AUBREY LANE, et al., Plaintiffs v. AMERICAN AIRLINES, INC., Defendant 18 CV 6110 (MKB) (CLP) United States District Court, E.D. New York Filed April 01, 2021 Counsel Chris Cowan, Pro Hac Vice, James C. McDonough, Pro Hac Vice, Margaret E. Foley, Pro Hac Vice, Robert Christopher Cowan, Downs, McDonough & Cowan, LLC, Durango, CO, for Plaintiffs. Daniel Z. Rivlin, Buchanan Ingersoll & Rooney, P.C., New York, NY, Jesse Diner, Pro Hac Vice, Kelly Haze Kolb, Pro Hac Vice, Buchanan Ingersoll & Rooney PC, Fort Lauderdale, FL, Mary Beth Ricke, Pro Hac Vice, United States Attorney's Office, Fort Lauderdale, FL, Argia J. Dimarco, Buchanan Ingersoll & Rooney PC, Newark, NJ, for Defendant. Pollak, Cheryl L., United States Magistrate Judge ORDER *1 On October 31, 2018, plaintiffs Aubrey and Jesse Lane filed this action against defendant American Airlines, Inc., alleging claims of negligence and breach of contract stemming from an incident that allegedly occurred on June 16, 2017, on board American Airlines Flight 1280 bound from Phoenix to JFK Airport. (Compl. ¶¶ 8, 28, 33). Plaintiff Aubrey Lane alleges that while on board the subject plane, she was assaulted in the bathroom by an intoxicated passenger who, she alleges, was allowed to board the flight despite being visibly intoxicated and who was then served additional alcohol during the flight. (Id. ¶¶ 12, 13, 16). Plaintiffs seek compensatory and punitive damages, and Jesse Lane seeks damages for loss of consortium. (Id. ¶¶ 38, 48). Currently pending before this Court are several discovery disputes. The Court addresses each in turn. DISCUSSION A. Plaintiffs’ Discovery Requests In a letter dated July 19, 2020, plaintiff contends that, despite a meet-and-confer with defendant, several issues relating to Plaintiffs’ Second Request for Production remain unresolved. The first is plaintiffs’ request for “All materials, documents, or electronically stored information submitted to and or received from Congress’ National In-Flight Sexual Misconduct Task Force.” (Pls.’ 7/19/2020 Ltr.,[1] Pls.’ Second Request for Production, No. 1). Also requested were materials taken by and given to an attendee or member of the Task Force. (Pls.’ 7/19/2020 Ltr., Pls.’ Second Request for Production, Nos. 2, 3). Defendant objects to these requests on the grounds that the Task Force was not convened until 2019, which was after the date of plaintiffs’ incident in 2017, and that therefore these materials are irrelevant. (Def.’s Ltr.[2] at 1). Specifically, defendant contends that the requested information is irrelevant because, in 2019, the Task Force collected information on the “then existing” practices of the airlines and those practices postdate the 2017 incident that is the subject of this case. (Id.) Plaintiffs contend that the Task Force was established to review and collect information regarding the airlines’ practices and training in response to assaults on board commercial airlines and, as a consequence, “likely” received historical information from American Airlines from the time frame at issue. (Id. at 2). Furthermore, plaintiffs assert that the Task Force relied on “existing” information relevant to the time frame in which the incident in this case occurred. (Pls.’ Ltr. at 1-2). Plaintiffs suggest that the Task Force relied on this information from the relevant time frame and that the information is relevant as to what American Airlines should have known based upon industry expertise regarding potential liability. (Id.) In response, defendant claims that “any relevant data and information has already been produced” to the plaintiffs. (Id.) Defendant contends that it produced the details of every incident reported between 2014 and 2017 that contained the search terms requested by plaintiffs, but that plaintiffs have not asked for any additional information regarding those incidents. (Id.) Defendant also produced the training and policy manuals in effect at the time of the incident. (Id.) *2 Given the basis for plaintiffs’ request – namely, that they are seeking “existing” information provided to the Task Force – and given defendant's representation that it has provided data and procedures for the three-year period prior to the plaintiff's incident, the Court Orders defendant to provide plaintiffs with any additional information that was provided to the Task Force beyond what was already provided to plaintiffs during discovery[3] or confirm that it has provided plaintiffs with the same historical information for the period 2014 to 2017 that it provided to the Task Force. In Request No. 15, plaintiffs seek American Airlines’ knowledge of surveys of sexual assault occurrences, but qualify the request by indicating that if defendant has no knowledge of such in-flight occurrences, it should so state. (Pls.’ 7/19/2020 Ltr. at 4). In its responsive letter dated July 24, 2020, defendant maintains the propriety of its objections, but states that based on the qualification set forth in plaintiffs’ letter, defendant now represents that it has no knowledge of any in-flight sexual assaults. (Def.’s Ltr. at 2). Thus, this issue has been resolved. Plaintiffs also sought the authors, authorities, and sources relied on by American Airlines since 2012 for its instruction and training materials. (Pls.’ 7/19/2020 Ltr. at 5 (citing Pls.’ Req. No. 16 and Interrog. No. 8)). Plaintiffs contend that rather than identifying these authors, defendant's response simply directed plaintiffs to “see documents produced by Defendant.” (Id.) Plaintiffs contend that none of those documents contain such references. (Id.) Plaintiffs argue that because the defendant's knowledge is relevant, the sources of its knowledge are also relevant and thus, if defendant consulted with experts, that information should be provided.[4] (Id.) In response, defendant indicates that during multiple conversations with plaintiffs, defendant has confirmed that all training materials were directed and approved out of American Airlines’ headquarters in Texas, and the training materials already produced to plaintiffs were produced as they were kept in the ordinary course of business. (Def.’s Ltr. at 2). Since the materials were produced, approved, and finalized by American Airlines’ corporate headquarters, defendant contends that the “involvement of a third party, if any,” is irrelevant. (Id.) If American Airlines consulted any experts or other individuals outside of its own employees in creating its training materials, defendant is directed to provide the names of those individuals as they may be potential witnesses to the scope of American's knowledge at the time the 2017 materials were prepared. Plaintiffs ask for the list of all passengers who boarded the plane near the alleged assailant. (Pls.’ 7/19/2020 Ltr. at 6). Plaintiffs complain that American only provided names “with a few limited addresses and telephone numbers.” (Id.) Plaintiffs seek to have defendant provide all of the listed passengers’ addresses and phone numbers. (Id.) In response, defendant asserts that it has provided all of the information in its possession, noting that some passengers purchase tickets through third parties. (Def.’s Ltr. at 2). Thus, defendant states that it has provided all of the information and complied with Interrogatory No. 5 to the best of its knowledge. *3 Given that representation, the Court denies this portion of the plaintiffs’ motion to compel. Plaintiffs also complain that, in Interrogatory No. 6, they requested the identity of all persons who provided statements, photographs, or diagrams to American relating to incident. (Pls.’ Ltr. at 6). Defendant states that “[a]ll non-privileged information, including statements, has already been produced to Plaintiffs, in conjunction with its Initial Disclosure list.” (Def.’s Ltr. at 2). Given that representation, the Court denies this portion of plaintiffs’ motion to compel. Finally, plaintiffs contend that certain training materials provided by American show interactive learning modules, audio files, or films. (Pls.’ 7/19/2020 Ltr. at 6). Plaintiffs complain that they have repeatedly asked for the full electronic files without success. (Id.) As with many of the issues raised in this motion, defendant notes that had plaintiffs complied with their obligation to meet and confer, defendant would have told them that it agrees to produce embedded audio and video files to the extent that they exist and are retrievable. (Def.’s Ltr. at 2-3). Given that representation, defendant is Ordered to produce responsive materials that exist and can be retrieved on or before April 30, 2021. B. Defendant's Discovery Requests Defendant also raises a number of deficiencies in plaintiffs’ responses to defendant's discovery requests. (Def.’s Ltr. at 3). These include plaintiffs’ failure to produce plaintiff's social media accounts, which defendant claims were only provided in part through counsel's taking “miscellaneous screen shots of some, but not necessarily all, posts ...” (Id.) Defendant also claims that plaintiff never disclosed the existence of another account held by plaintiff in an alias, nor did plaintiff produce the posts for that account. Finally, defendant complains that plaintiff has not indicated if she has any other accounts under any other aliases. Based on the failure to fully disclose this information, in some instances providing incomplete posts or posts that have been cut off, coupled with defendant's discovery of additional accounts used by plaintiff, defendant seeks “complete forensic download of the social media from Plaintiffs’ computers and smartphones.” (Id.) In their Reply letter, dated July 28, 2020, plaintiffs object to defendant's request, claiming that they have already provided 145 pages of screen shots for relevant postings for a reasonable period of time and they further object to requests for unspecified social media postings. (Pls.’ Reply[5] at 3-4). Plaintiffs do not respond directly to defendant's claim that certain of the posts provided were incomplete, except to note that “[m]ost of these pages had two postings per page,” and to add that in preparation for plaintiff's deposition, they began providing another 102 pages of postings on June 10, 2020. (Id.) In the Court's January 6, 2020 Order, the Court allowed the production of “all postings to plaintiffs’ social media accounts from June 2016 to the present concerning plaintiff's ‘physical, mental, marital or emotional state or condition, and the subject incident ...’ ” (See ECF No. 33, at 7). To the extent that plaintiffs have not complied with this Order by providing incomplete posts, the Court directs plaintiffs to produce the complete posts. Although defendant now requests “a complete forensic download of the social media from Plaintiffs’ computers and smartphones” (Def.’s Ltr. at 3), a complete download of plaintiff's entire social media will “shed little light” on the specific issues here. Giacchetto v. Patchogue–Medford Union Free School District, 293 F.R.D. 112, 115 (E.D.N.Y. 2013). The Court therefore directs plaintiffs to identify all social media accounts held by plaintiff at or around the time of the incident and produce all posts containing any “specific references” to the incident, to defendant, or to the lawsuit, as well as “any postings on social networking websites that refer to an alternative potential stressor.” (Id.; see also Babbitt v. Koeppel Nissan, Inc., No. 18 CV 5242, 2019 WL 3296984, at *8 (E.D.N.Y. July 23, 2019)). *4 Defendant also contends that plaintiff has refused to provide her full phone bill for the period from May 24, 2017 to June 23, 2017. (Def.’s Ltr. at 3). Plaintiffs contend that since the incident occurred on June 17, she has provided “the relevant pages” for June 14, 15, and to June 23. (Pls.’ Reply at 5). Plaintiffs claim that defendant has not indicated what it hopes to find with the month-wide bill. It is unclear to this Court what defendant is seeking to find in the days from May 24 to June 14 – before the incident allegedly occurred – and defendant's July 24, 2020 letter provides no rationale. Defendant's motion to compel further production of plaintiff's phone bill is denied. Defendant claims that plaintiff has refused to indicate what cloud-based photo and data storage she uses, which is important because plaintiff claims her phone was stolen between the date of the incident and now, and that she has refused to provide her complete updated records during the limited time frame for February 2020 to present. (Def.’s Ltr. at 3). In reply, plaintiff asserts that in her March 13, 2020 supplemental response, she identified phone leases and billing records with Sprint, and had previously provided billing records from Verizon, which was the provider in June 2017. (Pls.’ Reply at 5-6). Plaintiffs explain that when they moved, they switched from Verizon to Sprint and traded in phones. (Id. at 6). All of the data from the Verizon phones was transferred to the new Sprint phones. (Id.) Plaintiffs indicate that they have hired an expert to forensically download the data and will produce it to defendant. (Id.) However, because Ms. Lane lost her new Sprint phone in December 2018, any data on that phone is no longer available. (Id.) Plaintiffs further explain that since the loss of her phone, Ms. Lane uses Google for cloud-based storage, but this was long after the June 2017 incident. (Id.) Given the plaintiffs’ explanation as set forth in their Reply, the Court finds no reason to compel any further response. Finally, defendant complains that plaintiff has failed to provide updated medical and psychological care authorizations for treatment. (Def.’s Ltr. at 3). Plaintiffs assert that they have provided releases and that they have no additional records; they state that they are aware of their discovery obligations and will provide supplementation when required. (Pls.’ Reply at 6). Given plaintiffs’ explanation that they have provided and will continue to provide medical authorizations if and when additional treatment occurs, the Court finds no reason to compel any further response. CONCLUSION Accordingly, the Court Orders: • Defendant to provide plaintiffs with any additional information that was provided to the Task Force beyond what was already provided to plaintiffs during discovery or confirm that it has provided plaintiffs with the same historical information for the period 2014 to 2017 that it provided to the Task Force; • Defendant to provide the names of any experts or other individuals outside of its own employees consulted in the creation of its training materials; • Defendant to provide the interactive learning modules, audio files or films to the extent that they exist and retrievable on or before April 30, 2021. The Court denies the rest of plaintiffs’ motion to compel. With respect to defendant's motion to compel, the Court directs plaintiffs to identify all social media accounts owned or controlled by plaintiff and to produce plaintiff's social media posts containing any “specific references” to the incident, to defendant, or to the lawsuit, as well as “any postings on social networking websites that refer to an alternative potential stressor.” The remainder of defendant's motion to compel is denied. *5 The Clerk is directed to send copies of this Order to the parties either electronically through the Electronic Case Filing (ECF) system or by mail. SO ORDERED. Footnotes [1] Citations to “Pls.’ 7/19/2020 Lr.” refer to plaintiffs’ letter, dated July 19, 2020, ECF No. 37. [2] Citations to “Def.’s Ltr.” refer to American Airlines’ letter, dated July 24, 2020, ECF No. 38. [3] Defendant need only provide plaintiffs with this information prior to and including the year 2017. [4] Plaintiffs also contend, without further explanation or authority, that the authors and source of the training materials are important for conflict of laws purposes. (Id. at 6). [5] Citations to “Pls.’ Reply” refer to plaintiffs’ letter dated July 28, 2020, ECF No. 39.