M.S., Plaintiff, v. MSC CROCIERE, S.A., BEATS AT SEA, LLC, and CLOUD 9 ADVENTURES, L.L.C.,

Lipcon, Margulies, Alsina & Winkleman, P.A

March 23, 2015

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 14-CIV-62416-BLOOM/Valle

M.S.,

Plaintiff,

v.

MSC CROCIERE, S.A.,

BEATS AT SEA, LLC, and

CLOUD 9 ADVENTURES, L.L.C.,

Defendants.

                                                                        /

 

PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES TO PLAINTIFF’S INITIAL DISCOVERY FROM DEFENDANT, MSC CROCIERE, S.A.

The Plaintiff, M.S., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, this Court’s Local Rules and Magistrate Judge Alicia O. Valle’s discovery procedures [D.E. 25, pp. 3-4], hereby moves to compel Defendant, MSC CROCIERE, S.A. (“MSC”), 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 aboard the MSC Divina. Specifically, the Plaintiff alleges that on January 9, 2014, he slipped and fell on a wet, slippery and hazardous flooring surface at or around the buffet area of the vessel. [D.E. 1, ¶11].   As a result thereof, the Plaintiff initiated this lawsuit alleging negligence against MSC.

On January 8, 2015, the Plaintiff propounded initial discovery, including Initial Request for Production upon MSC, and MSC responded on February 18, 2015. (A copy is attached hereto as Exhibit 1.) The parties discussed MSC’s discovery responses and were able to reach agreements on most of the issues.[1] The remaining issues are addressed herein and Plaintiff respectfully requests this Honorable Court enter an order compelling MSC to provide better responses to the requests specified below.

  1. Initial Request for Production

MSC’s objections to Plaintiff’s Initial Requests for Production No.’s 11-13 and 15 should be overruled. The requests seek the photographs, incident report and witness statements concerning the subject incident, as follows:

  1. Any and all photographs and/or videos depicting the subject incident.

RESPONSE: Objection. This request calls for the production of attorney work product and attorney-client communications. Without waiving the above and subject thereto, MSC took 3 still photographs in anticipation of litigation of the area where the incident described in the Complaint is alleged to have occurred and said photographs were affixed to a report clearly labeled “STRICTLY CONFIDENTIAL PREPARED IN ANTICIPATION OF LITIGATION AND FOR USE BY COMPANY ATTORNEYS.”

Plaintiff is welcome to photograph the area during the ship inspection. There is no videotape depicting the alleged incident.

  1. Any and all photographs, diagrams, ship’s engineering drawings, and/or videos reflecting the area of Plaintiff’s alleged incident (i.e., at or around the buffet area) as it existed at the time alleged in the Complaint.

RESPONSE: Objection. This request calls for the production of attorney work product and attorney-client communications. Without waiving the above and subject thereto, MSC took 3 still photographs in anticipation of litigation of the area where the incident described in the Complaint is alleged to have occurred and said photographs were affixed to a report clearly labeled “STRICTLY CONFIDENTIAL PREPARED IN ANTICIPATION OF LITIGATION AND FOR USE BY COMPANY ATTORNEYS.”

Plaintiff is welcome to photograph the area during the ship inspection. There is no videotape depicting the area of Plaintiff’s alleged incident.

See also diagrams being produced.

  1. Any and all incident reports concerning the subject incident.

RESPONSE: Objection. This request calls for the production of attorney work product and attorney-client communications. Safety Officer, Marco Colonna completed an 8 page incident report in anticipation of litigation on January 9, 2014. The report on the top of each and every page states “STRICTLY CONFIDENTIAL PREPARED IN ANTICIPATION OF LITIGATION AND FOR USE BY COMPANY ATTORNEYS.” The Defendant’s legal department in Naples, Italy and its defense counsel are the custodians of this report. This Response constitutes Defendant’s privilege log for said report.

….

  1. 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: Objection. This request calls for the production of attorney work product and attorney-client communications. Safety Officer, Marco Colonna completed an 8 page incident report in anticipation of litigation on January 9, 2014. The report on the top of each and every page states “STRICTLY CONFIDENTIAL PREPARED IN ANTICIPATION OF LITIGATION AND FOR USE BY COMPANY ATTORNEYS.” The Defendant’s legal department in Naples, Italy and its defense counsel are the custodians of this report.

Without waiving the objection and subject thereto, see non privileged documents being produced.

MSC therefore claims that the photographs, incident report and witness statements are protected under both the work product doctrine and attorney-client privilege. (MSC’s Privilege Log is attached hereto as Exhibit 2.)

          Work Product Immunity. 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. See 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).

Thus, to be considered “work product,” the documents must be “prepared in anticipation of litigation or for trial”. See Fed. R. Civ. P. 26(b)(3)(A). Specifically, the determinative factor is whether “the primary motivating purpose behind the creation of the document” was to aid in future litigation. See United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981) (emphasis added). To that end, this Court has previously stated that a cruise line’s 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)). [Orders from Giroux, Boney and Jones are attached hereto as composite Exhibit 3.]

