Belik v. Carlson Travel Group, Inc
Filing
88
ORDER granting 69 Plaintiff's Motion to Compel Interrogatory Response; and granting, in part, 68 Plaintiff's Motion to Compel Production. Signed by Magistrate Judge Andrea M. Simonton on 10/17/2011. (mmn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-21136-CIV ALTONAGA/SIMONTON
MICHAEL BELIK,
Plaintiff,
v.
CARLSON TRAVEL GROUP, INC.,
et al.,
Defendants.
/
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL INTERROGATORY RESPONSE,
AND GRANTING, IN PART, PLAINTIFF’S MOTION TO COMPEL PRODUCTION
This matter came before the Court upon Plaintiff’s Motion to Compel Production
of Documents Over Objections from Carnival Corporation (DE # 68) and Plaintiff’s Motion
to Compel Interrogatory Answers Over Objections from Carnival Corporation d/b/a
Carnival Cruise Lines (DE # 69). Defendant Carnival Corporation (“Carnival”) has filed
Responses to both Motions (DE ## 76, 77), and Plaintiff has replied (DE ## 79, 80). The
Honorable Cecilia M. Altonaga has referred all discovery motions in this case to the
undersigned Magistrate Judge (DE # 24). On October 12, 2011, the undersigned held a
hearing on Plaintiff’s Motions (DE # 84). The undersigned ruled on Plaintiff’s Motions at
the hearing, stating the reasons for the rulings on the record. This Order sets forth these
rulings and incorporates by reference the reasons for them stated at the hearing. As
stated at the hearing, Plaintiff’s Motion to Compel Production of Documents is granted,
in part, and Plaintiff’s Motion to Compel Interrogatory Answers is granted.
In this case, Plaintiff seeks damages from several Defendants due to bodily
injuries suffered when he entered the water off of a seawall at the Senor Frog’s bar and
restaurant located on the international pier in Cozumel, Mexico, during a call at Cozumel
while on a Carnival cruise (DE # 1). Plaintiff alleges various theories of negligence
against Carnival, in conjunction with theories of agency that would make Carnival liable
for Plaintiff’s accident at Senor Frog’s.
The undersigned stated at the hearing that Plaintiff is generally entitled to
discovery relating to other injuries that have occurred on the international pier in
Cozumel, and documents that may show Carnival’s control over the pier, in general; any
agency relationship between Carnival and Defendant Carlson Travel Group, Inc., d/b/a
SinglesCruise.com (“SinglesCruise”); and knowledge of dangerous activities at Senor
Frog’s, or with respect to the waters in which Plaintiff was injured. In his discovery
requests, Plaintiff seeks, inter alia, information concerning other accidents of Carnival
passengers that occurred at the subject Senor Frog’s. Specifically, with respect to
Plaintiff’s Motion to Compel Interrogatory Answers, Plaintiff seeks, through Item # 7 of
Plaintiff’s Initial Interrogatories, the contact information for a Carnival passenger who
reported having fallen on stairs inside this Senor Frog’s. Carnival argues that this
passenger’s injuries are dissimilar to those of Plaintiff and, therefore, not subject to
discovery (DE # 77 at 3). Plaintiff contends that this passenger may have other relevant
information regarding Carnival’s knowledge of dangerous activities occurring at Senor
Frog’s. Carnival’s argument raises a potential argument for trial admissibility, which
does not preclude discovery of relevant facts. Therefore, for the reasons stated at the
hearing, Plaintiff’s Motion to Compel Interrogatory Answers is granted. Carnival shall
respond to Item # 7 of Plaintiff’s Initial Interrogatories on or before October 27, 2011.
With respect to Plaintiff’s Motion to Compel Production of Documents, the
undersigned ruled on the following items as numbered in Plaintiff’s Initial Requests for
Production (“RFP”), ordering production of the documents described below by Carnival
on or before October 27, 2011:
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RFP Item # 8
Plaintiff seeks to compel production of certain documents concerning the
relationship between Carnival and the authority that manages the cruise port of Cozumel.
For the reasons stated at the hearing, with respect to this Item, Plaintiff’s Motion is
granted to the extent that it calls for the production of contracts or agreements (and their
related addenda) regarding the pier on which the subject Senor Frog’s is located that
were in effect at the time of the subject accident. Any financial information in such
documents shall be held confidential and not used except in this case. If a party finds it
necessary to reference these documents in a subsequent filing, that party shall redact
financial information or file the documents containing the financial information in a
separate filing under seal.
