Meyer v. NCL (Bahamas) Ltd.

Filing 52

ORDER Regarding Defendant's Assertion of Work Product Privilege. Signed by Ch. Magistrate Judge Andrea M. Simonton on 8/8/2017. (ms02)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23238-CIV-WILLIAMS/SIMONTON
JILLIAN MEYER,
Plaintiff,
v.
NCL (BAHAMAS), LTD.,
Defendant.
/
ORDER REGARDING DEFENDANT’S ASSERTION OF WORK PRODUCT PRIVILEGE
This matter is before the Court pursuant to the undersigned’s Order Following
Discovery Hearing that instructed the Parties submit briefing regarding the Defendant’s
assertion of the work product privilege for certain documents requested by the Plaintiff,
ECF No. [43]. The Honorable Kathleen M. Williams, United States District Judge, has
referred all discovery matters to the undersigned Magistrate Judge, ECF No. [20]. For the
reasons set forth below, the undersigned concludes that the challenged documents, with
the exception of a blank form, are protected by work product privilege, and the Defendant
is not required to disclose them.
I.

BACKGROUND

On July 27, 2016, the Plaintiff filed her Complaint, ECF No. [1]. The Complaint has a
single claim for negligence. The Plaintiff alleges that on July 25, 2015, she was a minor,
age 17, travelling onboard the Defendant’s vessel, the M/S GEM. The Plaintiff alleges that
she was attacked, raped and/or sexually assaulted by another minor passenger. The
Plaintiff alleges that the Defendant knew or should have known that minor passengers
patronizing onboard facilities would require a reasonable level of safety, security and
supervision. The Plaintiff contends that the Defendant knew or should have known that

there was a risk of crime on its ships and that a criminal attack upon the Plaintiff was
reasonably foreseeable to the Defendant. The Plaintiff asserts that as a direct and
proximate result of one or more of the negligent acts committed by the Defendant, the
rape/sexual assault and battery occurred, and the Plaintiff suffered physical, emotional,
and psychological pain. The Plaintiff alleges she has incurred medical bills and her
earning capacity has been impaired. The Plaintiff also argues that the damages are
permanent or continuing in their nature and the Plaintiff will continue to sustain and
incur compensatory damages in the future.
The Defendant has filed a Motion to Dismiss, which is pending, ECF No. [11]. The
Defendant asserts that the Complaint should be dismissed because the Plaintiff has
failed to sufficiently allege that the Defendant had actual or constructive notice of the
risk creating condition or that the complained of danger was foreseeable.
The current dispute before the undersigned concerns the Plaintiff’s request that the
Defendant provide an incident report, a blank incident report form, handwritten notes,
and witness statements pursuant to the Plaintiff’s discovery requests. The Defendant
asserts that the documents are protected by the work-product privilege.
II.

FRAMEWORK FOR ANALYSIS

Federal Rule of Civil Procedure 26(b) provides in relevant part,
3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, a party may
not discover documents and tangible things that are prepared
in anticipation of litigation or for trial by or for another party
or its representative (including the other party's attorney,
consultant, surety, indemnitor, insurer, or agent).
But, subject to Rule 26(b) (4), those materials may be
discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and

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(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.
Thus, as contemplated by this Rule, the work-product doctrine protects from
disclosure materials prepared by an attorney acting for his client in anticipation of
litigation. See Federal Rules of Civil Procedure, Advisory Committee Notes, Rule 26(b)
(3), 1970 Amendment (discussing development of work product doctrine). The work
product doctrine is distinct from and broader than the attorney-client privilege, and it
protects materials prepared by the attorney, whether or not disclosed to the client, as
well as materials prepared by agents for the attorney. In re Grand Jury Proceedings, 601
F.2d 162, 171 (5th Cir. 1979). 1
However, in order for the work product doctrine to apply, the party asserting the
doctrine must demonstrate that, at the time the documents were drafted, the drafting
entity must have anticipated litigation. CSK Transp., Inc. v. Admiral Ins. Co., 1995 WL
855421, at *2 (M.D. Fla. July 20, 1995). Thus, materials or documents drafted in the
ordinary course of business are not protected. Id.
Therefore, a court must determine when a contested document was created, and
why that document was created in assessing the applicability of the work product
doctrine. See, e.g. In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (“The ‘testing
question’ for the work-product privilege ... is ‘whether, in light of the nature of the
document and the factual situation in the particular case, the document can fairly be said
to have been prepared or obtained because of the prospect of litigation.’”).

