Joan Bellino v. Classic Cruises Holdings S. DE R.L. d.b.a Regent Seven Seas Cruise

Lipcon, Margulies, Alsina & Winkleman, P.A - Maritime Lawyer

February 14, 2011

Joan Bellino v. Classic Cruises Holdings S. DE R.L. d.b.a Regent Seven Seas Cruise

Motion to Compel Defendants Better Responses to Discovery and In Camera Inspection of Defendant’s Pr

In this motion the Plaintiff has sought the Court’s aid in compelling Defendant Seven Seas Cruise Lines to appropriately answer Plaintiff’s discovery requests. In furtherance of this effort the Plaintiff has made argument as to the objections of the Defense.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
BROWARD CIVIL DIVISION
CASE NO:. 10-61607 CIV-MOORE/SIMONTON
JOAN BELLINO,
Plaintiff,

v.

CLASSIC CRUISES HOLDINGS S. DE R.L d.b.a.
REGENT SEVEN SEAS CRUISES,
JOHN DOES (ship’s doctor(s)),
JANE DOES (ship’s nurse(s)),
Defendants.
___________________________/

PLAINTIFF’S MOTION TO COMPEL DEFENDANTS’ BETTER RESPONSES TO DISCOVERY AND IN CAMERA INSPECTION OF DEFENDANTS’ PRIVILEGE LOG

COMES NOW, the Plaintiff, Joan Bellino, by and through undersigned counsel, hereby moves this Court for entry of an Order compelling the Defendants’ better responses to Plaintiff’s discovery and an in camera inspection on Defendants’ privilege log and for good cause relies on the following memorandum of law.

MEMORANDUM OF LAW

On November 26, 2010, Plaintiff propounded her Initial Request for Production and Initial Interrogatories to the Defendants. Plaintiff received the responses to Plaintiff’s Initial Request for Production and Initial Interrogatories from Defendants on January 28, 2011. The Defendants’ responses to Plaintiff’s Initial Request for Production and Initial Interrogatories are the subject of the instant motion.

A.Defendant’s boilerplate objections.
Request for Production 19.

Any and all of defendant’s written policies and procedures which Defendant contends were applicable in any manner to the alleged incident.

Defendants’ answer:

Defendants object to Plaintiff’s Request for Production No. 19 on the ground that it is irrelevant, overbroad, over burdensome, vague and not reasonably calculated to lead to admissible evidence.

Argument:

Non-specific, boilerplate objections do not comply with Local Rule 26.1(G)(3)(a), which provides: “Where an objection is made to any interrogatory or sub-part thereof or to any document request under Federal Rule of Civil Procedure 34, the objection shall state with specificity all grounds.” A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly-broad, or unduly burdensome. See Fed. R. Civ. P. 33. Defendants’ policies and procedures are relevant to the Plaintiff’s incident, including, but not limited to, failed cabin windows in rough weather and sailing in rough weather and sea conditions. Accordingly, Defendants’ objections violate Local Rule 26.1 (g)(3)(A) for not specifying the grounds why the request is vague, over-broad or unduly burdensome.

Request for Production 38

A copy of the blank form for reporting incidents (such as the subject incident) to the flag state of the Navigator.

Defendants’ answer:

Defendants object to Plaintiff’s Request for Production No. 38 as work product. Any such forms were prepared in the anticipation of litigation and privileged. As to Defendant’s privilege log, see Exhibit “D.” Defendant also objects to Plaintiff’s Request for Production No. 38 on the ground that it is irrelevant, overbroad, over burdensome, vague and not reasonably calculated to lead to admissible evidence.

Argument:

A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly-broad, or unduly burdensome. See Fed. R. Civ. P. 33. The Defendants fail to specify the particular reason why this Request for Production is irrelevant, overbroad, over-burdensome, vague or not reasonably calculated to lead to admissible evidence. A copy of Defendants’ blank incident report form is relevant in leading to the discovery of admissible evidence because it provides the Plaintiff with type of information that is recorded following any incidents. Also, it provides information regarding whether Defendants are in compliance with the ISM Code when investigating incidents. Accordingly, Defendants’ objection violates Local Rule 26.1 (g)(3)(A) for not specifying the grounds why the request is irrelevant, overbroad, over-burdensome, vague or not reasonably calculated to lead to admissible evidence.

