July 2, 2015

M.R., vs NCL (BAHAMAS) LTD. and M.N.,

Summary

This is a motion to compel better responses to the requests for information and documents the maritime attorneys at Lipcon, Margulies & Winkleman, P.A. sent to NCL in a case involving the alleged sexual harassment and sexual assault of a former NCL crewmember, by her direct supervisor, over a four-month period of time.

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 14-23682-CIV-MORENO

M.R.,

Plaintiff,

vs.

NCL (BAHAMAS) LTD. and M.N.,

Defendants.

PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES TO PLAINTIFF’S INITIAL DISCOVERY FROM DEFENDANT, NCL (BAHAMAS) LTD.

The Plaintiff, M.R., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure and this Court’s Local Rules, 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:

I. Introduction

The instant matter arises out of the alleged sexual harassment and sexual assault of the Plaintiff, a former NCL crewmember, by her direct supervisor, M.N., over a period of time from January 2013 through April 2013. As a result thereof, the Plaintiff initiated this lawsuit against NCL as well as M.N.[1].

On February 24, 2015, the Plaintiff propounded her initial discovery requests upon NCL, including Initial Interrogatories and Initial Request for Production. NCL served its answers to Plaintiff’s Initial Interrogatories on May 13, 2015 (attached as Exhibit 1), and its responses to Plaintiff’s Initial Request for Production on June 5, 2015 (attached as Exhibit 2).

The parties discussed NCL’s discovery responses and were able to reach agreements on most of the issues.[2] The remaining issues are addressed herein and Plaintiff respectfully requests that this Honorable Court enter an order compelling NCL to provide better responses to Plaintiff’s initial discovery.[3]

II. 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

[1] Pursuant to the parties’ 7.1 conference, NCL agreed to provide supplemental responses to the following requests by July 7, 2015: Interrogatories: 11(d); 12 (to refer to the corresponding requests for production); 15 (limited to crewmembers with the first name Carly (any spelling)); 17 (limited to the security officers, heads, etc., excluded subsection d,); 18 (excluded subsection d); 19 (“warnings” defined as training materials for crewmembers related to sexual harassment, sexual assault, and interaction with other crewmembers limited to sexually inappropriate behavior); 20 (limited to the subject vessel and allegations where a crewmember was the aggressor); 21-24. Requests for Production: 10 (limited to the photo lab); 12(c); 14; 15 (limited to contracts, disciplinary actions and background/criminal checks); 18; 19 (limited to the actual application form, without attachments); 20; 21 (limited to sexual harassment, sexual assault and interaction/management as it relates to appropriate vs. inappropriate behavior); 22; 23 (limited to 3 years before the incident); 28 (prices to be redacted); 29 (prices to be redacted); 31-37; 41; 43-45; 53-54 (“warnings” defined as training materials for crewmembers related to sexual harassment, sexual assault, and interaction with other crewmembers limited to sexually inappropriate behavior); 55 (appropriate vs. inappropriate behavior); 56 (limited to the subject vessel); 57 (limited to the security officers, heads, etc. and at least one document showing the names); 58 (limited to at least one document showing the agreed upon individual’s names, not “any and all” documents showing these crewmembers’ names); 63 (limited to 3 years before the incident); 64 (limited to 3 years before the incident); 69 (limited to allegations where a crewmember was the aggressor).

[1] On June 12, 2015, the Plaintiff moved for an extension of time until July 6, 2015 to compel better responses to Plaintiff’s Initial Interrogatories [D.E. 54], and this Honorable Court granted the motion on June 24, 2015 [D.E. 56].

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

A. Initial Interrogatories

NCL’s objection to Plaintiff’s Initial Interrogatory No. 20 is improper and/or without merit.

Interrogatory No. 20

Plaintiff’s Interrogatory:

Please list any and all allegations by crewmembers of sexual assault (defined as any non-consensual touching of the lips, breasts or genitals – regardless of the parties’ gender and/or sexual orientation) and/or sexual harassment (defined as the making of unwanted sexual advances or obscene remarks by co-workers) aboard any of Defendant’s vessels for the five-year period of time prior to the subject incident. For each such incident, please list the following: (a) the date of the alleged incident; (b) the name of the ship; (c) the title/position the crewmember bringing; (d) the title/position of the crewmember alleged to have assaulted or harassed; (e) whether the alleged victim was a passenger or crewmember; (f) a brief description of the alleged incident; (g) the name(s) and titles/positions of all persons who investigated the allegations; (h) any and all actions taken as a result of the allegation and/or investigation; and, (i) whether Defendant was sued as a result of the incident (and if so, the case number and court).

