establish certain preservation or investigative duties under Air Force policy, according to defendant, there is no analogous duty under state law.[6] Defendant also argues it had no duty to investigate the accident or preserve evidence because the NTSB investigated the accident pursuant to 49 U.S.C. §§ 1131(a)(1)(A) and 1132(a)(1)(A), relieving the Air Force of any duty in that regard. Defendant thus insists the requested information is irrelevant to the issue of its duty to investigate the accident and preserve the wreckage and maintains that even if the information were relevant, plaintiff's discovery requests go far beyond what would be necessary to establish the facts she seeks to establish.[7]
*2 Plaintiff counters each point raised by defendant, arguing that defendant is attempting to prevent her from acquiring evidence necessary to establish a duty to preserve the aircraft wreckage. As set forth above, plaintiff alleges the Air Force intentionally misclassified the accident, aiming to avoid certain obligations, and that the requested discovery is necessary to show how the accident should have been classified and to establish the resultant duty to investigate and preserve evidence. Plaintiff also asserts the evidence is necessary to rebut defendant's affirmative defenses of pilot error and that plaintiff negligently waited over seventeen months from the date of the accident to inspect the wreckage. Plaintiff points out that in the parties' Rule 26(f) report, defendant acknowledged that “evidence concerning whether the engine lost power and the pilots erred is relevant to these defenses and therefore discoverable.” Plaintiff argues that if defendant had a duty to preserve the wreckage from the date of the accident until she inspected it, any delay in the inspection would be inconsequential. Finally, in response to defendant's overbreadth argument, plaintiff agreed to narrow some of her requests, including eliminating the request for information on the squadron commanding officer and maintenance crew members for the damaged F-15s, and shortening the time frame from six months to thirty days after the accident for information regarding maintenance to the damaged aircraft.
“Although it is a relatively new tort, Florida law does recognize an independent cause of action against third-party tortfeasors for the negligent destruction or spoliation of evidence.” Nelson v. Amica Mut. Ins. Co., No. 6:15-cv-160-Orl-41TBS, 2015 WL 4507609, at *2 (M.D. Fla. July 24, 2015); see Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1307–08 (N.D. Fla. 2002); Cont'l Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. 3d DCA 1990). “ ‘Spoliation of evidence is a cause of action which holds someone liable for negligently ... destroying material which is needed as evidence in litigation.’ ” Nelson, 2015 WL 4507609, at *2 (quoting Silhan, 236 F. Supp. 2d at 1307). “ ‘A spoliation claim arises against a defendant when that defendant breaches a duty to preserve evidence resulting in the destruction of a plaintiff's cause of action against a third party.’ ” Id. (quoting Silhan, 236 F. Supp. 2d at 1307). “To make a prima facie case for third-party negligent destruction or spoliation of evidence, the plaintiff must show: ‘(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.’ ” Id. (quoting Cont'l Ins. Co., 576 So. 2d at 315). Only the second element of plaintiff's spoliation claim is at issue here.
As plaintiff explains, a duty to preserve evidence can arise in a number of ways, including by contract, statute/regulation, common law, and other “special circumstances.” Plaintiff Miles urges here that defendant had a statutory/regulatory and common law duty to preserve evidence of the wreckage, as well as a duty that arose as a result of its knowledge that the evidence might become relevant in future litigation, and that the requested information is necessary to establish such duty. See, e.g., Silhan, 236 F. Supp. 2d at 1309; see also Nelson, 2015 WL 4507609, at *2-3 (recognizing that formal notice can create a duty when sufficient to place a third party on notice that evidence may become relevant in future litigation and specifically requests that the third party preserve it); Am. Hospitality Mgmt. Co. v. Hettiger, 904 So. 2d 547, 549 (Fla. 4th DCA 2005) (explaining, in context of a claim for spoliation of other than medical records, that “defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”).
“ ‘The deposition-discovery regime set out by the Federal Rules of Civil Procedure is an extremely permissive one to which courts have long accorded a broad and liberal treatment....’ ” In re Douglas Asphalt Co., 436 B.R. 246, 251 (Bkrtcy. S.D. Ga. 2010) (quoting In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003)). Under Fed. R. Civ. P. 26(b), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ....” Fed. R. Civ. P. 26. As the Advisory Committee Notes indicate, “[t]he purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the preparation or presentation of his case.” Adv. Com. Notes, 1946 Amendment, Rule 26, Fed. R. Civ. P. To that end, “ ‘fishing’ for evidence is permitted.” Felicia v. Celebrity Cruises, Inc., 286 F.R.D. 667, 671 (S.D. Fla. 2012) (citing Adv. Com. Notes, 1946 Amendment, Rule 26, Fed. R. Civ. P.). “ ‘Of course, matters entirely without bearing either as direct evidence or as leads to evidence are not within the scope of inquiry, but to the extent that the examination develops useful information, it functions successfully as an instrument of discovery, even if it produces no testimony directly admissible.’ ” Id. (quoting Adv. Com. Notes, 1946 Amendment, Rule 26, Fed. R. Civ. P.).
