EXHIBIT A

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January 27, 2023

Via Email

Major Robert Wald

robert.e.wald.mil@mail.mil

Joshua Kolsky

Joshua.kolsky@usdoj.gov

Re: In Re: 3M Combat Arms Earplug Products Liability Litigation Dear 

Major Wald and Mr. Kolsky:

In connection with In re: 3M Combat Arms Earplugs Products Liability Litigation this letter 

constitutes Plaintiffs’ Touhy1 request to the United States Department of Defense (“DoD”), for their 

DOEHRS-HC audiological records2

. Pursuant to 32 C.F.R. § 516.40-57 and 32 C.F.R. § 97, 33 C.F.R. § 

1.20-1 and 6 C.F.R. § 5.45, DoD Directive 5405.2 § 6.2, Navy Instruction 5825.8A, and Air Force 

Instruction 51-301, I set forth the basis for my Touhy request as follows:

Plaintiffs in this MDL litigation include servicemen and women who were issued Combat 

Arms Earplugs Version 2 (“CAEv2”) in connection with their military service. The CAEv2 was 

initially designed and distributed by Aearo Technologies (“Aearo”). In 2008, Defendant, 3M

Company (“3M”), purchased Aearo and continued to market and sell the CAEv2. Plaintiffs in this 

litigation allege that the CAEv2 was defective and caused them to sustain serious injuries during

their military service, including hearing damage. In connection with this litigation, Plaintiffs seek

the information described below specific to their individual claims including audiometric medical

records that will help establish their individual use of the CAEv2 and the nature and extent of

their resulting injuries.

 1 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). 2 On June 28, 2019, our office sent initial Touhy requests on behalf of Plaintiffs in the above-captioned litigation. Following 

meetings and correspondence between leadership for both parties and the Federal Government, our office is narrowing our 

previous June 28, 2019 Touhy requests in accordance with guidance from the Federal Government. Accordingly, this letter 

constitutes Plaintiffs’ revised request to the United States Department of Defense (“DOD”), Defense Logistics Agency 

(“DLA”), Army, Navy, Marine Corps, Air Force, and Coast Guard for certain documents relevant to this litigation.

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Plaintiff s’ Touhy Request for DOEHRS-HC Database In Connection With 

Individual Plaintiffs In re: 3M Combat Arms Earplug Products Liability Litigation

A. Summary and Relevance of the Documents and Discovery Requested

Plaintiff servicemembers seek individual audiological records which are stored in the DOEHRS-HC 

database. The requesting Plaintiff Servicemembers (see enclosed spreadsheet via Privacy Act Order) 

have not previously requested their DOEHRS data from the government previously. Plaintiff 

Servicemembers are requesting the production in that same format as previously produced to leadership

in In re: 3M Combat Arms Earplug Products Liability Litigation (MDL 2885) via database export. This 

request is highly relevant to the claims in this action, as the records will show changes in Plaintiff 

Servicemembers’ hearing over time and can be used to support Plaintiff Servicemembers’ injuries as 

caused by Defendant 3M Company’s dual ended Combat Arms Earplug. These records are also highly 

relevant to showing the extent of Plaintiff Servicemembers’ hearing impairments. 

Plaintiff Servicemembers are aware that the Department of Defense produced DOEHRS-HC records 

to MDL leadership in September of 2022 in response to a prior Touhy request seeking the following:

Plaintiff SMs request the following:

a. DD 2215s (Reference, or baseline, audiograms which SMs receive 

upon entering the military before being exposed to noise hazardous 

areas) (Note: there may be SMs with DD 2215s ifsuchSMsre-entered 

military active duty)

b. DD 2216s (periodic subsequent audiograms that SMs receive, which

are compared to their baseline audiograms)

Plaintiffs request all DD 2215s and DD 2216s for the Plaintiff SMs.

This request was converted via agreement of the Parties and Department of Defense to a request for 

DOEHRS-HC database information in lieu of individual DD2215 and DD2216 documents. However, 

the Plaintiff-servicemembers included in this Touhy request have not received DOEHRS records in the 

September 2022 production (or any earlier productions) and have not previously requested their records 

via Touhy request under prior Privacy Act Order spreadsheets provided to the Department of Defense. 

Plaintiff Servicemembers have attempted to access their DOEHRS-HC records through sources already 

available to them and have been unable to obtain them. 

To assist with your search for these records, Plaintiff Servicemembers will provide a list of service 

members containing the following identifying information: full name, social security number, date of 

birth, branch of service, year of entry, and year of discharge. This information will be provided in 

identical form as that which has been submitted previously in relation to other Touhy requests by MDL 

Leadership. 

B. Document Request

Pursuant to United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the above-referenced 

statutes, directives, and instructions, on behalf of Plaintiff Servicemembers in this MDL litigation

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request individual DOEHRS-HC audiological records from the DoD, DLA, Army, Navy, Marine Corps, 

Air Force, and Coast Guard servicemembers on the attached spreadsheets (See Attachments XX-XX). 

C. Additional Considerations

These requests comply with the polices of the DoD, DLA, Army, Navy, Marine Corps, Air Force, 

and Coast Guard regarding the provision of information by its employees in connection with litigation in 

state court. 

1. Disclosure of the requested information is not unduly burdensome or otherwise inappropriate 

under the court rules of the Northern District of Florida, the Federal Rules of Civil Procedure 

or the Federal Rules of Evidence. 

2. Disclosure of the requested information would not violate any statute, executive order, 

regulation, or directive.

3. Disclosure would be appropriate and necessary under relevant substantive law concerning 

privilege. 

4. Disclosure of the requested information would not reveal any classified information, data 

restricted pursuant to AR 380-5, unclassified technical data withheld from public release 

pursuant to 32 C.F.R. § 250 or DoD Directive 5230.25, privileged safety information 

restricted from public release by DoD Directive 6055.7, AFI 31-401, or other matters exempt 

from unrestricted disclosure.

D. Administrative Matters

Plaintiff Servicemembers will bear the cost of duplicating and producing the documents

sought by this Touhy request. Costs will be paid by check or money order payable to the Treasury 

of the United States. Any requests for assistance with any information to be electronically 

transmitted should be made to Bryan Aylstock, lead counsel for Plaintiffs, at (850) 202-1010 or 

baylstock@awkolaw.com. Plaintiff Servicemembers are willing to work with all Federal agencies 

implicated in thisrequest in orderto properly narrow ortailorthe scope ofthis and any future request.

In addition, Plaintiff Servicemembers have narrowly tailored the background section of these

requests in an effort to avoid duplication of information contained in 3M’s June 21, 2019 Touhy

request and Plaintiffs initial June 28, 2019 Touhy request. However, should you require

additional information as to the relevancy of any document listed in this request, we would be 

happy to provide it at your convenience.

Should you have any questions or require any additional information concerning this 

request, please do not hesitate to contact me. Thank you for your assistance.

Sincerely,

Bryan F. Aylstock

Lead Counsel for Plaintiffs

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CC:

Michael J. Fucci

Associate General Counsel Department of 

Defense Michael.j.fucci.civ@mail.mil

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