Furthermore, “[f]acts gathered from documents by a party’s representative are not protected as ‘fact work product.’” United States v. Pepper’s Steel & Alloys, Inc., 132 F.R.D. 695, 697 (S.D. Fla. 1990); (citing In re Alexander & Grant Co. Litigation, 110 F.R.D. 545, 548 (S.D. Fla. 1986); see also Wright & Miller, Federal Practice and Procedure: Civil § 2023 and cases cited therein (“The courts have consistently held that the work product concept furnishes no shield against discovery … of the facts that the adverse party’s lawyer has learned, or the persons from whom he has learned such facts, or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery.”)).

Herein, MSC’s Privilege Log lists an 8-page incident report which includes 3 photographs as being protected under the work product doctrine. Based on the cases above, however, these materials fall outside the scope of the work product doctrine because they are routinely prepared as a matter of course following any incident. This routine investigation does not qualify as being “in anticipation of litigation” and is therefore insufficient to invoke the work product doctrine.

Moreover, the incident report and photographs do not contain attorneys’ mental impressions, opinions or legal theories concerning the specific litigation after the claim had arisen. Rather, the incident report was prepared and the photographs were taken on the same day of the Plaintiff’s incident – on January 9, 2014.[2] Therefore, the report likely contains a recording of objective facts, such as the circumstances of the accident and the remedial response thereto that are not protected under the work product doctrine. See Jones (Exhibit 3); see also Pepper’s Steel & Alloys, supra. Moreover, because the photographs were taken on the same day as the Plaintiff’s incident, they likely depict the condition of the floor that the Plaintiff slipped on and whether there was a wet/slippery substance on the floor, as the Plaintiff alleges. This is highly relevant to the Plaintiff’s case, and the Plaintiff is unable to obtain the substantial equivalent through other means.

          Attorney-Client Privilege. Further, the attorney-client privilege does not apply to the documents at issue either. It is beyond well settled that the attorney-client privilege is meant to protect communications between an attorney and that attorney’s client. See United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991). It attaches only to communications made in confidence to an attorney by that attorney’s client for the purposes of securing legal advice or assistance. In re Grand Jury Investigation, 842 F.2d 1223, 1224 (11th Cir. 1987).

The party invoking the attorney-client privilege bears the burden of proving that an attorney-client relationship existed and that particular communications were confidential in nature. In re Grand Jury Proceedings in Matter of Freeman, 708 F.2d 1571, 1575 (11th Cir. 1983). More specifically, the client must demonstrate that the communication sought to be protected was “(1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential.” Bogle v. McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (quoting United States v. Bell, 776 F.2d 965, 971 (11th Cir. 1985) (quotation marks and emphasis omitted)); see also Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684, 689 (S.D. Fla. 2009) (“the standard for asserting the privilege is more stringent for corporations than it is for individuals”).

When a corporation is a client, communications between any corporate employee, acting within the scope of his corporate duties, and an attorney for the corporation through which the corporation may obtain legal advice may be privileged. See Upjohn, 449 U.S. at 394. However, “‘the protection of the privilege extends only to communications and not to facts.” Id. at 395-96 (emphasis added).

Herein, MSC has not provided any information to establish the above requirements, such as the content of the communications at issue. Nevertheless, however, the privilege should not be attached to the records requested herein that are factual in nature. The incident report, photographs, and any witness statements are not communications between defense counsel and MSC in furtherance of counsel. Rather, they are meant to gather information from victims and/or witnesses to an incident. Further, as stated above, this information is gathered, not at the direction of counsel, but as a routine investigation following any incident.

          WHEREFORE, based on the foregoing, Plaintiff respectfully requests this Honorable Court enter an order compelling MSC to provide better responses to Plaintiff’s Initial Request for Production consistent with the instant motion, as well as any further relief the Court deems just and proper.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)(A)

            I hereby certify that counsel for the movant has conferred with counsel for MSC 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 S. Biscayne Boulevard

Miami, Florida 33131

Telephone: (305) 373-3016

Facsimile: (305) 373-6204

By:  /s/ Jacqueline Garcell                         

JASON R. MARGULIES

Florida Bar No. 57916

JACQUELINE GARCELL

Florida Bar No. 104358

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 23, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing.

By:  /s/ Jacqueline Garcell                         

JACQUELINE GARCELL

Florida Bar No. 104358

[1] Pursuant to the parties’ 7.1 conference, MSC agreed to provide supplemental responses to the following requests, limited to the tile surface in the buffet area: Initial Interrogatories 14-15, 18-20; Initial Requests for Production 16, 23-24, 26-27; and Initial Requests for Admission 25-26.

[2] Although MSC’s Privilege Log lists January 9, 2015 as the date of preparation, counsel for MSC informed the undersigned that it is a typo which should read January 9, 2014 (i.e., the date of the Plaintiff’s incident).