Opinion
Civil Action No. 02-858.
April 22, 2004
MEMORANDUM AND ORDER
Claimants, Todd and Lesley Bruemmer, have moved to strike the response of McAllister Towing and Transportation, Inc., to a request for admission. McAllister was asked to admit "that the absence of a pre-tow conference was a substantial factor causing Todd Bruemmer's injuries on October 10, 1999." (Request for Admission 1). Considering the fact that McAllister's own maritime expert came to that conclusion, see Affidavit of William Clifford, at ¶ 4 ("I firmly believe that had a [pre-tow conference] been held in the case at hand, the injuries to Todd Bruemmer may well have been avoided."), and the fact that McAllister made that statement in opposing a summary judgment motion in the case, see Memorandum of McAllister in Opposition to Summary Judgment, at 2, we are surprised at the reluctance on McAllister's part to make such an admission. Yet, McAllister responded by claiming that the request could not be unconditionally admitted or denied. The sum and substance of McAllister's qualification is that they will agree that the failure to conduct a pre-tow conference was "probably" a substantial factor in causing Mr. Bruemmer's injuries, but they deny that it was their responsibility to hold such a conference. The Bruemmers contend that such a response is not permissible under the Rules of Civil Procedure.
The response to the Request for Admission, as supplemented by McAllister is as follows:
The Request cannot be unconditionally admitted or denied.
The duty to hold a conference prior to the tow of the GUADALCANAL fell upon the shoulders of the Navy's contractor (Global Associates), the NISMF and Captain Wanzor of the MOHAWK. The extent of the duty was commensurate with the extent of need of Captain Wanzor and his crew for knowledge pertaining to local conditions and the method of towage to be employed. The insufficient state of preparedness of Captain Wanzor and his crew was most likely a substantial factor in the occurrence of the incident of October 9, 1999. For that reason, it is admitted that the failure of Global Associates, NISMF and Captain Wanzor to conduct a pre-tow conference was probably a substantial factor causing Todd Bruemmer's injuries on October 10, 1999.
There was no duty by law or contract in place upon McAllister, via its employees or servants, or upon Curt Chamberlain to instruct or inform the captain or crew of the MOHAWK. Neither McAllister nor Chamberlain was obliged to presume that the personnel aboard MOHAWK needed any instruction or information. Indeed, the failure of Global, NISMF and/or Wanzor to hold a meeting, and the failure of Wanzor to speak with Chamberlain when he (Chamberlain) presented himself to the MOHAWK prior to the tow, were strongly indicative of the fact that Wanzor believed (wrongly, as it turned out) that he and his crew had been fully prepared. Since neither Chamberlain nor any of McAllister's employees had any independent reasons prior to the accident to believe that Wanzor and his crew were not knowledgeable or properly skilled, it was not foreseeable to Chamberlain or McAllister that proceeding with the tow without a conference presented undue risk.
Rule 36, which governs Requests for Admission, provides in pertinent part:
The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the parties shall specify so much of it as is true and qualify or deny the remainder. . . .
The party who has requested the admissions may move to determine the sufficiency of the answers or objection. Unless the court otherwise determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served.
Here, McAllister's qualification deals with responsibility for the failure to hold a pre-tow conference, a subject not addressed by the admission. McAllister emphasizes that without their qualifications, the Court would not "know the duties and responsibilities of those parties." McAllister's Memorandum of Law, at 2. The problem with McAllister's qualification is that the request for admission was narrowly written, asking only that McAllister admit or deny that the failure to conduct a pre-tow conference was a substantial factor in causing Mr. Bruemmer's injury. The admission does not call for finger-pointing. The issue of the "duties and responsibilities" of the parties is certainly an issue that will arise at another time, but it is an inappropriate discussion for an answer to such a narrowly written admission.
