United States District Court, S.D. California
STEVE CAVNER, an individual, ; and BETH CAVNER, an individual, Plaintiff,
AIRBORNE SYSTEMS NORTH AMERICA OF CA, INC.; HUNTER DEFENSE TECHNOLOGIES, INC. dba HDT GLOBAL; and DOES 1 through 20,, Defendant.
ORDER DENYING MOTION FOR ORDER DIRECTING THE U.S.
SECRETARY OF THE NAVY TO PRODUCE DOCUEMTNS [ECF NO.
Bernard G. Skomal, United States Magistrate Judge
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.
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.]
RULE OF CIVIL PROCEDURE 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).
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
3rd 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 3rd 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.]
31, 2016, Ms. Vagle responded via email to the Navy’s
Office of the Judge Advocate General stating:
understand the Navy is concerned that responsive documents
may implicate third party privacy interests, but a court
order will streamline the production process.
we have prepared a motion for entry of court order to produce
the subpoenaed ...