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Hsing-O v. NCL (Bahamas) Ltd.

United States District Court, S.D. Florida

September 18, 2017

ESTHER WILLIAMS HSING-O, a Florida citizen and resident, Plaintiff,
v.
NCL BAHAMAS LTD., a Bermuda corporation d/b/a NORWEGIAN CRUISE LINES a Bermuda corporation, Defendant,

          ORDER ON PLAINTIFF'S MOTION TO COMPEL

          EDWIN G. TORRES, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Esther Williams Hsing-O's (“Plaintiff”) motion to compel [D.E. 34] against NCL (Bahamas) LTD.'s (“Defendant”). [D.E. 34]. Defendant responded to Plaintiff's motion on August 18, 2017 [D.E. 38] to which Plaintiff replied on August 25, 2017. [D.E. 41]. Therefore, Plaintiff's motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authority, and for the reasons discussed below, Plaintiff's motion is GRANTED in part and DENIED in part.

         I. ANALYSIS

         This action arises out of injuries that Plaintiff sustained while she was a passenger onboard the Defendant's cruise ship, the Norwegian Sky. Following a trip and fall in her cabin bathroom, Plaintiff sustained a compression fracture that the shipboard medical staff allegedly failed to diagnose and treat. On June 10, 2017, Plaintiff propounded interrogatories and requested discovery on similar slip and falls within Defendant's fleet for four years prior to the accident in this case:

10. Identify all other persons, including passengers and/or crew, who reported a trip and fall on the same or similar shower ledge identified in this lawsuit aboard all ‘sister ships'/ ‘similar class vessels' as the cruise ship identified in the Complaint within Defendant's fleet for the four (4) years prior to and since the subject accident.

[D.E. 34].

         On June 16, 2017, Plaintiff served its list of 30(b)(6) deposition topics and one of the areas of inquiry was to discover “[a]ll facts and information known including number, location, and identity of all persons who reported a prior similar trip and fall while aboard the Defendant's cruise ships for the five years prior to the date of the incident.” [D.E. 34-2]. The night before the scheduled deposition, Defendant repeated its objections to interrogatory 10 and stated: “Notwithstanding this objection, NCL's corporate representative is prepared to testify regarding prior trips and falls within guest cabin bathrooms onboard the Norwegian Sky for the three (3) year period prior to Plaintiff's claimed incident.” [D.E. 34-3].

         The deposition went forward on July 19, 2017 and Ms. Williams-Inman was designated to discuss the topics of inquiry. Instead of being prepared to testify about prior trip and falls in the cabin bathrooms for the previous three years, Plaintiff alleges that defense counsel arbitrarily narrowed the scope of the testimony even further. Specifically, Plaintiff suggests that an in-house lawyer for Defendant, Jeffery Probst, searched the Defendant's databases and created a list of prior accidents. That list was then purportedly given to outside counsel who (1) narrowed that list down to four incidents, (2) included a brief description of each incident, and (3) created a chart for Ms. Williams-Inman to use at the deposition. Aside from this list, Plaintiff alleges that Ms. Williams-Inman had no substantive knowledge about the incidents to which she testified, and no knowledge about any other prior incidents, despite the fact that Defendant created a longer and more complete list that was not produced. Therefore, Plaintiff believes that Defendant should be compelled to provide better answers to interrogatory 10, providing not only the list that was created internally (as opposed to that created by counsel), as well as the same list for all vessels in its class for a five year period.

         Plaintiff also claims that Defendant failed to comply with the Federal Rules in terms of preparing the corporate deponent. Despite the fact that Defendant's in-house counsel prepared a list of prior similar incidents for the deposition, Plaintiff suggests that Ms. Williams-Inman willfully declined to review the list, instead relying solely on the condensed list that outside counsel put together. Plaintiff states that the corporate deponent had no further information about prior incidents aside from what outside counsel prepared, despite the fact that Defendant prepared documents regarding each incident that she could have reviewed.

         Furthermore, Plaintiff contends that she served a request for production on January 18, 2017, requesting all photographs and video depicting the Plaintiff. [D.E. 34-4]. On February 24, 2017, Defendant responded, stating that it would supplement its response subject to any applicable privilege. Yet, the Defendant allegedly never advised that it was in possession of any footage until the deposition of Ms. Williams-Inman when she began to testify based upon a review of the footage. Plaintiff suggests that the footage is of critical importance, as one of the issues on her medical negligence claim is whether or not the shipboard doctor visited Plaintiff at the scene of the incident. Because Plaintiff has requested a copy of the footage and still has not received it in a useable format, Plaintiff believes that the discovery requested should be compelled accordingly. In sum, Plaintiff seeks to (1) compel disclosure of Defendant's internal list of prior incidents for a 5 year period for similar vessels as the Norwegian Sky, and to (2) compel production of the video footage within 5 days.

         In response, Defendant argues that Ms. Williams-Inman was well prepared for her deposition and that she testified regarding prior trips and falls within cabin bathrooms onboard the Norwegian Sky for the 3 year period prior to Plaintiff's alleged incident. More specifically, Defendant claims that Ms. Williams-Inman testified that a prior incidents search was completed and that it generated a list that included trips in cabins (the living space where guests sleep) as well as trips in bathrooms within the last three years. Incidents involving trips in the living spaces of the cabins were apparently then eliminated from the search results because they were allegedly not responsive to any of Plaintiff's discovery requests. As Ms. Williams-Inman stated:

Q: Okay. And how - what specifically did Mr. Probst search for in Prospective?
A: He put in the parameters of three years prior to the date of her ...

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