*3 Pursuant to Fed. R. Civ. P. 26(c), “[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.” Fed. R. Civ. P. 26(c). Upon the filing of such motion, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including “forbidding the disclosure or discovery” and “limiting the scope of disclosure or discovery to certain matters.”[8] Id. “The movant bears the burden of showing the necessity for protecting the documents, ‘which contemplates a particular and specific demonstration of facts as distinguished from stereotyped and conclusory statements.’ ” Pensacola Firefighters' Relief Pension Fund, 2011 WL 3512180, at *2 (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).[9]
Here, defendant has failed to demonstrate good cause for entering a protective order precluding discovery of the requested information. The majority of the parties' briefs is devoted to the issue of whether defendant had a statutory/regulatory duty to store and preserve the aircraft wreckage. Defendant's duty, or lack thereof, is the ultimate issue in this case. Although the magistrate judge is required to consider the relevance of the requested information, he may not at this stage determine the ultimate issue – whether a duty to preserve evidence existed on the facts advanced. If the district judge determines that no such duty existed, then the question of relevance could be impacted; if such a duty were found to exist, however, the information would be essential to plaintiff's claim. Because that determination has not yet been made, the undersigned finds plaintiff entitled to the requested information.
In any event, the undersigned also finds the requested information relevant to defendant's affirmative defenses, a fact defendant has acknowledged. Finally, plaintiff's requests are reasonable in scope and not overly burdensome, particularly in light of plaintiff's narrowing of the scope of some of the requests to which defendant objected. Defendant's motion for protective order thus will be denied.
II. Plaintiff's Motion to Compel
On September 11, 2015, plaintiff filed a motion to compel defendant to produce certain documents or, in the alternative, for an in camera inspection of the documents to determine whether defendant's asserted privileges apply (doc. 55). Two categories of documents are at issue – the first consists of redactions from a non-classified investigation report prepared by the Air Force and the second consists of a series of “recently produced pre-suit, pre-notice of FTCA claim emails.” Plaintiff maintains the asserted privileges are inapplicable on their face and that the requested documents should be produced. In the alternative, plaintiff requests that the documents be submitted for in camera review to determine the applicability of the asserted privileges.
A. Final Supplemental Class C Safety Mishap re: Aero Club Accident
*4 In a supplemental response to plaintiff's request for production of documents, defendant produced a document titled “Final Supplemental Class C Safety Mishap re: Aero Club Accident,” along with a privilege log stating the document was subject to the “Military Safety” and “Deliberative Process” privileges. Defendant initially produced the document with all but the first page redacted; after discussion with plaintiff's counsel, defendant produced a replacement document disclosing additional portions of the report but still redacting certain information.
Plaintiff objected to defendant's assertion of privilege and requested that defense counsel review the redacted portions to ensure the redacted information in fact is protected from disclosure. Defendant's counsel informed plaintiff that he, too, has been prohibited from reviewing the un-redacted portions of the document. Based upon that representation, plaintiff argues counsel for defendant has no grounds upon which to assert the military safety or deliberative process privilege. Plaintiff also claims there are no issues of national security, as required to properly invoke the privilege, and that the purpose of the privilege would not be served by application in this case because no witness statements are contained in the report, which plaintiff contends consists entirely of facts and recommendations.[10] Plaintiff argues that she at least is entitled to the un-redacted portions of the report that contain factual matter. She seeks an order requiring defendant to produce the report in its un-redacted form or submit the document for in camera review so the undersigned can determine the applicability of the asserted privileges. She claims she cannot, without undue hardship, obtain the information from any other source.
In its response to plaintiff's motion to compel, defendant relies solely on the military safety privilege, abandoning any claim to the deliberative process privilege. Defendant attached to its response declarations of Major General Andrew M. Mueller, Chief of Safety of the United States Air Force in charge of the Air Force Safety Program, and Daniel M. Vadnais, Senior Attorney Advisor to the Air Force Chief of Safety, who also serves as Commander of the Air Force Safety Center. According to General Mueller, “Air Force safety investigators determine cause solely to prevent future accidents.” Doc. 65-5 at ¶ 4. “The purpose of the privilege protecting certain Air Force mishap safety investigation material from disclosure is to protect lives and equipment, and to ensure the combat readiness of the Air Force.” Id. General Mueller explained that “[f]or more than fifty years, the privilege has been essential in providing Air Force commanders with quick and accurate information from complex mishap investigations so that they can immediately determine the operational readiness of their aircraft and personnel.” Id. “History and the success of the Air Force safety program indicate that Air Force investigators involved in safety investigations feel more free to assess blame because they know their opinions will be seen only by persons responsible for promoting safety” and not “to determine fault, to adjudicate claims, to prosecute disciplinary actions, adverse administrative proceedings or for litigation.” Doc. 65-5 at ¶¶ 4, 8. “The disclosure of such opinions and deliberation over them in public proceedings,” in General Mueller's view, “would hamper the single-minded objectivity with which Air Force investigators carry out such investigations.” Doc. 65-5 at ¶ 8. To ensure the efficacy of the safety program, therefore, the privilege “creates restrictions on handling and releasing information in safety investigation reports,” including analyses, conclusions, and findings of safety mishap investigators. DoDI 6055.07, ¶ 1; AFI 91-204 ¶¶ 3.2.1, 3.2.1.1 at 28.