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit
handed down prior to October 1, 1981.

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Like assertions of attorney-client privilege, the burden is on the party withholding
discovery to show that the documents should be afforded work-product production. See
United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.1991) (applying rule for
attorney-client issue); Essex Builders Group, Inc. v. Amerisure Insurance Company, No.
6:04-CV-1838-Orl-22JGG, 2006 WL 1733857 at *2 (M.D. Fla. June 20, 2006) (citing Grand
Jury Proceedings v. United States, 156 F.3d 1038, 1042 (10th Cir.1998)) (“the party
asserting work product privilege has the burden of showing the applicability of the
doctrine”).
Several Courts in this District have found that similar incident reports are generally
protected by the work-product doctrine. See Brown v. NCL, Ltd., 155 F. Supp. 3d. 1335,
1357 (S.D. Fla. 2015) (upholding work product claim of cruise ship incident report);
Fojtasek v. NCL, Ltd., 262 F.R.D. 650, 655 (S.D. Fla. 2009) (holding that incident report
prepared by shore excursion company was protected by work product doctrine);
Hickman v. Carnival Corp., Case No. 04-20044-Civ-UNGARO (S.D. Fla. Aug. 16, 2004, ECF
No. [34]) (denying motion to compel accident report and photographs of cruise incident).
While the privilege can be waived by disclosure to a third-party, "when disclosure of
privileged material to the government agency is not in an adversary context, courts often
recognize that the policy reasons for a waiver do not exist, and they conclude that no
waiver was created.” Brown v. NCL, Ltd., 155 F.Supp.3d 1335, 1340 (S.D. Fla. 2015).
III.

POSITION OF THE PARTIES

Pursuant to her requests for production, the Plaintiff seeks the incident report
regarding the Plaintiff’s incident, a blank incident report form, handwritten notes made
by two different ship security officers, a report completed by a ship security officer, and
five witness statements. The Defendant has asserted the work product privilege as
related to all of the documents and contends that the documents were made in

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anticipation of litigation. The Defendant has provided an affidavit of Mr. Berman, the
Director of Passenger and Crew Claims for the Defendant in support of its contention
that the documents at issue were produced in anticipation of litigation. Mr. Berman
stated in his affidavit that it is the policy of the Defendant to investigate claims of
accidents in anticipation of claims and litigation and generally when an accident
resulting in injury occurs, shipboard personnel investigate the claim, an accident report
may be prepared and statements may be taken from witnesses. Mr. Berman asserts that
all of the items listed in the Defendant’s privilege log were prepared at the direction of
counsel of the Defendant to assist the Defendant’s claims department and defense
counsel in the defense of litigation. Mr. Berman also states that the witness statements
were prepared in anticipation of litigation and were provided to an FBI detective because
the Defendant did not believe that it could withhold the witness statements from the FBI
without hindering the FBI’s investigation. Mr. Berman asserts that at the time the
witness statements were provided to the FBI, the Defendant did not believe the FBI was
an adversary and the Defendant provided the witness statements in order to cooperate
with the FBI’s investigation of a third-party (the alleged assailant in this case). The
Defendant asserts that although the witness statements (and no other documents
requested by the Plaintiff) were provided to the FBI, the Defendant’s actions did not
waive the asserted work product privilege.
The Plaintiff counters that even if the documents are protected by the work product
privilege, the Defendant waived the privilege by providing the documents to the FBI.
IV.

