The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HILAIRE GRATTIER,
Plaintiff,
v. Case No. 8:20-cv-3013-CEH-AAS
BRITISH AIRWAYS, PLC,
Defendant.
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ORDER
Plaintiff Hilaire Grattier requests that the court compel British Airways,
PLC (British Airways) to provide documents responsive to Mr. Grattier’s
request for production nos. 34-47. (Doc. 26). British Airways opposes the
motion.1 (Doc. 32).
I. BACKGROUND
Mr. Grattier sues British Airways and alleges he sustained serious
injuries because of severe turbulence on British Airways Flight 2167 from
London, United Kingdom to Tampa, Florida, on May 5, 2019. (Doc. 11).2 Mr.
1 The court granted Mr. Grattier’s request for leave to file a reply, but he failed to do
so in the time provided. (See Docs. 33,34).
2 The transportation at issue is an “international carriage” and the rights and
liabilities of the parties are governed by the provisions of the Montreal Convention.
See El Al Israel Airlines, Ltd. v. Tseng, 119 S. Ct. 662, 669 (1999).
Grattier alleges the “fasten seatbelt” sign was not illuminated during the
turbulence. (Id.).
Mr. Grattier served requests for production of documents on British
Airways, who provided objections and responses. (Doc. 26, Ex. C). Mr. Grattier
now moves the court to overrule British Airways’ objections to request for
production nos. 34−47 and to compel production. (Doc. 26). British Airways
opposes the motion. (Doc. 32).
These two categories of documents are at issue: (1) request for production
nos. 34 through 37, which request documents exchanged between British
Airways and several government authorities about Flight 2167; and (2) request
for production nos. 38 through 47, which request the names, personal contact
information, and citizenship status of all passengers seated in Mr. Grattier’s
row and the surrounding rows on Flight 2167. (See Docs. 26, 32).
II. ANALYSIS
“Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely
benefit.” Fed. R. Civ. P. 26(b)(1).
A party may move for an order compelling discovery from the opposing
party. Fed. R. Civ. P. 37(a). The party moving to compel discovery has the
initial burden of proving the requested discovery is relevant and proportional.
Douglas v. Kohl’s Dept. Stores, Inc., No. 6:15-CV-1185-Orl-22TBS, 2016 WL
1637277, at *2 (M.D. Fla. Apr. 25, 2016) (quotation and citation omitted). The
responding party must then specifically show how the requested discovery is
unreasonable or unduly burdensome. Panola Land Buyers Ass’n v. Shuman,
762 F.2d 1550, 1559-60 (11th Cir. 1985).
A. Request for Production Nos. 34−37
Mr. Grattier’s request for production nos. 34 to 37 request documents
and information that British Airways exchanged with various governmental
authorities in the United States, the United Kingdom, and the European
Union about Flight 2167. (See Doc. 26, Ex. C, pp. 10-11).
British Airways, a company organized under the laws of the United
Kingdom, is legally barred from providing these communications under U.K.
Law and Regulation (EU) No. 376/2014. Specifically, Article 15 of Regulation
of the Civil Aviation (EU) states: “Member States, the Agency and
organisations shall not make available or use the information on occurrences:
(a) in order to attribute blame or liability; or (b) for any purpose other than the
maintenance or improvement of aviation safety.” Regulation (EU) 376/2014,
art. 15.
A balancing test is used to determine whether to order discovery of
materials protected from disclosure by the laws of a foreign country. See Société
Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for the Southern Dist. of
Iowa, 482 U.S. 522, 565 (1987) (engaging in a comity analysis and declaring
that blocking statutes do not deprive an American court of the power to order
a party to produce evidence, even though the production may violate the
statute). According to British Airways, it already produced documents from its
safety reporting system about the investigation of the turbulence encounter,
including its Formal Report (FR-059 British Airways’ Corporate Safety
incident investigation report), Air Safety Report (ASR-2802) sent to the U.K.
Civil Aviation Authority, excerpts from British Airways General Procedures
manuals, data obtained from the aircraft’s Flight Data Recorder, flight
planning documents, and relevant pages from the aircraft logbook and Boeing
maintenance manuals. (Doc. 32, p. 17).
The negative impact of British Airways compromising confidentiality in
aviation safety reporting if compelled to disclose these additional
communications is not outweighed by the potential benefit to Mr. Grattier.
Because Gratttier is already in possession of information sufficient to evaluate
British Airways’ procedures, compliance, and actions, these requests for
additional documentation are not proportional to the needs of this case.
B. Request for Production Nos. 38−47
Mr. Grattier’s request for production nos. 38 through 47 request the
names, personal contact information, and citizenship status of passengers
seated in Mr. Grattier’s row and the surrounding rows on Flight 2167. (See
Doc. 26, Ex. C, pp. 11-13).
Passenger manifest information is governed by Part 243 of Title 14 of the
Code of Federal Regulations. Title 14 C.F.R. § 243.9 provides:
(c) The contact information [for passengers on any flight] shall be
kept confidential and released only to the U.S. Department of
State, the National Transportation Safety Board ..., and the U.S.
Department of Transportation pursuant to oversight of this part.
This paragraph does not preempt other governments or
governmental agencies that have an independent legal right to
obtain this information.
(d) The contact information . . . shall only be used by covered
airlines for notification of family members or listed contacts
following an aviation disaster. The information shall not be used
for commercial or marketing purposes.
Despite these federal regulations, courts have held that a passenger manifest
may be discoverable under a confidentiality agreement. See, e.g., Jakobot v.
Am. Airlines, Inc., No. 10-CV-61576, 2011 WL 13214326, at *2 (S.D. Fla. May
23, 2011) (granting motion to compel production of passenger manifest).
Mr. Grattier, however, requires the personal information for over fifty
passengers in an effort to obtain eyewitness testimony about the severe
turbulence and to identify potential witnesses. British Airways does not
dispute that Flight 2167 encountered severe turbulence that constituted an
“accident” under Article 17 of the Montreal Convention. British Airways also
does not dispute that severe turbulence occurred and the fasten seatbelt sign
was not illuminated prior to the turbulence.3 Thus, the personal contact
information of surrounding passengers is unnecessary to verify this
information.
In addition, European privacy laws such as the European General Data
Protection Directive 95/46/EC, bar British Airways from disclosing “any
processing of personal data” or by “a controller processor or in the [EU] …
regardless of whether the processing itself takes place within the [EU].” (See
Doc. 32, Ex. A). “Personal data” is defined as “any information relating to an
identified or identifiable natural person (‘data subject’).” (See Doc. 32, Ex. B).
Disclosure of confidential passenger information for nearly fifty
passengers is not relevant or proportional to the needs of the case. Mr.
Grattier’s need for this broad number of passengers’ personal information does
not outweigh British Airways’ duty to protect the passengers’ privacy interests
under federal and European privacy laws.
3 The Captain of Flight 2167, Captain Tom Gale, testified he did not illuminate the
fasten seatbelt sign before the turbulence. (Doc. 26, Ex. B, p. 177).
II. CONCLUSION
It is ORDERED that Mr. Grattier’s motion to compel (Doc. 26) is
DENIED.
ENTERED in Tampa, Florida on August 4, 2021.
Aranda. Ayre □□ Sarma.
AMANDA ARNOLD SANSONE
United States Magistrate Judge