*5 General Mueller reviewed the redacted portions of the safety investigation report at issue in this case and confirmed that they “contain the confidential analysis, conclusions, findings and recommendations” of the investigator, which he maintains are privileged under DoDI 6055.07, Air Force Instruction 91-204, and Headquarters Air Force Mission Directive 1.46. Doc. 65-5 at ¶ 3. General Mueller also confirmed that all of the requested factual documents and information from Part 1 of the report were produced. Doc. 65-5 at ¶ 5. General Mueller concluded that “production of redacted sections of the USAF Safety Mishap Message at issue in this case would prejudice the efficient operation of the Department of the Air Force and the defense interests of the United States; would be contrary to the public interest; and, hence would not be warranted.” Doc. 65-5 at ¶ 9. General Mueller thus formally invoked the DoD safety privilege with respect to the redacted portions of the document pursuant to the authority granted him by the Secretary of the Air Force.
Mr. Vadnais likewise confirmed that the only material redacted from the report was that which reflects the “safety investigator's analysis, conclusions, findings and recommendations.” Doc. 65-6 at ¶ 4. Vadnais explained that the Safety Center “is responsible for establishing Air Force policy on, overseeing, and, on occasion, conducting investigations into mishaps that are solely related to and conducted for the improvement of safety practices in the Air Force and Department of Defense (DoD).” Doc. 65-6 at ¶ 1. Similar to General Mueller, Vadnais stated that “[t]o encourage candor in safety investigations, the statements of certain witnesses who are promised confidentiality, as well as the analysis, conclusions, findings and recommendations of Safety Investigators and their investigations, are not available for disciplinary or litigation purposes under governing DoD directives, including Department of Defense Instruction 6055.07, Enclosure 5, Page 20-27, June 6, 2011, and Air Force Instruction 91-204 Chapter 3, paragraph 3.1 and 3.2, pages 35 and 36, 10 April 2014.” Doc. 65-6 at ¶ 2. According to Mr. Vadnais, “[t]hose parts of investigations are limited in use to prevention of DoD mishaps, including mishaps at DoD installations such as Air Force bases.” Doc. 65-6 at ¶ 2. Vadnais stated that he reviewed the unredacted safety message at issue in this case and that “the portions redacted from that safety message reflect only the safety investigator's analysis, conclusions, findings and recommendations,” all of which are “specifically protected from disclosure to anyone not a member of the Air Force Safety Community by the DoD Safety Privilege.” Doc. 65-6 at ¶4. “All factual matters,” according to Vadnais, “were unredacted and released to the parties.” Doc. 65-6 at ¶ 4.
General Mueller's and Mr. Vadnais' positions regarding applicability of the military safety privilege find support in the case law. As defendant sets forth in its response, the military safety privilege was first recognized in Machin v. Zuckert, 316 F.2d 336 (D.C. Cir. 1963), an action against an aircraft company brought by the sole surviving crew member of a crashed B-25 bomber. Although the Air Force was not a party to the action, the plaintiff subpoenaed the Secretary of the Air Force demanding a copy of an Accident Investigation Report after the Air Force refused to voluntarily produce it. Id. Having the benefit of comments from the Inspector General regarding the purpose and benefits of the privilege, both the district court and the court of appeals upheld application of the privilege, with the court of appeals holding that “[t]he privilege extends to any conclusions that might be based in any fashion on such privileged information. Also, a recognized privilege attaches to any portions of the report reflecting Air Force deliberations or recommendations as to policies that should be pursued.” Id.
The Fifth Circuit also recognized – and expanded – the privilege in a case involving a request under the Freedom of Information Act (“FOIA”). In Cooper v. Dep't of the Navy, 558 F.2d 274, 277 (5th Cir. 1997), modified on other grounds, 594 F.2d 278, the court affirmed summary judgment in favor of the Navy with respect to its assertion of the privilege when declining to produce a safety investigation report. In so holding, the court noted the absence of any distinction between testimony of private parties promised confidentiality and that of military personnel, concluding the Machin privilege should apply to both. Id. Notably, the court held factual material privileged even when not comprised of witness statements. Id. at 278.
