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Lori Ann Perry v. Ncl (Bahamas) Ltd

December 12, 2011

LORI ANN PERRY, PLAINTIFF,
v.
NCL (BAHAMAS) LTD., DEFENDANT.



The opinion of the court was delivered by: Andrea M. Simonton United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S RENEWED MOTION TO COMPEL

This matter came before the Court upon Plaintiff's Renewed Motion to Compel Discovery (DE # 19). Defendant NCL (Bahamas) Ltd. ("NCL") has filed a Response in opposition (DE # 25), and Plaintiff has filed a Reply (DE # 26). The Honorable Cecilia M. Altonaga has referred all discovery in this case to the undersigned Magistrate Judge (DE # 11). Upon a review of the record as a whole, and for the reasons stated below, the Motion is granted.

I. Background and Motion

Plaintiff seeks damages for permanent bodily injuries, primarily to her knee, that she allegedly suffered due to Defendant's negligence when Plaintiff slipped and fell on a "non-apparent liquid substance" on an outside deck in a food service area of Defendant's vessel, Norwegian Sky (DE ## 1; 19; 25 at 1). Defendant has denied these allegations and asserted several affirmative defenses (DE # 6).

In her requests for production, Plaintiff seeks from NCL, inter alia, all photographs concerning the scene of the incident. NCL asserted an objection to this request, based on "work product and/or attorney-client privilege," and indicated that it possesses two photographs of the area in question taken by ship security, in anticipation of litigation, about an hour after the incident (DE # 19 at 1-2).*fn1 Plaintiff moves to compel production of these two photographs, asserting that they are not protected by the work product doctrine, and, even if they were, Plaintiff is entitled to them because such facts are otherwise unavailable to her and she has a substantial need for them (DE # 19 at 2-5). Defendant responds that the photographs are protected by work product, and Plaintiff's access to the scene, both currently and at the time of the incident, along with her access to depose those who saw the scene at the time of the incident, precludes her from pleading undue hardship (DE # 25 at 2-6).

II. Legal Standard and Analysis

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.

As other courts have concluded, work product protection is more akin to a qualified immunity than to an absolute privilege because the protection can be overcome upon a proper showing by the party seeking discovery of the materials. Henderson v. Holiday CVS, LLC, 269 F.R.D. 682, 688 (S.D. Fla. 2010) (citing Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (5th Cir. 1984)); Int'l Telephone & Telegraph Corp. v. United Telephone Co. of Fla., 60 F.R.D. 177, 186-87 (M.D. Fla. 1973) (finding same). Therefore, even if the Court were to accept for purposes of this analysis, as Defendant argues, that the photographs at issue are protected work product, Plaintiff would, nonetheless, be entitled to copies of the photographs if they are otherwise discoverable and she can show that she "has substantial need for [them] to prepare [her] case and cannot, without undue hardship, obtain their substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3).

Plaintiff seeks copies of two photographs from the morning of the incident, taken about an hour thereafter, by one of Defendant's employees. Other courts have considered whether such photographs should be produced. Specifically in regard to contemporaneous photographs taken by cruise line employees as part of their investigation, at least one court has held that a plaintiff satisfies her burden of demonstrating undue hardship when the photographs are not otherwise available to her. Eisenberg v. Carnival Corp., 2008 WL 2946029, No. 07-22058-CIV, at *1 (S.D. Fla. July 7, 2008). In Eisenberg, the plaintiff claimed that she slipped and fell on salad dressing in a dining room aboard one of the defendant's vessels. Defendant had photographs taken of the scene, in connection with its investigation. The court found such photographs to be fact work product but subject to production, noting that they were "critical items of evidence." "As those contemporaneous photographs were not otherwise available to Plaintiff, Plaintiff satisfied her burden of showing substantial hardship requiring production of the photographs." Id.

Another court in a different context has found similarly. In Zoller v. Conoco, Inc., 137 F.R.D. 9, 9-10 (W.D. La. 1991), the court discussed the value of photographs of a scene where injuries occurred on an oil rig platform, compared to the verbal description of someone who was at the scene. In finding that the plaintiff who had suffered injuries had demonstrated substantial need for ...


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