Singh v. Caribbean Airlines Limited

Filing 25

ORDER Following Informal Discovery Hearing held on June 28, 2013, re 23 Notice of Hearing by Attorney filed by Rovin Singh. Signed by Magistrate Judge Andrea M. Simonton on 7/8/2013. (AMS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-20639-CIV-ALTONAGA/SIMONTON

ROVIN SINGH,
Plaintiff,
v.
CARIBBEAN AIRLINES LTD.,
Defendant.
/
ORDER FOLLOWING INFORMAL DISCOVERY HEARING
This matter was before the undersigned Magistrate Judge upon the Plaintiff’s
Notice of Hearing (DE # 23) related to discovery disputes between the Parties. Discovery
is referred to the undersigned by the Honorable Cecilia M. Altonaga, the District Judge
assigned to the case (DE # 13). A hearing on the discovery disputes was held on June
28, 2013 wherein the undersigned orally ruled on those disputes. This Order
incorporates the oral rulings made by the undersigned on the record at that hearing.
I.

BACKGROUND

This matter was initiated when Plaintiff Rovin Singh (“Singh”) filed a three-count
Complaint in the Circuit Court of the Eleventh Judicial Circuit, In and For Miami-Dade
County related to an incident that occurred aboard a flight operated by Defendant
Caribbean Airlines, Ltd. (“Caribbean”) (DE # 1). Specifically, the Plaintiff alleges that
while Mr. Singh and his sister were passengers aboard a flight between Trinidad and
Miami, Florida, operated by Caribbean, Mr. Singh suffered a severe stroke. According to
the Complaint, despite being notified by Mr. Singh’s sister that Mr. Singh was
experiencing a stroke, the Caribbean in-flight crew did little or nothing to assist Mr.
Singh. In addition, the Plaintiff alleges that proper medical equipment was absent from

the aircraft, and further contends that after being notified of Mr. Singh’s condition, the
flight crew failed to make an emergency landing and instead continued to fly for more
than three hours to Miami. The Plaintiff alleges that Caribbean failed to comply with all
federal aviation regulations thereby causing an accident as defined by the Montreal
Convention, Article 17 (Count I), was negligent in its conduct (Count II), and breached its
contract to Mr. Singh to provide the highest degree of care to prevent injury (Count III).
Plaintiff seeks damages for pain and suffering, loss of enjoyment of life, reduction of life
expectancy, mental anguish, expenses for care and treatment, loss of earning in the past
and loss of ability to earn money.
After removing the action from Circuit Court to this Court, the Defendant filed an
Answer and Affirmative Defenses wherein, among other things, the Defendant contends
that pursuant to Article 17 of the Montreal Convention, Caribbean is not liable to the
Plaintiff unless the alleged damage was caused by an “accident.” (DE # 7 at 5).
II.

DISCOVERY DISPUTES
Issue No. 1
Existence of Responsive Electronically Stored Information

The Notice of Hearing filed by the Plaintiff states that the Parties dispute whether
the Defendant properly disclosed the existence of responsive electronically stored
information (“ESI”) in its discovery responses and Rule 26 Disclosures.
At the hearing, the Counsel for the Plaintiff explained that Plaintiff is seeking to
have the Defendant produce any ESI in its native format and contends that despite the
fact that it appears that some of the responsive materials, e.g. emails, produced by the
Defendants are normally kept in an electronic format, the Defendants have failed to
produce those materials in that format, which is the manner in which it is ordinarily

