McSwain v. United States may have been the most complicated dog bite case in history and addressed whether certain classified information is discoverable. A woman going through TSA screening at McCarran airport in Las Vegas was knocked over by a TSA dog who somehow escaped his harness. The woman then sued the TSA. Issues of sovereign immunity arose and a discovery dispute.
The woman served a variety of requests for production that were the primary dispute.
Request for Production No. 6: Provide copies of any documents used by TSA instructors throughout the duration of training to train TSA dog handlers, including but not exclusive to training manuals, policy statements or guidelines (official or unofficial).
Request for Production No. 7: Provide copies of any documents used by TSA instructors throughout the duration of training to train TSA dogs, including but not exclusive to training manuals, policy statements or guidelines (official or unofficial).
Request for Production No. 8: Provide copies of any documents detailing official TSA policy applicable throughout the duration of training in handling occurrences such as the subject incident; to prevent, mitigate in the moment and ameliorate after the fact such crises.
Request for Production No. 11: Provide copies of any documents certifying and documenting each and every type of training that TSA handler Raymond Fasciano and TSA canine have undergone.
These four requests “for all TSA training manuals, policy statements or guidelines relating to TSA security dogs and handlers are clearly overbroad. The training manuals may contain confidential, sensitive information relating the detection of explosives. Such information is not relevant to the issue in this case.”
The government also objected that “the training materials requested by Plaintiff contain sensitive security information (SSI) which is protected from disclosure by federal law.” This opened a huge can of worms. SSI is “information obtained or developed in the conduct of security activities … the disclosure of which TSA has determined would … [b]e detrimental to the security of transportation.” Only “covered persons” who have a “need to know” the information “to carry out transportation security activities” may access it. The 2007 Department of Homeland Security Appropriations Act permitted civil litigants with “substantial need” may obtain the information if a district court
enters an order that protects the [SSI] from unauthorized or unnecessary disclosure and specifies the terms and conditions of access, unless upon completion of a … terrorist assessment like that done for aviation workers on the persons seeking access to [SSI] … the Transportation Security Administration or DHS demonstrates that such access to the information for the proceeding presents a risk of harm to the nation.
As applied in Ibrahim v. Dep’t of Homeland Sec., the plaintiff’s non-testifying experts were required to complete a TSA background check before they could assess SSI. Applied to McSwain’s dog bite, things got complicated. First, if narrowed, the “TSA’s training manuals, policy statements or guidelines relating to the prevention of unwarranted attacks on other dogs or human beings are relevant to the negligence claim in this case….” Next, if narrowed, the requests for production of
training manuals, policy statements or guidelines relating to the prevention of unwarranted attacks on other dogs or human beings, including ensuring that the dogs are properly leashed or restrained, satisfies the substantial need requirement set forth in Section 525(d). If, in fact, the TSA has such rules or policies, they may be highly probative on the issue of whether the TSA officer in this case was negligent.
Having determined the information was discoverable and a substantial need was shown, the court then entered a protective order. Disclosure of the documents was “restricted to plaintiff and/or plaintiff’s counsel and plaintiff’s liability expert witness (if one is designated in this case), and may only be used for purposes of this case. Production shall also be subject to any necessary prior background check that the TSA reasonably believes is necessary.” In other words, only those who passed TSA background investigations could access the documents.
I do not know what happened next. It seems strange that in discovery, the adverse party could only obtain information that the court deems is discoverable if that party passes its opponent’s background investigations. In that situation, it seems TSA still has the ultimate veto over producing the information by simply declaring the opposing party, attorney, and expert did not pass the background investigation. Second, the bigger question to me is how can a case like this be tried to a jury if SSI is to be part of the evidence? Would the jury be required to complete a TSA background investigation too?
 No. 2:15-cv-01321, 2016 U.S. Dist. LEXIS 117295, 2016 WL 4530461 (D. Nev. Aug. 30, 2016).
 49 C.F.R. § 1520.5(a)(3).
 Id. at 1520.7(j), 1520.11(a)(1).
 Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295, 120 Stat. 1355, 1382 at § 525(d) (Oct. 4, 2006).
 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 999 (9th Cir. 2012).