October 22, 2015
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15-20239-CIV-SCOLA/OTAZO-REYES
D.H., Individually and as
Parent and Natural Guardian of R.H.
and T.H. (minors),
Plaintiff,
v.
CARNIVAL CORPORATION,
Defendant.
/
PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES
TO PLAINTIFF’S INITIAL DISCOVERY FROM DEFENDANT
The Plaintiff, D.H., individually and as parent and natural guardian of R.H. and T.H., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, this Court’s Local Rules and Magistrate Judge Alicia M. Otazo-Reyes’ discovery procedures [D.E. 5, ¶7], hereby moves to compel Defendant, CARNIVAL CORPORATION (“Carnival”), to provide better responses to Plaintiff’s initial discovery and, in furtherance thereof, states as follows:
- Introduction
The instant matter arises out of the alleged sexual assault and rape of cruise passenger, D.H., by a Carnival crewmember. [D.E. 16, ¶13]. The alleged subject sexual assault and rape occurred in the Plaintiff’s cabin, while D.H.’ two minor children were in the cabin, thereby causing the children to witness their mother’s sexual assault and rape. [Id.]
The Plaintiff initiated this lawsuit and propounded her initial discovery requests upon Carnival. On September 8, 2015, Carnival served its responses to Plaintiff’s Initial Interrogatories and Initial Request for Production. (A copy of such responses are attached hereto as Exhibits 1 and 2, respectively.)
The parties discussed Carnival’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 that this Honorable Court enter an order compelling Carnival to provide better responses to Plaintiff’s initial discovery.[2]
- Argument
The scope of discovery under Rule 26 is broad, allowing parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b) (emphasis added); see Hickman v. Taylor, 329 U.S. 495, 507-508 (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 (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. 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, Carnival’s responses to Plaintiff’s discovery requests are lacking pertinent information and its objections are without merit. Accordingly, the Plaintiff respectfully requests that this Honorable Court enter an order compelling better responses to the discovery requests specified below.
- Initial Interrogatories
The only interrogatory at issue is Interrogatory No. 24, which requests that Carnival list any and all allegations of sexual assault (defined as any non-consensual touching of the lips, breasts or genitals) aboard any of Carnival’s vessels for the three-year period of time prior to the subject incident. Carnival initially objected on grounds that the interrogatory is overbroad, unduly burdensome, not sufficiently limited in scope, irrelevant to any claim or defense in this matter, and not reasonably calculated to lead to the discovery of admissible evidence. Pursuant to the parties’ 7.1 conference, however, Carnival agreed to provide the information only as to crewmember assaults aboard the subject vessel (the Carnival Triumph), but not fleetwide. Yet Carnival’s policies and procedures are applied fleetwide. In addition, Carnival maintains a centralized risk management department in its Miami, Florida headquarters. The risk management department addresses allegations of sexual assault and/or sexual harassments (among others) – fleetwide. As such, should there be issues concerning allegations of sexual assaults and/or sexual harassments aboard Carnival’s vessels, those issues would be addressed fleetwide.
Further, Carnival’s answer should not be limited to only allegations against crewmembers. Sexual assaults and rapes alleged to have been committed by passengers (fleetwide) are also directly relevant to establish that Carnival was on notice of the prevalence of sexual assaults and/or rapes aboard its ships; and it would serve as evidence that, despite such notice, Carnival has failed to promulgate and/or enforce adequate policies and/or procedures to prevent sexual assaults aboard its ships, as alleged by the Plaintiff [D.E. 16, ¶25(k), (p)]. Moreover, the Plaintiff maintains that the rate of sexual-related incidents are 50% higher aboard Carnival cruise ships than they are on land. Therefore, this information will also be directly relevant to that point.
Lastly, as to any alleged burden, “‘[t]he mere fact that compliance… will cause great labor and expense or even considerable hardship and possibility of injury to the business of the party from whom discovery is sought does not of itself require denial of the motion.’” Lane v. Capital Acquisitions, 242 F.R.D. 667, 670 (S.D. Fla. 2005) (citation omitted). Rather, “to even merit consideration, ‘an objection must show specifically how a discovery request is overly broad, burdensome or oppressive, by submitting evidence or offering evidence which reveals the nature of the burden.’” Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 686 (S.D. Fla. 2010) (citation omitted) (emphasis added). Ultimately, discovery “should be allowed unless the hardship is unreasonable in the light of the benefits to be secured from the discovery.” Lane, 242 F.R.D. at 670 (citation omitted) (emphasis added). Herein, Carnival has failed to show how responding to this request would be unreasonably burdensome.