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maintained, as required by Fed. R. Civ. P. 34 (b) (2)(E).
After hearing argument from both Parties, the undersigned ordered the Defendant
to produce in native format, rather than hard copy format, the electronically stored
information at issue. To that end, the undersigned ordered that, on or before July 12,
2013, the Parties shall confer with each other and their respective computer experts to
determine the form in which emails and/or other electronically stored information will be
produced. This conferral will also clarify the way in which information is stored by the
Defendant.
Issue No. 2
Responses to RFP’s Stating “Subject to and Without Waiving”
According to the Notice of Hearing, the Parties dispute whether the Defendant
properly raised objections to Plaintiff’s Requests for Production Nos. 3, 6-10, 25, 26, 30
and 33. Specifically, the Plaintiff contended that because in its Responses to the
Requests for Production, the Defendant objected and included language that states
documents are being produced “subject to and without waiving” the objections, that
those objections are formulaic and should be stricken. In addition, the Plaintiff requested
that the Court deem the Defendant’s objections to be waived based upon the inclusion of
that language.
At the hearing, the undersigned noted that generally it is improper to object to a
discovery response and include the language “subject to and without waiving” because it
does not clearly explain whether the discovery response is being fully responded to or if
certain information and/or documents are being withheld based upon the objection.
Accordingly, the undersigned ruled that the “subject to an without waiving” language
would be stricken from all of the Defendant’s responses containing that language.

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However, the undersigned concluded that deeming all of the Defendant’s objections as
waived was not warranted in this matter. Therefore, the undersigned directed the
Defendant to amend the responses at issue to reflect whether all responsive documents
have been produced, and to state what had not been produced if certain documents were
withheld on the basis of a particular objection. To the extent that the Defendant seeks to
clarify that it does not admit certain of the Plaintiff’s contentions contained within a
request, it may do so in its answer.
After the Court stated its conclusions on this issue, the Defendant represented
that all responsive documents to Request for Production No. 3 had been produced.
Accordingly, on or before July 12, 2013, the Defendant shall amend its answer to Request
for Production No. 3 to reflect that all documents have been produced, and shall amend
the other Requests for Production at issue, accordingly.
Issue No. 3- Request for Production No. 1
The Notice of Hearing stated that the Parties disputed whether Plaintiff’s Request
for Production No. 1 was sufficiently specific for the Defendant to formulate a response.
Plaintiff’s Request for Production No. 1 sought all documents, other than pleadings,
exchanged between plaintiff and defendant.
At the hearing, the Defendant stated that there are no responsive documents as to
Request for Production No. 1. The undersigned therefore directed the Defendant to, on or
before July 12, 2013, amend its answer to state that there are no documents responsive
to this Request.
Issue No. 4-Document Retention Policies
Request for Production Nos. 6 & 7
The Notice of Hearing indicated that the Parties disputed whether the Defendant

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should have to produce its complete document retention policy and information
technology policy manuals in response to the Plaintiff’s Request for Production Nos. 6
and 7. In its Responses, although the Defendant objected to the Requests as being
overbroad, the Defendant produced a number of responsive documents.
At the hearing, the Defendant stated that it has multiple document retention
policies and argued that the Requests were therefore overbroad because they sought
information about document retention policies that were irrelevant to this action,
including, for example, the retention policies for tax related documents. The Defendant
stated, however, that it has already produced retention policies related to maintaining
electronic data and flight information. In addition, the Defendant explained that the flight
manual is constantly being updated, and thus it is difficult to reconstruct the exact
manual that was in place at the time of the incident.
Based upon the Defendant’s representations at the hearing, the undersigned
ordered that on or before July 12, 2013, the Defendant shall produce any retention
policies related to documents that the Plaintiff has sought in discovery, but does not
have to produce the retention policies for irrelevant documents, including policies
pertaining to tax documents. In addition, the Court directed that on or before July 12,
2013, the Defendant must produce the entire current flight manual to the Plaintiff. If, after
reviewing the manual, the Plaintiff wants particular information related to a specific topic
in the manual for the time that the incident occurred, the Defendant will then locate and
produce only that page and/or topic from the manual that was in place at the time of the
incident at issue. Finally, if there are issues relating to policies regarding the retention of
electronically stored information, the parties shall confer in an attempt to resolve those
issues at the previously described conference with their computer experts.
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Issue Nos. 5 & 6
Request for Production Nos. 8, 12 and 14
The Notice of Hearing stated that the Parties disagree as to whether the Defendant
should have to provide better responses to Plaintiff’s Requests for Production Nos. 8, 12,
and 14. Generally, in those Requests, the Plaintiff sought documents that reflected the
Defendant’s compliance with certain regulations, e.g. Code of Federal Regulations and
Federal Aviation Administration (“FAA”) regulations. The Defendant generally objected to
these Requests asserting that Caribbean Airlines is not required to comply with the
regulations cited to by the Plaintiff.
At the hearing, as to Request for Production No. 8, which sought production of
documents related to crewmember training programs required under the Code of Federal
Regulations, the Defendant confirmed, as stated in its Response, that no documents
existed that were responsive to that Request. The undersigned therefore directed the
Defendant to on or before July 12, 2013, amend its response to state that no such
documents existed.
As to Request for Production No. 12, which sought documents demonstrating the
training that the crewmembers received for in-flight medical events, at the hearing, the
Plaintiff clarified that Request No. 12 was not limited to training required by the Code of
Federal Regulations or the FAA, but sought any such training documents. The Defendant
stated that it had produced the training manual but had not produced other responsive
documents. The undersigned therefore ordered the Defendant to produce all documents
that reflect training received by the crew of the flight at issue. Defendant shall produce
such documents by July 26, 2013.
As to Request for Production No. 14, which requested a copy of the FAA Airmen’s