RFP Item # 9
Plaintiff seeks to compel production of certain documents evidencing any
investigation by Carnival of SinglesCruise. These documents are relevant to the issue of
whether an agency relationship exists between these Defendants and whether Carnival
knew of dangers to which SinglesCruise exposed passengers. Moreover, Carnival has
made no showing of any burden in producing these documents. Therefore, for the
reasons stated at the hearing, with respect to this Item, Plaintiff’s Motion is granted.
RFP Item # 10
Plaintiff seeks to compel production of documents comparable to those called for
in Item # 9 above, but with respect to any investigation performed by Carnival of the
Cozumel cruise port. For the reasons stated at the hearing, with respect to this Item,
Plaintiff’s Motion is granted, in part. Carnival shall produce documents with respect to
Item # 10 limited to any investigation Carnival performed relating to passenger safety or
recreational activities on the Cozumel port property.
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RFP Item # 13
Plaintiff seeks to compel production of documents relating to agreements or
contracts in effect between Carnival and the authority that manages the Cozumel cruise
port that were in effect at the time of the incident at issue. The parties agreed at the
hearing that the ruling above concerning Item # 8 should applied to Item # 13 as well.
Therefore, the undersigned’s ruling with respect to Item # 8 shall be applied this Item.
RFP Items # 33, 34 and 35
These three Items were addressed together at the hearing. They call for accident
reports and related documents regarding accidents at the subject Senor Frog’s for the
five years before the incident at issue (Item # 33); more broadly, any data from any
Carnival database regarding certain unsafe or dangerous activities at the subject Senor
Frog’s for the same time period (Item # 34); and documents similar to Item # 34, but for
any incidents occurring after the accident (Item # 35). For the reasons stated at the
hearing, with respect to each of these Items, Plaintiff’s Motion is granted. If Carnival
seeks to claim privilege with respect to any of these materials, it shall provide a privilege
log. If Carnival’s privilege claims relate to reports that are not a part of Plaintiff’s action,
Carnival shall provide the legal basis for broadening privilege protections to include
such reports.
RFP Item # 38
The parties indicated at the hearing that the dispute with regard to this Item was
resolved prior to the hearing.
RFP Item # 39
Plaintiff seeks to compel production of the purser’s logs for the five years before
the incident at issue for vessels that have called at Cozumel. For the reasons stated at
the hearing, with respect to this Item, Plaintiff’s Motion is granted, in part. Production of
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documents shall be limited to complaints about the subject pier, and shall be limited to
the three years prior to the incident at issue.
RFP Item # 41
Plaintiff seeks to compel production of certain materials relating to Carnival’s
investigation of conditions at the cruise port of Cozumel. The parties conferred during
the hearing and agreed that the undersigned’s ruling with respect to Item # 10 addresses
their dispute with regard to this Item. Therefore, the undersigned’s ruling with respect to
Item # 10 shall apply to this Item.
RFP Item # 42
This Item calls for documents regarding financial and related account
transactions between Carnival and SinglesCruise resulting from SinglesCruise’s guests’
travel with Carnival for the five years prior to the incident at issue. Plaintiff is entitled to
explore the financial relationship between Carnival and SinglesCruise. Therefore, for the
reasons stated at the hearing, with respect to this Item, Plaintiff’s Motion is granted, in
part. The documents shall be limited to those from 2009 and 2010, up to the time of the
incident at issue. Carnival shall provide documents that reflect revenues received, the
reasons for such receipt, when revenues were received, and the number of passengers
related to such transactions. Carnival shall provide documents reflecting this
information, in the form in which Carnival maintains such information, but Carnival need
not provide duplicative information.
RFP Item # 43
Plaintiff seeks to compel production of memoranda and other communications
among Carnival and its employees regarding (a) passenger visits to Senor Frog’s, (b)
Cozumel safety, and (c) issues relating to excessive drinking of passengers, generally, at
any port. For the reasons stated at the hearing, with respect to this Item, Plaintiff’s
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Motion is granted, in part. First, Carnival’s production shall be limited to the three years
preceding the incident at issue, and to requested materials that were generally
distributed to Carnival employees or subsets of Carnival employees, as opposed to
specific emails between or among certain employees. With respect to (a), Carnival shall
produce the requested documents as they relate to activities of Carnival passengers at
the subject Senor Frog’s in Cozumel. With respect to (b), production shall be limited to
those relating to port safety, as opposed to the broader category of Cozumel safety.
With respect to (c), the undersigned finds that, to the extent that the request calls for
such documents that relate to excessive drinking, generally, the request is overbroad,
and shall be limited to excessive drinking in relation to Cozumel or to ships that dock at
Cozumel.