Rule 36(a) requires the responding party to qualify an answer or denial only as good faith requires and "specify so much of it as is true and qualify or deny the remainder." Here, McAllister admits "that the failure of Global Associates, NISMF, and Captain Wanzor to conduct a pre-tow conference was probably a substantial factor." Furthermore, McAllister admits in their Memorandum of Law that the failure to hold a pre-tow conference was "hypertechnically speaking" a substantial factor in the injury. An admission is a "hypertechnical" procedure, and McAllister has demonstrated no good faith reason for their insertion of the word "probably" into their answer, or for their lengthy exegesis on the collateral issue of whose job it was to organize the pre-tow conference. This lack of good faith is punctuated by the simple fact that McAllister has explicitly admitted in its response to summary judgment that the failure to hold a pre-tow conference was "a substantial factor in causing Mr. Bruemmer's injuries." As such, we find McAllister's qualification of the admission did not comply with the requirements of Rule 36, and will order that the Request for Admission be admitted.
In responding to the summary judgment motion filed by Global Associates, McAllister stated the following:
Undeniably, the record contains sufficient evidence to support the conclusion that the failure to hold a pre-tow meeting was a substantial factor in causing Mr. Bruemmer's injuries.
McAllister's Response to Global Associates' Summary Judgment Motion, at 17.
An appropriate Order follows.
ORDER
AND NOW, this ____ 22 __ day of April, 2004, upon consideration of the Motion of the Claimants to Strike McAllister's Supplemental Response to Request for Admission, the response, thereto, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is GRANTED. IT IS FURTHER ORDERED that the Request for Admission is deemed admitted.McAllister Towing brought this action for exoneration or limitation of its liability for personal injuries sustained by Todd Bruemmer during the attempted tow of the helicopter carrier ex-USS GUADALCANAL. Mr. Bruemmer was a civilian employee aboard the tugboat USNS MOHAWK, which participated in the attempted tow, and was injured when part of the towing gear from the MOHAWK broke, striking Mr. Bruemmer, causing him serious internal and external injuries. Presently before the court is McAllister Towing's Motion to Compel Discovery directed to the United States.
In its motion, McAllister Towing seeks: (1) copies of all documents pertaining to personnel decisions made by the U.S. Military Sealift Command or the United States Navy as a result of the towing accident; (2) the complete and unredacted personnel files of Captain Garret E. Wanzor, Master of the MOHAWK, and Timothy Lockwood, First Officer of the MOHAWK; (3) a complete and unredacted copy of the report to the U.S. Military Sealift Command regarding the investigation of the accident aboard the MOHAWK; and (4) the last known contact information for two eyewitnesses to the incident. For the reasons that follow, we will grant the motion, in part, and deny it, in part.
McAllister's first request is for copies of any documents reflecting the personnel decisions that occurred in response to the accident. The United States objects, claiming that the Navy has taken full responsibility for the accident and release of the disciplinary actions taken will not further McAllister's defense or claims. The information sought by McAllister is protected by the Privacy Act, 5 U.S.C. § 552a, and disclosure would simply serve to embarrass or harass the employees. We agree with the United States.
The Privacy Act creates a statutory ban on the disclosure of information contained in government files, allowing the Government to release information about individuals only under certain enumerated circumstances, including when ordered to do so by court order. 5 U.S.C. § 552a(b)(11).
Although there has been some debate regarding the standard to be applied with respect to information covered by the Privacy Act, see Miskiel v. The Equitable Life Assurance Society, 1999 WL 95998 *3 (E.D. Pa. Feb. 24, 1999) citing (Perry v. State Farm Fire Casualty Co., 734 F.2d 1441, 1447 (11th Cir. 1984) (courts must balance need for disclosure against potential harm from disclosure) cert. denied 469 U.S. 1108 (1985);Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987) (standard for court order is same as usual discovery standard)), we believe application of either standard results in protection for the requested information.
In support of its request for the disciplinary records, McAllister argues, "[a]ny reprimands or punishment received as a result of this particular incident are relevant insofar as they reflect an admission by the government that either [Captain] Wanzor or [First Officer] Lockwood did in fact bear responsibility for the accident." Wanzor and Lockwood are not named defendants in the case. They are government employees assigned to the MOHAWK. The Investigation Report authored by LCDR Roy Nixon concludes that there were three factors leading to the accident, all of which are the fault of the United States Navy: (1) the MOHAWK did not have enough experienced crew; (2) there was not a training plan in place for towing evolutions; and (3) Captain Wanzor, did not delegate responsibility. This Investigation Report, excluding only the disciplinary actions taken, was produced in discovery. Since McAllister seeks information concerning the disciplinary actions to establish that Wanzor and Lockwood were responsible for the accident and the Navy has already produced the documents establishing that very fact, there is no reason to subject Wanzor and Lockwood to further embarrassment.