C. Defendant’s work product objections.

Defendants object to Plaintiff’s Requests for Production numbers 7, 23, 27, 31, 32, 36 and 38 as work product, privileged and prepared in the anticipation of litigation. Defendants list these items in Defendants’ Privilege Log (see Defendant’s Exhibit “D”), as cited below:

Request for Production 7: Photographs, diagrams, ship’s engineering drawings, and graphs reflecting the area of Plaintiff’s alleged incident as it existed at the time alleged in the Complaint and before any changes to the scene of the incident occurred

Request for Production 23: Any and all reports and/or records created by Defendant (as the sole law enforcement and investigatory authority aboard the ship) concerning the subject incident created at or near the time of the subject incident.

Request for Production 27: Ship’s report and analysis of marine casualty for the subject incident.

Request for Production 31: Any and all “Ship Security Incident Reports” for the subject cruise.

Request for Production 32: Any and all “Regent Cruise, Incident Reports” for the subject cruise.

Request for Production 36: Any and all records kept by Defendant, shoreside, pertaining to the subject incident.

Request for Production 38: A copy of the blank form for reporting incidents (such as the subject incident) to the flag state of the Navigator.

Argument:

All of Defendants’ work product objections are not protected under the work product doctrine. The work product doctrine protects materials prepared by an attorney acting for his client in anticipation of litigation from disclosure. See Federal Rules of Civil Procedure, Advisory Committee Notes, Rule 26(b)(3), 1970 Amendment. In order for the work product doctrine to apply, the party asserting the doctrine must demonstrate that at the time the materials were created or drafted, the entity must have anticipated litigation. CSK Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421, at *2 (M.D. Fla. July 20, 1995). /p>

However, none of Defendants’ objections qualify under the work product doctrine. All of the requested documents were not made in anticipation of litigation, but in the ordinary course of business. The “anticipation-of-litigation” requirement is therefore not met simply because a document that was prepared in the course of business is one that a party knows may be useful in the event of litigation arises. Redvanly v. NYNEX Corp., 152 F.R.D. 460, 465 (S.D. N.Y. 1993). Defendants’ incident reports and photographs of the incident are routinely prepared as a matter of course following any incident aboard Defendants’ cruise ship. Therefore, a routine investigation, such as the one herein, does not qualify as “in anticipation of litigation” and is not sufficient to invoke the work product doctrine. Moreover, neither the incident reports nor the photographs seek the disclosure of attorneys’ mental impressions, opinions or legal theories concerning the specific litigation after the claim has arisen.

In fact, the overwhelming weight of jurisprudence on the matter establishes that documents “prepared in the ordinary course of business” prior to the commencement of litigation are not entitled to work product protections.” Tayler v. Travelers Ins. Co., 183 F.R.D. 67, 70 (N.D. N.Y. 1998) (“emphasis added”). This view is supported by two recent rulings issued against cruise lines by this Honorable Court. In Jones v. Carnival Corp., 1:04-cv-20407-AJ (S.D. Fla. 2005) [D.E. 136-1], Judge Jordan stated that “the report itself resembles a routine recording of objective facts: the circumstances of the accident and Defendant’s remedial response … [thus, because Defendant did not prepare it] in response to a threat of suit, or at the direction of Defendant’s attorney, insurer or superior … [but rather] in response to an injury, it does not mean that the report was prepared in anticipation of litigation.” citing United States v. Davis, 636 F. 2d 1028, 1040 (5th Cir. 1981) (emphasis added).

Similarly, in Giroux v. Carnival Corp., 05-CIV-22818 (S.D. Fla. 2005) [D.E. 13], the Court agreed with the Jones holding, reiterating that “accident reports are prepared as a matter of course following any accident aboard a Defendant cruise ship. A routine investigation which may be used to defend a lawsuit is not sufficient to invoke the work product protection.” (emphasis added). Subsequently thereafter, for the same reasons, in Boney v. Carnival, 08-22299 (S.D. Fla. 2009) [D.E. 142], Magistrate Judge John O’Sullivan succinctly held that the gathering of the information for these reports was routine. “The reports 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).

D. In camera inspection of Defendant’s Privilege Log.

Further, Plaintiff moves for an in camera inspection of Defendants’ privilege log. When the work product privilege is asserted, the court may conduct an in camera inspection of the discovery material at issue in order to rule on the applicability of the privilege. Garner v. Wolfinbarger, 430 F.2d 1093, 1104 (5th Cir. 1970). An in camera inspection of the documents in Defendants’ privilege log is necessary because these documents likely contain information reasonably calculated to lead to the discovery of admissible evidence.

In accordance with Local Rule 7.1, counsel for Plaintiff conferred with counsel for Defendants, who stated Defendants oppose the relief sought herein.