RFP Item # 44
The parties indicated at the hearing that the dispute with regard to this Item was
resolved prior to the hearing.
RFP Item # 48
The parties indicated at the hearing that the dispute with regard to this Item was
resolved prior to the hearing.
RFP Item # 49
Plaintiff seeks to compel production of certain records relating to Carnival
passenger comments or complaints for the five years prior to the incident that reference
Cozumel, the subject Senor Frog’s or SinglesCruise. For the reasons stated at the
hearing, with respect to this Item, Plaintiff’s Motion is granted, in part. The production of
documents shall be limited to three years prior to the subject incident, and shall be
further limited to those concerning accidents or injuries (a) that occurred on the
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international pier property or adjacent waters, or (b) that occurred at the subject Senor
Frog’s, or (c) to SinglesCruise passengers in Cozumel.
RFP Item # 50
With regard to this Item, which seeks documentation of action Carnival took to
verify Cozumel port safety, the parties agreed at the hearing that their dispute was
resolved by the undersigned’s ruling with respect to Item # 10. Therefore, the
undersigned’s ruling with respect to Item # 10 shall apply to this Item.
RFP Item # 51
Plaintiff seeks to compel production of documents distributed to passengers
regarding ports of call, available at any time on any ship. For the reasons stated at the
hearing, with respect to this Item, Plaintiff’s Motion is granted, in part. Carnival shall
produce any of the requested documents that reference the port of Cozumel, for three
years prior to the subject incident. With respect to website pages, however, production
shall be limited to one year prior to the subject incident.
RFP Item # 53
Similar to Item # 42, this request calls for account documents regarding
transferred funds between Carnival and any SinglesCruise-related Defendant concerning
booked trips on Carnival for the three years prior to the subject incident. The parties
agreed at the hearing that the undersigned’s ruling with respect to Item # 42 should
apply. Therefore, the undersigned’s ruling with respect to Item # 42 shall apply to this
Item.
RFP Item # 55
Plaintiff seeks to compel production of certain materials concerning passenger
complaints or comments about the subject Senor Frog’s for the five years prior to the
subject incident. The undersigned notes that this request is generally overbroad. In
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addition, the purser’s records, to be produced pursuant to Item # 39, will provide
responsive documents. To the extent, however, that the customer service division of
Carnival has an email system organized in such a way that a search of customer service
messages with regard to this request could be reasonably executed, Carnival shall
perform such a search, but it shall be limited to accidents or injuries regarding the
subject Senor Frog’s. If emails, however, are part of the purser’s records produced as
noted above, this search shall not be required, and the documents will be considered
produced. Finally, if reports have been generated based on complaints or comments as
limited herein, such reports shall be produced. Therefore, for these reasons and others
stated at the hearing, with respect to this Item, Plaintiff’s Motion is granted, in part.
RFP Item # 56
With regard to this request, which concerns Guest Comment Forms or Passenger
Comment Forms, the parties indicated at the hearing that they have resolved their
dispute.
RFP Item # 60
This request calls for studies by Carnival as to whether to call or continue to call
at Cozumel. The parties agreed at the hearing that the undersigned’s ruling with respect
to Item # 10 should apply. Therefore, the undersigned’s ruling with respect to Item # 10
shall apply to this Item.
RFP Item # 65
Plaintiff seeks to compel production of copies of certain Carnival web pages that
reference Cozumel for the five years before the subject incident. For the reasons stated
at the hearing, with respect to this Item, production shall be limited to the three years
prior to the subject incident. If Carnival finds that production of responsive documents
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is unduly burdensome, it shall confer with Plaintiff regarding the scope of this Item, and
then seek relief from the Court, if necessary.
RFP Item # 67
This request calls for Carnival newsletters for the five years prior to the subject
incident. The parties indicated at the hearing, however, that they had resolved their
dispute with regard to this Item.
Therefore, upon a review of the record as a whole, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Compel Production of
Documents Over Objections from Carnival Corporation (DE # 68) is GRANTED, IN
PART, AND DENIED, IN PART, as detailed in the body of this Order. It is further
ORDERED AND ADJUDGED that Plaintiff’s Motion to Compel Interrogatory
Answers Over Objections from Carnival Corporation d/b/a Carnival Cruise Lines (DE #
69) is GRANTED, as detailed in the body of this Order.
DONE AND ORDERED in Miami, Florida, on October 17, 2011.
______________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
The Honorable Cecilia M. Altonaga,
U.S. District Judge
Counsel of Record
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