Similarly, we will deny McAllister's request for the complete personnel files for Wanzor and Lockwood. Again, McAllister seeks the personnel files to establish that Wanzor and Lockwood are responsible for the accident and/or that the Navy was negligent for entrusting the tug and its crew to these two men. The United States has already produced documents concluding that it was responsible for the accident. There is no benefit to be gained by exposing the careers of Wanzor and Lockwood to further scrutiny.
Next, McAllister seeks a complete and unredacted copy of the report to the U.S. Military Sealift Command regarding the investigation of the accident aboard the MOHAWK. This report consists of several documents, including the initial report of Lieutenant Commander Roy L. Nixon, dated November 4, 1999, and several endorsements made by the Military Sealift Command, and enclosures. According to the United States, the only information withheld from LCDR Nixon's initial report was "a final recommendation related to disciplinary action and minor personal identifiers." Response of U.S., at 3. As previously discussed, the information regarding disciplinary action is not subject to disclosure. Thus, we will deny McAllister's request.
The United States also seeks protection for one of the enclosures to LCDR Nixon's report, the Navy's Afloat Mishap Investigation Report, (MIR). The MIR was removed by the Office of Counsel to the Military Sealift Command when it issued the Third Endorsement to LCDR Nixon's report.
The Navy contends that the MIR is protected by the "self-critical analysis privilege." The self-critical analysis privilege is "based upon the concern that disclosure of documents reflecting candid self-examination will deter or suppress socially useful investigations and evaluations or compliance with the law or with professional standards." Clarke v. Mellon Bank, N.A., Civ. A. No. 92-4823, 1993 WL 170950, * 4 (E.D. Pa. May 11, 1993), quoting, Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987).
In the Eastern District of Pennsylvania, the application of this privilege requires: (1) that the material in question was prepared for mandatory government reports, or for a selfcritical analysis undertaken by the party seeking protection; (2) that the privilege be extended only to subjective, evaluative materials, but not to objective data in the reports; and (3) the policy favoring exclusion must clearly outweigh the plaintiff's need for the documents. Melhorn v. New Jersey Transit Rail Operations, Inc., Civ. A. No. 98-6687, 2001 WL 516108 at *1 (E.D. Pa. May 15, 2001); Clark v. Pennsylvania Power and Light Co., Inc., Civ. A. No. 98-3017, 1999 WL 225888 at *2 (E.D. Pa. Apr. 14, 1999); Webb v. Westinghouse Electric Corporation, 31 F.R.D. 431, 434 (E.D. Pa. 1978).
The privilege was originally developed to protect internal hospital reports critiquing the medical care offered by the hospital. See, Blunt v. Hunterdon County, 183 F.R.D. 181, 185 (D.N.J. 1998), citing Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd 479 F.2d 930 (D.C. Cir. 1973). It is also commonly invoked by companies seeking to protect their affirmative action documents. See, discussion inGranger v. National Railroad Passenger Corporation, 116 F.R.D. 507, 508 (E.D. Pa. 1987).
McAllister first argues that the MIR does not meet the first requirement for protection. Since the MIR is not statutorily required, McAllister claims that it is discoverable. In making such an argument, McAllister has failed to read the first requirement in its entirety. For protection under the self-critical analysis privilege, the information may either be prepared for a mandatory government report, or be undertaken for critical self-analysis. Here, the United States has cited the Naval directive involving the MIR, which states that the "sole purpose of the safety mishap investigation, is mishap prevention, not culpability." COMSCINST 5100.17C, p. 5-1. The directive goes on to protect the confidentiality of the MIR and states that no statement given in the MIR can be used against the individual in a legal or administrative proceedings. Id. Considering that the policy behind the MIR is to promote safety and prevent accidents, it clearly fits under the auspices of critical self-analysis.