ANALYSIS
A. Incident Report
Because the incident report was prepared at the direction of counsel in

anticipation of litigation, the undersigned finds that the incident report is protected by

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the work product doctrine. Brown v. NCL, Ltd., 155 F. Supp. 3d. 1335, 1357 (S.D. Fla.
2015); Iaquinto v. Carnival Corp., Case No. 05-21652-JORDAN, ECF No. [18] (S.D. Fla.
2005); Lobegeiger v. Royal Caribbean Cruises, Ltd., Case NO. 11-21620-CIV, 2012 WL
760857 (S.D. Fla. March 7, 2012). Additionally, an in camera review of the documents
indicates that the incident report in particular was a collection of information that is
geared towards the defense of litigation. Such reports are protected by the work product
doctrine. Bridgewater v. Carnival, 286 F.R.D. 636, 643 (S.D. Fla. 2011). The undersigned
also notes that the Plaintiff has not asserted that they have a substantial need for the
document, and that it would prove an undue hardship for the Plaintiff to obtain the
necessary information by any other means. 1 See Fed. R. Civ. P. 26(b)(3). Finally, because
the incident report was not provided to the FBI or any other third party, it is not
necessary to determine whether the protection was waived. As related to the exemplar
copy of the incident report, the Defendant does not list the exemplar copy in its privilege
log, and does not address the issue in its memorandum. Therefore, the Defendant shall
provide an exemplar copy of the incident report form to the Plaintiff on or before August
11, 2017.
B. Security Officer Notes
Similarly, the undersigned finds that the notes completed by security officers
Herring and Shrestha are protected under the work product doctrine. The undersigned
finds the Defendant’s assertion that the notes were compiled as part of the Defendant’s
procedures in anticipation of litigation persuasive, and the Plaintiff has not met her
burden to show that she has substantial need or undue burden regarding the notes. See
Iaquinto v. Carnival Corp., Case No. 05-21652-JORDAN, ECF No. [18] (S.D. Fla. 2005)
(holding that employee statements are protected by work product privilege). Finally,

1

Moreover, the Plaintiff has not made this argument with respect to any of the
documents sought.
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because the statements were not provided to any third-parties, the undersigned need not
reach the issue of waiver.
C. Witness Statements
An in camera review of the witness statements gives credence to the Defendant’s
assertion that the witnesses statements were taken in anticipation of litigation. While the
Plaintiff asserts that where documents are prepared for a purpose other than litigation,
such as statutory or regulatory compliance, the question of whether the documents are
entitled to protection turns on the “primary motivating purpose” behind the preparation,
here the Plaintiff has provided an affidavit averring that it is the practice of the Defendant
to gather witness statements in any incident that occurs on its ships in anticipation of
litigation. ECF No. [44-1]. The witnesses statements are written on a prepared form
provided by the Defendant and indicate that the statements were taken by the
Defendant’s personnel. As other courts have done previously, the undersigned finds that
such documents were prepared in anticipation of litigation and are therefore protected by
the work product doctrine. See Bridgewater v. Carnival Corp., 286 F.R.D. 636, 644 (S.D.
Fla. 2011) (holding that similar witness statements taken by a cruise personnel are
protected by the work product doctrine).
The issue now becomes whether the Defendant waived the protection of the work
protect doctrine by providing the witness statements to the FBI. The affidavit of Mr.
Berman states that “Norwegian did not believe it could withhold the witness statements
from the FBI without hindering their investigation.” Norwegian did not believe the FBI
was its adversary when it disclosed the witness statements to the FBI. Norwegian
provided the witness statements to the FBI in order to cooperate with their investigation
of a third party, i.e. Cirillo.” ECF No. [44-1]. The protection of the work product doctrine
is “waived when protected materials are disclosed in a way that substantially increases

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the opportunity for potential adversaries to obtain the information.” Brown v. NCL, 155
F. Supp. 3d 1335, 1339 (S.D. Fla. 2015).
While the Defendant appears to claim that disclosure of the witness statements
was required under the Cruise Vessel Security and Safety act (“CVSSA”), there is
nothing in the statute requiring the Defendant to provide witness statements in
particular. 2
The CVSSA includes a list of details that are required in the report: the vessel
operator, the name of the cruise line, the flag under which the vessel was operating, the
age and gender of the victim and the accused assailant, the nature of the alleged crime
or complaint, including whether the alleged perpetrator was a passenger or crew
member, the vessel position at the time of the incident, the time, date and method of the
initial report, the time and date the incident occurred, the total number of passengers. 3

2

The reporting requirements of CVSSA state that
(g) Log book and reporting requirements
(1) In general- The owner of a vessel to which
this section applies shall
(A) record in a log book, either
electronically or otherwise, in a centralized location readily
accessible to law enforcement personnel, a report on
(i) all complaints of crimes
described in paragraph (3)(A)(i),
(ii) all complaints of theft or
property valued in excess of $1,000, and
(iii) all complaints of other crimes,
committed on any voyage that embarks or disemebarks
passengers in the United States; and
(B) Make such log book available on
request to any agent of the Federal Bureau of Investigation,
any member of the United States Coast Guard, and any law
enforcement officer performing official duties in the course
and scope of an investigation.

