Requests for Production….of Human Remains?

Proportionality can appear in any discovery dispute. Plaintiffs who were designated as the Primary Next of Kin (“PNOK”) of Army service members who died in the Philippines during World War II, sought the return of the service member’s remains for burial from where the remains were interned as Unknowns in the Manila American Cemetery. Patterson v. Def. POW/MIA Accounting Agency, 2018 U.S. Dist. LEXIS 181496, at *2-3 (W.D. Tex. Oct. 23, 2018). The Plaintiffs claimed that information acquired from a successful Freedom of Information Act lawsuit allowed them to identify where the service members had been buried. Id.

The Plaintiffs brought a request for production to have the Defenders disinter nearly two-dozen remains and fourteen other sets of remains in storage for DNA testing. Patterson, at *29-30. The Defendants objected that the request for production on both proportionality and privacy grounds. Patterson, at *30.

Proportionality analysis requires Courts to consider 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.” Patterson, at *38 citing Federal Rule of Civil Procedure Rule 26(b)(1).

The Court found that the Constitutional right for the return of service member remains for proper burial was highly important to the issues in the case. Moreover, the Defendant was the only one with access to the information and had significant resources. These proportionality factors all favored the Plaintiffs. Moreover, the Court noted ” the oddity of the Defendants’ refusal of Plaintiffs’ offered assistance in identifying the remains of fallen service members,” which could have reduced the Defendants’ burden. Patterson, at *41.

U.S. District Judge Xavier Rodriguez stated that the burden of the discovery outweighing its likely benefit was decisive in the discovery dispute. The likely benefit of disinterring the remains would go to identifying them. If the remains were related to the Primary Next of Kin, the value of the case was obvious. However, if the remains were not related to the Primary Next of Kin, Judge Rodriguez opined the Plaintiffs would change how they were litigating the case.

Judge Rodriguez held that the cost of disinterment and production of the remains outweighed the value of the proposed discovery. Patterson, at *41. The costs included the “disinterments, shipping the remains (with an escort to ensure dignified transfer), securing and equipping a facility in San Antonio for proper treatment of the remains, and monitoring Plaintiffs’ access and testing.” Patterson, at *42.

Bow Tie Thoughts

Proportionality is always relevant. We expect to see Judges analyze benefit and burden in cases with email, cell phones, and terabytes, not the return of human remains for proper burial. The fact the human remains would need to be transported over 8,400 miles with an escort to ensure the dignity of two-dozen fallen World War II service members is a high burned. A higher burden is dying in service to one’s country, so I hope this case is quickly resolved for the Plaintiffs to find their family members and bring them home.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.