The second and third requirements for critical self-analysis protection are impossible to evaluate with the limited information before the court. Without examining the report, we are unable to evaluate whether the information contained in the MIR is objective or subjective and, without reviewing the report, we cannot weigh the need for the report against the policy underlying the privilege. See Melhorn v. New Jersey Transit Rail Operations, 203 F.R.D. 176, 178 (E.D. Pa. 2001) (requiring in camera review of railroad accident report to determine applicability of critical self-analysis privilege). Therefore, counsel for the United States shall provide a copy of the MIR for the Court's in camera review.
Finally, McAllister seeks the last known contact information for two crew members who were aboard the MOHAWK at the time of the accident. The United States, relying on the Privacy Act, has refused because unauthorized disclosure carries the potential for criminal penalties. 5 U.S.C. § 522a(i)(1). As previously discussed, the Privacy Act prohibits any governmental release of information contained in its files absent an exception to the Act's protections. One of the enumerated exceptions is compulsion by court order.
Under either the Perry or Laxalt standards of discovery applicable to information protected by the Privacy Act, see infra, at 2, this information is discoverable. Since the two individuals for whom McAllister seeks contact information were onboard the MOHAWK and allegedly witnessed the accident, we will compel release of their last known addresses and telephone numbers.
An appropriate Order follows.
ORDER
AND NOW, this ____ 22 __ day of April, 2004, upon consideration of the McAllister's Motion to Compel Discovery, directed to the United States (Doc. 105), the response, thereto, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is GRANTED IN PART and DENIED IN PART. To the extent McAllister seeks the contact information for two crew members of the MOHAWK, the Motion is GRANTED. To the extent McAllister seeks the personnel records of Captain Wanzor and First Officer Lockwood, and documents concerning personnel decisions and reprimands made as a result of the accident, the Motion is DENIED. The United States shall provide a copy of the Navy's Afloat Mishap Investigation Report, (MIR), which was originally attached as an enclosure to LCDR Nixon's Report, to the Court for an in camera review.The claimants, Todd and Lesley Bruemmer, have filed a Motion to Strike certain objections and insufficient responses to discovery requests they received from McAllister Towing and Transportation Company, Inc. Mr. Bruemmer was injured while working aboard the USNS MOHAWK, a tugboat that was attempting, with the assistance of several other tugs, to tow the ex-USS GUADALCANAL from a pier at the Philadelphia Naval Yard. That tow of the GUADALCANAL was aborted. The GUADALCANAL was successfully towed from the pier on October 23, 1999.
In their second set of interrogatories and request for documents, the claimants sought information regarding the successful tow of the GUADALCANAL. McAllister has objected to several of the interrogatories and requests. The claimants ask the court to strike the objections and certain insufficient responses.
Interrogatories 2(h), (i), and (j)
In these interrogatories, the Bruemmers sought information regarding the pre-tow conference that was held before the successful tow of the GUADALCANAL. Although McAllister identified the attendees at the conference, they failed to describe what was discussed, the tow plan, and any changes made to the tow plan during the conference. They did not object to the interrogatories or claim that they had insufficient knowledge to respond. In response to the Motion to Strike, McAllister now claims that this information should have been sought during the depositions of those who attended the pre-tow conference and they also claim that the Bruemmers have already obtained this information during the deposition of Charles Chamberlain, the docking master hired by Global Associates.
Pursuant to Rule 26, the court may limit discovery if it determines that the request is burdensome, redundant, or obtainable from a more convenient source. Here, McAllister claims that these interrogatories are both redundant and the obtainable via deposition rather than interrogatory. McAllister argues that the questions are redundant because Charles Chamberlain, the docking master hired by Global Associates, answered these issues in his deposition. However, review of the deposition reveals that Mr. Chamberlain discussed specific issues regarding the pre-tow conference, but his responses do not directly address the interrogatories posed to McAllister.
McAllister also argues that the claimants should have questioned Frank Huesser, McAllister's representative who participated in the pre-tow conference, about these issues when they deposed him. We are not persuaded that the responses to these three questions pose such a burden that the claimants should be denied proper responses to these interrogatories. If McAllister does not have sufficient information to respond, it should so state.
