Street v. Royal Caribbean Cruises LTD., a Liberian Corporation

Filing 69

ORDER on Informal Discovery Conference, following the discovery conference held on Tuesday, October 4, 2011. Signed by Magistrate Judge Andrea M. Simonton on 10/7/2011. (mmn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23368-CIV-SEITZ/SIMONTON
BRENDA STREET,
Plaintiff,
v.
ROYAL CARIBBEAN CRUISES,
LTD.,
Defendant.
/
ORDER ON INFORMAL DISCOVERY CONFERENCE
This matter came before the Court on an informal discovery conference held
before the undersigned on October 4, 2011 (DE # 67). The Honorable Patricia A. Seitz has
referred all discovery in this case to the undersigned Magistrate Judge (DE ## 20, 35).
Plaintiff seeks to compel production of documents identified in Plaintiff’s Third Request
for Production (DE # 65). Accordingly, the undersigned heard argument with regard to
Plaintiff’s bases for compelling production and Defendant’s objections to certain
requests. The undersigned ruled on these matters at the conference, stating the reasons
for the rulings on the record. This Order sets forth these rulings, summarizes the
reasons for them stated at the conference, and incorporates by reference such reasons.
With regard to Item No. 1 of Plaintiff’s Third Request for Production, Plaintiff
seeks certain maintenance and inspection records relating to the automatic door system
where the alleged accident occurred for the time period since the filing of this lawsuit to
the present. Plaintiff identified at the discovery conference the specific time period of
April 2011 to the present. For the reasons stated at the discovery conference, the
undersigned granted Plaintiff’s motion to compel with respect to these documents.
Specifically, Defendant shall produce by Friday, October 14, 2011, the identified
documents relating to the time period from April 2011 to the present.

Item No. 3 of Plaintiff’s Third Request for Production seeks certain records of
payments for repair or maintenance of the subject automatic doors since filing of the
lawsuit. Defendant, however, stated at the discovery conference that no such records
exist. Accordingly, Defendant shall provide a supplemental answer with this declaration
or include this statement as part of the declaration described below. If, on the other
hand, Defendant identifies documents responsive to this request, it shall produce them
on or before Friday, October 14, 2011.
With regard to Item No. 5 of Plaintiff’s Third Request for Production, which seeks
certain documents relating to issues of “any automatic door on any ship owned or
operated by [Defendant]” improperly closing on an individual, in the five years prior to
the incident at bar, Plaintiff argues that responsive documents are relevant because they
go to the issue of notice to Defendant of similar problems with similar doors. Defendant
responds that each door system is different and, therefore, documents regarding issues
with doors other than those at issue in this case are irrelevant. Moreover, although
unable to provide sufficient detail at the conference, Defendant contends that production
would be unduly burdensome. After hearing from the parties, for the reasons stated at
the discovery conference, the undersigned finds that Plaintiff is entitled to discovery of
certain repair/maintenance records and injury complaints for similar doors operated
under similar circumstances. Nonetheless, while Defendant was not prepared to make a
showing of burden at the conference, the undersigned also notes that the broadest
reading of Item No. 5 could prove unduly burdensome.
Therefore, the undersigned required that the parties confer within seven days of
the conference with regard to the proper scope of this Item. Specifically, for the reasons
stated at the discovery conference, the time period shall be limited to the three years
prior to the incident at issue in this case, and the documents to be searched shall be
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limited to Defendant’s AVO and AMOS databases. Within this framework, the parties
shall limit the documents sought to vessels with automatic sliding doors that do not
have the presence sensors described by counsel. Next, the parties shall identify search
terms for searching the records of these ships using Defendant’s AVO and AMOS
databases that will return results regarding maintenance, repair, or complaints of
automatic sliding doors improperly closing on individuals.
In deciding upon search terms, the parties should weigh the possibility of
excluding some relevant results with the costs of a broader, more inclusive search. The
parties shall seek to identify all reasonably accessible fleet-wide documents that
evidence complaints by persons that doors with the same sensors at issue in this case
closed on them, as well as related maintenance or repair records. As noted above, the
documents initially sought shall be limited to the results returned from a search of the
AVO and AMOS databases. If Plaintiff seeks additional documents with respect to the
specific results returned from these searches, Plaintiff may raise this issue in
accordance with the Court’s discovery procedures at a later date, if appropriate.
If, however, after conferring, the parties cannot agree upon a search of these
databases that Defendant determines is not unduly burdensome, Defendant shall file
with the Court on or before Friday, October 14, 2011, the appropriate declaration(s)
attesting to such burden. Thereafter, the undersigned shall set the matter for hearing to
determine whether Defendant has made a sufficient showing as to burden, and whether
any costs associated with a search should be shifted to Plaintiff.
Finally, as the parties noted at the conference, Plaintiff’s alleged accident
generated a report in Defendant’s incident reports database but never generated a
database entry in either the AVO or AMOS systems. Plaintiff’s concern, therefore, that
other similar incidents might not be uncovered in a limited search of the AVO and AMOS
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systems, is well-taken. Defendant, however, stated at the discovery conference that a
search of Defendant’s incident reports database is unnecessary because incidents
similar to that at issue in this case would be uncovered in a search limited to the AVO
and AMOS databases. Defendant stated at the hearing that an AVO or AMOS database
entry is not generated only when a safety officer determines, upon review of an incident
and a subject door system, that a given door system was working properly at the time of
an incident. This argument, however, relies upon the safety officer’s determination and
fails to distinguish between defective design and defective function; injuries could have
resulted in the past from an improperly working door system or a system that was
properly working but improperly designed, and such results might not be revealed in a
search of the AVO or AMOS systems, despite being responsive to Plaintiff’s discovery
request.
Therefore, if Defendant seeks to maintain its contention that a search of its
incident reports database would not produce responsive results that are not already
returned in a search of the AVO or AMOS databases, Defendant shall explain in detail in
the declaration(s) noted above (or by separate declaration) to the satisfaction of the
Court the bases of this contention. If Defendant concedes that no AVO or AMOS report
would be generated, despite a complaint about an improper door closing, as long as the
safety officer determined that the door had not malfunctioned, then Defendant must
produce reports of such incidents, or identify them with specificity in a privilege log if
Defendant claims they are privileged.
With respect to Item Nos. 6, 7, 8 and 9 of Plaintiff’s Third Request for Production,
counsel agreed at the discovery conference that the undersigned’s ruling with respect to
Item 5 above addressed the discovery disputes between the parties with regard to these
Items as well. Therefore, the same ruling applies.
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Having heard from the parties, and for the reasons stated on the record, it is
hereby
ORDERED AND ADJUDGED that Plaintiff’s motion to compel production of
certain documents identified in Plaintiff’s Third Request for Production is GRANTED, IN
PART, AND DENIED, IN PART, as detailed in the body of this Order.
DONE AND ORDERED in Miami, Florida, on October 7, 2011.

______________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
Counsel of Record

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