*6 In Karantsalis v. Dep't of the Navy, No. 12-23469-CIV, 2013 WL 1768659 (S.D. Fla. April 24, 2013), the plaintiff challenged the Navy's redaction of certain portions of two mishap reports concerning a jet crash, including “opinions of medical officers and other evaluators, the mishap board and endorsers ....” Id. at *3. The Navy invoked both the Machin and deliberative process privileges. The district court found it unnecessary to address the deliberative process privilege, concluding the redaction of “opinions of those involved in the evaluation” and witness statements were “covered by the Machin privilege and thus need not be disclosed pursuant to [FOIA] Exemption 5.” Id.
Both the United States Supreme Court and the Eleventh Circuit also have recognized the DoD safety privilege. SeeWeber Aircraft Corp., 465 U.S. 792, 798-804 (holding that Exemption 5 of FOIA incorporates the Machin privilege protecting confidential statements made to military air crash safety investigators); Fla. House of Representatives v. U.S. Dep't of Commerce, 961 F.2d 941, 944-45 and n.3 (11th Cir. 1992) (noting that Exemption 5 of FOIA, which exempts from disclosure those documents normally or routinely privileged in pretrial discovery, includes the Machin privilege). In Weber, the parties to an action arising out of an aircraft mishap sought Air Force investigative reports through a FOIA request. 465 U.S. at 796. Although the Air Force produced most of the requested information, it refused to release confidential portions of the safety investigation. Id. The plaintiff sought relief in the district court, and the United States filed an affidavit executed by the General responsible for Air Force safety investigations in which the General explained that the withheld material contained “ ‘conclusions, speculations, findings and recommendations made by the Aircraft Mishap Investigators' as well as ‘testimony presented by witnesses under a pledge of confidentiality.’ ” Id. at 796-97. The district court found in favor of the Air Force, holding that it need not produce the material at issue pursuant to Exemption 5 of FOIA. Id. at 797-98. The Ninth Circuit reversed, agreeing that the material would be protected by the Machin privilege but holding that Exemption 5 covers only privileges recognized in the legislative history of FOIA. Id. at 798. The Ninth Circuit determined the conclusions, speculations, findings, and recommendations of mishap investigators could remain privileged pursuant to a FOIA-recognized executive privilege “for pre-decisional documents containing advice, opinions or recommendations of government agents,” but that witness statements were unprotected “official government information.” Id. The court thus ordered the factual portions of the statements to be disclosed. Id.
The United States petitioned the Supreme Court for certiorari, and the Supreme Court reversed the judgment with respect to the witness statements, noting that FTC v. Grolier, Inc., 462 U.S. 19 (1983), previously held that Exemption 5 simply incorporates civil discovery privileges fashioned by the courts. Id. at 799. The Court then noted that “the Machin privilege is well recognized in the case law as precluding routine disclosure of the statements ...” and that to hold that material normally privileged can be obtained through FOIA would create an anomaly allowing FOIA to supplement civil discovery. Id. at 799-802. The Court thus held “the statements are covered by Exemption 5” and did not need to be produced. Id. at 799.
In Theriault v. United States, 395 F. Supp. 637, 639 (C.D. Calif. 1975), survivors of a civilian employee killed in an Air Force plane crash filed suit under FOIA to obtain a complete copy of an aviation safety report, known as Form 711, along with other documents. The Air Force had withheld portions of the Form 711 that contained the “opinions, conclusions[,] speculations, and recommendations” of the investigator. Id. The court denied the plaintiff's request for an injunction requiring the Air Force to provide the full report, reasoning that the Air Force wants its investigators to be completely candid in determining the cause of an accident. Id. at 640, 642. As the court observed, investigators “are encouraged to speculate, opine, analyze and make recommendations that may not be fully supported by facts. In order to insure that all possible causes of an accident are identified and considered and all corrective actions are weighed, investigators operate with the understanding that their deliberations and their report will not be released outside of the Air Force or used for any purpose other than aviation safety.” Id. at 640.
*7 In O'Keefe v. Boeing Co., 38 F.R.D. 329, 330 (S.D.N.Y. 1965), the United States intervened in a tort action brought by the estates of six crew members killed in a B-52 bomber crash and the one surviving member of the crew to assert the safety privilege. Relying on Air Force regulations governing safety investigations and reports, the court found it “reasonable and appropriate that a privilege be sustained as to papers in the class” of “opinions, speculations, recommendations, and discussions of Air Force policy contained in the ... statements [of Air Force personnel, group reports], ... and ‘formal reports.’ ” Id. at 334.