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Certificate for the flight crew on the flight at issue, at the hearing, the Defendant stated
that the flight crew did not have a certificate from the FAA, but stated that the crew might
possess other similar certificates. Defense counsel stated that if the Plaintiff wanted
other certificates, the request should be put in writing, and the Defendant would then
respond. The undersigned therefore ordered the Plaintiff to email a request to
Defendant’s Counsel for any airline certificate possessed by the pilot or co-pilot of the
flight at issue. The undersigned further ordered the Defendant to provide an expedited
response to the request within 7 days from the date of the request or by July 12, 2013,
whichever is later.
Issue No. 7
Request for Production No. 23
The Notice of Hearing stated that the Parties disagreed as to whether the
Defendant should have to produce the current flight schedules of the pilots and crew on
board the flight at issue. The Defendant objected to this Request as seeking documents
beyond the scope of what is relevant to any party’s claim or defense.
At the hearing, the Plaintiff explained that it sought to take the depositions of six
employees of the Defendant who were frequently in Miami while working various flights.
In response, the Defendant represented that all of the witnesses are in Trinidad, and that
the flight attendants at issue typically are on turn-around flights which pose particular
difficulties in having those crew members deposed in Miami. Specifically, Counsel for
the Defendant explained that when the flight attendants are on a turn-around flight, it is
extremely difficult to remove them from the return flight crew and replace them with
another crew member so that the witness may be deposed in Miami.
The undersigned directed the Defendant to, on or before July 12, 2013, produce the

