February 27, 2014
Jane Doe v. Royal Caribbean Cruises, Ltd.
Motion to Compel
At every stage of pre-trial proceedings, our admiralty-focused lawyers strive to make sure our clients get a fair day in court. In this motion to compel filed by one of Lipcon, Margulies & Winkleman, P.A.’s maritime lawyers, the Plaintiff asks the Court to compel Defendant Royal Caribbean to produce an accident/investigative report.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-cv-20961-WMH
ROYAL CARIBBEAN CRUISES, LTD.,
A Liberian Corporation,
PLAINTIFF’S MOTION TO COMPEL BETTER ANSWERS TO PLAINTIFF’S INITIAL DISCOVERY
Plaintiff, JANE DOE, by and through her undersigned counsel and pursuant to the Federal Rules of Civil Procedure and the Local Rules of the Southern District of Florida, hereby files this Motion to Compel Better Answers to Plaintiff’s Initial Discovery, and as good cause therefore relies on the following:
Plaintiff propounded her initial discovery to Defendant on December 9, 2013. After an extension of time to respond, Defendant provided its responses on January 29, 2013. Thereafter the parties conferred pursuant to local rule 7.1 in an effort to reach an agreement on any objections raised by Defendant. After the 7.1 conference, the parties were able to limit their discovery dispute to a single request for production and interrogatory. Both discovery requests focus on the accident/incident report prepared by Royal Caribbean’s onboard staff after the incident.
Request for Production 17, attached hereto as Exhibit 1:
Any and all statements given by any witness or any other person who may have knowledge of relevant facts, with respect to the 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.
Defendant’s Response, attached hereto as Exhibit 2:
Objection. See Defendant’s privilege log.
Interrogatory Number 6, attached hereto as Exhibit 3:
Identify each and every report or statement made by you regarding the facts of this incident or events leading up to it, including but not limited to, reports to the United States Coast Guard; Risk Management and/or Loss Prevention Departments; and/or hospitals or medical providers. As to each include: its date; the type of the report, or statement, whether written, oral, recorded, reported or otherwise; to whom it was made: the name, address and employer of the custodian of any permanent form of each statement.
Defendant’s Response, attached hereto as Exhibit 4:
Objection. See Defendant’s privilege log.
Defendant’s Privilege log, attached hereto as Exhibit 5:
The three (3) page type-written accident/incident report entitled “Personal Injury Illness Statement Confidential Vessel Report Prepared in Anticipation of Litigation.” This report was created and prepared in anticipation of litigation and in furtherance of Defendant’s investigation of Plaintiff’s alleged incident. This report is protected by the work product privilege and attorney client privilege. The report was created on or about April 28-30, 2012 by Chief Officer, Safety Stephan Schjerbeck. It contains the name of the ship, voyage information, incident date, general incident location, type of injury, name and date of birth of Plaintiff, and a summary of investigative information. The report is in the possession of RCL’s counsel.
Without waiving said privilege, Plaintiff state, “walking out of restaurant slipped on food on floor in walkway food was orange in color and appeared to be sushi. Workers were in the area. No one provided assistance.”
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-cv-22818 (S.D. Fla. May 31, 2006) (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-cv-22299 (S.D. Fla. November 24, 2009). “[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)); see also Jones v. Carnival Corp., No. 04-cv-20407 (S.D. Fla. Sept. 28, 2005) (rejecting work product claim for Carnival accident report that made a “routine recording of objective facts [about] the circumstances of the accident and Carnival’s remedial response”).
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 ascertaining the truth.” Id. (emphasis added).
Based on the aforementioned, the incident reports and narrative prepared by Royal Caribbean herein do not qualify under the work product doctrine. Royal Caribbean’s routine investigation and the reports rendered therefrom do not qualify as being “in anticipation of litigation” and are not sufficient to invoke the work product doctrine. They are routinely prepared as a matter of course following any incident. The records do not contain attorneys’ mental impressions, opinions or legal theories concerning the specific litigation after the claim had arisen. Rather, based on the fact that they were created around the same time as Mrs. Kagan’s accident, these records likely contain a routine recording of objective facts, such as the circumstances of the accident and the remedial response thereto, which are not protected under the work product doctrine.
Plaintiff also submits that she has a substantial need for the incident report as she is unable to obtain the substantial equivalent thereof from other sources without undue hardship. This is particularly true as the ship on which the Plaintiff was injured is no longer in the possession of Royal Caribbean. Accordingly, Plaintiff cannot reconstruct her fall by visiting the scene of the accident. Nor can the Plaintiff observe the café where Plaintiff fell in operation.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an order compelling the Defendant to produce to Plaintiff the accident/incident report identified in its privilege log.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)(A)
I hereby certify that counsel for the movant has conferred with counsel for Royal Caribbean in a good faith effort to resolve the issues raised in this motion, and the issues contained herein remain unresolved.