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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS 

EARPLUG PRODUCTS LIABILITY 

LITIGATION

This Document Relates To All Actions

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Case No. 3:19-md-2885

Hon. Judge M. Casey Rodgers

Magistrate Judge Gary R. Jones

PLAINTIFFS UNOPPOSED AMENDED MOTION TO AUTHORIZE 

DISCLOSURE OF MILITARY RECORDS 

Plaintiffs seek an order authorizing disclosure of Military Records subject to 

the Privacy Act, 5 U.S.C. § 552a. Pursuant to 5 U.S.C. § 552a(b)(11), Plaintiffs

respectfully move the Court for entry of an Order authorizing the disclosure of 

records pursuant to the Court’s authority to direct and control the coordination of

discovery in this litigation. See, 5 U.S.C. § 552a(b)(11), 28 U.S.C. §1407, FED. R. 

Civ. P. 16, Fed. R. Civ. P. 26(b)

I. Plaintiffs’ Initial Touhy Requests

On June 28, 2019, Plaintiffs submitted their initial Touhy1 requests to Major 

Collin Evans as the Department of Defense designee for Touhy requests in 

connection with this litigation. Plaintiffs submitted a subsequent Touhy request on 

 1 United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951).

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January 27, 2023. Plaintiffs outlined certain categories of specific information 

sought in reference to individual servicemembers, fully described in Plaintiff’s 

January 27, 2023, Touhy request attached hereto as Exhibit “A.” Plaintiffs’ Touhy

request specified that Plaintiffs would request information regarding the specific 

categories of information about individual servicemembers by subsequently 

providing a list of active duty servicemembers, along with identifying information 

concerning those individual servicemembers, on a rolling basis. Per the Court’s 

instructions, the list of individual servicemembers and their identifying information 

is attached hereto, filed under seal; and pursuant to Major Evans’ request, the 

information was split into grids for the following branches of the military, filed under 

seal and attached hereto as follows:

• A1 (Air Force Servicemembers)

• A2 (Army Servicemembers)

• A3 (Navy & Marine Servicemembers)

• A4 (Miscellaneous inc. Coast Guard, Contractors, Civil Service and 

Department of Defense)

Specifically, sections B of that January 27, 2023, Touhy request (Exhibit A) 

specifies the documents requested for each servicemember listed on Exhibit “A1” 

(now A1 through A4). These include, among other things, medical and audiological 

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records such as DOEHRS-HC audiological records from the DoD, DLA, Army, 

Navy, Marine Corps, Air Force and Coast Guard for each servicemember.

II. Relevance of Requests to this Litigation

Plaintiffs are seeking military records from the Department of Defense. These 

records are central to both causation and damages in this litigation. Receipt of these 

records will allow Plaintiffs to begin evaluation of when each servicemember began 

experiencing hearing damage, the extent of such damage, whether the damage is 

attributable to noise exposure during military service, and information concerning 

hearing protection use. 

III. The Need for Disclosure Outweighs any Potential Harm 

The need for disclosure of the records in question far outweighs any potential 

harm to the subject of the disclosure. The servicemembers on attached Exhibits “A1

through A4” are all represented by counsel in this litigation and the materials 

requested will assist the parties in evaluating their claims. Further, Plaintiffs note 

that the privacy interest in these documents is primarily that of the Plaintiffs 

themselves, who are in effect requesting their own records. Plaintiffs are seeking to 

streamline the process of record retrieval which will minimize both the costs of this

litigation and any burden on the Federal Government by obtaining these documents 

in bulk form. Accordingly, Plaintiffs respectfully submit that disclosure of the 

records is appropriate in this case. 

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IV. Authentication.

Plaintiffs request that records and documents produced pursuant to these 

requests be deemed authentic. See, FED. R. EVID. 902 and 32 CFR sec. 516.7(h).

Authenticating Records. Records custodians should 

authenticate official Army documents for civil litigation 

through written certification, rather than personally

appearing and testifying. DA personnel will submit 

authenticated copies rather than originals of documents or 

records for use in legal proceedings, unless directed

otherwise by the appropriate litigating division. 

32 FR sec. 516.7(h). See also, 28 USC 1733. 

V. Conclusion

In order to advance this litigation in an efficient and cost-effective manner, 

Plaintiffs hereby request that this Court enter an Order allowing disclosure of certain 

active duty servicemember’s records under 5 U.S.C. § 552a. 

Dated: January 30, 2023

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s/ Bryan F. Aylstock 

Bryan F. Aylstock, Lead Counsel

Florida State Bar No. 078263

Aylstock, Witkin, Kreis & Overholtz, 

PLLC

17 East Main Street

Suite 200

Pensacola, FL 32502

Tel.: (850) 202-1010

baylstock@awkolaw.com

Shelley V. Hutson, Co-Lead Counsel

(Admitted Pro Hac Vice)

Texas State Bar No. 00788878

Clark, Love & Hutson, GP

440 Louisiana Street

Suite 1600

Houston, TX 77002

Tel.: (713) 757-1400

shutson@triallawfirm.com

Christopher A. Seeger, Co-Lead 

Counsel

(Admitted Pro Hac Vice)

New Jersey State Bar No. 042631990

Seeger Weiss LLP

77 Water Street

8th FloorNew York, NY 10005

Tel.: (212) 587-0700

cseeger@seegerweiss.com

Brian H. Barr, Co-Liaison Counsel

Levin, Papantonio, Thomas, Mitchell,

Rafferty, & Proctor, P.A.

316 South Baylen Street

Pensacola, FL 32502

Tel.: (850) 435-7044

bbarr@levinlaw.com

Michael A. Burns, Co-Liaison 

Counsel

Mostyn Law Firm

3810 W. Alabama Street

Houston, TX 77027

Tel.: (713) 714-0000

epefile@mostynlaw.com

Counsel for Plaintiffs

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(B)

Pursuant to Local Rule 7.1(B), counsel for Plaintiffs certify that on July 15, 

2019, counsel for Plaintiffs contacted Defendants’ counsel regarding the relief 

requested in the foregoing motion. Defendants do not oppose the relief requested.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(F)

I hereby certify that this brief complies with the word limit of Local Rule 

7.1(F) and contains 636 words, excluding the parts exempted by that Rule.

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CERTIFICATE OF SERVICE

I, hereby certify that on January 30, 2023, I caused a copy of the foregoing

to be filed through the Court’s CM/ECF system, which will serve all counsel of

record.

s/ Bryan F. Aylstock 

Bryan F. Aylstock

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