Schulte v. Ncl Ltd
| Decision Date | 25 January 2011 |
| Docket Number | CASE NO. 10-23265-CIV-MOORE/SIMONTON |
| Parties | BARBARA SCHULTE, Plaintiff, v. NCL (Bahamas) Ltd., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Presently pending before the Court is Plaintiff's Motion for Protective Order and to Compel Discovery (DE # 23) and Defendant's Motion for Protective Order Regarding Production of Video (DE # 22). The Motions are fully briefed (DE ## 24, 26, 27, 29). Also, pending before the Court is Plaintiff's Motion to Compel 2nd Shipboard Inspection (DE # 30) and Motion to Expedite Briefing Schedule on Motion to Compel 2nd Shipboard Inspection (DE # 35).1 The Motions have been referred to the undersigned (DE # 5). A hearing was held on the Motions on January 25, 2011, wherein, after hearing arguments from counsel, the undersigned announced her rulings on the Motions. This Order incorporates the rulings made from the bench at that hearing.
This matter was initiated when Plaintiff Barbara Schulte filed a Complaint against Defendant NCL, (Bahamas), Ltd. ("NCL"), seeking damages related to injuries sustainedby Plaintiff following a slip and fall incident aboard the NCL cruise ship, the NORWEGIAN JEWEL (DE # 1). The Complaint sets forth one-count of negligence against NCL for, among other things, allegedly failing to keep the ship deck's surface clean and dry and failing to warn Plaintiff that the deck was slippery, wet and hazardous (DE # 1 ¶ 13).
Defendant has filed a Motion for Protective Order Regarding Production of Video (DE # 22) seeking to have this Court issue a protective order which permits the Defendant to not produce, in response to Plaintiff's Request for Production, a video taken aboard the cruise ship at the time of the Plaintiff's accident. Defendant asserts that it should not have to produce the video because it was preserved in anticipation of litigation and thus is protected by the work product privilege (DE # 22 at 2). In addition, Defendant asserts that producing the video to Plaintiff prior to Plaintiff's deposition being taken will severely prejudice Defendant because Plaintiff will be able to tailor her deposition testimony to the events captured on the video. Defendant further argues that Plaintiff will suffer no prejudice if the video is provided to her after her deposition is completed.
Conversely, Plaintiff has filed a Motion for Protective Order and to Compel Discovery (DE # 23), that basically mirrors Defendant's Motion for Protective Order, and which seeks to relieve Plaintiff from having to attend her deposition until NCL produces the video of the accident to the Plaintiff. In addition, Plaintiff seeks to compel NCL to produce the video in response to Plaintiff's Request for Production propounded on NCL which specifically requested production of all "...video depicting the subject accident." (DE # 23 at 1).
Both Parties responded in opposition to the respective Motions, and at the hearing on the Motions, both reiterated their positions as stated in their papers.
Federal Rule of Civil Procedure 26(b) which sets forth the work product doctrine, 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 (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 materials prepared by an attorney acting for his client in anticipation of litigation from disclosure. See Federal Rules of Civil Procedure, Advisory Committee Notes, Rule 26(b)(3), 1970 Amendment (). 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).2 However, in order for the work product doctrine to apply, theparty asserting the doctrine must demonstrate that at the time the materials were created or drafted, the 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 or created in the ordinary course of business are not protected. Id.
Therefore, a court must determine when a contested item was created, and why that item 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) ().
Like assertions of attorney-client privilege, the burden is on the party withholding discovery to show that the documents should be afforded work-product immunity. See United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.1991) (); 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").
Based upon the following analysis, as explained on the record at the hearing, the undersigned concludes that the video at issue does not constitute work product; and, the timing of disclosure should not be delayed. Therefore, the video must be produced to Plaintiff prior to Plaintiff's deposition.
First, at the hearing on the Motion as in its papers, Defendant agrees that when thevideo was originally made by NCL, it was not made in anticipation of litigation; and, thus did not constitute "work product" at the time it was created. However, Defendant argues that it became subject to work product protection when it was preserved based upon instructions by Counsel for NCL.3 In sum, Defendant argues that the act of preserving the video was done in anticipation of litigation and at the behest of counsel, and thus protects the video from disclosure pursuant to the work product doctrine.
However as explained by the undersigned at the hearing, once NCL was aware that a claim might be made based upon the Plaintiff's slip and fall incident, NCL had a duty to preserve that tape, and counsel had a duty to advise NCL to do so. In this regard, NCL's decision to preserve the video is best viewed in the context of those cases where courts have examined spoliation claims based upon an entity's failure to preserve evidence despite notice that it a lawsuit might be forthcoming. See, e.g., Cox v. Target Corp., 131 Fed. Appx. 381 (11th Cir. 2009) (); Williams v. Wal-Mart Stores, Inc., 342 Fed. Appx. 478 (11th Cir. 2009), aff'g, 584 F. Supp.2d 1316 (M.D. Ala. 2008) (); Aiello v. Kroger Co., 2:08-CV-01729-HDM-RJJ, 2010 WL 352225 (D. Nev. Sept. 1, 2010) (same). It would be anomalous, to say the least, if by ordering a client to preserve evidence created in the ordinary course of business, in anticipation of litigation, counsel was able to shield that evidence from production based upon work product protection.
Moreover, in determining that the act of preserving the tape does not convert thetape into work product protected from disclosure, the decision of the Fourth District Court of Appeal of Florida in Target Corp. v. Vogel, 41 So. 3d 962, 963 (Fla. Dist. App. 2010), is persuasive. There, the Court expressly held that a video of the accident itself is not work product and thus is discoverable. Specifically, in Vogel, the Court ordered production of a surveillance video prior to the plaintiff's deposition, and distinguished between a surveillance video tape of the slip and fall taken at the time of the accident in that case, from those cases in which a surveillance video was taken after an incident, usually by a defense private investigator. Vogel at 963 (). Although Vogel was decided under Florida law, and federal courts apply the federal work product privilege rather than the state work product privilege to federal cases, the Vogel court's analysis is wholly consistent with the Federal work product privilege and thus applies with equal force to the case sub judice.
In this matter, there is no question that the video tape was made as part of the normal course of surveillance videos made by NCL. Thus, the video was not created in the work product context for purposes of or in anticipation of litigation. As such, the video is not protected by the work product privilege. Further, as discussed above, the act of preserving that non-privileged video did not then convert it to work product. Thus, although there may be instances where the undersigned concludes that a surveillance video made at the time of the relevant incident may be considered work...
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