NCL’s Answer:

Objection as to sections (a)-(f) and (i). This request is overbroad, not sufficiently limited in time and scope, irrelevant to the subject matter of the litigation, and not reasonably calculated to lead to the discovery of admissible evidence. See Berry v. Haynes, 41 F.R.D. 243, 244 (S.D. Fla. 1966); Wood v. Todd Shipyards, 45 F.R.D. 363, 364 (S.D. Tex. 1968); Hickman v. Taylor, 329 U.S. 495, 507 (1947). Plaintiff’s request is patently overbroad as it seeks information related to allegations by crewmembers of sexual assault and/or sexual harassment onboard any of Defendant’s vessels for a period of five years. Defendant further objects because this request may encompass documents protected by the attorney–client and work product privileges. See Hickman v. Taylor, 329 U.S. 495 (1947); Nadler v. U.S. Dept. of Justice, 955 F. 2nd 1479 (11th Cir. 1992); Hines v. Widnall, 183 F.R.D. 596 (N.D. Fla. 1998)….[4]

Pursuant to the parties’ 7.1 conference, NCL has agreed to provide the information requested in this interrogatory as to the subject vessel only (the Norwegian Pearl), but not fleetwide. However, NCL’s policies and procedures are applied fleetwide. In addition, NCL 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 by NCL’s crewmembers, those issues would be addressed fleetwide. Further, those issues would be directly relevant to establish that NCL was on notice of: (1) the prevalence of sexual assaults and/or sexual harassments committed by crewmembers aboard NCL’s ships; and/or (2) the policies and procedures being inadequate and/or unenforced. Particularly in this case, the Plaintiff alleges that “NCL was on notice that M.N. had a propensity to sexually harass and sexually assault other female crewmembers onboard NCL ships.” [D.E. 40, ¶27] (emphasis added). That allegation is based, in part, on M.N. sexually harassing and/or sexually assaulting another female crewmember working with him on “another ship” before this incident. [Id. at ¶27(a)].

As to NCL’s blanket objection based on privilege, this Court has cautioned parties that “[g]eneralized objections asserting ‘confidentiality,’ attorney-client privilege or work product doctrine also do not comply with local rules.” Guzman v. Irmadan, Inc., 249 F.R.D. 399 (S.D. Fla. 2008). Rather, in addition to identifying the specific nature of the privilege being asserted, objections based upon privilege should also identify the nature and subject matter of the communication at issue, and the sender and receiver of the communication and their relationship to each other. “If such an objection is made without a proper privilege log attached, it shall be deemed a nullity.” Id. (emphasis added). Herein, NCL failed to provide a Privilege Log or otherwise identify the documents being withheld on the basis of a privilege. Thus, its failure should be deemed a waiver of any privilege, and it should be compelled to respond to this interrogatory.

B. Initial Request for Production

NCL’s objections to Plaintiff’s Initial Requests for Production No.’s 38-39, 42, 48-52, 56, 59, 66 and 68 are improper and/or without merit.

Request No. 38

Plaintiff’s Request:

Any and all of Defendant’s rules, regulations, policies and/or procedures, in effect at the time of the subject incident, concerning monitoring crewmembers aboard Defendant’s ships so as to prevent them from committing crimes.

NCL’s Response:

Objection – overbroad and vague. Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). Cotracom Commodity Trading Co. v. Seaboard Corp., 189

F.R.D. 655, 666 (D. Kan. 1999) (citing Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D. Kan. 1996)). The terms “monitoring” and “crimes” are vague as used, making NCL unclear as to what documents, if any, are responsive.

The Plaintiff alleges that NCL was negligent by, inter alia, (1) failing to promulgate and/or enforce adequate policies and procedures to prevent (and stop already occurring) sexual assaults and sexual harassments aboard its ships; (2) failing to implement adequate security policies, measures, and procedures necessary to protect its crewmembers; and, (3) failing to take additional security measures after being put on notice that M.N. had history of sexually harassing and sexually assaulting other female crewmembers onboard NCL ships. [D.E. 40, ¶26(d), (f), (h)]. Any policies and procedures concerning monitoring crewmembers aboard NCL’s ships so as to prevent them from committing crimes are therefore relevant and necessary to prove these allegations. They will be relevant to determine whether NCL had adequate policies and procedures in effect, and whether those policies and procedures were enforced in the Plaintiff’s case.