- Initial Request for Production
Carnival’s objections to Plaintiff’s Initial Requests for Production No.’s 14, 16-17, 34, 54, 56, 59, 63, 69-70, and 73 are improper and/or without merit.
Requests No.’s 14, 16 and 17 seek Carnival’s shipboard incident reports for the subject incident, statements given by (or taken of) the alleged assailant concerning the subject incident, and the results of any investigation made by Carnival concerning the subject incident. In response to all three requests, Carnival objected on grounds that the documents were prepared in anticipation of litigation and are therefore protected by the work product privilege.
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). To that end, “[t]he 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 v. Carnival Corp., 286 F.R.D. 636, 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).
Herein, Carnival alleges in its response above and its Privilege Log (attached as Exhibit 3) that the incident report, investigative report and statement were taken in anticipation of litigation. Contrary to that argument, however, Carnival’s Security Manual makes clear that it is Carnival’s policy to obtain reports and statements following “all alleged crimes” to ensure the safety of its passengers. (A copy of Chapter 4.4 of the Security Manual is attached hereto as Exhibit 4). Carnival therefore conducts an investigation and gathers facts and evidence for “all alleged crimes” without considering the facts or the possibility that the alleged victim may later file a lawsuit. Rather, these materials are gathered for “all alleged crimes” for the sole stated “purpose” of “ensuring the security of the vessel” – not in anticipation of litigation. This is also evident through Carnival’s own Privilege Log, which shows that the incident report and statement from the alleged assailant (Vikas Shetty) were taken on the date of the incident (February 20, 2014). Carnival’s argument also fails to take into account that the only police force aboard the vessel are the security officers, whose job it is to complete incident reports and gather statements when an incident occurs for the stated purpose of ensuring security of the vessel. (See Chapter 4.5 of the Security Manual attached as Exhibit 5, stating that it is the responsibility of the Chief Security Officer to complete incident reports and gather statements for crimes or incidents occurring aboard the vessel.)
Under similar facts, this Court has repeatedly held that Carnival’s routine investigation and the reports rendered therefrom are not sufficient to invoke the work product protection just because they may be used to defend a lawsuit. See Jones v. Carnival, Case No. 04-20407-CIV-JORDAN (S.D. Fla. 2004) [D.E. 136] (attached as Exhibit 6); Giroux v. Carnival Corp., No. 05-CIV-22818 (S.D. Fla. 2005) [D.E. 13] (attached as Exhibit 7); see also Boney v. Carnival, No. 08-22299 (S.D. Fla. 2009) [D.E. 142] (attached as Exhibit 8). In Giroux, the Court specifically found that Carnival’s investigations and reports are “prepared as a matter of course following any accident aboard a Carnival cruise ship.” Giroux, at 2 (citing Jones) (emphasis added). The Court agreed in Boney, stating that “[t]he 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”. Boney, at 2 (citing United States v. Davis, 636 F.2d 1028 (5th Cir. 1981)) (emphasis added).
Furthermore, even if this Honorable Court finds that the materials at issue were prepared in anticipation of litigation, it should still compel Carnival to produce the incident report and the assailant’s statement because it waived any privilege by voluntarily producing such documents to the FBI. (See Exhibit 1, ¶¶2, 9).[3] Federal jurisprudence establishes that that the protection provided by the work product is not absolute and may be waived. See United States v. Nobles, 422 U.S. 225, 239 (1975). Waiver of work product occurs when the protected materials are disclosed in a manner which is inconsistent with maintaining secrecy against opponents or substantially increases the opportunity for potential adversaries to obtain the information. See Live Nation Worldwide, Inc. v. Cohl, 10-24144-CIV, 2011 WL 5597348 (S.D. Fla. Nov. 17, 2011) (“work-product protection is waived when protected materials are ‘disclosed in a manner [that] is either inconsistent with maintaining secrecy against opponents or substantially increases the opportunity for a potential adversary to obtain the protected information.’”). To that end, under federal law, voluntary disclosure to the government has been held to be an outright waiver of the work product privilege over the disclosed documents. See Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991). Westinghouse further points out that “to waive the protection of the work-product doctrine, the disclosure must enable an adversary to gain access to the information.” Id. at 1428. Here, by making these disclosures to the federal government, a public entity, Carnival is voluntarily handing over documents that, once in the custody of the government, become public information and are eventually subject to request by third parties (including adversaries) under the Freedom of Information Act.
