Holladay v. Royal Caribbean Cruises, Ltd.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 19-20951-CIV-GOODMAN

(CONSENT CASE)

CASEY HOLLADAY,

Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.,

Defendant.

__________________________________/

SECOND ORDER ON DEFENDANT’S WORK PRODUCT ASSERTION

(FOR CELTIC ENGINEERING DRAFT REPORT)

For the second time in this personal injury case, the Court assesses 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. Earlier in this litigation, the Court ordered [ECF No. 46] the

Defendant cruise ship company to produce another report from a different engineering

firm (i.e., SEA Ltd.) because of an exception to the work product doctrine: Plaintiff’s

substantial need for the report (because Defendant Royal Caribbean Cruises, Ltd. had

dismantled the attraction before Plaintiff or his expert could inspect it) and his inability

to obtain substantially equivalent discovery by other means without undue hardship.

Plaintiff contends the report at issue (i.e., a “draft” report from Celtic Engineering,

Inc.) is not work product in the first place because the primary purpose for the report was

not in anticipation of litigation. Royal Caribbean filed the Celtic Draft Report under seal

[ECF No. 67] and the Undersigned reviewed it in camera (and compared it to the SEA

report).

As explained in the earlier Order [Holladay v. Royal Caribbean Cruises, Ltd., No. 19-

20951, 2019 WL 4929915, ___ F.R.D. ___ (S.D. Fla. October 7, 2019)], this case concerns

injuries which Plaintiff Casey Holladay sustained while using the Sky Pad attraction

aboard Royal Caribbean’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.

The parties submitted memoranda of law. [ECF Nos. 71-72].

Royal Caribbean contends that the Celtic Draft Report is protected by the work

product doctrine because it engaged Celtic to prepare the report as a consulting expert

and the report was prepared in anticipation of litigation. Royal Caribbean says it hired

both SEA and Celtic to evaluate the Sky Pad bungee “in order to determine how the

incident occurred.” [ECF No. 72, p. 2]. The Undersigned had no need to earlier determine

whether the SEA Report is entitled to work product protection because, even if it is

protected, Royal Caribbean would still have to produce it under the substantial need

exception.

Plaintiff argues that the Celtic Draft Report is not entitled to work product

protection because (1) Royal Caribbean regularly uses Celtic as its engineering firm; (2) it

arranged for Celtic to review the Sky Pad before the incident; (3) Royal Caribbean

produced the first, pre-incident report; (4) Celtic’s post-incident assessment was simply

a continuation of its ongoing business relationship with Royal Caribbean for business

purposes; and (5) the Draft Report was prepared in the ordinary course of business in

order to improve the attraction’s overall performance, protect future passengers from

potential harm and protect the long-term interests of the company.

I. Applicable Legal Standards

Several legal principles govern the issue of whether the Celtic Draft Report is in

fact work product:

First, federal law governs work product assertions. See, e.g., Milinazzo v. State Farm

Ins. Co., 247 F.R.D. 691, 699-700 (S.D. Fla. 2007); see also Frontier Ref., Inc. v. Gorman-Rupp

Co., 136 F.3d 695, 702 n.10 (10th Cir. 1998) (stating that, “[u]nlike the attorney client

privilege, the work product privilege is governed, even in diversity cases, by a uniform

federal standard embodied in Fed. R. Civ. P. 26(b)(3)”).

Second, “district courts are entitled to broad discretion in managing pretrial

discovery matters.” Perez v. Miami-Dade Cty., 297 F.3d 1255, 1263 (11th Cir. 2002)

(emphasis added). This discretion extends to rulings concerning the applicability of the

work product doctrine. Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188 (11th Cir. 2013).

Third, the party claiming work product immunity always has the burden to

establish the claimed protection. Hinchee, 741 F.3d 1185 at 189; Milinazzo, 247 F.R.D. at

698. More significantly, “[t]his burden, to sustain a claim of privilege, is heavy because

privileges are ‘not lightly created nor expansively construed, for they are in derogation

of the search for the truth.’” Id. (citing U.S. v. Nixon, 418 U.S. 683, 710 (1974)). Therefore,

Royal Caribbean has the burden to establish its work product claim over the Celtic Draft

Report.

Fourth, a party must anticipate litigation at the time the documents were created

for the protection to apply. Milinazzo, 247 F.R.D. at 698.

Fifth, the Court must determine when the document was created and why it was

created. Id. In fact, “in determining whether a document was made in anticipation of

litigation, the primary focus is the reason or purpose for creating the document.” Place

St. Michel, Inc. v. Travelers Prop. Cas. Co. of Am., No. 06-21817-CIV, 2007 WL 1059561, at *2

(S.D. Fla. Apr. 4, 2007) (emphasis added) (quoting Guidry v. Jen Marine LLC, No. Civ. A

03-0018, 2003 WL 22038377, at *2 (E.D. La. Aug. 22, 2003)).