The request is sufficiently limited in time to only those policies and procedures in effect at the time of the subject incident. While the request is not limited to sexual assaults and/or sexual harassments, if NCL had policies and procedures in effect to monitor crewmembers for only certain crimes (e.g., robbery), then it is relevant because the Plaintiff would argue that it is evidence of negligence that NCL did not also apply those policies and procedures for sexual assaults and/or sexual harassments. As to the alleged vagueness of the terms “monitoring” and “crimes,” the Plaintiff suggests that the plain, ordinary meaning of the words should apply.

Request No. 39

Plaintiff’s Request:

NCL’s Response:

NCL’s policies and procedures concerning monitoring crewmembers aboard its ships to prevent them from being victims of crimes (as opposed to committing the crimes) are relevant and necessary to prove the same allegations discussed for Request No. 38 – D.E. 40, ¶26(d), (f), (h). The Plaintiff therefore refers to and incorporates the argument set forth for such request.

Request No. 42

Plaintiff’s Request:

Any and all of Defendant’s rules, regulations, policies and/or procedures, in effect at the time of the subject incident, concerning warning crewmembers and/or passengers of the dangers of sexual assaults and/or harassment aboard Defendant’s ships.

NCL’s Response:

Objection – irrelevant, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence. See Berry v. Haynes, 41 F.R.D. 243, 244 (S.D. Fla. 1966); Wood v. Todd Shipyards, 45 F.R.D. 363, 364 (S.D. Tex. 1968); Hickman v. Taylor, 329 U.S. 495, 507 (1947). Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). To the extent that this request seeks documents regarding NCL’s rules, regulations, policies and/or procedures concerning warning passengers of the dangers of sexual assaults and/or harassment aboard NCL’s ships, this request is irrelevant, overbroad, and not reasonably calculated to lead to the discovery of admissible evidence, as the alleged incident at issue concerned only crewmembers, and no passengers….

Pursuant to the parties’ 7.1 conference, NCL has agreed to produce responsive documents as to crewmembers, but not passengers. However, any warnings that NCL gave to passengers are equally relevant, as they would establish that NCL was on notice of the prevalence of sexual assaults and/or sexual harassments aboard its ships. In addition, the comparison of warnings given to passengers versus those given to crewmembers would also likely lead to the discovery of admissible evidence. If, for instance, NCL warned passengers more extensively than crewmembers, then the Plaintiff would argue that it is evidence of negligence.

Request No. 48

Plaintiff’s Request:

Any and all documents reflecting any action taken against any and all crewmember(s) aboard Defendant’s vessels in response to a complaint of sexual assault and/or harassment within three years prior to the subject incident through the entire month of April 2013.

NCL’s Response:

Objection – overbroad, irrelevant, and unduly burdensome. Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). The request encompasses any such action taken aboard any of NCL’s vessels in its entire fleet, and as such is irrelevant, overbroad, and unduly burdensome. Additionally, the request encompasses any such action taken against any and all crewmember(s), and as such is irrelevant, overbroad, and unduly burdensome.

The manner in which NCL handled previous allegations of sexual assaults and/or sexual harassments against crewmembers is clearly relevant to the issues in this case. If it is NCL’s policy to issue a written warning, refer crewmembers to counseling and/or terminate crewmembers when such allegations are made, then the documents requested herein will determine whether or not NCL enforced its policy with other crewmembers and specifically with M.N. when he was alleged to have sexually assaulted and/or harassed another female crewmember before the Plaintiff.

Contrary to NCL’s objection, the request is sufficiently limited in both time (3 years) and scope (only allegations of sexual assault and/or sexual harassment against crewmembers). Moreover, 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, NCL has failed to show how responding to this request would be unreasonably burdensome.

Request No. 49

Plaintiff’s Request:

Any and all documents reflecting any warnings given to any and all crewmember(s) aboard Defendant’s vessels in response to a complaint of sexual assault and/or harassment within three years prior to the subject incident through the entire month of April 2013.

NCL’s Response:

Similar to Request No. 48 above, this request is directed at establishing the manner in which NCL handled previous allegations of sexual assaults and/or sexual harassments against crewmembers. The Plaintiff therefore refers to and incorporates the argument set forth above for Request No. 48.

Request No. 50

Plaintiff’s Request:

Any and all documents reflecting termination of any and all crewmember(s) aboard Defendant’s vessels in response to a complaint of sexual assault and/or harassment within three years prior to the subject incident through the entire month of April 2013.

NCL’s Response:

Request No. 51

Plaintiff’s Request:

Any and all documents reflecting counseling of any and all crewmember(s) aboard Defendant’s vessels in response to a complaint of sexual assault and/or harassment within three years prior to the subject incident through the entire month of April 2013.

