Alabama & Gulf Coast Railway, LLC et al v. United States of America et al

Filing 47

ORDER granting 40 Motion to Compel Discovery solely with respect to those portions of Capt Jeffrey Williams' personnel file; the motion is otherwise denied. The United States is to produce the personnel file of Capt Williams by 5/23/11. Signed by Magistrate Judge William E. Cassady on 5/13/2011. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ALABAMA & GULF COAST RAILWAY,
LLC, et al.,

:
:

Plaintiffs,
:
vs.

CA 10-0352-WS-C
:

UNITED STATES OF AMERICA, in
personam, and M/V LAWSON and BARGE :
CHOCTAWHATCHEE, in rem,
:
Defendants.
ORDER
This cause is before the Court on plaintiff Alabama & Gulf Coast Railway,
LLC’s motion to compel production of documents (Doc. 40) and the response in
opposition filed by defendant United States of America (Doc. 44). Upon a
consideration of these pleadings, with attachments, as well as all other pertinent
pleadings in this case, this order is entered pursuant to 28 U.S.C. § 636(b)(1)(A)
and Local Rule 72.2(a).
FINDINGS OF FACT
1.

This admiralty negligence action, filed July 9, 2010, arises out of the

September 26, 2008 allision between the M/V LAWSON and its crane barge, the

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CHOCTAWHATCHEE, and Alabama & Gulf Coast Railway’s bridge over the
Black Warrior River at mile post 728.9. (See Doc. 1, VERIFIED COMPLAINT.)
9.
The United States had a duty to ensure that the Vessels,
which were in the custody and control of its agency, the Army
Corps, did not collide with and damage the aforementioned bridge.
10.
Due to the negligence, fault and lack of due care of
Defendant United States, in personam (through its agency, the Army
Corps), and the Vessels, in rem, the upper boom shield of the
Choctawhatchee’s crane struck the descending bridge deck causing
substantial damage to the bridge structure.
11.
The damage to the bridge was not caused by any fault,
neglect, or lack of due care on the part of AGR or its agents.
12.
The accident and AGR’s resulting damages, as
hereinafter described, were proximately caused by the negligence of
Defendant United States, in personam (through its agency, the Army
Corps), and the Vessels, in rem.
(Doc. 1, ¶¶ 9-12 (emphasis in original).) The United States answered the
complaint on September 13, 2010. (Doc. 17.)
2.

On October 28, 2010, one day prior to filing the Rule 26(f) report (see

Doc. 24), Alabama & Gulf Coast Railway filed notice of serving its first set of
interrogatories and requests for production of documents (see Doc. 23).
3.

The Rule 16(b) scheduling order was entered in this case on

November 2, 2010. (Doc. 25.) In pertinent measure, this order set a discovery
deadline date of July 1, 2011 (id. at ¶ 2) and noted that the issues subject to
discovery were those set forth by the parties in paragraph 4 of the Rule 26(f)

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report (id. at ¶ 1). 1 This order was later modified, upon the parties’ joint motion.
(See Doc. 37; compare id. with Doc. 36.) 2
4.

On January 24, 2011, counsel for Alabama & Gulf Coast Railway

penned a letter to counsel for the United States requesting a complete
supplemental response to plaintiff’s request for production number 12, same
seeking the personnel files of six individuals (i.e., Willie Thompson, Mike Parker,
Captain Jeffrey Williams, Chief Engineer Charles Merchant, Assistant Engineer
Frank Hill, and Deckhand James Crowell). (Doc. 40, Exhibit A.) The United
States declined to produce those personnel files because of its belief that the files
1

Paragraph 4 of the Rule 26(f) report reads, in relevant part, as follows:
Discovery will be needed on the following subjects:
i.
parties[;]

Alleged negligence, fault, and lack of due care, of the
.

.

.

iii.
Conduct of the Plaintiffs, the Defendant, and their
representatives on the date of the accident[;]
iv.
Competency and experience of the Plaintiffs’ and
Defendant’s representatives and employees[; and]
v.
Communications by, among, and between the
Plaintiffs’ representatives and employees and between the
Defendant’s representatives and employees[.]
(Doc. 24, ¶ 4)
2

The discovery completion date has been moved to July 14, 2011. (Doc. 37,

¶ 2.)

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were protected by the Privacy Act but, in addition, also objected to producing the
entire files of the noted individuals based on “grounds of overbreadth and
relevance.” (Id. at 2.) 3 In the January 24, 2011 letter, counsel for Alabama & Gulf
Coast Railway let it be known that “[p]rivacy concerns” could be “addressed by
an appropriate protective order[]” and that the information requested was
relevant because what was being sought was “[i]nformation on the fitness,
qualifications, prior accidents, disciplinary actions, etc., against the vessel’s
crew[.]” (Doc. 40, Exhibit A, at 2.)
5.

