333 F.R.D. 588 (S.D.Fla. 2019), 19-20951-CIV-COOKE/GOODMAN, Holladay v. Royal Caribbean Cruises, Ltd.

Docket Nº:19-20951-CIV-COOKE/GOODMAN
Citation:333 F.R.D. 588
Opinion Judge:Jonathan Goodman, UNITED STATES MAGISTRATE JUDGE
Party Name:Casey HOLLADAY, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant.
Attorney:Brett Rivkind, Rivkind Pedraza & Margulies, Miami, FL, for Plaintiff. Curtis Jay Mase, Lauren Ashley Levitt, Thomas Dennis Alan Briggs, Mase Tinelli Mebane & Briggs, P.A., Miami, FL, for Defendant.
Case Date:October 07, 2019
Court:United States District Courts, 11th Circuit, Southern District of Florida

Page 588

333 F.R.D. 588 (S.D.Fla. 2019)

Casey HOLLADAY, Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD., Defendant.

No. 19-20951-CIV-COOKE/GOODMAN

United States District Court, S.D. Florida, Miami Division

October 7, 2019

Page 589

Brett Rivkind, Rivkind Pedraza & Margulies, Miami, FL, for Plaintiff.

Curtis Jay Mase, Lauren Ashley Levitt, Thomas Dennis Alan Briggs, Mase Tinelli Mebane & Briggs, P.A., Miami, FL, for Defendant.

ORDER ON DEFENDANT’S WORK PRODUCT ASSERTION

Jonathan Goodman, UNITED STATES MAGISTRATE JUDGE

Page 590

This Order addresses the discoverability of an engineering report ordered and received by a cruise ship operator’s in-house counsel after a passenger injured himself on the ship’s Sky Pad, an on-board jumping attraction. The cruise ship company has asserted work product protection over that report but dismantled the attraction before Plaintiff or his expert could inspect it. Plaintiff contends the report is not work product in the first place because the primary purpose for the report was not in anticipation of litigation. And he further urges entitlement to the report, even if it is work product, because he meets the "substantial need" or "inability to obtain equivalent evidence" exception. The cruise ship operator rejects those theories and objects to producing the engineering report.

This discovery dispute arises from injuries Plaintiff Casey Holladay sustained while using the Sky Pad attraction aboard Defendant Royal Caribbean Cruises, Ltd.’s Mariner of the Seas ship. A participant using the Sky Pad is positioned on a trampoline and then fitted with a harness with bungee cords attached on either side, enabling the participant to bounce up and down. Plaintiff was bouncing on the Sky Pad when he became unattached from the harness system after the bungee equipment failed, causing him to fall on the hard deck surface next to the trampoline. The fall resulted in physical injury to the Plaintiff, including pelvic fractures.

After filing this lawsuit against Royal Caribbean, Plaintiff propounded discovery and requested the production of documents relating to Plaintiff’s fall from the Sky Pad. Royal Caribbean provided Plaintiff with a portion of the requested documents and a privilege log, asserting the work product exception to discovery over certain documents. It also asserted the attorney-client privilege to some emails.

The Undersigned held a hearing on the parties’ discovery dispute. [ECF Nos. 18; 19]. At the Discovery Hearing, Plaintiff sought the production of documents with a work product "privilege"1 designation on Royal Caribbean’s Second Amended Privilege Log.

The Undersigned ordered Royal Caribbean to submit a copy of the contested documents under seal for an in-camera inspection. [ECF No. 20]. Currently at issue is whether the SEA, Ltd. ("SEA") Sky Pad Evaluation Report (the "SEA Report") constitutes protected work product and should remain protected from production to Plaintiff. The SEA Report is the subject of Plaintiff’s motion to compel. [ECF Nos. 32; 41].

The Undersigned analyzed the SEA Report to determine whether it was properly designated as a protected work product document. [ECF Nos. 21; 22; 24; 25].

Along with the Report, Royal Caribbean submitted the affidavit of Paul Hehir, a Royal Caribbean attorney who stated that Royal Caribbean "retained Bryan Emond from SEA, Ltd. ... to inspect the Sky Pad and to provide Royal Caribbean with a report of his findings and opinions ... as his findings and opinions would help defend the company from the litigation that Royal Caribbean anticipated would ensue after Plaintiff’s incident." Hehir Affidavit at ¶¶ 8, 10-11.

Plaintiff then submitted the Affidavit of Donald McPherson, Plaintiff’s liability expert, who explained that it is impossible for

Page 591

him to adequately inspect the Sky Pad on the Mariner of the Seas because the attraction has been disassembled. [ECF No. 28-1, p. 3]. He stated that while he has been able to "inspect certain parts and equipment of the Sky Pad that had been removed from the ship and was made available at the offices of Defense Counsel," some portions of the Sky Pad equipment "were not made available at the offices of the defense counsel when I conducted my inspection." Id. at pp. 3, 5-6. McPherson attested that it is "not possible to obtain the same information" contained in the SEA Report because "Defendant had total access to all of the parts and equipment and information Defendant obtained promptly after the incident in question, whereas the Plaintiff did not have the benefit of the same information." Id. at p. 6.

In response, Royal Caribbean submitted the affidavit of its engineering expert, Brian Mills, who explained that the "[r]esponses to Plaintiffs Interrogatories, engineering schematics of the Sky Pad, Eurobungy manuals, Sky Pad maintenance documents, Sky Pad training documents, photos of the Sky Pad and its parts after the incident, and CCTV footage of...

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