AUBREY and JESSE LANE, Plaintiffs, v. AMERICAN AIRLINES, INC., Defendant 18 CV 6110 (MKB) (CLP) United States District Court, E.D. New York Filed January 06, 2020 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.[1] ¶¶ 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 the parties’ respective motions to compel discovery responses. DISCUSSION A. Plaintiffs’ Discovery Requests On October 31, 2019, plaintiffs submitted a letter motion relating to defendant's responses to certain of plaintiffs’ discovery requests. (Pls.’ 10/31/19 Ltr.[2]). 1) Employee Training and Experience – Request Nos. 16 and 17 Plaintiffs seek discovery of the training and experience of American Airlines personnel relevant to the defendant's actions in allowing the wrongful boarding of an intoxicated individual, in violation of 14 C.F.R. §§ 91.17(b), 121.575(c) (Request No. 16), and relevant to the continued in-flight service of alcohol to the intoxicated passenger, in violation of 14 C.F.R. § 121.575(b). (Request No. 16). They also seek the “employee files” of the non-party gate agents and flight attendants. (Request No. 17). As to Request No. 16, defendant argues that any claims premised on negligent training and negligent hiring or negligent supervision are expressly preempted by the Federal Aviation Act (“FAA”). (Def.’s 11/7/19 Ltr.[3] at 2-3). Defendant contends that because these claims are preempted, discovery pertaining to these claims is not reasonably calculated to lead to the discovery of admissible evidence. (Id.) Defendant also challenges plaintiffs’ citations to the sections of the C.F.R., which defendant argues deals only with the negligent operation of the aircraft and are inapplicable to plaintiffs’ claim that the gate agents and flight attendants were negligent in allowing this passenger to board the plane and then was served additional alcohol in flight. (Id.) Defendant notes that the applicable regulations provide that “[n]o certificate holder may allow any person to board any of its aircraft if that person appears to be intoxicated,” and argue that what is at issue is the flight crew's “subjective determination of whether a passenger ‘appears to be intoxicated.’ ” (Id. at 2). Defendant represents that it has produced “its applicable internal policies and procedures” which guide the subjective determination, and it has produced the summary report reflecting the various statements of the crew. (Id.) Defendant argues that since plaintiffs have failed to “articulate how unspecified ‘training and experience’ documents” would be relevant, the Court should deny plaintiffs’ motion to compel these documents. (Id.) *2 Defendant also objects to Request No. 16 on the grounds that the request is overbroad in that it seeks training materials relating to “human trafficking,” and because the terms “sexual assault” and “on-board sexual activities” are not defined. (Id. at 3). Defendant further contends that it is unclear what plaintiffs seek to discover beyond what they have already been provided. (Id.) As for Request No. 17, seeking the “employee files” for the gate agents and flight attendants, defendant objects not only on relevancy grounds but on privacy grounds. (Id. at 3-4). Defendant notes that these files contain personal private, financial and medical information and to the extent plaintiffs wish to have access to unspecified “disciplinary issues,” defendant objects that there has been no showing of any relevance to this case. (Id.) Defendant objects to this request as a “classic, impermissible fishing expedition.” (Id.) In response, plaintiffs dispute defendant's analysis of the FAA regulations and the argument that training materials are irrelevant and preempted by the regulations. (Pls.’ 11/13/19 Ltr.[4] at 1-2). Plaintiffs argue that flight attendants receive up to six weeks of training and the training they receive with respect to intoxicated passengers is relevant to whether they acted carelessly or in a reckless manner with respect to the passenger on plaintiffs’ flight. (Id. at 2). Plaintiffs also argue that defendant's objection to the request is ambiguous and the lack of definition of sexual assault is an objection that defendant never raised in the meet and confer sessions and that these words carry their ordinary definitions. (Id. at 3). The Court finds that whatever training the flight attendants and gate personnel received is potentially relevant to the claims at issue and, even if, as defendant asserts, the FAA somehow preempts any negligent training or supervision claims, the discovery remains relevant to assess what factors the flight attendants and/or gate personnel were trained to consider in reaching the subjective determination as to whether the individual involved in this incident qualified as a “person [who] appears to be intoxicated.” The extent of the training regarding intoxicated passengers and protocols for serving alcohol on board, and whether the flight attendants and gate personnel followed their training on that day, arguably could be considered in determining negligence on the part of the defendant. Similarly, the training, if any, that the flight attendants received relating to how to handle assaults, sexual assaults, and sexual activities[5] on