Sixth, litigation need not be imminent “as long as the primary motivating purpose

behind the creation of the document was to aid in possible future litigation.” United States

v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981). Under the primary purpose test, a document

is deserving of work product protection “as long as the primary motivating purpose

behind the creation of the document was to aid in possible future litigation.” Id.

Seventh, under the dual purpose test, which the Eleventh Circuit Court of Appeals

has not expressly adopted, dual-purpose documents are protected from disclosure “if,

‘taking into account the facts surrounding their creation, their litigation purpose so

permeates any non-litigation purpose that the two purposes cannot be discretely

separated from the factual nexus as a whole.’” Developers Sur. & Indem., 2007 WL 2021939,

at *2 (quoting In re Grand Jury Subpoena, 357 F.3d 900, 908 (9th Cir. 2004)). Thus, “‘dual

purpose’ documents created because of the prospect of litigation can be protected even

though a non-litigation purpose can also be ascertained.” Wright, Miller & Kane, 8 Fed.

Prac. & Proc. § 2024 (3d ed. 2010). While the test is straightforward, “the analysis is more

complicated.” In re Grand Jury Subpoena, 357 F.3d at 908.

Eighth, the Undersigned has already (in another case) noted the lack of binding

authority in our Circuit and outlined the myriad factors which come into play when there

is more than one purpose for the creation of a document. Specifically, in Goosby v. Branch

Banking & Trust Co., 309 F. Supp. 3d 1223, 1234-36 (S.D. Fla. April 17, 2018), the

Undersigned flagged several points about a work product assertion arising in a multi-

purpose scenario and pinpointed the different tests used by the courts (in addition to the

dual purpose test). I will quote the applicable language from that opinion here:

“In addition to using the primary purpose and dual-purpose tests, other courts

have sometimes used other tests, such as the ‘because of’ test. Under that test, material

used for business purposes does not lose work product protection if it ‘was created

because of anticipated litigation, and would not have been prepared in substantially

similar form but for the prospect of that litigation.’” United States v. Adlman, 134 F.3d 1194,

1195, 1199 (2d Cir. 1998) (rejecting primary purpose rule as being “at odds with the text

and policies” of Rule 26 and explaining that “the policies underlying the work-product

doctrine suggest strongly that work-product protection should not be denied to a

document that analyzes expected litigation merely because it is prepared to assist in a

business decision”); see also U.S. v. Deloitte LLP, 610 F.3d 129, 138 (D.C. Cir. 2010) (“Under

the more lenient ‘because of’ test, material generated in anticipation of litigation may also

be used for ordinary business purposes without losing its protected status.”) (emphasis

added).

Some courts appear to use a “sole purpose” test, such as the analysis used in

Judicial Watch, Inc. v. U.S. Department of Homeland Security, 926 F. Supp. 2d 121 (D.D.C.

2013), where the Court held that the work product proponent “bears the burden of

showing that the documents were prepared for the purpose of assisting an attorney in

preparing for litigation, and not some other reason.” Id. at 138 (emphasis added and

internal quotations omitted).

In the Eleventh Circuit, contrary to most circuits (which follow the “because of”

test), district courts have mostly either used the primary purpose or dual purpose test.

Either way, the Eleventh Circuit has not established a definitive test for courts to

follow. Regions Fin. Corp. v. U.S., No. 2:06-CV-00895-RDP, 2008 WL 2139008, at *3 (N.D.

Ala. May 8, 2008) (stating “no binding Fifth or Eleventh Circuit decision clearly adopts

the ‘primary motivating purpose’ test”); see also In re Blue Cross Blue Shield Antitrust Litig.

(MDL No.: 2406), No. 2:13-CV-20000-RDP, 2015 WL 10891632, at *6 (N.D. Ala. Nov. 4,

2015) (“In fact, it appears the Eleventh Circuit has never formally adopted any test for

assessing the scope of the work product privilege.”); Cooper v. Old River Supply, Inc., No.

3:10-CV-01495-JEO, 2012 WL 13027261, at *3 (N.D. Ala. May 18, 2012) (“The Eleventh

Circuit has not addressed the standard to apply when determining whether a document

was prepared in anticipation of litigation.”); c.f. Tillman v. C.R. Bard, Inc., No. 3:13-CV-

222-J-34JBT, 2015 WL 1062182, at *3 (M.D. Fla. Mar. 11, 2015) (observing that “some

district courts within the Eleventh Circuit have moved away from applying the ‘primary

purpose’ test” but then noting that “[n]onetheless, the Eleventh Circuit Court of Appeals

has not considered the issue”); Colardo–Keen v. Rockdale Cty., Georgia, No. 1:14-CV-489-

MHC, 2017 WL 4422349, at *1 (N.D. Ga. May 16, 2017) (“The Eleventh Circuit has not

decided which test applies [i.e., the “primary purpose” test or the “because of” test], and

district courts within this Circuit have applied both tests.”).

