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

Lipcon, Margulies, Alsina & Winkleman, P.A

September 30, 2014

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

D.M.,
Plaintiff,

v.

NCL (BAHAMAS) LTD.,
Defendant.

                                                                        /

PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES TO PLAINTIFF’S INITIAL DISCOVERY FROM DEFENDANT

The Plaintiff, D.M., by and through undersigned counsel, hereby moves to compel Defendant, NCL (BAHAMAS) LTD. (“NCL”), to provide better responses to Plaintiff’s initial discovery and, in furtherance thereof, states as follows:

1. Introduction

The instant matter arises out of the personal injuries suffered by the Plaintiff during his cruise with NCL.  Specifically, the Plaintiff alleges that on September 3, 2013, he was attempting to disembark the ship’s tender to board the cruise ship, when he tripped over the threshold between the gangway and the tender.  As a result thereof, the Plaintiff initiated this lawsuit alleging negligence against NCL.

On July 9, 2014, the Plaintiff propounded his initial discovery upon NCL, including Initial Interrogatories and Initial Request for Production.  NCL served its initial responses and objections to such discovery in a piecemeal fashion between August 22, 2014 and August 25, 2014, and then served supplemental responses on September 23, 2014.  (A copy of NCL’s answers to Plaintiff’s Initial Interrogatories are attached hereto as composite Exhibit 1; and NCL’s responses to Plaintiff’s Initial Request for Production are attached hereto as composite Exhibit 2.)

The parties discussed NCL’s discovery responses on September 11, 2014 and were able to reach agreements on some of the issues.[1] The remaining issues are addressed herein and Plaintiff respectfully requests this Honorable Court enter an order compelling NCL to provide better responses to the requests specified below.[2]

2. Argument

The scope of discovery under Rule 26(b) is broad, allowing parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Id. (emphasis added); see Hickman v. Taylor, 329 U.S. 495, 507-508, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Farnsworth v. Proctor and Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (the Federal Rules of Civil Procedure “strongly favor full discovery whenever possible”); see also Donahay v. Palm Beach Tours & Transp., Inc., 242 F.R.D. 685, 687 (S.D. Fla. 2007).  Thus, under Rule 26, relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to another matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).  Discovery is not limited to the issues raised by the pleadings because “discovery itself is designed to help define and clarify the issues.” Id. at 352. In short, information can be relevant and therefore discoverable, even if not admissible at trial, so long as the information is reasonably calculated to lead to the discovery of admissible evidence. Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974).

Thus, “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). The party resisting discovery has a heavy burden of showing why the requested discovery should not be permitted. Rossbach v. Rundle, 128 F.Supp.2d 1348, 1354 (S.D. Fla. 2000) (“The onus is on the party resisting discovery to demonstrate specifically how the objected-to information is unnecessary, unreasonable or otherwise unduly burdensome.”). To meet this burden, the party resisting discovery must demonstrate specifically how the objected-to request is unreasonable or otherwise unduly burdensome. See Fed. R. Civ. P. 33(b)(4); Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985); Rossbach, 128 F.Supp.2d at 1353.

Herein, NCL’s responses to Plaintiff’s discovery requests are lacking pertinent information and its objections are without merit.  Accordingly, Plaintiff respectfully requests this Honorable Court enter an order compelling better responses to Plaintiff’s discovery requests.

3. Initial Interrogatories

NCL’s objections to Plaintiff’s Initial Interrogatories 19-22 are improper and/or without merit.

Interrogatory 19

Interrogatory:

Please state the name, address and telephone number of all other passengers on the subject tender on the date of the subject incident.

Answer:

Objection. This request is irrelevant, overbroad, unduly burdensome as the subject tender holds hundreds of people. Plaintiff has not provided a sufficient foundation for seeking the disclosure of the name, address and telephone number for those hundreds of passengers.