board a plane is equally relevant to determine if the actions taken on the day at issue diverged from their training and constituted a departure from due care. Thus, the Court Orders defendant to produce any training materials, manuals, and instructional documents that address the issues of: 1) intoxicated passengers; 2) service of alcohol on board; and 3) assaults, sexual assaults and other sexual activities on a plane. The Court denies the request for any training information relating to “human trafficking” as this is outside the bounds of the case and not proportional to the needs of the case. If all responsive documents have already been produced, defendant should so state. *3 As for plaintiffs’ request for the flight attendants’ employee files, plaintiffs contend that defendant's privacy concerns can be alleviated through redaction or a protective order. (Pls.’ 11/13/19 Ltr. at 3). Plaintiffs contend that their request is limited to the employees’ experience, training, and disciplinary issues. (Id.) However, it is unclear what disciplinary records plaintiffs seek. In the absence of a more targeted description of the kinds of disciplinary records that plaintiffs believe are relevant, the Court denies the request for disciplinary records. If there are documents in the employees’ files that detail the training they may have received specific to the issues of intoxicated patients, service of alcoholic beverages, and/or assault and sexual activities on board the plane, the defendant is directed to produce such training documents. 2) Other Similar Incidents – Request No. 12 Plaintiffs also raise concerns about defendant's response to Plaintiffs’ Request No. 12, which seeks information regarding similar incidents. (Pls.’ 10/31/19 Ltr. at 2). According to plaintiffs, American Airlines has two databases from which such information may be culled and the parties met and agreed on a number of search terms to be used in searching these databases for responsive documents. (Id. at 3). However, defendant has objected to two search terms: “pedophile” and “molest,” which defendant argues is not related to plaintiffs’ claims in this case because both categories deal with conduct involving a child. (Def.’s 11/7/19 Ltr. at 5). Plaintiffs take the position that the “age of an abused passenger does not change American Airlines’ duty or notice of the issue,” and they cite the concerns of a Congressional Task Force regarding the adequacy of responses to sexual assault and harassment on board commercial airliners to argue that if defendant does have training manuals devoted to recognizing the danger of pedophiles or molestations occurring on its planes, “why was such training not adequate to protect Plaintiff herein.” (Pls.’ 10/31/19 Ltr. at 4; Pls.’ 11/13/19 Ltr. at 4). The Court agrees with defendant that these terms bear no relationship to the incident here involving two adults. Given that the defendant has already agreed to produce documents responsive to 17 search terms, the Court denies plaintiffs’ request to include these terms which, apart from their arguable lack of relevancy, raise additional concerns of privacy in light of the age of the abused passengers. The parties also disagree on the time period for which defendant is required to produce responsive documents. Plaintiffs seek production of documents for a 10-year period extending from 2009 until 2019. (Pls.’ 10/31/19 Ltr. at 4). Defendant has agreed to produce documents relating to similar incidents for a three-year period from June 16, 2014 until June 16, 2017. (Def.’s 11/7/19 Ltr. at 5). Given that plaintiffs have asked for these documents for foreseeability issues, documents after the date of the incident, which occurred on June 16, 2017, would not be relevant. Eliminating those years, there remains a dispute as to whether discovery should extend for three years prior to the incident, as proposed by defendant, or five years prior to the incident, as proposed by plaintiffs. (Pls.’ 10/31/19 Ltr. at 5; Def.’s 11/7/19 Ltr. at 6). Plaintiffs argue that five years is appropriate given that defendant has requested five years of plaintiffs’ employment earnings and medical history. (Pls.’ 10/31/19 Ltr. at 5). Having considered the arguments, defendant is Ordered to produce responsive documents for a three-year period. Depending on the extent of the documents produced pursuant to this initial round, the Court will consider whether an additional two years is warranted. B. Defendant's Document Requests On November 7, 2019, defendant submitted a letter motion raising certain alleged deficiencies in plaintiffs’ responses to defendant's discovery requests. 1) Defendant's Request # 50 a) Scope of Production *4 Defendant's Request No. 50 seeks 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....” (Def.’s 11/7/19 Ltr.[6] at 2). Plaintiffs objected on grounds of relevancy and overbreadth, but indicated they would provide relevant postings or those that address plaintiffs’ physical, mental, marital or emotional state or condition. (Id., Ex. A[7] at 11). Specifically, in their responsive letter, dated November 15, 2019, plaintiffs note that Aubrey Lane closed her Facebook account, but they indicate that what responsive materials exist will be provided, including Instagram postings for a reasonable period of time around the rape and where she discussed the underlying facts of the lawsuit. (Pls.’ 11/15/19 Ltr.