Gray

MEMORANDUM *

Plaintiff and appellant Manuel Gray and his travel companion Jacob Smith were *867 selected for a luggage search before boarding a Southwest Airlines flight in 1997. Alleging race-based profiling, Gray filed suit, asserting several common law and federal law claims, all of which were dismissed. Gray appeals, on four grounds, the district court’s adverse judgment following a bench trial.

Southwest Passenger List

During discovery, while representing himself shortly after his first attorney withdrew from the case, Gray sought access to “what the computer revealed for every other passenger on my flight when they checked in.” Southwest Airlines objected to the request, citing FAA regulations concerning dissemination of this information. Gray later hired another attorney, for whom the discovery deadlines were extended. But neither Gray nor his second attorney moved to compel disclosure of the passenger information, as allowed under Federal Rule of Civil Procedure 37. Gray argues that he effectively filed such a motion two years later, after discovery had closed, when he wrote in a reply to a Southwest motion to reopen discovery for a limited purpose, that “Plaintiff…

Because I conclude that the trial court’s decisions with respect to the FAA Directives and the Passenger Information constitute an abuse of discretion, I respectfully dissent.

I am aware of no precedent that permits a court to conduct a trial in which one side is barred from viewing the critical evidence introduced by the other and is effectively barred from responding to that evidence or confronting witnesses regarding it. Such a trial, in my view, is contrary to due process of law. 1 See Jenkins v. *869 McKeithen, 895 U.S. 411 , 428, 89 S.Ct. 1843 , 23 L.Ed.2d 404 (1969) (“[T]he right to confront and cross-examine witnesses is a fundamental aspect of procedural due process.”). Accordingly, the trial court’s failure, after Gray decided to proceed pro se, to devise a procedure whereby some representative of Gray would be appointed by the court and permitted to see the Directives, constitutes an abuse of discretion. I also conclude that, given the fact that the trial court was required to ensure that a representative of Gray was authorized to see the Directives, its refusal to compel Southwest to disclose the passenger information was an abuse of discretion. 2 Without the only…