Accordingly, because the work product doctrine does not apply to the incident report, investigation report or the assailant’s statement and/or because Carnival waived any privilege, Carnival should be compelled to produce such documents.[4]
Next, Request No. 34 seeks contracts and/or agreements between Carnival and the entity that: a) acted as an agent of Carnival for the purpose of hiring the alleged assailant; b) conducted a criminal history check of the alleged assailant; and c) conducted a background check of the alleged assailant. Carnival objects on grounds that the request is overbroad, not sufficiently limited in time or scope, seeks proprietary information, and is not reasonably calculated to lead to the discovery of admissible evidence.
According to its answer to Interrogatory No. 13, Carnival maintains that background checks of crewmembers are conducted by the manning agent, in this case V-Ships in India (Exhibit 1, ¶13). The Plaintiff therefore seeks Carnival’s contract with V-Ships in order to determine (1) whether or not V-Ships is in fact required to conduct background checks; and (2) exactly what the background checks consist of (e.g., only previous employment/qualifications or criminal history as well). This information is directly relevant to the Plaintiff’s claim that Carnival negligently hired and/or retained the alleged assailant crewmember. [D.E. 16, ¶25(b)-(c)].
Request No. 54 seeks the security patrol logs for the subject vessel for February 19, 2014 and February 20, 2014. Although Carnival produced the entry in the security patrol log pertaining to the Plaintiff’s incident, it objected to producing the remainder of the logs on grounds that the logs have “no bearing on as of [sic] the issues in this case and should not be produced” (Exhibit 2, ¶54). Respectfully, however, Carnival should not be determining unilaterally what does and does not have a “bearing” on the Plaintiff’s case, without giving the Plaintiff an opportunity to examine the documents. The logs could potentially lead to the discovery of admissible evidence, as they could show that security officers were occupied with other incidents occurring at or around the same time as the Plaintiff’s incident. If security officers were in fact occupied, they were not patrolling all areas of the ship (as they are required), which likely prevented them from witnessing that the Plaintiff was being taken/led to her cabin by the alleged assailant crewmember who was prohibited from entering guest corridors, as the Plaintiff alleges in this case.
Request No. 56 seeks statements made by Carnival (in marketing its cruises or otherwise) concerning security aboard Carnival’s ships within three years prior to the subject incident. In response, Carnival objects on grounds that the request is overbroad, unduly burdensome, harassing, not sufficiently limited in time or scope and not reasonably calculated to lead to the discovery of admissible evidence as it is not tailored to the allegations in the Complaint.
First and foremost, contrary to Carnival’s objection, it is well settled that “discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978). Nevertheless, this request is directly related to the Plaintiff’s allegations in the Complaint pertaining to the lack of adequate security aboard the vessel. [D.E. 16, ¶25(i)]. For instance, the documents will likely show that Carnival has been marketing its cruises as being safe with continuous security patrolling its ships. This would be evidence of Carnival’s negligence as well as its “willful and outrageous conduct” motivated by financial gain (also plead in the Complaint, [D.E. 16, ¶16]) when the Plaintiff’s evidence will show that, in actuality, Carnival only has a handful of security guards on duty at any given time despite its vessels carrying thousands of passengers and crewmembers (see Exhibit 1, ¶17). Marketing its cruises as safe will also be evidence of the lack of warnings Carnival gives to passengers about the prevalence of sexual assaults and/or rapes aboard its ships, as alleged by the Plaintiff. [D.E. 16, ¶25(k)]. Secondly, Carnival’s objection that the request is overbroad should also be overruled because the request is sufficient limited in time (3 years) and scope (only statements pertaining to security). Further, Carnival failed to show how responding to this request would be unreasonably burdensome pursuant to Henderson, supra and Lane, supra.
Next, Request No. 59 seeks the personnel files for each crewmember who was on security duty on February 19, 2014 and February 20, 2014. At the parties’ 7.1 conference, the Plaintiff offered to limit this request to only those records pertaining to the security officers’ qualifications, training and disciplinary actions against them. Nevertheless, Carnival objects on grounds that the request is overbroad, not sufficiently limited in scope, vague, irrelevant to the subject matter of the litigation, and not reasonably calculated to lead to the discovery of admissible evidence. Despite Carnival’s objection, however, the Plaintiff alleges the subject incident occurred due to, inter alia, Carnival’s failure to provide adequate security aboard the vessel. [D.E. 16, ¶25(i)]. The documents requested here will therefore be directly relevant to prove such claim.