By letter dated March 18, 2011, counsel for the United States

declined to produce the requested files. (Doc. 40, Exhibit B.)
I write regarding your request for the personnel files of the
crew of the LAWSON and the CHOCTAWHATCHEE. The United
States stands on its objections to this request based on relevance and
the Privacy Act. We have reviewed Captain Williams’ personnel file
and it does not contain any material relevant to the subject matter of
this litigation or reasonably calculated to lead to the discovery of
admissible evidence. We do not see how the records of the
remainder of the crew could be relevant in this matter given their
lack of role in the accident.
(Id.)

According to the moving plaintiff, the United States responded to its
requests for production of documents on January 4, 2011. (Doc. 40, at ¶ 3.)
3

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6.

On March 31, 2011, counsel for the moving plaintiff conferred in a

face-to-face meeting with counsel for the United States but was unable to resolve
the discovery dispute. (Doc. 40, ¶ 6.)
7.

Alabama & Gulf Coast Railway filed the instant motion to compel

on April 25, 2011, seeking the ordered production of the personnel files sought in
its request for production of documents No. 12 under a protective order. (See
Doc. 40, at ¶¶ 8-9.)
Plaintiff shows that the requested information is relevant and
otherwise subject to discovery under Rule 26 of the Federal Rules of
Civil Procedure. These files may show any disciplinary actions, prior
incidents, training, or other relevant information. Further, the
material and information contained in these files is germane to the
claims and defenses at issue herein. In general, this information is
admissible, and if not admissible itself, then it is—at a minimum—
likely to lead to the discovery of admissible evidence.”
(Id. at ¶ 7.)
8.

The United States filed its response on May 10, 2011. (Doc. 44.)

Therein, the United States contends that the personnel files sought by Alabama &
Gulf Coast Railway are not only protected by the Privacy Act but, as well, are not
relevant to any claims asserted by the moving plaintiff in this action. (See id.)
The LAWSON and CHOCTAWHATCHEE had six crew
members on the date of the accident. One (Assistant Engineer Frank
Hill) was off duty and slept through the accident in his quarters.
Two others (Deckhand James Crowell and Crane Operator Willie
Thompson) were in the restrooms in their respective quarters at the
time of the accident. The other Crane Operator, Mike Parker, was
sitting at a table in the conference room getting a snack. Chief
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Engineer Charles Merchant was in the interior of the LAWSON, in
the engine room. Only Captain Williams was involved in the
operation of the vessel at the time of the accident.
.

.

.

Plaintiff’s sole argument that each crew members’ personnel
files are discoverable is contained at paragraph 7 of [its] motion.
There, Plaintiff states that the “files may show any disciplinary
actions, prior incidents, training, or other relevant information.”
Certainly, the request for production of the entire files is overbroad.
The training, disciplinary history, and “prior incidents”
involving the five crew members who had no role and are not
alleged to have had a role in this accident are plainly not relevant to
the claims or defenses of any party to this matter. Plaintiff has also
stated no argument regarding how any information regarding
“disciplinary actions, prior incidents, [or] training” which may be
contained in Captain Williams’ personnel file are relevant to the
question of whether Captain Williams[] was negligent in his
operation of the LAWSON during this accident. Plaintiff has made no
allegations regarding negligence by the United States in its training
or supervision of the crew of the LAWSON, and such allegations
would likely be outside the United States[’] waiver of sovereign
immunity. In any event, Counsel for the United States has reviewed
Captain William[s’] personnel file and found that it contains no
material relevant to this case.
The relevance of the information Plaintiff[] state[s] [it] seek[s]
from the personnel files is also undercut by the fact that Plaintiff by
and large did not ask questions about these matters during the
[depositions of the] six crew members on March 3 and 4. Plaintiff’s
counsel inquired whether Captain Williams had been involved in
any other collisions while operating vessels for the Army Corps of
Engineers, and the answer was that he had not. This question was
not asked of any of the other crew members. Plaintiff asked no crew
member about disciplinary actions. While Plaintiff inquired about
the crew members’ prior experience working on vessels and about
their Coast Guard qualifications, Plaintiff did not inquire about
training by the Army Corps of Engineers. Plaintiff had ample
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opportunity to inquire into the training, disciplinary history, or
accident history of any crew member, to the extent Plaintiff believed
that information was relevant to its case, and declined to do so.
(Id. at 2 & 5-6 (emphasis in original; internal footnotes omitted).)
CONCLUSIONS OF LAW
1.