[8] at 1-2). Defendant asserts that plaintiffs’ relevancy objection is not a valid objection to discovery, arguing that relevancy is not a discoverability standard, and further objects to plaintiffs’ overbreadth objection, on the grounds that plaintiffs have failed to explain how the request is overbroad. (Def.’s 11/7/19 Ltr. at 2). Defendant asks that “Plaintiffs be ordered to download their entire social media content from any social media platform used since 2016 to the present.” (Id. at 3). Defendant fails to explain why plaintiffs’ response that they would produce the actual content as requested in the original document request is insufficient, nor does defendant justify access to plaintiffs’ “entire social media content” regardless of its relevance to this case. Accordingly, the Court denies defendant's request to compel production of the entire content of plaintiffs’ social media accounts – which was not what was sought – and directs plaintiffs to respond to the request as it was originally stated in defendant's requests. (See id., Ex. A). b) Forensic Computer Examination Request In light of plaintiffs’ statement that Aubrey Lane closed her Facebook account (Pls.’ 11/15/19 Ltr. at 1-2), defendant, in its Reply letter of November 20, 2019, now raises another concern relating to the preservation of the data related to Aubrey Lane's closed account. (Def.’s 11/20/19 Ltr.[9] at 2). Defendant urges the Court to adopt the protocol used by the court in Thompson v. Autoliv ASP, 09 CV 1375, 2012 WL 2342928 (D. Nev. June 2012), which permitted a forensic computer examination. (Id.) The Court finds that such a procedure is not necessary at this juncture of the discovery process. Defendant's request is denied, without prejudice to renew in the event that plaintiffs’ production of their social media accounts is not in compliance with defendant's original request or in the event that during the course of discovery, it is determined that spoliation of evidence has occurred. 2) Defendant's Request Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 Plaintiffs objected to defendant's request for documents reflecting the medical expenses actually paid to medical providers for plaintiffs’ treatment, arguing relevance and the collateral source rule. (Ex. A at 2-4). Since plaintiffs are seeking reimbursement of these expenses in this lawsuit, the documents are relevant and should be produced. In defendant's letter of November 7, 2019, defendant concedes that plaintiffs have agreed to produce responsive documents, but as of November 1, 2019 were still gathering such. Nonetheless, defendant ask the Court to issue an Order for the production of all medical expense records by a date certain. (Def.’s 11/7/19 Ltr. at 3). *5 In response, plaintiffs explain that because Jess Lane is a member of the armed services, plaintiffs receive health care from U.S. Military health care facilities and do not pay out of pocket for their care. (Pls.’ 11/15/19 Ltr. at 2). Plaintiffs have provided releases to defendant and contend that it has already subpoenaed records responsive to this request. (Id.) To the extent that plaintiffs have not incurred any additional out-of-pocket medical expenses, they should amend their response to these document requests and indicate as such. 3) Defendant's Request Nos. 21 and 49 These requests seek “any data or information from any cell phone, camera, or other device” owned by plaintiffs in their possession on the date of the incident. (Def.’s 11/7/19 Ltr. at 3, Ex. A at 5, 11). Plaintiffs objected on grounds of relevancy and overbreadth. (Id.) In its November 7, 2019 letter, defendant has modified its requests to the “24-hour period on the date of the subject incident,” arguing that it is entitled to see plaintiffs’ “comments, and activity on these devices, both before and after the incident [that] directly relate to Plaintiffs’ mindset and impressions of the incident.” (Def.’s 11/7/19 Ltr. at 3 at 3-4). Following a meet and confer of counsel, plaintiffs agreed to produce responsive information as set out in the narrowed request. (Id. at 4). However, plaintiffs have indicated that the phones were traded in. (Id.) Thus, defendant now seeks the identity of the carrier and the date when the phones were traded in. (Id.) In their responsive letter dated November 15, 2019, plaintiffs indicate that in June 2019, they produced their Verizon wireless bill showing the calls made surrounding the date of the incident. (Pls.’ 11/15/19 Ltr. at 2). They also provided the addresses and phone numbers from where defendant may subpoena the records. (Id.) In Reply, defendant contend that plaintiffs should be required to obtain the records and to indicate the circumstances, including dates when the cell phones were exchanged, the types of phones they now use, whether the information on the old phones was transferred to the new phones, and the litigation hold or preservation letters provided by counsel to plaintiffs. (Def.’s 11/20/19 Ltr. at 3-4). While the Court agrees that plaintiffs should provide information regarding the