Cirrus' first request to both McGuires is for “a copy of your birth certificate, driver's license, and social security card. This is not a case involving illegitimate children. No one died in this accident, so intestacy is not an issue. Upon reading this request, the court's first thought was that Cirrus and whomever signed this document request were operating an identity theft ring. On the other hand, the McGuires' objections were seemingly drafted to give the court the impression that lead counsel for Lloyd and Charles McGuire had not actually read the requests and were content to allow their assistants to dredge objections from the bottom of their form banks.

I. Background

This case arises out of an airplane crash which occurred on August 5, 2006. Plaintiff Lloyd McGuire was a passenger on the airplane, which was piloted by Defendant Charles McGuire.[1] Defendant Charles McGuire purchased the airplane and three days of training from Defendant Cirrus, and the training was conducted by Defendant University of North Dakota Aerospace (“UNDA”). Defendant Charles McGuire was completing an additional training day on August 5, 2007 when the crash occurred. Defendant Jeffrey Nelson, an employee of UNDA, was the flight instructor on board the aircraft at the time of the crash.

II. Applicable Law

In general, parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. FED. R. CIV. P. 26. Local Rule CV-26(d) provides guidelines for counsel and the court to follow when determining whether a particular piece of information is “relevant to the claim or defense of any party.” Discovery pursuant to the Federal Rules is a “broad ... regime,” O2 Micro Int'l v. Monolithic Power Sys., 467 F.3d 1355, 1366 (5th Cir. 2006), and the Local Rules for the Eastern District of Texas reflect this. Discovery need not even be admissible at trial to be obtained under the Federal Rules, since its purpose is to “remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Stone v. Unocal Termination Allowance Plan, 2007 U.S. Dist. LEXIS 33082 at *4 (S.D. Tex. May 7, 2007)(citation omitted).

Fed. R. Civ. P. 34(a)(1) allows a party to serve on any other party a request to “inspect [or] copy ... any designated documents or electronically stored information – including writings....” The party on whom the request has been served must serve a written response within thirty days of service of the request; if the party served objects to all or part of the request, the party must state the reason for the objection. FED. R. CIV. P. 34(b). Under Fed. R. Civ. P. 37(a)(2)(B), where a party fails to permit inspection pursuant to a request under Rule 34, the discovering party may move for an order compelling inspection.

*2 A party may object to a request for production on the grounds that it is not relevant or overly broad, Rule 26(b)(1); is unreasonably cumulative or duplicative, or can be obtained from another source that it more convenient, less burdensome, or less expensive, Rule 26(b)(2)(C)(i); or places a burden on the party that outweighs its likely benefit, Rule 26(b)(2)(C)(iii). The party resisting discovery must show specifically how each document request is overly broad, burdensome, or oppressive. See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)(citations omitted). The recitation of expense and undue burden by the objecting party cannot be merely conclusory. Id.

III. Analysis

Plaintiff Lloyd McGuire and Defendant Charles McGuire make general, conclusory, and nearly identical objections to forty-three (Charles McGuire) and forty-five (Lloyd McGuire) categories of documents requested by Defendant Cirrus. Cirrus responds in a similarly general and conclusory fashion that all the documents sought are relevant and should be produced, but provides the court with no particular reason why this might be so.

A. Local Rule CV-34 Objections

Both McGuires oppose several requests for production on the basis that they violate Local Rule CV-34. This rule states that anytime after the Rule 26(f) Attorney Conference, “a party may request medical records, wage and earning records, or Social Security Administration records of another party” in several situations. Where a party's mental or physical condition is at issue in the case, that party must provide only those records which are relevant to the injuries and damages claimed to opposing counsel. If lost earnings, back pay, or lost earnings capacity is at issue, the party making that claim shall provide signed authorizations to opposing counsel so wage and earning records from past and present employers, as well as Social Security Administration records, can be obtained.[2]

By its plain language, this rule limits only the disclosure of medical records, wage and earning records, and Social Security records. The McGuires cite this provision for requests ranging from birth certificates and drivers' licenses to educational records, diaries, investigator reports of the plane crash, and potential trial exhibits. The court is unclear as to how L.R. CV-34 would apply to these documents, and the McGuires cite no authority in support of their argument that it should.