Based on the evidence of record, particularly the declarations of General Mueller and Mr. Vadnais, as well as applicable case law, the undersigned finds the military safety privilege applicable in this instance and, accordingly, that plaintiff is not entitled to the redacted portions of the safety investigation report. As General Mueller explained, and as the court observed in Theriault, the purpose of the privilege is to allow safety investigators to speculate, opine, analyze, and make recommendations in a hasty fashion, knowing they may not be fully supported by facts, so that all possible causes of an accident can be identified and all corrective action can be taken in as timely a fashion as possible. The undersigned, informed by the Mueller declaration, fully concurs with the obvious–the military must be able to conduct these investigations in what might be considered an expedited fashion, as opposed to the prolonged and overly deliberative process that might characterize investigation of a purely civil occurrence.[11] The legitimate purpose of the military safety privilege would be undermined if that privilege were to be applied on a case-by-case basis, as plaintiff suggests here. Plaintiff's motion to compel thus will be denied with respect to the report.[12]
B. Email Communications
Turning to the email communications, four requests for production of documents are at issue, including Request for Production Nos. 5 and 11 through 13. With respect to each request, plaintiff challenges both the applicability of the asserted privileges and the adequacy of defendant's privilege log. Regarding the latter, plaintiff argues the privilege log does not adequately state the basis of the asserted privilege(s) or identify the parties to the communications. Plaintiff acknowledges, however, that defendant specified the privilege asserted, provided the date the communication was prepared, identified the parties involved in the communication, provided a brief description of the contents of the communication, and identified the request to which each withheld document was responsive. According to plaintiff, even if the privilege log were sufficient, the work product doctrine does not apply because the documents at issue were prepared in the ordinary course of business and not in anticipation of litigation. Plaintiff seeks production of the documents or an in camera review to determine the applicability of the asserted privileges.
*8 “ ‘The attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice....’ ” United States v. Fulwood, 569 Fed.Appx. 691, 694 (11th Cir. 2014) (quotingIn re Grand Jury Proceedings 88–9(MIA), 899 F.2d 1039, 1042 (11th Cir. 1990)). “ ‘The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.’ ” Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (quoting United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991)). “To determine if a particular communication is confidential and protected by the attorney-client privilege, the privilege holder must prove the communication was ‘(1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential.’ ” Id. (quoting United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985)). In other words, the party invoking the attorney-client privilege must establish the following:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is (the) member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
United States v. Fulwood, 569 Fed.Appx. 691, 694 (11th Cir. 2014).
Differing from the attorney-client privilege, the work product doctrine, which has been incorporated in the Federal Rules of Civil Procedure, shields from disclosure “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3)(A). Defendant claims at least some of the documents at issue were prepared in anticipation of litigation or for trial.
As a requisite to withholding documents based upon any privilege, the responding party must produce a privilege log in which it “describe[s] the nature of the documents, communications, or tangible things not produced or disclosed – and do[es] so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(a)(5)(A). In other words, in order to withhold production of a document on the basis of privilege, the responding party must provide a privilege log that contains the following information for each document withheld:
(1) the name and job title or capacity of the author of the document;
(2) the name and job title or capacity of each recipient of the document;
(3) the date the document was prepared and, if different, the date(s) on which it was sent to or shared with persons other than the author(s);
(4) the title and description of the document;
(5) the subject matter addressed in the document;
(6) the purpose(s) for which it was prepared or communicated; and
(7) the specific basis for the claim that it is privileged.
DHA Corp. v. Hardy, No. 15-MC-80201, 2015 WL 3707378, at *3 n.3 (S.D. Fla. June 15, 2015) (slip copy) (quotingNIACCF, Inc. v. Cold Stone Creamery, Inc., No. 12–CV–20756, 2014 WL 4545918, at *5 (S.D. Fla. Sept. 12, 2014)). The undersigned has reviewed defendant's privilege logs and finds them adequate. The only question, then, is whether the withheld documents should be produced in response to plaintiff's discovery requests.
*9 Through Request No. 5, plaintiff seeks “the identity and contact information of the Official or Officer that made any discretionary decisions and or the final decisions on whether to order or convene any Accident Investigation Board (AIB) or (SIB) Safety Investigation Board as a result of this crash.” Defendant objected to the request on grounds of relevancy, attorney-client privilege, and work product doctrine and indicated that documents withheld on grounds of privilege were identified on an accompanying privilege log. In a supplemental response, defendant produced certain documents, including its SIB file and documents pertaining to an Interim Safety Board. It also explained that it was not required to convene an AIB because the NTSB investigated the accident and released a public report. Defendant nevertheless provided the names and former duty stations of the individuals who would have been authorized to make a decision to convene a discretionary AIB, both of whom are now retired. Defendant also identified the individuals involved in a joint decision with respect to the SIB and provided their current or former duty stations.
As defendant notes, Request No. 5 is more in the form of an interrogatory and seeks only identities and contact information rather than documents themselves or even the contents of documents. Defendant purports to have provided plaintiff with the requested identities and contact information, and plaintiff does not dispute that fact. Considering that defendant has now provided plaintiff with the information requested in Request No. 5, defendant should not be required to produce additional documents, much less documents that may be privileged or otherwise shielded from disclosure. Plaintiff's motion thus will be denied with respect to Request No. 5. See, e.g., Stern v. O'Quinn, 253 F.R.D. 6701 63, 685–86 (S. D. Fla. 2008) (finding that plaintiff failed to demonstrate the requisite substantial need and undue burden necessary to sustain a breach of the work-product protection because plaintiff could discover the requested information through interrogatories and then conduct his own interviews); see alsoCastle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984) (recognizing that a party did not face undue hardship when it could obtain the necessary information by deposing a witness rather than obtaining protected work product).