Rendering the analysis more complicated, courts have not always been uniform in

the terminology they have used. For example, some courts use the terms “because of”

and “dual purpose” interchangeably. See Spirit Master Funding, LLC v. Pike Nurseries

Acquisition, LLC, 287 F.R.D. 680, 685 (N.D. Ga. 2012) (“[I]t is now well recognized that

documents that serve a dual purpose are covered by the work product protection if they

were produced with the motivating purpose for or because of anticipated litigation.”)

(internal quotations omitted).

And, to add yet another factor into the equation, some district courts in our Circuit

have adopted a variation on the “primary purpose” test and authorize work product

protection when “‘at least one of the principal purposes for generating’ the materials was

to aid in possible future litigation.” Dewit v. UPS Ground Freight, Inc., No. 1:16CV36-

MW/GRJ, 2017 WL 3000029, at *1 (N.D. Fla. May 30, 2017) (emphasis added) (quoting

Eisenberg v. Carnival Corp., No. 07-22058-CIV, 2008 WL 2946029, at *2 (S.D. Fla. July 7,

2008)).

Moreover, the evaluation of a work product claim is rendered more problematic

by the Official Committee Notes to Rule 26(b)(3) (concerning the 1970 Amendment),

which provide that materials prepared “in the ordinary course of business or pursuant to

public requirements unrelated to litigation, or for other nonlitigation purposes,” are not

protected.

Some courts in our Circuit seem to hold that a document prepared in the ordinary

course of business can never be entitled to work product protection. Holbourn v. NCL

(Bahamas) Ltd., 305 F.R.D. 685, 687 (S.D. Fla. 2014) (“[M]aterials or documents drafted or

created in the ordinary course of business are not protected.”). Other courts do not take

such an all-or-nothing approach. See, e.g., Adams v. City of Montgomery, 282 F.R.D. 627, 634

(M.D. Ala. 2012) (holding that documents were protected work product because they

“had a dual purpose: They were prepared pursuant to the city's policy of investigation,

but also, specifically, with an eye to this anticipated litigation.”).

And other courts, including out-of-circuit appellate courts, have upheld the

protection of documents that might be deemed to have been prepared in the ordinary

course of business. Thus, in United States v. Adlman, the Court interpreted the ordinary-

course-of-business exception to indicate that a document is eligible for work product

protection if it “would not have been prepared in substantially similar form but for the

prospect of that litigation.” 134 F.3d at 1195 (emphasis added); see also Goosby, 309 F. Supp.

3d at 1234.

Given this uncertainty, the Undersigned will follow the same approach I used in

Goosby: to not adopt a specific test with a particular name and to confine the ruling to the

unique facts of this specific fact pattern.

Ninth, the party claiming a privilege must provide the Court with underlying facts

demonstrating the existence of the privilege, which may be accomplished by affidavit.

Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011). In other words, “the

onus is on the party claiming immunity to provide competent evidence that the materials

in question were created in anticipation of litigation.” Place St. Michel, 2007 WL 1059561,

at *3 (emphasis added). However, the mere fact that the party seeking work product

protection submits an affidavit (which was not done here for the document in question,

the Celtic Draft Report) is not necessarily sufficient to sustain the work product assertion.

See, e.g., Fid. Nat'l Title Ins. Co. v. Wells Fargo Bank, N.A., No. 12-22437, 2013 WL 12138558,

at *2 (S.D. Fla. July 19, 2013) (noting that plaintiff submitted an affidavit but finding it

“wholly conclusory and [with] few details to substantiate her claim that ‘Notes’ were

created ‘in anticipation of litigation’”).

II. Analysis

When comparing the Celtic Draft Report to the SEA Sky Pad Evaluation Report,

the SEA Report’s cover page expressly identified Holladay as the “injured party.” [ECF

No. 21, p. 2]. It mentions that the “Sky Pad entertainment system” is the “location of loss.”

Id. The “Project Assignment” paragraph explains that SEA was “asked to evaluate

recreational equipment that was involved in an accident that occurred onboard the

Mariner of the Seas.” Id. at p. 4. It also notes that while Holladay was using the system,

“one of the static lines from which he was suspended failed, causing him to fall and land

on the deck.” Id. This section also notes that Holladay “received injuries as a result of his

fall.” Id. (emphasis added).