Contrary to NCL’s objection, the request herein is relevant and necessary for the Plaintiff to prove NCL’s negligence.  One of the major points of contention in this case is whether the crewmembers stationed near the gangway aboard the ship’s tender were assisting passengers and providing them instructions and warnings when disembarking, as they were required to do pursuant to NCL’s training.  The Plaintiff alleges that they were not. [D.E. 1, ¶¶13(f), (i), (u)].

This interrogatory is therefore directed at locating potential eyewitnesses who could testify as to whether the crewmembers were assisting, instructing and/or warning passengers on the date that the Plaintiff fell.  Furthermore, it is Plaintiff’s understanding that passengers must provide their sign-on card when embarking the cruise ship from the tender.  Therefore, the information requested in this interrogatory should be readily available to NCL.

Interrogatory 20

Interrogatory:

Please state whether any other individual (besides the Plaintiff) fell and/or was injured while boarding the subject tender on the date of the subject incident. If so, please state: (a) the name of the individual(s) involved in the incident; (b) a brief description of the incident; and, (c) the injury(ies) suffered as a result of the incident.

Answer:

Norwegian objects to this interrogatory on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. Notwithstanding, and without waving these objections, none.

First and foremost, this Court has repeatedly ordered parties to “not recite a formulaic objection followed by an answer to the request,” reasoning that it “leaves the requesting party uncertain as to whether the question has actually been fully answered, or only a portion of it has been answered.” Guzman v. Irmadan, Inc., 249 F.R.D. 399 (S.D. Fla. 2008). “Although this practice has become commonplace, courts in the Eleventh Circuit have found that ‘whenever an answer accompanies an objection, the objection is deemed waived and the answer, if responsive, stands.’” Estridge v. Target Corp., 11-61490-CIV, 2012 WL 527051 (S.D. Fla. Feb. 16, 2012) (citing Mann v. Island Resorts Dev., Inc., 3:08CV297/RS/EMT, 2009 WL 6409113 (N.D. Fla. Feb. 27, 2009)) (“if an objection to a discovery request is raised, and then the question is answered ‘subject to’ or ‘without waiving’ the objection, this court is reluctant to sustain the objection”).  The Plaintiff is therefore unsure as to whether NCL is providing a full or partial response to this interrogatory.

Second, NCL’s objection should still be overruled because it has no merit.  If another passenger besides the Plaintiff fell on the same tender, then it would be relevant to the Plaintiff’s case as it goes directly to NCL’s notice and the fact that the crewmembers should have been assisting, instructing and/or warning passengers.

Interrogatory 21

Interrogatory:

Please list any and all accidents and/or incidents whereby a passenger has been injured while embarking and/or disembarking a tender from any of Defendant’s cruise ships within the three year period of time prior to the subject incident. For each such incident please state: (a) the date of the incident; (b) a brief description of the incident; (c) the name of the individual(s) involved in the incident; and, (d) the injury(ies) suffered as a result of the incident.

Answer:

Norwegian objects to this interrogatory on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. For example, this request would require disclosure of incidents of injury not involving a fall that occurred on a tender, gangway and cruise ship not involved in the alleged incident, occurring all over the world and not in the subject port. See Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) where the Eleventh Circuit stated that the standard for prior incidents should be that “conditions substantially similar to the occurrence in question must have caused the prior incident.” Notwithstanding, and without waving these objections, none.

Although NCL cites to Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) in an attempt to limit the Plaintiff’s discovery of prior incidents, this Court has previously refused to apply Jones or its substantial similarity rule in general maritime actions (such as the Plaintiff’s herein). See Whelan v. Royal Caribbean Cruises Ltd., 1:12-CV-22481-UU, 2013 WL 5583970 at *4 (S.D. Fla. Aug. 14, 2013).

Nevertheless, even if this Court applies the rule, it is a rule for admissibility – not for discovery. See Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997) (“The ‘substantial similarity’ doctrine requires that before evidence of prior accidents or occurrences is admitted into evidence, the proponent of such evidence must show that ‘conditions substantially similar to the occurrence caused the prior accidents.’”).  NCL is therefore improperly relying on a rule of admissibility when it is well settled that the scope of discovery is information reasonably calculated to lead to the discovery of admissible evidence. See Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974) (information can be relevant and therefore discoverable, even if not admissible at trial, so long as the information is reasonably calculated to lead to the discovery of admissible evidence).