Request No. 63 seeks documents reflecting any action taken against crewmember(s) aboard Carnival’s vessels in response to a complaint of sexual assault within three years prior to the subject incident through the date of the subject incident. Carnival objects to the request on grounds that it is overbroad, not sufficiently limited in scope, irrelevant to the subject matter of the litigation, harassing, and not reasonably calculated to lead to the discovery of admissible evidence. However, the manner in which Carnival handled previous allegations of sexual assaults and/or sexual harassments against crewmembers is clearly relevant to the issues in this case. Specifically, the Plaintiff alleges that the subject incident occurred due to, inter alia, Carnival’s failure to “enforce adequate policies and procedures designed to prevent sexual assaults by crewmembers on passengers” [D.E. 16, ¶25(q)]. If it is Carnival’s policy to issue a written warning, refer crewmembers to counseling and/or terminate crewmembers when such allegations are made, then the requested documents will determine whether or not Carnival enforced its policy with other crewmembers. If Carnival did not, then it will be relevant to show why its crewmembers repeatedly violate Carnival’s policies pertaining to sexual relations with passengers, as Plaintiff alleges.
Lastly, Requests No.’s 69, 70 and 73 seek documents pertaining prior incidents of sexual assaults occurring aboard Carnival’s ships within three years prior to the subject incident, including incident reports (Request No. 69), the Complaint and Answer from cases (Request No. 70) and prior lists of claims of sexual assault or rapes compiled by Carnival and produced in the course and scope of discovery in other lawsuits (Request No. 73). Carnival objects to all three requests on grounds that they are overbroad, not sufficiently limited in scope, irrelevant to the subject matter of the litigation, and not reasonably calculated to lead to the discovery of admissible evidence. With regard to the incident reports specifically (Request No. 69), Carnival also argues that they are protected under the work product doctrine.
Similar to Interrogatory No. 24, these requests are directed at establishing Carnival’s notice of (1) the prevalence of sexual assaults and/or sexual harassments committed aboard Carnival’s ships; and/or (2) the policies and procedures concerning sexual assaults and/or sexual harassments being inadequate and/or unenforced. The Plaintiff therefore refers to and incorporates the argument set forth above for Interrogatory No. 24. As to Carnival’s objection based on the incident reports being protected under the work product doctrine, the Plaintiff refers to and incorporates the argument set forth above for Request No. 14.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)
I hereby certify that counsel for the movant has conferred with counsel for Carnival 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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 22, 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
SERVICE LIST
D.H. v. Carnival (Bahamas) Ltd.
Case No. 15-20239-CIV-Scola/Otazo-Reyes
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Jason R. Margulies, Esq. Jacqueline Garcell, Esq. LIPCON, MARGULIES, ALSINA & WINKLEMAN, P.A. One Biscayne Tower, Suite 1776 2 South Biscayne Boulevard Miami, Florida 33131 Telephone No.: (305) 373-3016 Facsimile No.: (305) 373-6204 Attorneys for Plaintiff |
Curtis J. Mase, Esq.
Christine M. Dimitriou, Esq. MASE LARA, P.A. 2601 South Bayshore Drive, Suite 800 Miami, Florida 33133 Telephone: (305) 377-3770 Facsimile: (305) 377-0080 Attorneys for Defendant, Carnival
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[1] Pursuant to the parties’ 7.1 conference, Carnival agreed to provide supplemental responses to the following requests by October 28, 2015, with some requests subject to limitations agreed upon by the parties: Interrogatories: 12(d), 15-16, 18 and 24; Requests for Production: 22-27, 33, 46-47, 57-58, 62 and 73. The parties are still attempting to resolve Requests No.’s 18, 21 and 55; the Plaintiff therefore reserves the right to raise these three pending requests in her Reply brief.
[2] On October 8, 2015, the Plaintiff moved for an extension of time to compel better responses to Plaintiff’s initial discovery by October 22, 2015 [D.E. 28], and this Honorable Court granted the motion [D.E. 29].
[3] It is currently unknown by the Plaintiff whether Carnival also provided the FBI with a copy of its investigative report. If it did, the Plaintiff maintains that Carnival waived privilege for that report as well.
[4] Alternatively, assuming, arguendo, that the reports and statements are afforded protection under the work product doctrine, Carnival 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). Specifically, the reports and statements likely contain a recording of objective facts taken from crewmembers who are presumably now either out at sea or in their native countries, and/or from other passengers who likely reside all over the country. These witnesses’ recollections may not be as clear and/or accurate as they were when the incident occurred a year and a half ago.