The purpose of L.R. CV-34 is to limit disclosure of medical records, wage and earning records, or Social Security Administration records to those situations in which a party's physical or mental condition, lost earnings, lost earning capacity, or back pay is at issue in the case. Both McGuires have certainly put both their physical condition and earning capacity at issue in this case, as this action involves claims for damages based on personal injury.

B. Attorney-Client Privilege and Work Product Doctrine

Both McGuires assert attorney-client privilege and/or work product doctrine for various production requests. The attorney-client privilege applies to confidential communications made for the purpose of obtaining legal advice from counsel. Upjohn Co. v. United States, 449 U.S. 383, 386, 101 S. Ct. 677, 681 (1981); United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982). In defining the elements of the attorney-client privilege, courts have relied on the formulation of the privilege by Wigmore. These elements have been summarized as follows:

See, e.g., United States v. Massachusetts Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997)(quoting 8 John Henry Wigmore, Evidence in Trials at Common Law § 2292 at 554 (McNaughton rev. 1961) ); Lenihan v. Stewart Enters. 2002 U.S. Dist. LEXIS 16714 at *6 (E.D. La. Sept. 4, 2002). Documents that are prepared in anticipation of litigation are privileged under the work product doctrine, subject to the opposing party showing a substantial need. FED. R. CIV. P. 26(b)(3). The burden of demonstrating the applicability of either privilege rests on the party who invokes it. Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985).

As noted supra, the burden is on the party asserting either privilege to demonstrate that it exists with respect to the communication at issue. Here, the McGuires assert nothing more than a particular document should not be produced because production would “violate the attorney client and[/or] work-product privileges.” A conclusory statement such as this, with no demonstration that the elements required to assert either privilege are present, does not suffice to carry the burden of demonstrating that either privilege exists.

C. Categories of Documents Requested From Plaintiff Lloyd McGuire

Lloyd McGuire's remaining objections to document production are that the documents are not relevant, unduly burdensome, or obtainable from some other source that is more convenient or less expensive.[3]

1. Personal information (Requests # 1-4, 6, 12, 29).[4]

This category includes documents such as birth certificates, drivers' licenses, diaries, and marriage records. Cirrus has failed to demonstrate exactly why any of these documents requests are relevant to any issue or likely to lead to the discovery of admissible evidence. The court will therefore deny Cirrus' Motion to Compel as to these documents.[5]

This is a personal injury case, which means that relevant documents for Plaintiff Lloyd McGuire include medical and insurance records as well as wage and employment records for damages computations. Plaintiff argues that producing these documents would be unduly burdensome, or that they are obtainable from some other source that is more convenient or less expensive.

*4 It is difficult to see from what other source Cirrus could obtain Plaintiff's own medical and employment records that would be more convenient or less expensive that getting them from Plaintiff himself. Plaintiff does not provide the court with any evidence that would demonstrate an undue burden existed. The court will grant Defendant Cirrus' Motion to Compel as to these documents.

3. Information relating to the accident or claims against Defendant (Requests # 22-24, 31, 33, 35-37, 39, 41).

The documents Cirrus seeks to have Plaintiff produce in this category include information relating to the plane crash, such as accident reports, photographs Plaintiff may be in possession of depicting the crash site, any air traffic control recordings from the crash, and any documents relating to Plaintiff's specific claims of negligence or product defect. These documents are relevant to the claims Plaintiff alleges against Cirrus. The court also notes that all documents in Plaintiff's possession that may use to support his claims must be disclosed under Fed. R. Civ. P. 26(a)(1)(B).