To that end, the Eleventh Circuit has been clear that is an abuse of a district court’s discretion to allow plaintiff no opportunity to establish substantial similarity of conditions by refusing to grant plaintiff access to defendant’s records. 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) (reversing a defendant’s verdict based in part upon the trial court’s failure to allow the plaintiff discovery into other accidents involving the same “and other similar models” of the backhoe, which was claimed to have been defective).

In this case, the interrogatory is relevant and necessary to establish NCL’s notice of the negligent condition and the need for crewmembers to assist, instruct and warn passengers when embarking and disembarking tenders.  Contrary to NCL’s objection, it is sufficiently limited in both time (3 years) and scope (incidents involving passengers being injured while embarking and/or disembarking a tender).  Accordingly, NCL should be compelled to answer Interrogatory No. 21.

Interrogatory 22

Interrogatory:

Please state any and all claims and/or complaints received by the Defendant concerning the same type of gangway as the subject incident within three years prior to the subject incident. For each such complaint, please state: (a) the date of said complaint; (b) the name, address, and telephone number of the person making the complaint; (c) the substance of the complaint; and (d) the method the complaint was made (e.g., written comment card, etc.).

Answer:

Norwegian objects to this interrogatory on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. For example, this request would require disclosure of incidents of injury not involving a fall that occurred on a tender, gangway and cruise ship not involved in the alleged incident, occurring all over the world and not in the subject port. See Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) where the Eleventh Circuit stated that the standard for prior incidents should be that “conditions substantially similar to the occurrence in question must have caused the prior incident.” Notwithstanding, and without waving these objections, none.

Plaintiff refers to and incorporates the argument set forth under Interrogatory 21 and, for those same reasons, requests that NCL be compelled to respond to Interrogatory 22.

4. Initial Request for Production

NCL’s objections to Plaintiff’s Initial Request for Production 11-12, 16-17 and 41-44 are improper and/or without merit.

Request 11

Request:

Any and all photographs and/or videos depicting the subject gangway as it existed at the time of the subject incident.

Response:

… Norwegian objects to the balance of Request No. 11 on the grounds it seeks privileged work product. See Bridgewater v. Carnival Corp., 2011 WL 4383312. *7 (S.D. Fla. Sept. 20, 2011)(Carnival’s accident report, witness statement and photographs were protected work product taken to memorialize the results of the investigation in anticipation of litigation and their primary function is to assist the claims department and defense counsel in litigation); Hayden v. NCL (Bahamas) Ltd., Case No.: 07-23298-CIV-KING-BANDSTRA (S.D. Fla. 2008)(finding that NCL’s accident reports and related investigative materials are protected by the work product privilege); Iaquinto v. Carnival Corp., No. 05-21652-CIV-JORDAN (S.D. Fla. Nov. 18, 2006, D.E. 18) (finding cruise line had shown that the incident report, witness statements and photographs of the subject deck were prepared in anticipation of litigation). A Privilege Log has been filed contemporaneously with these Responses.

Pursuant to its Privilege Log, NCL claims a work product privilege for “four (4) photographs of the gangway taken at the direction of Security Officer Stephen O’Toole, on September 3, 2013.” (See ¶1 of NCL’s Privilege Log attached as Exhibit 3.)  The work product privilege does not apply to the photographs, however, because they were taken during the course of NCL’s routine shipboard investigation immediately following the incident, and not in anticipation of litigation.