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flight schedules for crew members in effect for the next month to facilitate the scheduling
and location of depositions.
Issue No. 8
Requests for Production Nos. 25 and 30
The Notice of Hearing reflected that the Parties disputed whether the Defendant
should have to produce documents responsive to the Plaintiff’s Request for Production
No. 25, which requested documents regarding ownership of Caribbean Airlines.
Similarly, the Parties disputed whether the Defendant had to produce documents
responsive to the Plaintiff’s Request for Production No. 30, which sought the personnel
files for each crew member and pilots aboard the flight at issue.
As to Request No. 25, the Defendant initially objected to the Request as not being
sufficiently particularized as described in the Discovery Practices Handbook. At the
hearing, the Defendant explained that certain documents reflecting ownership of
Caribbean, including annual reports, had been produced, and asserted that the airline is
owned by the governments of Trinidad and Jamaica. The Defendant did indicate,
however, that additional documents demonstrating ownership might exist.
Accordingly, the undersigned ordered the Defendant to produce by July 26, 2013,
any additional documents that reflect ownership of the airline, if they exist.
As to Request No. 30, the Defendant objected to this Request as being beyond the
scope of any party’s claim or defense, but nevertheless produced approximately 245
responsive documents. At the hearing, Counsel for the Defendant represented that all
responsive documents had been produced. The dispute therefore was deemed moot.
Issue No. 9
Requests for Production No. 34
In the Notice of Hearing, the Plaintiff stated that the Defendant had failed to
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provide documents responsive to Request for Production No. 34, which sought contracts
between the Defendant and medical companies, e.g. Medlink, Med Aire. At the hearing,
the Parties confirmed that the requested documents had been produced, thus the issue
was moot.
Issue No. 10
Interrogatory No. 2(c)
The Notice of Hearing indicated that the Parties disputed whether the Defendant
should fully respond to Plaintiff’s Interrogatory No. 2 (c). Interrogatory No. 2 sought
information regarding the Defendant’s contention that the incident on the flight at issue
was not an “unusual and unexpected event” for the purposes of the Montreal Convention,
and section (c) of that Interrogatory sought all statutes and legal precedents that
supported this contention.
The Defendant objected to this Interrogatory as seeking work product and
attorney-client protected information. In addition, the Defendant contended that the
interrogatory was premature because the investigation was continuing. At the hearing,
the Defendant contended that this contention was raised as part of the Defendant’s
Affirmative Defenses and thus was predicated upon a legal argument rather than the facts
of this case, at this point in the litigation.
At the hearing, after hearing from both Parties, the undersigned denied the
Plaintiff’s request that the Defendant be required to answer section (c) of Interrogatory
No. 2, because that section sought only legal authority, and thus was not appropriate for
answer by way of interrogatory. The caselaw and statutes upon which the Defendant will
rely will be cited in the relevant legal memoranda filed by defense counsel at the proper
time. It is not appropriate to require defense counsel to conduct legal research and

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provide the results of that research to the Plaintiff in the form of an interrogatory answer.
This request goes well beyond the scope of a permissible contention interrogatory.
Issue No. 11
Interrogatory No. 15
Prior to the commencement of the informal discovery hearing, the Parties
represented that this dispute had been resolved, and was therefore moot.
Issue No. 12
Interrogatory No. 16
The Notice of Hearing indicated that the Parties disputed whether the Defendant
should have to provide information regarding the flight schedules of witnesses in this
case as requested by Plaintiff’s Interrogatory No. 16.
At the hearing, the Parties agreed that the dispute was resolved by the Court’s
ruling on Request for Production No. 23, as set forth above in this Order.
Scheduling Depositions
Although not listed in the Notice of Hearing, the Parties indicated that they had a
dispute regarding the scheduling of depositions of the Plaintiff and the Plaintiff’s sister.
Specifically, although the Defendant has set the deposition for Mr. Singh’s sister on July
30, 2013, the Plaintiff has not confirmed the location, and also has not provided
information regarding whether the Plaintiff, Mr. Singh, is medically well enough to be
deposed at this time.
Without objection by the Plaintiff, the undersigned therefore directed the Plaintiff
to, on or before July 8, 2013, confirm the location for the deposition of Mr. Singh’s sister,
and to provide an update as to Mr. Singh’s condition and to state whether he is able to be
deposed. If Mr. Singh is able to be deposed, the Plaintiff shall provide dates for the
deposition to be conducted.
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III.

CONCLUSION

Accordingly, based upon the foregoing, it is
ORDERED AND ADJUDGED the Defendant shall provide supplemental
responses and/or produce documents responsive to the Plaintiff’s discovery requests
consistent with the foregoing, by the dates specified above, and as stated on the record
at the informal discovery hearing. It is further
ORDERED AND ADJUDGED that, on or before July 8, 2013, the Plaintiff shall
provide/confirm information for the depositions of the Plaintiff and the Plaintiff’s sister,
as set forth above in this Order.
DONE AND ORDERED in chambers in Miami, Florida on July 8, 2013.

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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