As with medical documents and employment records, the court does not think that requiring Plaintiff to disclose items in these categories which are already in his possession is burdensome, expensive, or inconvenient. Therefore, the court will grant Defendant Cirrus' Motion to Compel as to these documents.[6]

4. Statements and documents relating to Plaintiff's communications with Defendants (Requests # 25-26, 42-45).

In this category, Cirrus seeks documents (including e-mails) relating to any statements Plaintiff may have made to any of the Defendants about anything relevant to the issues in this case. The court will grant Cirrus' Motion to Compel as to these documents, as any such statements are clearly relevant to any issues in the case and/or likely to lead to the discovery of admissible evidence. Plaintiff has not demonstrated how producing such documents would be unduly burdensome, and the court does not think that requiring him to produce them would be costly or inconvenient.[7]

5. Documents relating to trial preparation (Requests # 32, 34, 40).

Finally, Cirrus requests production of documents relevant to Plaintiff's trial preparation. These include any exhibits that may be offered at trial, any documents identifying individuals with information relating to the accident, and any documents identified in Plaintiff's answers to Cirrus' Interrogatories.

The standard Scheduling Order in the Eastern District provides that trial exhibits will be listed in the parties' Joint Final Pre-Trial Order. Although the Scheduling Order has not yet been entered in this case, the parties' Rule 26(f) Report shows that the anticipated date for preparation of the Joint Final Pre-Trial Order by the parties is August 2008 [Doc. # 25]. Seeking disclosure of Plaintiff's trial exhibits at this time is premature.

*5 Any documents identified in Plaintiff's answers to Cirrus' Interrogatories are relevant to the extent that they read on an issue in this case. As discussed above, this includes medical records, wage and employment records, and documents which relate to any of Plaintiff's claims. Plaintiff has not demonstrated how producing such documents would be unduly burdensome, and the court does not think that requiring Plaintiff to produce them would be expensive or inconvenient. The same rationale applies for documents relating to individuals having information relating to the accident, as the details of the accident are certainly relevant to Plaintiff's claims. The court will therefore grant Cirrus' Motion to Compel as to these documents, with the exception of Request # 32 (trial exhibits).

6. Compliance with Rule 26(a) initial disclosures.

Cirrus argues that Lloyd McGuire failed to include in his initial disclosures under Rule 26(a)(1) a “computation of any category of damages claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(C). Such disclosure is clearly required under the Rule, and the court will order Lloyd McGuire to provide such a computation.[8]

D. Categories of Documents Requested From Defendant Charles McGuire

1. Information relating to Charles McGuire's purchase and operation of the airplane (Requests # 20-21, 23-25, 27, 33-36, 38-39).

The documents Cirrus seeks in this category are relevant. Charles McGuire was the owner and pilot of the aircraft at the time of the crash. Information relating to, for example, the condition the plane was in at the time of the crash, the amount of training Charles McGuire received, and his flight record are all relevant to defenses Cirrus may assert to Plaintiff's claims, as well as Charles McGuire's cross-claim against his co-Defendants. Charles McGuire has not demonstrated how producing such documents would be unduly burdensome, and the court does not think that requiring him to produce them would be costly or inconvenient. The court will grant Cirrus' Motion to Compel as to these requests.

2. Documents relating to trial preparation (Requests # 10-11, 17).

For the reasons stated above with respect to Plaintiff Lloyd McGuire, the court will deny Cirrus' Motion to Compel regarding production of trial exhibits and grant it as to the documents identifying individuals who are witnesses to or have information regarding the accident.

Cirrus also seeks copies of all witness statements. To the extent that Cirrus is referring to statements from witnesses with information relevant to the claim or defense of any party, the court will grant Cirrus' Motion to Compel. Witness statements are relevant to any defenses Cirrus may assert against Plaintiff, as well as the cross-claim Charles McGuire has interposed against his co-Defendants. Charles McGuire has not demonstrated how producing such documents would be unduly burdensome, and requiring him to produce any witness statements in his possession would not be costly or inconvenient.