This Court has previously stated that a routine investigation and the reports rendered therefrom which may be used to defend a lawsuit is “not sufficient to invoke the work product protection.” Giroux v. Carnival Corp., No. 05-CIV-22818 (S.D. Fla. 2005) [D.E. 13] (emphasis added).  Such investigations and reports are “prepared as a matter of course following any accident aboard a defendant ship.” Id. (emphasis added). Additionally, based on the same reasoning, Magistrate Judge John O’Sullivan succinctly held that the gathering of information for reports was routine in Boney v. Carnival, No. 08-22299 (S.D. Fla. 2009) [D.E. 142].  “[R]eports were prepared as a matter of course and were obtained by the company for various reasons unrelated to potential litigation.  Even if the reports were created at the direction of counsel, the creation of the reports was primarily for a business purpose.  The primary purpose of the reports was not in anticipation of litigation”. Id. at 2 (citing United States v. Davis, 636 F. 2d 1028 (5th Cir. 1981)).

The purpose of the work product doctrine is to essentially promote the adversary system, by directly protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation.  To do so, enables attorneys to prepare cases without fear that their work will be used against their clients. Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).  However, despite its importance, the Supreme Court of the United States has cautioned that “[t]estimonial exclusionary rules and privileges contravene the fundamental principle that the public… has a right to every man’s evidence.” Trammel v. United States, 445 U.S. 40 (1980).  The Court has further cautioned that such rules and privileges “must be strictly construed and accepted only to the limited extent that permitting the exclusion of relevant evidence has a public good transcending the normally predominant principle for ascertain the truth.” Id. (emphasis added).

Based on the aforementioned, the photographs at issue herein are not protected under the work product doctrine because they were not taken in anticipation of litigation.  Rather, these photographs were taken as part of NCL’s routine shipboard investigation for a business purpose (i.e., passengers’ safety), and they were taken on the same day as the Plaintiff’s incident.  Furthermore, assuming arguendo that the 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).  The Plaintiff does not have any photographs of the gangway involved in the subject incident, and highly suspects that NCL’s photographs will be used in the trial of this matter.  Accordingly, NCL should be compelled to produce the four (4) photographs of the gangway.

Request 12

Request:

Any and all photographs and/or videos depicting the subject tender as it existed at the time of the subject incident.

Response:

[Same objection as Request No. 11 above.]

The only photographs taken at or around the time of the Plaintiff’s incident that NCL lists in its Privilege Log are the photographs of the gangway discussed in response to Request 11 above.  Thus, to the extent that such photographs also depict the tender involved in the incident, the Plaintiff refers to and incorporates by reference the argument set forth for Request 11.

Request 16

Request:

Any and all statements given by any witness or any other person who may have knowledge of relevant facts, with respect to the subject incident, including, but not limited to, those given at or near the time of the incident by Defendant’s employees and/or ship’s medical personnel.

Response:

Norwegian objects to Request No. 16 on the grounds it seeks privileged work product. See Bridgewater v. Carnival Corp., 2011 WL 4383312. *7 (S.D. Fla. Sept. 20, 2011)(Carnival’s accident report, witness statement and photographs were protected work product taken to memorialize the results of the investigation in anticipation of litigation and their primary function is to assist the claims department and defense counsel in litigation); Hayden v. NCL (Bahamas) Ltd., Case No.: 07-23298-CIV-KING-BANDSTRA (S.D. Fla. 2008)(finding that NCL’s accident reports and related investigative materials are protected by the work product privilege); Iaquinto v. Carnival Corp., No. 05-21652-CIV-JORDAN (S.D. Fla. Nov. 18, 2006, D.E. 18) (finding cruise line had shown that the incident report, witness statements and photographs of the subject deck were prepared in anticipation of litigation). A Privilege Log has been filed contemporaneously with these Responses.

In its Privilege Log, NCL lists two statements which were taken on the date of the Plaintiff’s incident (i.e., September 3, 2013) from the Plaintiff’s wife, Michelle McAlister, and crewmember, John Casilihan. [Exhibit 3, ¶¶3-4].  NCL claims a work product privilege for both statements.

For the same reasons discussed under Request 11, the Plaintiff maintains that these statements are not protected under the work product doctrine because they were not taken in anticipation of litigation.  Rather, the statements were taken as part of NCL’s routine shipboard investigation for a business purpose (i.e., passengers’ safety), and they were taken on the same day as the Plaintiff’s incident.