Finally, McAllister claims that the information sought by the claimants will be forthcoming with the deposition of Captain Smith, the captain that commanded the second tow of the GUADALCANAL. Again we are not persuaded that Captain Smith's pending deposition serves to alleviate McAllister's duty to respond to discovery. We do not find that Captain Smith's deposition renders the claimants' request redundant. Just as two eyewitnesses to an incident may recall different thing about the incident, here, different people who attended the pretow conference may remember things differently or recall different aspects of the conference.
In a related motion, McAllister sought information regarding eyewitnesses to the accident that occurred onboard the MOHAWK despite other witnesses' reports of the accident. If we were to adopt McAllister's logic, one witness would be sufficient and we would have denied McAllister's request for identification information for any additional eyewitnesses.
Interrogatory 6
In this interrogatory, the claimants seek "the purpose of each of the assist-tug boats and/or vessels used during the tow. . . ." In response, McAllister stated that the "tugs were to assist in moving the Ex-US Guadalcanal from the pier at the Philadelphia Naval Yard to the stream of the Delaware River." The claimants complain that this response lacks specificity. Since the interrogatory lacks specificity, we will not strike the answer. However, we will direct McAllister to supplement its answer. With respect to the McAllister tugs, if the tugs served a more specific purpose in the tow, i.e. pulling the ship away from the pier, or pushing or pulling a specific section of the ship, McAllister shall specify what specific duty or role each of its tugs played in the movement of the GUADALCANAL.
Interrogatory 7
In this interrogatory, the claimants sought specific information regarding each of the tugs used to move the GUADALCANAL: single or twin screw; horsepower; type of steering; and number of propellers. McAllister has fully responded to these questions with respect to the four tugs it provided for the movement of the GUADALCANAL. However, McAllister has stated that they do not possess the information sought with respect to the two tugs provided by Hays Tug Launch Service. This response suffices to answer the interrogatory.
Interrogatories 8, 10, and 13
In these interrogatories, the Bruemmers seek the positions of the all the assist tugs, (four were McAllister tugs and two were provided by Hays Tug Launch Service), their movements, engine settings, number of tow lines, angle of each line, and other specifics, during the tow of the GUADALCANAL. McAllister, in responding to these interrogatories has stated that none of this information was recorded in any of McAllister's records. Considering this, it would be asking the impossible to have the captains of the tugs recall the minute details of the tow, i.e. what angle each of the tow lines had at any precise point in the towing process. Moreover, with respect to the non-McAllister tugs, no one at McAllister ever had any first hand knowledge of these details. Hence, we will not compel any further response to these interrogatories. We find that response to this interrogatory is burdensome, if not impossible.
Interrogatories 15-19
In Interrogatories 15 through 19, the claimants seek information regarding the tide, current, and wind conditions during the movement of the GUADALCANAL. McAllister has again stated that it does not have this information in any recorded form. McAllister points out that this information would be easily obtainable from public records that are available to the claimants. We will deny the motion to strike this objection.
Interrogatories 20-22
In these interrogatories, the claimants want to know how the wind, the tide, and the current affected the tow of the GUADALCANAL. McAllister has explained in its response to the Motion to Strike that it cannot respond to these inquiries because it does not know how the weather or river conditions affected the procedure. The McAllister tugs merely followed the orders given by Captain Chamberlain, who was aboard the GUADALCANAL at the time of the move. Captain Chamberlain was following the direction of Captain Smith, who was in charge of the tow. As such, McAllister contends that it is not able to respond to these interrogatories. We agree.
ORDER
AND NOW, this ____ 22 __ day of April, 2004, upon consideration of the Claimants' Motion to Strike McAllister's Objections and Insufficient Responses to Interrogatories, (Doc. 112), the response, thereto, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is GRANTED IN PART and DENIED IN PART.
1. With respect to Interrogatories 2(h), (i), and (j), the Claimants' Motion is GRANTED. McAllister shall provide responses to these Interrogatories within ten days of the entry of this Order.
2. With respect to Interrogatory 6, we will not strike the response. However, if McAllister is able to provide a more detailed description of the purpose of each of its tugs, it shall supplement its answer.
3. In all other respects, the Motion to Strike Responses is DENIED.