date when the old phones were discarded, as well as whether the information from the old phones was transferred to the new phones, the Court is unclear what information defendant anticipates finding from subpoenaed records since plaintiffs have already provided their phone bill showing calls from the dates surrounding the incident. If defendant seeks only to verify that the phone bill is accurate, then defendant can subpoena the records from Verizon. If, however, plaintiffs fail to provide records showing when they obtained the new phones, then plaintiffs are Ordered to subpoena the records from whatever carrier they now use, and if necessary from Verizon, to verify the last date of service of the old phones. Counsel is directed to confer on the request for any litigation hold letters. 4) Defendant's Request Nos. 16 and 19 In these document requests, defendant seeks any witness statements or documents that identify any witness to the incident or to plaintiffs’ claimed injuries. (Def.’s 11/7/19 Ltr. at 4, Ex. A at 4-5). Similarly, in Interrogatory Nos. 4 and 23, defendant seeks the names and addresses of all people who have signed oral or recorded statements, and photographs (No. 4), as well as the names of plaintiffs’ attorneys or employees who spoke with any witnesses. (No. 23). (Id., Ex. B [10] at 2, 7). *6 Plaintiffs objected on grounds of work product and investigative privilege. (Def.’s 11/7/19 Ltr. at 4-5, Ex. A at 4-5, Ex. B at 2, 7). However, no privilege log was provided. (Def.’s 11/7/19 Ltr. at 4). The Federal Rules of Civil Procedure require a party to list their witnesses as part of their mandatory disclosures; thus, the objection to identifying witnesses to the incident or plaintiffs’ claimed injuries is unfounded. As for recorded or signed statements, defendant is entitled to receive those, and if any document is withheld on the basis of privilege, a privilege log must be provided. Since plaintiffs have indicated that they intend to supplement their responses (see Def.’s 11/20/19 Ltr. at 4), the Court withholds any ruling on these requests at this time. 5) Defendant's Request No. 17 This request seeks plaintiff Aubrey Lane's journals or diaries. (Def.’s 11/7/19 Ltr. at 4, Ex. A at 4). According to defendant, Aubrey Lane's therapist directed her to maintain a daily diary. (Def.’s 11/7/19 Ltr. at 4). Plaintiffs have indicated that no such responsive documents exist but promised to amend their responses by November 22, 2019 to clarify this. (Pls.’ 11/15/19 Ltr. at 3). Since plaintiffs have indicated that they intend to supplement their responses to this request, the Court withholds any ruling on this request at this time. C. Defendant's Interrogatories The parties indicate that plaintiffs agreed to amend their Interrogatory responses to include additional information. (Def.’s 11/7/19 Ltr. at 5). Specifically, defendant claims that plaintiffs were to: 1) amend the response to Interrogatory No. 13 to provide the amount of lost wages; and 2) amend the response to Interrogatory No. 12 to include the substance of the notice and when it was given. (Id.) Defendant complains that, as of the date of its letter, no such amendments had occurred. (Id.) Defendant also raises the fact that Interrogatory Nos. 4 and 23 raise similar issues to the document requests Nos. 16 and 19, addressed above. (Id.) To the extent that plaintiffs have been Ordered to provide a privilege log, this dispute has been resolved. Finally, defendant contends that the interrogatory responses were not verified in accordance with Fed. R. Civ. P. 33(b). (Id.). Plaintiffs are Ordered to re-file the responses to Interrogatories with the appropriate verification. CONCLUSION For the reasons stated above, plaintiffs’ requests are granted in part and denied in part; defendant's requests are granted in part and denied in part. 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] Plaintiffs filed this action on October 31, 2018. Citations to “Compl.” refer to plaintiffs’ First Amended Complaint, filed on February 4, 2019, ECF No. 13. [2] Citations to “Pls.’ 10/31/19 Ltr.” refer to plaintiffs’ letter to the Court, filed October 31, 2019, ECF No. 27. [3] Citations to “Def.’s 11/7/19 Ltr.” refer to plaintiffs’ letter to the Court, filed November 7, 2019, ECF No. 29. [4] Citations to “Pls.’ 11/13/19 Ltr.” refer to the reply letter filed by plaintiffs on November 13, 2019, ECF No. 30. [5] The Court agrees that defendant's objection to this request based on the lack of defined terms is without merit. The terms have a common dictionary meaning and, if there is a question as to the relevance of any materials, the parties are Ordered to meet and confer. [6] Citations to “Def.’s 11/7/19 Ltr.” refer to defendant's letter to the Court, filed November 7, 2019, ECF No. 28. [7] Citations to “Ex. A” refer to Exhibit A of defendant's November 7, 2019 letter to the Court, ECF No. 28-1. [8] Citations to “Pls.’ 11/15/19 Ltr.” refer to plaintiffs’ letter to the Court, filed November 15, 2019, ECF No. 31. [9] Citations to “Def.’s 11/20/19 Ltr.” refer to defendant's letter to the Court, filed November 20, 2019, ECF No. 32. [10] Citations to “Ex. B” refer to Exhibit B of defendant's November 7, 2019 letter to the Court, ECF No. 28-1.