D.M. v. NCL (Bahamas) Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

November 13, 2014

D.M. v. NCL (Bahamas) Ltd.

D.M.,
Plaintiff,

v.

NCL (BAHAMAS) LTD.,
Defendant.

                                                                        /

PLAINTIFF’S REPLY IN FURTHER SUPPORT OF PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES TO PLAINTIFF’S INITIAL DISCOVERY FROM DEFENDANT

The Plaintiff, D.M., by and through undersigned counsel, hereby files his reply in further support of his Motion to Compel Better Responses to Plaintiff’s Initial Discovery from Defendant, NCL (BAHAMAS), LTD. (“NCL”) [D.E. 25], and in furtherance thereof, the Plaintiff states as follows:

Other Passengers Aboard the Subject Tender on the Date of the Incident

Plaintiff’s Initial Interrogatories 19-20 and Initial Request for Production 41 all seek information and documents pertaining to the other passengers aboard the subject tender on the date of the Plaintiff’s incident.

Contrary to NCL’s argument, the Plaintiff has provided a sufficient foundation for seeking the names and contact information of passengers, as requested in Interrogatory No. 19.  One of the biggest issues in contention in this case is whether the crewmembers assigned to the tender aboard the gangway were assisting, instructing and warning passengers (as required) on the date that the Plaintiff fell.  Passengers on the same tender as the Plaintiff would have information on that issue.

As to Interrogatory No. 20, which requested information concerning incidents on the same tender as the Plaintiff, NCL does not even address it in its response.  Therefore, Plaintiff’s motion to compel a response to such interrogatory should be granted.

Request 41 seeks documents concerning incidents on the same tender as the Plaintiff.  Again, NCL does not directly address this request and instead focuses only on Plaintiff’s requests for prior incidents.  To the extent that NCL’s sole argument is that it should be limited to “substantially similar” incidents, the Plaintiff refers to the argument below.

Prior Incidents and/or Complaints

Interrogatories 21-22 and Requests for Production 42-44 all pertain to prior incidents involving passengers sustaining injuries while embarking and/or disembarking a tender from NCL’s cruise ships within the three year period of time prior to the Plaintiff’s incident.

NCL’s main objection to these requests is that they are not limited to “substantially similar” incidents, relying on Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988).  As Plaintiff explained in his response, however, the “substantial similarity” rule is not applicable to this maritime case and, even if applicable, it is only a rule of admissibility – not discovery.  The Plaintiff should be afforded an opportunity to establish substantial similarity of conditions by examining to NCL’s prior incidents. Weeks v. Remington Arms Co., Inc., 733 F.2d 1485 (11th Cir. 1984); see also Dollar v. Long Mfg. N.C., Inc., 561 F.2d 613 (5th Cir. 1977).

Thus, contrary to NCL’s suggestion, these requests should not be limited to just “trip and falls with a passenger disembarking the GSC II tender while embarking the Norwegian Gem” [D.E. 46].  Such a narrow request does not take into account that NCL’s policies and procedures concerning tendering operations are fleetwide and not specific to the vessel, tender or type of gangway being used.

Further, NCL’s reliance on Anderson v. Lowe’s Home Centers, Inc., 3:07-cv-895-J-33TEM, 2008 WL 2446877 (M.D. Fla. 2008), is also misplaced because the defendant in that case submitted an affidavit explaining why the request at issue was burdensome. Id. at *1.  NCL has not filed any such affidavit herein.

Documents Alleged to be Protected Under the Work Product Doctrine

Lastly, Plaintiff’s Initial Requests for Production 11-12 and 16-17 seek photographs, incident reports and statements concerning the subject incident – all of which NCL claims are protected under the work product doctrine.[1]  NCL, however, fails to meet its burden to establish such protection.

It is well settled that the party claiming a privilege has the burden of proving its applicability and all of its essential elements. See, e.g., Bridgewater v. Carnival Corp., 286 F.R.D. 636, 638-39 (S.D. Fla. 2011) (collecting cases).  In Bridgewater (a case that NCL relies on), this Court discussed that burden and held that the “party claiming the privilege must provide the court with underlying facts demonstrating the existence of the privilege, which may be accomplished by affidavit.” Id. (citation omitted) (emphasis added). “Unless the affidavit is precise to bring the document within the rule, the Court has no basis on which to weigh the applicability of the claim of privilege. An improperly asserted claim of privilege is no claim of privilege at all.” Id.  This Court went on to state as follows:

“Th[e] burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.”…. “[S]ubmitting a batch of documents to the Court in camera [does not] provide an adequate or suitable substitute because the Court is often without information of what the document concerns or how it came into being or other relevant information which would enable it to determine whether the documents are privileged.” Id.