46 U.S.C. §3507.
3

The Defendant stated that it has provided the Cruise Line Report of Alleged Serious
Violations of U.S. Law to the Plaintiff, and the report is therefore not subject to the
briefing before the undersigned.
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While the CVSSA requires that the owner of the vessel has a duty to provide law
enforcement, upon request “a copy of all records of video surveillance that the official
believes may provide evidence of a crime reported to law enforcement officials” there is
no similar requirement for witness statements. However, the undersigned finds that the
analysis remains the same regardless of whether the CVSSA explicitly requires the
production of witness statements to law enforcement. The determination of waiver turns
on whether the statements were disclosed in such a way that “substantially increases
the opportunity for potential adversaries to obtain the information.” Stern v. O’Quinn,
253 F.R.D. 663, 676 (S.D. Fla. 2008) (internal citations omitted). The situation at bar is
nearly identical to the facts of Brown v. NCL. In Brown, the court found that NCL did not
waive work product protection of a statement prepared by an alleged attacker when the
cruise line provided the statement to port police. Brown v. NCL, Ltd., 155 F. Supp., 3d
1335 (S.D. Fla. 2015). The court found that because the purpose of the disclosure was to
assist the port police in a non-adversarial effort in its investigation of others, it remained
protected from disclosure as work product. The Court stated that “there is nothing in the
record to suggest that NCL was in an adversarial relationship with the port police when it
turned over a copy of the statement for which it claims work-protect protection.” Id. at
1340. As in Brown, there is nothing in the record to demonstrate that the Defendant and
the FBI were in an adversarial posture, or that the Defendant produced the witness
statements for any other reason besides cooperation. Apart from whether the disclosure
was required under CVSSA, the undersigned finds that the Defendant did not waive the
work-protect protection of the witness statements by providing them to the FBI. 4

4

The cases cited by the Plaintiff in support of her waiver argument can be distinguished.
See Horne v. Carnival, Case No. 15-21031-CIV-ALTONGA, ECF No. [39] (S.D. Fla. Sept. 3,
2015) (the court found that the work product protection was waived but there was no
analysis in the record regarding what the Defendant provided to support its claim of
privilege nor were there details related to what was disclosed and to whom); Pruco Life
Ins. Co. v. Brasner, Case No. 10-80804-CIV, 2012 WL 300025 at *1 (S.D. Fla. July 23, 2012)
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V.

CONCLUSION
Accordingly, it is hereby
ORDERED the Defendant’s work product objection as related to the incident

report, notes of security personnel, and witness reports is sustained. The objection to
providing an exemplar of the incident report is overruled. The Defendant shall therefore
provide a copy of a blank incident report to the Plaintiff on or before August 11, 2017.
DONE AND ORDERED in Miami, Florida, in chambers, on August 8, 2017.

_________________________________
ANDREA M. SIMONTON
CHIEF UNITED STATES MAGISTRATE JUDGE

Copies furnished to:
Honorable Kathleen M. Williams
All counsel of record via CM/ECF

(the court found that disclosure to Florida Department of Financial Services, Department
of Insurance fraud substantially increased the likelihood that an adversary could obtain
the document through a public records request. Here, as the Defendant points out,
obtaining the documents produced to the FBI would be more difficult than a simple
public records request as in Pruco, thus making it less likely that an adversary could
obtain the documents). The other cases cited by the Plaintiff involve attorney-client
privilege, not the work product doctrine and are therefore inapplicable. See United
States v. Gordon-Nikkar, 518 F.2d 972 (5th Cir. 1975) (considering waiver of attorneyclient privileged communications); United States v. Suarez, 820 F.2d 1158 (11th Cir. 1987)
(same).
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