The present motion to compel filed by Alabama & Gulf Coast

Railway requires the undersigned to consider the Privacy Act, 5 U.S.C. § 552a,
inasmuch as the personnel files responsive to the moving party’s request for
production #12 are documents which the United States claims are protected
under the Act. (See Doc. 44.)
2.

Section 552a(b) specifically provides that “[n]o agency shall disclose

any record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual to whom the
record pertains,” 4 unless, however, disclosure of the record is made “pursuant to
the order of a court of competent jurisdiction[.]” 5 U.S.C. § 552(a)(b) & (11).
3.

In considering the import of the Privacy Act, and in particular

paragraph (11), the Circuit Court for the District of Columbia long ago
Such records, of course, include personnel files. See, e.g., Stiward v. United
States, 2007 WL 2417382, *1 (E.D. La. Aug. 24, 2007) (“The Privacy Act provides that a
government agency may not disclose certain records, including personnel files of its
employees, subject to eleven exceptions.”).
4

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recognized that the Act “does not create a qualified discovery privilege as that
concept is generally understood[,]” nor does it “create any other kind of privilege
or bar that requires a party to show actual need as a prerequisite to invoking
discovery.” Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987). Instead, “a
party can invoke discovery of materials protected by the Privacy Act through the
normal discovery process and according to the usual discovery standards, and
the test of discoverability is the relevance standard of Rule 26(b)(1) of the FRCP.”
Id. at 889; see also, e.g., United States v. Lake County Bd. of Commissioners, 2006 WL
1660598, *1 (N.D. Ind. June 7, 2006) (“The Privacy Act prohibits a federal agency
from disclosing certain personal information without an ‘order of a court of
competent jurisdiction.’ In determining whether to issue such an order, the usual
discovery standards of Federal Rule of Civil Procedure 26(b)(1) apply.” (internal
citation omitted)), aff’d, 2006 WL 2051729 (N.D. Ind. July 20, 2006).
4.

Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that a

party may obtain discovery “regarding any nonprivileged matter that is relevant
to any party’s claim or defense[.]” Fed.R.Civ.P. 26(b)(1). Under this rule,
relevancy has been “construed broadly to encompass any matter that bears on, or
that reasonably could lead to other matter that could bear on, any issue that is or
may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct.
2380, 2389, 57 L.Ed.2d 253 (1978). However, the scope of discovery is not without

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limits, the Supreme Court itself recognizing that “‘discovery, like all matters of
procedure, has ultimate and necessary boundaries.’” Id., quoting Hickman v.
Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947). Certainly, for
instance, “[d]iscovery of matter not reasonably calculated to lead to the discovery
of admissible evidence is not within the scope of Rule 26(b)(1).” Id. at 351-352, 98
S.Ct. at 2390 (internal quotation marks omitted); cf. Washington v. Brown &
Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992) (“The scope of
discovery in Title VII cases is not without limits. The information sought must be
relevant and not overly burdensome to the responding party.” (internal footnote
omitted)). More to the point, “‘[n]o one would suggest that discovery should be
allowed of information that has no conceivable bearing on the case.’” Food Lion,
Inc. v. United Food & Commercial Workers Union, AFL-CIO-CLC, 103 F.3d 1007,
1012 (D.C. Cir. 1997), quoting 8 WRIGHT, MILLER & MARCUS, FEDERAL
PRACTICE AND PROCEDURE CIVIL 2d § 2008, pp. 105-06 (1994); see also In re
Fontaine, 402 F.Supp. 1219, 1221 (E.D.N.Y. 1975) (“While the standard of
relevancy is a liberal one, it is not so liberal as to allow a party ‘to roam in
shadow zones of relevancy and to explore matter which does not presently
appear germane on the theory that it might conceivably become so.’” (citation
omitted)). Indeed, “[t]he relevancy requirement ‘should not be misapplied so as
to allow fishing expeditions in discovery.’” United States v. Lake County Bd. of

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Commissioners, supra, at *1, quoting Zenith Electronics Corp. v. Exzec, Inc., 1998 WL
9181, *2 (N.D. Ill. Jan. 5, 1998).
5.

