Lobegeiger v. Royal Caribbean Cruises LTD et al

Filing 92

ORDER Granting, In Part, 77 Plaintiff's Motion to Compel. Signed by Magistrate Judge Andrea M. Simonton on 3/7/2012. (mmn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-21620-CIV-ALTONAGA/SIMONTON
ELISE R. LOBEGEIGER,
Plaintiff,
vs.
ROYAL CARIBBEAN CRUISES
LTD., et al.,
Defendants.
/
ORDER GRANTING, IN PART, PLAINTIFF’S MOTION TO COMPEL
Presently pending before the Court is Plaintiff’s Motion to Compel (DE # 77).
Defendants Royal Caribbean Cruises Ltd. and Celebrity Cruises Inc. (collectively, the
“Cruise Line Defendants”) have filed a Response to the Motion (DE # 81). Plaintiff has
not filed a reply. The Honorable Cecilia M. Altonaga, United States District Judge, has
referred this case to the undersigned Magistrate Judge with respect to all discovery
motions (DE # 18). For the reasons stated below, Plaintiff’s Motion is granted, in part.
I.

Background

Plaintiff brings this action for damages based upon personal injuries allegedly
suffered as a guest onboard a cruise operated by the Cruise Line Defendants.
Specifically, Plaintiff states that the tip of her finger was severed by a lounge chair
onboard the cruise ship Celebrity Mercury (DE ## 47 at 2; 77 at 4). The lounge chair was
purportedly designed, manufactured and sold to the Cruise Line Defendants by a
company whose principal is Defendant Andre Yap (DE ## 47 at 2-3).
Plaintiff’s Motion seeks to compel (a) production of the accident report of
Plaintiff’s injury prepared by the ship’s safety officer on the date of the alleged accident
and (b) a response to Plaintiff’s requests concerning the “policies, practices and

procedures relating to handling injuries, specifically those relating to evacuations to onshore hospitals” (DE # 77 at 1). Plaintiff’s Motion also sought to compel the Cruise Line
Defendants’ responses to certain requests that these Defendants have claimed are
overbroad. These Defendants, however, state in their Response that they have satisfied
these requests, and Plaintiff has not filed a reply contesting this statement. Therefore,
that portion of Plaintiff’s Motion is denied, as moot.
With regard to the accident report, the Cruise Line Defendants initially objected to
this request, claiming work product. Plaintiff asserts in her Motion that the Defendants
have failed to assert a basis for this claim (DE # 77 at 3). In Response, the affidavit of
David Banciella, the Supervisor of Guest Claims for Defendant Royal Caribbean Cruises
Ltd., contends that accident reports are prepared, as a matter of policy, in anticipation of
litigation whenever a passenger reports an accident resulting in injury (DE # 81-1 at 1).
Furthermore, the Cruise Line Defendants state these reports are prepared at the direction
and in the form prescribed by legal counsel for the Cruise Line Defendants. Thus, these
Defendants continue to refuse to produce the accident report based on a claim of work
product (DE # 81 at 2).
As noted, Plaintiff has filed no reply to refute Defendants’ policy regarding
preparation of accident reports. Moreover, other courts in this district have found such
reports to be protected by the work product doctrine. See, e.g., Alexander v. Carnival
Corp., 238 F.R.D. 318, 319 (S.D. Fla. 2006) (holding that accident report regarding slip and
fall was not discoverable where cruise line submitted affidavit from its guest claims
manager stating that it was the policy of the cruise line, upon the advice of its legal
counsel, to investigate passenger injuries and create an accident report in anticipation of
litigation); Hickman v. Carnival Corp., No. 04-20044-CIV-UNGARO (S.D. Fla. Aug. 16, 2004,
DE # 34) (holding cruise line accident report prepared on the advice of counsel to provide
claims handling information was prepared in anticipation of litigation); Iaquinto v.
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Carnival Corp., No. 05-21652-CIV-JORDAN (S.D. Fla. Nov. 18, 2006, DE # 18) (finding
cruise line had shown that the incident report, witness statements and photographs of
the subject deck were prepared in anticipation of litigation). Thus, the undersigned finds
that the accident report was created in anticipation of litigation and is, therefore,
protected by the work product doctrine.
With regard to the second component of Plaintiff’s Motion to Compel, Plaintiff has
limited a much broader request, concerning passenger complaints, to “written policies
with respect to handling injuries, specifically policies, practices, [and] procedures
relating to evacuations to onshore hospitals” (DE # 77 at 4). The Cruise Line Defendants
claim that this request, even as limited, is overbroad; for example, policies concerning
stomach viruses would be irrelevant (DE # 81 at 2-3). The undersigned agrees with
Plaintiff that the requested information is relevant because it relates to Defendants’
handling of Plaintiff’s injury, but also agrees with the Defendants that the request, even
as limited, is overbroad. The request, therefore, is limited to any of the requested
materials that would be applicable to Plaintiff’s injuries.
Therefore, upon a review of the record, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Compel (DE # 77) is
GRANTED, IN PART, as set forth in the body of this Order. Responses shall be
provided on or before Wednesday, March 14, 2012.
DONE AND ORDERED in chambers in Miami, Florida, on March 7, 2012.

_________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished via CM/ECF to:
The Honorable Cecilia M. Altonaga
United States District Judge
All counsel of record
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