Request 17

Request:

Any and all incident reports concerning the subject incident.

Response:

Norwegian objects to Request No. 17 on the grounds it seeks privileged work product. See Bridgewater v. Carnival Corp., 2011 WL 4383312. *7 (S.D. Fla. Sept. 20, 2011)(Carnival’s accident report, witness statement and photographs were protected work product taken to memorialize the results of the investigation in anticipation of litigation and their primary function is to assist the claims department and defense counsel in litigation); Hayden v. NCL (Bahamas) Ltd., Case No.: 07-23298-CIV-KING-BANDSTRA (S.D. Fla. 2008)(finding that NCL’s accident reports and related investigative materials are protected by the work product privilege); Iaquinto v. Carnival Corp., No. 05-21652-CIV-JORDAN (S.D. Fla. Nov. 18, 2006, D.E. 18) (finding cruise line had shown that the incident report, witness statements and photographs of the subject deck were prepared in anticipation of litigation).

Further, pursuant to 5 U.S.C. § 552(b)(4), the material is exempted from disclosure under the Freedom of Information Act. Id. (preventing disclosure to outside parties the “trade secrets and commercial or financial information obtained from a person and privileged or confidential”); see also Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (information given to a government agency voluntarily remains confidential under exemption 4 if it would not customarily be made available to the public by the submitting company); U.S. v. WeberAirline Corp., 465 U.S. 792, 801 (U.S. 1984) (finding it improper to allow a FOIA request to supplement civil discovery of documents which would otherwise be privileged and confidential).

Additionally, as the material in question was prepared for mandatory government reports, it is protected by the self-critical analysis privilege. See McAllister ex rel. McAllister v. Royal Caribbean Cruises, Ltd., 2004 WL 2216487 (E.D. Penn. Oct. 4, 2004).

Finally, pursuant to 46 USC § 6308, “no part of a report of a marine casualty investigation conducted under section 6301 of this title, including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence or subject to discovery in any civil or administrative proceedings, other than an administrative proceeding initiated by the United States.” See also Davis v. United States, 2:05-CV-767, 2006 WL 2883042 (W.D. La. Oct. 4, 2006) (coast guard’s report and entire file was excluded under Section 6308).

A Privilege Log has been filed contemporaneously with these Responses.

According to NCL’s Privilege Log, NCL is claiming a work product privilege for an accident report prepared by Security Officer Stephen O’Toole, dated September 4, 2013 (the day after Plaintiff’s incident). [Exhibit 3, ¶2].  For the same reasons discussed under Request 11, the Plaintiff maintains that this incident report is not protected under the work product doctrine because it was not prepared in anticipation of litigation.  Rather, the report was prepared as part of NCL’s routine shipboard investigation for a business purpose (i.e., passengers’ safety), the very next day after Plaintiff’s fall.  This report therefore likely only contains the factual circumstances surrounding the incident, which are not protected under the work product doctrine. See Bridgewater v. Carnival Corp., 2011 WL 4383312 (S.D. Fla. Sept. 20, 2011).

NCL’s other arguments equally fail.  First, the report concerning the Plaintiff’s incident does not fall under 5 U.S.C. § 552(b)(4) because it does not include trade secrets, commercial, financial, confidential or privileged information, and NCL fails to prove otherwise.

Next, this case is easily distinguishable from McAllister ex rel. McAllister v. Royal Caribbean Cruises, Ltd., CIV.A. 02-2393, 2004 WL 2216487 (E.D. Pa. Oct. 4, 2004) because the reports at issue in that case were prepared by “outside consultants,” whereas the accident report at issue in this case was prepared in-house by NCL’s own Security Officer pursuant to his job description to investigate all incidents.

Lastly, 46 USC § 6308 applies only to those reports “of a marine casualty investigation conducted under section 6301”. 46 USC § 6308(a). Those investigations are conducted by a “member or employee of the Coast Guard”. 46 USC § 6308(b).  Herein, again, the investigation was prepared in-house by NCL’s own Security Officer pursuant to his job description to investigate all incidents.  Therefore, 46 USC § 6308 does not apply.