NCL’s Response:

Objection – overbroad, irrelevant, vague and unduly burdensome. Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). The term “counseling” is vague as used, making NCL unclear as to what documents, if any, are responsive. Additionally, the request encompasses any such action taken aboard any of NCL’s vessels in its entire fleet, and also any such action taken with respect to any and all crewmember(s), and as such is irrelevant, overbroad, and unduly burdensome. Additionally, this information is confidential pursuant to HIPAA.

Request No. 52

Plaintiff’s Request:

Any and all documents reflecting hearings concerning discipline of any and all crewmember(s) aboard Defendant’s vessels in response to a complaint of sexual assault and/or harassment within three years prior to the subject incident through the entire month of April 2013.

NCL’s Response:

Request No. 56

Plaintiff’s Request:

Any and all materials used to provide training and/or education to crewmembers concerning sexual harassment within the three-year period prior to the subject incident.

NCL’s Response:

Objection – overbroad, irrelevant, and unduly burdensome. Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). The request encompasses any such training given aboard any of NCL’s vessels in its entire fleet, and as such is irrelevant, overbroad, and unduly burdensome. Additionally, the request encompasses any such training given to any and all crewmember(s), and as such is irrelevant, overbroad, and unduly burdensome.

Pursuant to the parties’ 7.1 conference, NCL has agreed to produce responsive documents as to the subject vessel only (the Norwegian Pearl), but not fleetwide. Just like NCL’s policies and procedures, however, NCL’s training and/or education materials are disseminated from NCL’s headquarters in Miami, and they are applicable fleetwide.

In the event that some materials apply only to certain vessels, then the Plaintiff submits that those documents would still be relevant. If, for instance, the training and/or education concerning sexual harassment was more thorough in other vessels (e.g., because those vessels had a high amount of sexual harassment allegations), then the Plaintiff would argue that it is evidence of negligence that NCL did not conduct the same thorough training and/or education to all vessels – including the Norwegian Pearl.

Further, NCL has not offered any evidence to support any alleged burden and, thus, such claim should be considered meritless pursuant to Henderson, supra.

Request No. 59

Plaintiff’s Request:

Any and all documents referencing or memorializing ship safety meetings which, in any way, refer to the following for three years prior to the date of the incident alleged in the Complaint: sexual assaults and/or harassment aboard Defendant’s ships.

NCL’s Response:

Objection – vague, not sufficiently limited in scope, unduly burdensome, and overbroad. Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655,

666 (D. Kan. 1999) (citing Mackey v. IBP, Inc., 167 F.R.D. 186, 197 (D. Kan. 1996)). See Berry v. Haynes, 41 F.R.D. 243, 244 (S.D. Fla. 1966); Wood v. Todd Shipyards, 45 F.R.D. 363, 364 (S.D. Tex. 1968); Hickman v. Taylor, 329 U.S. 495, 507 (1947). Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). The term “ship safety meetings” is vague as used, making NCL unclear as to what documents are responsive, if any. Additionally, this request potentially encompasses any documents pertaining to such from any vessel in NCL’s entire fleet, and thus is not sufficiently limited in scope, unduly burdensome, and overbroad.

NCL’s documents referencing or memorializing the issue of sexual assaults and/or sexual harassments in meetings are clearly relevant to the Plaintiff’s incident. If, for instance, NCL had a meeting wherein it discussed the issue of sexual assaults and/or sexual harassments by crewmembers, the adequacy and/or enforcement of NCL’s policies and procedures concerning sexual assaults and/or sexual harassments, and/or actions disciplining crewmembers, then those records would be relevant to the Plaintiff’s claims.

As for any alleged burden, NCL again fails to offer any evidence and, thus, such claim should be considered meritless pursuant to Henderson, supra.

Request No. 66

Plaintiff’s Request:

Prior lists of claims by crewmembers of sexual assault and/or harassment occurring aboard Defendant’s ships, compiled by Defendant and produced in the course and scope of discovery in other lawsuits.

NCL’s Response:

Objection – not sufficiently limited in time and scope, overbroad, irrelevant, and unduly burdensome. See Berry v. Haynes, 41 F.R.D. 243, 244 (S.D. Fla. 1966); Wood v. Todd Shipyards, 45 F.R.D. 363, 364 (S.D. Tex. 1968); Hickman v. Taylor,

329 U.S. 495, 507 (1947). Audiotext Communications v. U.S. Telecom, Inc., 1995 U.S. Dist. LEXIS 545, No. Civ. A. 94-2395-GTV, 1995 WL 18759, at *1 (D. Kan. Jan. 17, 1995). This request is completely unlimited in time, and not sufficiently limited in scope in that it potentially encompasses differently kinds of sexual harassment and assault, passenger on passenger incidents, and passenger on crew incidents. Additionally, the request is irrelevant, overly burdensome, and overbroad for these reasons.

