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In re Complaint of Francis

United States District Court, S.D. California

November 15, 2017

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.


          Jan M. Adler United States Magistrate Judge

         Presently 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).

         For the reasons set forth below, the Court GRANTS Anderson's ex parte application and ORDERS Aquaneering to comply with the subpoena.

         I. BACKGROUND

         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.

         Anderson 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. Id.

         On June 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., ¶ 15.


         Discovery 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).

         Federal 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).


         A. The Court Deems the Ex Parte Application ...

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