Through Request for Production No. 11, plaintiff seeks identification “of all individuals who had access to the subject crash wreckage during transport from the airfield to the storage facility as well as those individuals who had access to the wreckage upon arrival to storage and any time thereafter.” Like Request No. 5, Request No. 11 is more in the form of an interrogatory in that it seeks only identities and contact information rather than documents or the substance of documents. Defendant objected to Request No. 11 to the extent it seeks information protected by the attorney-client privilege or work product doctrine but produced certain documents, stating that responsive documents withheld on grounds of privilege were identified on an accompanying privilege log. Defendant maintains that, in addition to the non-privileged documents it produced, it provided plaintiff with the requested identities and contact information in response to several interrogatories. Based on the interrogatory responses set forth in defendant's response, it appears that defendant, in fact, provided plaintiff with the requested information, although defendant did not state that fact in response to Request No. 11 or specify the interrogatory responses in which such information could be found. Nevertheless, to the extent the documents defendant produced contained the information requested, defendant had no obligation to produce additional documents, much less documents that may be privileged or otherwise protected from disclosure. Plaintiff's motion thus also will be denied with respect to Request No. 11. See, e.g., Stern, 253 F.R.D. at 685–86; Castle, 744 F.2d at 1467.
Request No. 12 seeks production of “all records, documents, memoranda, communications, and reports relating to the removal of any pieces, parts, or equipment taken from or returned to the wreckage storage facility relating to the subject crash.” Again, defendant objected to the request to the extent it seeks information protected by the attorney-client privilege or work product doctrine but produced certain documents, stating that other responsive documents withheld on grounds of privilege were identified on an accompanying privilege log. In response to plaintiff's motion, defendant explains that it provided plaintiff with “substantial non-privileged information about storage and transfer of the wreckage, including the loss of parts,” and argues that plaintiff “does not need privileged documents in order to understand what happened to the wreckage.” Although defendant may have provided plaintiff substantial information regarding the matters addressed in Request No. 12, to the extent there are any responsive, non-privileged documents, defendant must produce them. As set out above, the undersigned finds defendant's privilege log adequate; nevertheless, in an effort to resolve this discovery dispute in as expeditious a manner as possible, defendant shall submit an amended privilege log that more clearly describes the communications so it can be determined from the description whether the communications in fact are privileged. In the event defendant determines that previously withheld documents are non-privileged, it may produce all such responsive documents rather than include them on an amended privilege log.
*10 Through Request No. 13, plaintiff seeks “all records, documents, memoranda, communications, reports, and procedures established to control access to the subject crash wreckage storage facility.” Defendant objected to Request No. 13 to the extent it seeks information protected by the attorney-client privilege or work product doctrine and indicated that responsive documents withheld on grounds of privilege were identified on an accompanying privilege log. Defendant produced nonprivileged documents. In response to plaintiff's motion, defendant contends that, in addition to producing non-privileged documents in response to Request No. 13, it provided, without objection, answers to all of plaintiff's interrogatories pertaining to the manner in which the Air Force controlled access to the building in which the wreckage was stored. The fact that defendant may have provided plaintiff with information regarding the subject matter of Request No. 13 does not alleviate defendant's obligation to provide non-privileged responsive documents. Again, although the undersigned finds defendant's privilege log adequate, in an effort to resolve this discovery dispute in as expeditious a manner as possible, defendant shall submit an amended privilege log that more clearly describes the communications so it can be determined from the description whether the communications in fact are privileged. In the event defendant determines that previously withheld documents are non-privileged, it may produce all such responsive documents rather than include them on an amended privilege log.
III. Defendant's Motion for Protective Order Regarding Location or Method of 30(b)(6) Depositions
The last issue for resolution arises under Defendant's Motion for Protective Order Regarding Location or Method of 30(b)(6) Depositions (doc. 62). Through its motion, defendant seeks an order quashing plaintiff's amended 30(b)(6) notice to the extent it requires certain witnesses who live further than 100 miles from Ft. Walton Beach, Florida, to appear for deposition in Ft. Walton Beach and requiring plaintiff to depose the witnesses in their place of residence or by video conference pursuant to Fed. R. Civ. P. 26(c)(1)(C) and 30(b)(4). In support of the motion, defendant explains that, because of the breadth of the amended 30(b)(6) notice, the government needed to designate multiple witnesses to testify to the topics set forth therein, including several witnesses who reside more than 100 miles away from Ft. Walton Beach. The witnesses include Col. Todd McDowell, who works at the Joint Improvised-Threat Defeat Agency in the Washington, D.C. suburb of Reston, Virginia, and resides in Stafford, Virginia; Steven Hildenbrandt, a civilian Air Force employee who works at Air Force Materiel Command Headquarters at Wright-Patterson AFB, Ohio, and resides in Beavercreek, Ohio; and Lt. Col. Debra Luker, who is assigned to the Air War College at Maxwell AFB, Montgomery, Alabama, and lives in Prattville, Alabama.[13] Defendant argues that requiring these witnesses to travel away from their residences and duty stations for deposition is unreasonable and would impose a significant financial burden on each witness's unit, which would be responsible for the travel costs.