Similar to Interrogatory No. 20, this request is directed at establishing NCL’s notice of (1) the prevalence of sexual assaults and/or sexual harassments committed by crewmembers aboard NCL’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. 20.

Request No. 68

Plaintiff’s Request:

Any and all incident reports for incidents of sexual assault occurring aboard Defendant’s ships, fleetwide, within three years prior to the subject incident (personal information, such as social security numbers, may be redacted).

NCL’s Response:

Objection – work product privilege. See Hickman v. Taylor, 329 U.S. 495 (1947); Nadler v. U.S. Dept. of Justice, 955 F.2d 1479 (11th Cir. 1992); Hines v. Widnall,

183 F.R.D. 596 (N.D. Fla. 1998). Such incident reports are protected by the work product privilege in that they are prepared in anticipation of litigation. Additionally, NCL objects as the request is unduly burdensome, overbroad, and not sufficiently limited in scope, as the request encompasses such reports for all vessels in NCL’s entire fleet for a period of three years. A privilege log will be created once the request is sufficiently narrowed. Additionally, this request is overbroad as reports regarding passenger claims could conceivably be responsive.

NCL therefore claims that the incident reports are protected under the work product doctrine (without a privilege log). 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 Supreme 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 U.S. v. Davis, 636 F.2d 1028 (5th Cir. 1981)).

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.”)).

Based on the foregoing, the incident reports prepared by NCL do not qualify under the work product doctrine. The incident reports are routinely prepared as a matter of course following any incident. As such, NCL’s routine investigation does not qualify as being “in anticipation of litigation” and is not sufficient to invoke the work product doctrine. Moreover, the incident reports do not seek the disclosure of attorneys’ mental impressions, opinions or legal theories concerning the specific litigation after the claim has arisen. Rather, they likely contain a recording of objective facts, such as the circumstances of the incident and the remedial response thereto, which are not protected under the work product doctrine.

WHEREFORE, the Plaintiff respectfully requests this Honorable Court enter an order compelling NCL to provide better responses to Plaintiff’s initial discovery 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)

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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 2, 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

[1] A Clerk’s Default was entered against M.N. on May 4, 2015 [D.E. 50].

[2] Pursuant to the parties’ 7.1 conference, NCL agreed to provide supplemental responses to the following requests by July 7, 2015: Interrogatories: 11(d); 12 (to refer to the corresponding requests for production); 15 (limited to crewmembers with the first name Carly (any spelling)); 17 (limited to the security officers, heads, etc., excluded subsection d,); 18 (excluded subsection d); 19 (“warnings” defined as training materials for crewmembers related to sexual harassment, sexual assault, and interaction with other crewmembers limited to sexually inappropriate behavior); 20 (limited to the subject vessel and allegations where a crewmember was the aggressor); 21-24. Requests for Production: 10 (limited to the photo lab); 12(c); 14; 15 (limited to contracts, disciplinary actions and background/criminal checks); 18; 19 (limited to the actual application form, without attachments); 20; 21 (limited to sexual harassment, sexual assault and interaction/management as it relates to appropriate vs. inappropriate behavior); 22; 23 (limited to 3 years before the incident); 28 (prices to be redacted); 29 (prices to be redacted); 31-37; 41; 43-45; 53-54 (“warnings” defined as training materials for crewmembers related to sexual harassment, sexual assault, and interaction with other crewmembers limited to sexually inappropriate behavior); 55 (appropriate vs. inappropriate behavior); 56 (limited to the subject vessel); 57 (limited to the security officers, heads, etc. and at least one document showing the names); 58 (limited to at least one document showing the agreed upon individual’s names, not “any and all” documents showing these crewmembers’ names); 63 (limited to 3 years before the incident); 64 (limited to 3 years before the incident); 69 (limited to allegations where a crewmember was the aggressor).

[3] On June 12, 2015, the Plaintiff moved for an extension of time until July 6, 2015 to compel better responses to Plaintiff’s Initial Interrogatories [D.E. 54], and this Honorable Court granted the motion on June 24, 2015 [D.E. 56].

[4] The remainder of NCL’s objection based on the number of interrogatories being exceeded is not at issue.

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