3. Compliance with Rule 26(a) initial disclosures.

Cirrus argues that Charles McGuire failed to fully comply with his responsibilities under Rule 26(a) (1) and this court's Order Governing Proceedings [Doc. # 6]. As part of these initial disclosures, Charles McGuire was required to disclose a copy of all documents in his possession or control that are relevant to any claim or defense. Although Cirrus' Requests For Production did not specifically ask for medical records, they are clearly relevant to Charles McGuire's cross-claim. He has not demonstrated how producing the documents would be unduly burdensome, and requiring him to produce medical records in his possession would not be costly or inconvenient.

IV. Conclusion

*6 The court will grant Cirrus' Cross-Motions to Compel in part. Plaintiff Lloyd McGuire and Defendant Charles McGuire will produce the documents named below. Lloyd and Charles McGuire's Motion For Protective Order is denied.

IT IS THEREFORE ORDERED that Defendant Cirrus Design Corp.'s Cross-Motions to Compel [Doc. # 27, 28] are GRANTED IN PART. Plaintiff Lloyd McGuire will supplement his Rule 26(a)(1) disclosures to include a computation of damages and immediately produce documents responsive to the following document request numbers: 7-11, 13-28, 30-31, 33-37, 39-45. Defendant Charles McGuire will supplement his Rule 26(a)(1)disclosures to include medical records relevant to his cross-claim, as well a provide computation of damages. He will also immediately produce documents responsive to the following document request numbers: 4-9, 11-12, 14-28, 30, 32-43. The deadline for all such supplementation is 3:00 P.M. December 10, 2007.

IT IS FURTHER ORDERED that Plaintiff Lloyd McGuire and Defendant Charles McGuire's Motion For Protective Order is DENIED.

So ORDERED and SIGNED this 7th day of December, 2007.

Defendant Charles McGuire is the father of Plaintiff Lloyd McGuire.

Rule CV-34(3) requires that these records remain confidential and are only disclosed by obtaining counsel to a limited group of individuals. Such information may also be subject to the Protective Order in this case. See Doc. # 16.

At various times, both McGuires also object to the discovery as an “impermissible fishing expedition.” An objection that does nothing but characterize a discovery request as a fishing expedition is generally disfavored by federal courts. See Butler v. Kmart Corp., 2007 U.S. Dist. LEXIS 61141 at *3, n.2 (N.D. Miss. Aug. 20, 2007)(citing Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) and Micro Motion, Inc. v. Kane Steel Co., 894 F.2d 1318, 1327-28 (Fed. Cir. 1990) ).

The court uses the request numbers provided by Plaintiff Lloyd McGuire and Defendant Charles McGuire in their Objections. See Docs. # 21 and 24, respectively.

Cirrus seeks some of the same information from Defendant Charles McGuire. See Doc. # 24, Requests # 1-3. For the same reasons discussed with respect to Plaintiff Lloyd McGuire, the court will overrule Cirrus' Motion to Compel as to these document requests.

Cirrus seeks the same information from Defendant Charles McGuire. See Doc. # 24, Requests # 4-6, 9, 12, 14-16, 18, 19, 22, 28, 30, 32, 37. For the reasons discussed with respect to Lloyd McGuire, the documents sought are relevant to the parties' claims or defenses. Therefore, the court will grant Cirrus' Motion to Compel as to these document requests.

Cirrus seeks the same information from Defendant Charles McGuire. See Doc. # 24, Requests # 7-8, 26, 40-43. For the reasons discussed with respect to Lloyd McGuire, the court will grant Cirrus' Motion to Compel as to these document requests.

Cirrus makes the same argument with respect to Charles McGuire, who has asserted a cross-claim of damages for personal injury against his co-Defendants. For the same reasons, the court will order Charles McGuire to provide such a computation.