United States District Court, S.D. California
In the matter of the Complaint of MARK S. FRANCIS and WENDY P. FRANCIS, as owners of the vessel "Fortuna, " For exoneration from, or limitation of, liability.
ORDER COMPELLING AQUANEERING, INC. TO COMPLY WITH
SUBPOENA [ECF NO. 39]
Adler United States Magistrate Judge
before the Court is an Ex Parte Application for an Order
Compelling Compliance with Third Party Subpoena filed by
Claimant-in-Limitation Dale Anderson
(“Anderson”), in which Anderson seeks an order
compelling third-party Aquaneering, Inc.
(“Aquaneering”) to comply with his subpoena for
the employment records of Bradley D. Tobias
(“Tobias”). (ECF No. 39.)
Plaintiffs-in-Limitation Mark S. Francis and Wendy P. Francis
(“the Francises”) filed a response to the
application (ECF No. 44), as did Aquaneering (ECF No. 45).
reasons set forth below, the Court GRANTS Anderson's ex
parte application and ORDERS Aquaneering to comply with the
following facts are taken from the Complaint in this matter.
On February 20, 2016, the Francises, the owners of the vessel
known as Fortuna, permitted Tobias to take their
vessel for his personal use. Also on board were Tobias's
friends, Anderson and Claimant Tatiana Sancheeva. At 6:00
p.m., the vessel was underway in San Diego Bay, having
departed Coronado Landing and heading toward Shelter Island.
While the vessel was transiting in the bay in a north
direction, it struck another vessel, Hallyon, owned
by Claimant Jason Anderson. Tobias was ejected from the
vessel, which continued its trajectory and eventually crashed
into a chain link fence and rock riprap along the west
shoreline of the U.S. Coast Guard base, with the passengers
still on board. The accident resulted in damage to both
vessels and personal injuries to the passengers. The
Francises claim the benefits of exoneration from or
limitation of liability provided for in the Limitation of
Liability Act, 46 U.S.C. § 30501 et seq. The
post-casualty value of Fortuna is $7, 000.
See Compl., ECF No. 1.
and his wife, Ana Anderson, assert a claim of general
maritime negligence against the Francises and Tobias.
See Answer, ECF No. 10. The Andersons contend the
accident was caused by the recklessness and negligence of
Tobias, as operator of the Fortuna, and that his
conduct was in the privity and knowledge of the Francises.
They allege Tobias suffered from alcoholism and a
debilitating disease, multiple sclerosis, which was known to
the Francises, and that he consumed alcoholic beverages the
afternoon and evening prior to the accident. They further
assert that Tobias directed the Fortuna to the A-9
anchorage, which was full of anchored vessels and is not the
route one would take to Shelter Island. Tobias was allegedly
driving at a high rate of speed when the Fortuna
collided with the Hallyon, which was anchored and
unoccupied at the time. Anderson was thrown from his seat on
impact, and sustained major trauma including an open head
wound, fractures, hematomas, a broken jaw, and several facial
fractures. Anderson's medical expenses to date exceed $1,
000, 000, and future medical care is anticipated.
23, 2017, Anderson served a subpoena upon the custodian of
records for Aquaneering, Tobias's employer, commanding
the production of the following by July 11, 2017:
Any and all employment records (with the exception of any
financial related information) from any and all dates
pertaining to: Bradley David Tobias, DOB: September 2, 1973,
including, but not limited to, the following: his personnel
file; employment application; worker's compensation
information (excluding any financial information);
termination records; background checks or investigation
information; reprimands; write-ups; disciplinary actions;
complaints; and, correspondence relating to Mr. Tobias's
health (including, but not limited to, correspondence related
to Mr. Tobias's diagnosis of multiple sclerosis and/or
affective disorder), his employment status and/or Mr.
Tobias's use of drugs and/or alcohol.
Griffin Decl., Ex. O. The Francises are the owners and
directors of Aquaneering. Pls.' Statement of Facts in
Supp. of MSJ, ECF No. 38-2, No. 2. On July 11, 2017, counsel
representing Aquaneering in connection with the subpoena sent
a letter advising that Aquaneering could not unilaterally
waive Tobias's privacy rights in his personnel file.
Griffin Decl., Ex. Q. Aquaneering's counsel had been
unable to contact Tobias regarding his willingness to waive
his privacy rights due to his being incarcerated due to a
felony conviction relating to the subject accident.
Id., ¶ 3 & Ex. Q. Anderson's counsel
sent Tobias a copy of the subpoena on July 28, 2017, after he
had been released from custody and had resumed living on his
boat. Id., ¶ 9. Anderson's counsel
requested that Tobias respond with any objections within 14
days, but no objection was received. Id.
Anderson's counsel spoke with Tobias in person at a
restitution hearing on August 1, 2017 and via telephone on
August 17, 2017; both times, Tobias indicated he wanted to
confer with Mr. Francis before signing an authorization to
release his Aquaneering employment file. Id., ¶
10. Anderson's counsel attempted to contact Tobias by
telephone approximately 10-15 times after issuance of the
subpoena to request that he authorize the release of his
records to no avail. Id., ¶ 14. On October 18,
2017, Anderson's counsel left a final message for Tobias
informing him that the instant motion would be filed and
requesting that he inform counsel whether he had any
objections to the subpoena by October 20, 2017. Id.
Anderson's counsel does not know whether Tobias ever
spoke with Mr. Francis about the matter or if Mr. Francis
instructed Tobias to not execute the release. Id.,
is purposefully broad under the Federal Rules of Civil
Procedure. Each party generally has the right to discover
“any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case.” Fed.R.Civ.P. 26(b)(1). Information within
the scope of discovery need not be admissible in evidence in
order to be discoverable. Id. Rule 45 allows for the
issuance of subpoenas to produce documents, electronically
stored information, or tangible things. Fed.R.Civ.P.
45(a)(1)(C). A person commanded to produce documents pursuant
to a subpoena may serve on the party or attorney designated
in the subpoena a written objection before the earlier of the
time specified for compliance or 14 days after the subpoena
is served. Fed.R.Civ.P. 45(d)(2)(B). A person subject to or
affected by a subpoena may move to quash or modify a subpoena
if it requires disclosure of privileged or other protected
matter, if no exception or waiver applies, or subjects a
person to undue burden. Fed.R.Civ.P. 45(d)(3)(A)(iii), (iv).
courts recognize a constitutional right to privacy.
Stallworth v. Brollini, 288 F.R.D. 439, 444 (N.D.
Cal. Dec. 21, 2012) (citing Whalen v. Roe, 429 U.S.
589, 599 (1977)). Federal courts also consider privacy rights
protected by state constitutions or statutes. Soto v.
City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. July 17,
1995). To evaluate privacy objections under either federal or
state law, the Court must balance the party's need for
the information against the individual's privacy right in
his employment files. Tierno v. Rite Aid Corp., 2008
WL 3287035, at *3 (N.D. Cal. July 31, 2008) (citing cases).
The Court Deems the Ex Parte Application ...