This burden, to sustain a claim of privilege, is heavy because privileges are “not lightly created nor expansively construed, for they are in derogation of the search for the truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)…. They must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)).

Bridgewater, 286 F.R.D. at 639 (emphasis added).

Herein, NCL fails to meet its heavy burden to assert protection under the work product doctrine and instead relies solely on conclusory assertions which this Court deems insufficient.

As discussed in Plaintiff’s motion, a routine investigation and the reports, statements and photographs rendered therefrom which may be used to defend a lawsuit are not sufficient to invoke the work product protection. “The law is clear that if documents are prepared for a business purpose, or for some other non-litigation purpose, they fall outside the protection of the work product doctrine. Thus, ‘if a party prepares a document in the ordinary course of business, it will not be protected even if the party is aware that the document may also be useful in the event of litigation.’” Bridgewater, 286 F.R.D. at 641 (citations omitted).  Therefore, the determinative factor is whether “the primary motivating purpose behind the creation of the document” was to aid in future litigation. United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981) (emphasis added).

As stated above, however, in order to ascertain what the “primary motivating purpose” was, the party claiming the privilege must provide an affidavit and/or underlying facts proving the existence of the privilege. See Bridgewater, supra.  Herein, NCL does neither.  NCL does not provide an affidavit, and its Privilege Log merely lists the items without any information concerning the reason why those items were created.  Although it includes a general statement that they were created “in anticipation of litigation,” that is not enough for this Court to make a determination.  In Bridgewater, for instance, one of the defendants made a similar conclusory statement to support its claim, and this Court stated as follows:

[Defendant] would have this court simply accept [its] conclusory declaration of its “primary purpose,” find that [defendant] had thus met its burden of proof, and uphold the claim of privilege….

I find that [defendant] and Carnival have not met their burden to prove that the primary motivating purpose behind Mr. Chung and Mr. Clark writing the incident reports was to aid in possible litigation. To find otherwise would render meaningless the oft-repeated requirement that parties asserting a privilege justify that privilege with more than conclusory assertions. Accordingly, I find that [defendant’s] two incident reports are not protected from disclosure by the work product doctrine.

Bridgewater, 286 F.R.D. at 639 (emphasis added).

Furthermore, assuming, arguendo, that the accident report, witness statements and photographs are afforded protection under the work product doctrine, NCL should still be compelled to produce them based on Plaintiff’s substantial need and inability to obtain the substantial equivalent through other means without undue hardship. See Fed. R. Civ. P. 26(b)(3)(A). Upon information and belief, the records merely contain a routine recording of objective facts, such as the circumstances of the accident and the remedial response thereto. Jones v. Carnival Corporation, No. 04-20407-CIV-Jordan (S.D. Fla. September 28, 2005) [D.E. 136]. Considering that discovery is now closed in this case and it has been over a year since the subject incident[2], the information contained in the reports, statements and photographs will likely be more accurate than any statements or photographs that Plaintiff may later obtain.

Plaintiff therefore has a substantial need for the report, statements and photographs to properly prosecute her claims against NCL.  Moreover, Plaintiff will likely be unable to obtain the substantial equivalent through other means because 1) discovery in this case is closed; 2) the photographs were taken on the same day as the incident; 3) the report and statements were all taken from crewmembers who are presumably now either out at sea or in their native countries; and 4) the witnesses’ recollections may not be as clear and/or accurate as they were when the incident occurred.

Accordingly, because the work product doctrine does not apply to the accident report, statements and photographs, NCL should be compelled to produce such documents.

WHEREFORE, for the foregoing reasons, the Plaintiff respectfully requests that this Honorable Court enter an Order granting Plaintiff’s Motion to Compel Better Reponses to Plaintiff’s Initial Interrogatories [D.E. 25].

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:  /s/ Jacqueline Garcell                          
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358

[1] NCL also references 5 U.S.C. § 552(b)(4).  However, none of the materials at issue herein include trade secrets, commercial, financial, confidential or privileged information, and NCL fails to prove otherwise.

[2] The incident occurred on September 3, 2013.