Against this factual and legal backdrop, the undersigned finds that

the only personnel file with any conceivable relevance in this negligence action is
the personnel file of Captain Jeffrey Williams. After all, Captain Williams was
operating the LAWSON and acting as lookout at the time of the allision and
plaintiffs allege that the bridge sustained damage as a result of negligent
operation of the LAWSON (pushing the crane barge CHOCTAWHATCHEE).
The moving plaintiff has not established the relevancy of the personnel files of
any of the remaining crewmembers inasmuch as the discovery conducted to
date, including the depositions of these other crewmembers, establishes that
none were involved in the operation of the LAWSON, or as lookouts, when the
upper boom shield of the CHOCTAWHATCHEE’s crane allided with the bridge.
Indeed, underscoring the lack of relevancy of these five individuals’ personnel
files is the fact that these five men were not asked in their depositions about
disciplinary actions, prior incidents, and training (Doc. 44, at 5-6). Cf. Coker v.
Duke & Co., Inc., 177 F.R.D. 682, 685 (M.D. Ala. 1998) (“[The defendant] correctly
notes that there is a strong public policy against the discovery of personnel files.
Consequently, the discovery of such files is permissible only if ‘(1) the material
sought is clearly relevant and (2) the need for discovery is compelling because

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the information sought is not otherwise readily obtainable.’ The plaintiffs have
failed to meet this burden. Their argument in support of this request makes only
a general showing of relevance and no showing as to why the material which
they seek is not available from other sources.” (internal citation omitted)). The
moving party’s desire to now try to compel disclosure of the personnel files of
these five individuals amounts to nothing but a fishing expedition, see Weems v.
Corrections Corp. of America, 2010 WL 2640114, *2 (E.D. Okla. June 30, 2010)
(defendant’s inability to specifically describe what it sought amounted to a
fishing expedition for helpful information); therefore, the motion to compel
production of the personnel files of Willie Thompson, Mike Parker, Charles
Merchant, Frank Hill, and James Crowell is DENIED.
6.

Turning to the personnel file of Captain Williams, the undersigned

notes that while there may be some material in that file that is relevant to this
case the plaintiff is not entitled to the entire file. Compare Weems, supra, at *1
(“Personnel files are in general entitled to heightened protection[.]”) with OjedaSanchez v. Bland Farms, LLC, 2009 WL 2365976, *2 (S.D. Ga. July 31, 2009) (noting
that personnel files, as opposed to payroll records, “involve more complex and
varied privacy concerns[]” since they often contain “‘an individual’s unlisted
address and telephone number, marital status, . . . medical background, credit
history (such as requests for garnishment of wages), and other work-related

11

problems.’”). 5 Moreover, the portions of Williams’ personnel file that should be
produced to the plaintiff are to be produced pursuant to a protective order which
will be entered contemporaneously herewith. Compare Laxalt, supra, 809 F.2d at
889 (“[W]hen the District Court considers a request for a Privacy Act order in the
discovery context it must consider the use of protective orders and the possibility
of in camera inspection.”) with Hernandez v. United States, 1998 WL 230200, *2 & 3
(E.D. La. May 6, 1998) (district court ordered the United States to produce the
personnel file of Postal Service driver involved in automobile accident pursuant
to an appropriate protective order). 6 Accordingly, the moving plaintiff’s motion
to compel is GRANTED to the limited extent that the United States is
ORDERED

to

produce,

pursuant

to

the

protective

order

entered

contemporaneously herewith, those portions of Captain Williams’ personnel file
reflecting disciplinary actions, prior incidents/accidents, training, promotions,
and medical history; the government is specifically authorized to redact from the
personnel file any credit history, financial, or salary information, as well as any
Cf. Rowlin v. Alabama Dept. of Public Safety, 200 F.R.D. 459, 461 (M.D. Ala.
2001) (“[C]ourts have the duty to pare down overbroad discovery requests under Rule
26(b)(2), which provides that information may sometimes be withheld, even if
relevant.”).
5

The moving plaintiff does not object to entry of a protective order. (See
Doc. 40, at ¶ 8 (“Plaintiff AGCR, as originally offered to counsel for the United States,
will agree to a Protective Order issued by this Court covering the employment files
produced by the United States.”).)
6

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personal information such as marital status, names of his spouse and children (if
any), and unlisted telephone numbers and addresses.

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CONCLUSION
In light of the foregoing, plaintiff Alabama & Gulf Coast Railway, LLC’s
motion to compel production of documents (Doc. 40) is GRANTED solely with
respect to those portions of Captain Jeffrey Williams’ personnel file identified
above, same to be produced pursuant to the protective order entered
contemporaneously herewith; the motion to compel is otherwise DENIED. The
United States is to produce the personnel file of Captain Williams, as described
above, not later than the close of business on May 23, 2011.
DONE and ORDERED this 13th day of May, 2011.

s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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