Plaintiff, on the other hand, argues that requiring four different deposition locations across the country imposes an undue burden on her. Plaintiff posits that the depositions of all of defendant's 30(b)(6) designees should take place in Washington, D.C., the Air Force's principal place of business and the location of defense counsel, or Okaloosa County, Florida, the location of three designees and the site of the accident. Plaintiff points out that the discovery deadline is October 30, 2015 and states that the parties have already scheduled eighteen depositions to be conducted before then and may schedule at least two more. According to plaintiff, there is insufficient time to require counsel to travel to an additional three locations across the country for a 30(b)(6) deposition that she has been trying to coordinate for months. Plaintiff opposes conducting the depositions by video conference because the depositions may be “document intensive.”
As set forth above, pursuant to Fed. R. Civ. P. 26(c)(1)(B), the court may, “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... specifying terms, including time and place, for the ... discovery.” Id. Alternatively, the court may “prescribe[ ] a discovery method other than the one selected by the party seeking discovery.” Fed. R. Civ. P. 26(c)(1)(C). A trial court has “wide discretion in setting the limits of discovery” through protective orders. Liese v. Indian River Co. Hosp. Dist., 701 F.3d 334, 354 (11th Cir. 2012) (internal marks omitted).
*11 The Federal Rules of Civil Procedure do not specify locations for depositions. “Generally, the noticing party has discretion as to the place where a party deposition will be taken, subject to the court's power to grant a protective order.” Sacramento E.D.M., Inc. v. Hynes Aviation Indus., Inc., No. 2:13-cv-0288, 2014 WL 4471419, at *1 (E.D. Cal. Sept. 10, 2014) (internal marks omitted). “[T]he usual ‘rule ... in federal litigation, [is that] in the absence of special circumstances, a party seeking discovery must go where the desired witnesses are normally located.” Yaskawa Elec. Corp. v. Kollmorgen Corp., 201 F.R.D. 443, 444 (N.D. Ill. 2001) (internal marks omitted). Moreover “[i]t is well settled that ‘(t)he deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business,’ especially when, as in this case, the corporation is the defendant.” Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979) (quoting 8 C.Wright & A.Miller, Federal Practice & Procedure s 2112 at 410 (1970)). If the parties cannot agree upon the location of a party's deposition, courts presume it will proceed at the deponent's residence, business, or employment. Sacramento E.D.M., 2014 WL 4471419, at *4; see also Grey v. Cont'l Mktg. Assocs., Inc., 315 F. Supp. 826, 832 (N.D. Ga. 1970) (“Although the federal rules do not prevent plaintiff's designating any place he chooses for the taking of a defendant's deposition, the cases indicate that it is presumed that a defendant will be examined at his residence or at his place of business or employment; if another place is named and defendant files a timely objection the objection should be sustained absent some unusual circumstance to justify putting the defendant to such inconvenience.”). In order to overcome this presumption, the party noticing the deposition must demonstrate that considerations of cost, convenience, and litigation efficiency dictate taking the deposition at an alternate location. See Harrier Techs., Inc. v. CPA Global Ltd., No. 3:12CV167, 2014 WL4537458, at *2 (D. Conn. Sept. 11, 2014) (“Because courts retain substantial discretion to designate the site of a deposition, the presumption appears to be merely a decisional rule that facilitates determination when other relevant factors do not favor one side over the other.”) (internal marks omitted).
Here, there is no discernible reason the prevailing rule should not apply. Indeed, there are no extraordinary circumstances warranting deviation from that practice. Although traveling to various locations may be burdensome for plaintiff, it would be equally burdensome for defendant to require all of its designees to travel away from their duty stations to a single location of plaintiff's choosing. As defendant points out, given the breadth of the 30(b)(6) notice, plaintiff should have anticipated the designation of multiple witnesses in various locations. The undersigned thus finds that the amended notice should be quashed to the extent it requires Col. McDowell, Mr. Hildenbrandt, and Lt. Col. Luker to appear for deposition in Ft. Walton Beach. In the event plaintiff wishes to depose these witness, she must do so in the primary locale of their work or residence, whether in person or by video conference pursuant to Fed. R. Civ. P. 26(c)(1)(C) and 30(b)(4), unless the parties can reach agreement otherwise.
