Cavner v. Airborne Systems North America of CA, Inc.

          ORDER DENYING MOTION FOR ORDER DIRECTING THE U.S. SECRETARY OF THE NAVY TO PRODUCE DOCUEMTNS [ECF NO. 34.]

          Hon. Bernard G. Skomal, United States Magistrate Judge

         I. INTRODUCTION

         Presently before the Court is Defendant Airborne Systems North America of CA, Inc. (“Airborne”) motion for order directing the U.S. Secretary of Navy to produce government documents related to the accident which is the subject of the instant lawsuit. [ECF No. 34.] In the motion, Airborne seeks un-redacted responses to document requests served on the General Counsel of the Navy via subpoena pursuant to Federal Rule of Civil Procedure 45.

         The Plaintiffs in this wrongful death action are the parents of U.S. Navy Chief Petty Officer Bradley Cavner. Officer Cavner was accidentally killed during a parachuting exercise. Plaintiffs contend the reserve parachuting system worn by their son was defectively designed. Given the subject matter of the lawsuit, Defendant Airborne asserts the requested documents are relevant and needed to “analyze the circumstances surrounding the deployment of the T-11R reserve parachute … [in particular] government documents regarding the MC-6 Personnel Parachute System and T-11R reserve parachute (including records related to the training of military personnel with respect to the packing, maintenance, and operation of the T-11R, and the investigation of the subject incident.” [ECF No. 34 at p. 2, fn 1.]

         II.FEDERAL RULE OF CIVIL PROCEDURE 45

         Rule 45 governs subpoenas, the method used to gather discovery and testimony from non-parties. Fed R. Civ. P. 45(a). A non-party subpoenaed to produce documents may object to production and the requesting party may thereafter move for an order compelling production. Fed.R.Civ.P. 45(d)(2)(B)(i-ii). Under Rule 45, subpoenaed documents may properly be withheld based on a claim of privilege. Fed.R.Civ.P. 45(e)(2)(A). Accordingly, Rule 45 provides that a subpoena must be quashed when it requires disclosure of privileged or other protected matter if no exception or waiver applies. Fed.R.Civ.P. 45(d)(3)(A)(iii). In the alternative, in situations where the Court is not required to quash or modify the subpoena, the court may order that the non-party produce documents if the party serving the subpoena establishes a substantial need for the material that cannot otherwise be met without undue hardship. Fed.R.Civ.P. 45(d)(C)(i).

         III. BACKGROUND

         Airborne served its subpoena on the General Counsel of the Navy on February 25, 2016. [Ex. A to Jennifer Vagle, Esq., Decl.] On March 21, 2016, the Navy objected to Airborne’s subpoena based on third-party privacy concerns under the Privacy Act, 5 U.S.C. § 552a. [Ex. B. to Vagle Decl.] On April 26, 2016, Airborne responded to the Navy’s objection and noted that the documents sought concerned a deceased individual, therefore Privacy Act rights were not implicated. [EC. C. to Vagle Decl.] On May 11, 2016, the Navy’s Office of the Judge Advocate General responded to Airborne’s correspondence via email stating:

“Regarding your question about the Privacy Act (PA) and its applicability to records of the deceased, you are 100% correct that PA does not protect personal information of deceased individuals. However, information about 3^rd parties is still protected and cannot be released absent a judge-signed court order or unless some other PA exception applies. So, while we can certainly process your request and provide you with the records you need, the names, addresses, social security numbers, and other information of 3^rd parties will have to be redacted. I imagine that you require unredacted copies but, if you do not, please let me know.”

[Ex. D to Vagle Decl.][emphasis added.]

         On May 31, 2016, Ms. Vagle responded via email to the Navy’s Office of the Judge Advocate General stating:

         “I understand the Navy is concerned that responsive documents may implicate third party privacy interests, but a court order will streamline the production process.

         Accordingly, we have prepared a motion for entry of court order to produce the subpoenaed ...