Request 41

Request:

Any and all documents pertaining to other individual(s) (besides the Plaintiff) falling and/or being injured while boarding the subject tender on the date of the subject incident.

Response:

Norwegian objects to this request on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. For example, this request would require disclosure on incidents of injury not involving a fall. See Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) where the Eleventh Circuit stated that the standard for prior incidents should be that “conditions substantially similar to the occurrence in question must have caused the prior incident.” Further, this request does not sufficiently describe the documents ought and would include disclosure of private records such as medical records, and privileged work product documents. Notwithstanding, and without waving these objections, none.

Plaintiff refers to and incorporates the argument set forth under Interrogatory 20 and, for those same reasons, requests that NCL be compelled to produce documents responsive to Request 41.

Request 42

Request:

Any and all documents pertaining to passengers falling and/or being injured while embarking and/or disembarking Defendant’s tenders within the three year period of time prior to the subject incident.

Response:

Norwegian objects to this request on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. For example, this request would require disclosure of incidents of injury not involving a fall that occurred on a tender, gangway and cruise ship not involved in the alleged incident, occurring all over the world and not in the subject port. See Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) where the Eleventh Circuit stated that the standard for prior incidents should be that “conditions substantially similar to the occurrence in question must have caused the prior incident.” Notwithstanding, and without waving these objections, none[.]

Plaintiff refers to and incorporates the argument set forth under Interrogatory 21 and, for those same reasons, requests that NCL be compelled to produce documents responsive to Request 42.

Request 43

Request:

Any and all claims and/or complaints received by Defendant within the three year period preceding the subject incident concerning passengers falling and/or being injured while embarking and/or disembarking Defendant’s tenders.

Response:

Norwegian objects to this request on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. For example, this request would require disclosure of incidents of injury not involving a fall that occurred on a tender, gangway and cruise ship not involved in the alleged incident, occurring all over the world and not in the subject port. See Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) where the Eleventh Circuit stated that the standard for prior incidents should be that “conditions substantially similar to the occurrence in question must have caused the prior incident.” Notwithstanding, and without waving these objections, none[.]

Plaintiff refers to and incorporates the argument set forth under Interrogatory 21 and, for those same reasons, requests that NCL be compelled to produce documents responsive to Request 43.

Request 44

Request:

Any and all claims and/or complaints received by Defendant within the three year period preceding the subject incident concerning the same type of gangway as the subject incident.

Response:

Norwegian objects to this request on the grounds that it is overbroad, vague, ambiguous and irrelevant. This request is not properly limited to prior substantially similar incidents. For example, this request would require disclosure of incidents of injury not involving a fall that occurred on a tender, gangway and cruise ship not involved in the alleged incident, occurring all over the world and not in the subject port. See Jones v. Otis Elevator Co., 861 F.2d 655, 661-62 (11th Cir. 1988) where the Eleventh Circuit stated that the standard for prior incidents should be that “conditions substantially similar to the occurrence in question must have caused the prior incident.” Notwithstanding, and without waving these objections, none[.]

Plaintiff refers to and incorporates the argument set forth under Interrogatory 21 and, for those same reasons, requests that NCL be compelled to produce documents responsive to Request 44.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

I hereby certify that counsel for the movant has conferred with counsel for NCL in a good faith effort to resolve the issues raised in this motion, and the issues contained herein remain unresolved.

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] Pursuant to the parties’ 7.1 conference, NCL agreed to provide responses and/or documents to Interrogatories 12 and Requests for Production No.’s 7-8, 20, 35 and 39.

[2] On or about September 24, 2014, the Plaintiff attempted to schedule a hearing with Magistrate Judge O’Sullivan concerning the discovery issues addressed herein.  The Plaintiff was later informed, however, that discovery issues had not yet been referred to the Magistrate Judge and that the Plaintiff should instead file a Motion to Compel concerning the pending discovery issues.