Accordingly, it is hereby ORDERED as follows:
1. Defendant's Motion for Protective Order (doc. 45) is DENIED.
2. Plaintiff's Motion to Compel Discovery and/or Motion for In Camera Inspection (doc. 55) is GRANTED in part and DENIED in part, as set forth above.
3. Defendant's Motion for Protective Order Regarding Location or Method of 30(b)(6) Depositions (doc. 62) is GRANTED, as set forth above.
DONE AND ORDERED this 19th day of October, 2015.
Footnotes
At the time of the accident, plaintiff's husband, David A. Miles, was providing flight instruction for the Eglin Aero Club in a Beechcraft Sierra single-engine airplane.
According to the parties, Air Force policy governs the classification of safety mishaps, which dictates the manner in which an accident will be investigated and the Air Force's obligations with regard to matters such as the retention and preservation of evidence. Classification depends, in part, on the dollar amount of damage caused by the accident and any resulting injuries or fatalities.
Plaintiff attributes the accident to a power loss in the engine; defendant asserts the crash was caused by pilot error. Plaintiff contends the lost parts are critical to proving the source and cause of the power loss.
Rule 30(b)(6) of the Federal Rules of Civil Procedure pertains to depositions of corporations, partnerships, associations, governmental agencies, and other entities and sets forth the requirements for notices of or subpoenas for such depositions as well as the deponent's obligations in response thereto.
The specific areas of inquiry at issue are Request for Production Nos. 1, 2, 6, 10, and 15; Interrogatory Nos. 4, 9, and 10; Request for Admissions Nos. 1, 2, 13, and 14; and draft 30(b)(6) Topic Nos. 3, 4, and 7.
Defendant acknowledges, however, that a duty may have arisen by virtue of plaintiff's request that defendant store the wreckage for potential use in a civil matter, but argues that whether such a duty existed is the ultimate issue in the case and thus is a matter to be decided by dispositive motion or at trial.
In support of this argument, defendant points to discovery requests that seek information about the cost to repair damage from the accident; documentation for maintenance and repair of any component of the F-15s, even components not allegedly damaged in the accident that were later maintained or repaired for other reasons, for a period of months after the accident; all photographs of the F-15s for a period of two months after the accident; and a written description of all maintenance, inspections, reviews, repairs, replacement parts used or back-ordered, minor repairs, cleaning, check flights, post-maintenance flights, and/or debris removal on the F-15s over a six-month period. Defendant also points to the draft 30(b)(6) notice, which includes all maintenance or repairs on the damaged F-15s for a period of six months, and other ground property damage, which defendant argues is needlessly cumulative and burdensome considering that discovery on the extent and dollar value of such damage is the subject of discovery requests, including Interrogatory Nos. 9 and 10 and Request for Admission Nos. 1 and 2, which defendant contends can establish the facts in a less burdensome manner; and maintenance and repair of the F-15s over a six-month period, performed for any reason, even if unrelated to the accident. In addition, defendant argues that plaintiff's request for all documents identifying F-15 Wing and Squadron officers and crew members over a six-month period is irrelevant, as are documents concerning any legal hold on the F-15s.
“In addition to the ‘good cause’ standard, the district court has a duty to balance the interests of the respective parties.” Pensacola Firefighters' Relief Pension Fund Bd. of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180, at *2 (N.D. Fla. July 7, 2011). Moreover, “[a]lthough a district court has broad discretion in fashioning a protective order, it must articulate its reasons for granting the order “ ‘sufficient for appellate review.’ ” Id. (citing In re Alexander Grant & Co. Litigation, 800 F.2d 352 (11th Cir. 1987)).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
Plaintiff further argues that defendant waived the attorney-client privilege and provided insufficient privilege logs. The undersigned finds that plaintiff did not establish waiver or insufficiency of defendant's privilege logs.
As noted above, of course, the NTSB did investigate the accident.
In her amended reply (doc. 70), plaintiff states that she “believes” the military safety privilege does not apply because the applicable Air Force Instructions in effect at the time of the accident provided that reports of Aero Club mishaps were not privileged unless the Aero Club aircraft was performing a USAF directed mission. Plaintiff offers no authority for her position that the former version of the AFI applies to the accident in question, however, and acknowledges that no such exception exists in the current AFI. Moreover, although she argues that the privilege is based on considerations of national defense, none of which were implicated here, she has pointed to no such limitation in the rules or regulations. Finally, plaintiff insists that some of the material redacted from the report consists of facts, which are not privileged. Plaintiff's position in that regard is based purely on speculation and is flatly contradicted by the affidavits of General Mueller and Mr. Vadnais.
Three additional witnesses were designated to testify to topics set forth in plaintiff's amended 30(b)(6) notice, but each of those witnesses works at Eglin AFB and lives in the Ft. Walton Beach/Okaloosa County area.