Moreover, the “Scope of Project” section of the SEA Report explains that SEA was

“asked to consult with respect to this accident including a determination whether there

are any engineering or operational safety issues.” Id. (emphasis added).

So, it’s clear that the SEA project was focused on Holladay’s fall and injuries. Thus,

it appears far more akin to a traditional work product document than the Celtic Draft

Report. Royal Caribbean retained SEA five days before the lawsuit was filed.

In contrast, the Celtic Draft Report mentions nothing about an incident, a fall,

injuries, or Holladay. Although its “Overview” mentions that the Sky Pad was “closed

during the entire duration of the visit” (by Celtic engineers), it does not expressly say or

even implicitly suggest why the attraction was closed. It does not say that the project

concerned Holladay’s fall, nor does it mention that the equipment caused an injury.

Instead, it simply mentions that the scope of work “includes in field condition

survey of the Sky Pad on the Mariner of the Seas and Independence of the Seas.”

(emphasis added). There is no mention of any incident, litigation or threatened litigation

over the Sky Pad attraction on the other ship (i.e., the Independence of the Seas). Nor does

it mention threatened litigation or a Royal Caribbean concern over imminent litigation

involving Holladay’s fall on the Mariner of the Seas.

Royal Caribbean has not explained why, if the primary purpose of Celtic’s

retention was to prepare for anticipated litigation, Celtic would have been asked to

evaluate an attraction on a second ship where no incident was reported.

Given the complete lack of reference in the Overview to litigation, threatened

litigation, a fall, an injury or even an incident involving the attraction, it is no surprise

that the Celtic Overview says that the Draft Report “is not meant as a comprehensive

assessment of the structural integrity of the attraction, but rather a depiction of the typical

types of deficiencies of the accessible portions of the attraction while on board.”

(emphasis added). This language seems consistent with a non-litigation purpose flowing

from another project given to an engineering firm with which Royal Caribbean has an

ongoing relationship. On the other hand, this phrasing does not expressly support the

notion that Celtic’s retention was in connection with this lawsuit or a legitimate concern

over litigation.

In addition, in a deposition, a Royal Caribbean Rule 30(b)(6) witness, Amanda

Campos, identified SEA and XTR as two companies who determined the cause of the

rope breaking on the Sky Pad attraction but did not mention Celtic as a company retained

for litigation purposes. According to Ms. Campos, XTR handles the maintenance for the

Sky Pad attraction. [See Amanda Campos Deposition Tr., pp. 27-31].1

Although Royal Caribbean submitted an affidavit in support of its effort to assert

work product over the SEA Report, it did not provide one for the circumstances

surrounding the Celtic Draft Report at issue here. Instead, it merely announced, in a

memorandum, that “Royal Caribbean asked Celtic to conduct a post-incident assessment

in anticipation of litigation.” [ECF No. 72, p. 1]. This contrasts sharply with the Affidavit

1 The Campos deposition transcript was submitted to the Court’s e-file inbox as

background materials for the discovery hearing concerning the SEA Report. It has not yet

been filed on the Court’s CM/ECF system. In order to generate a complete record of the

basis of the Court’s ruling, Plaintiff shall file the transcript on CM/ECF on or before

January 24, 2020.

of Paul Hehir, a Royal Caribbean attorney, who explained that the cruise ship operator

retained SEA 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.

Thus, there is a marked difference between the circumstances underlying the

preparation of the SEA Report (for which the Undersigned never reached a conclusion

about whether the document was even a work product document in the first place) and

those surrounding the Celtic report.

Royal Caribbean also contends that the Celtic Draft Report is most certainly

covered by the work product doctrine because it is a draft.2 According to Royal Caribbean,

“draft repots (sic) are protected from disclosure by the work product doctrine.” [ECF No.

72, p. 2]. In other words, Royal Caribbean is advancing an argument broader than one

2 Royal Caribbean has not explained whether Celtic ever prepared a final version of

the report it designated as a draft. At a minimum, it certainly has not claimed to the Court

to be in possession of a final report or a later version of the Draft Report. Despite this

omission, Royal Caribbean argues that producing the Celtic Draft Report “may confuse

the issues in this case because the draft may not reflect Celtic’s finalized opinions.” [ECF

No. 72, p. 6 (emphasis added)]. But Royal Caribbean should know whether Celtic issued

a final report and, if it did, whether the final opinions are any different than the ones in

the Draft Report. Thus, it seems probable that Celtic never issued a later version of the

Draft Report or, if it did, it did not materially differ from the Draft. But the Undersigned

is not basing my decision on assumptions about a potential later version of the report.

Instead, I view the failure to provide more detail about the purported concern over

possible differences between a draft report and a theoretical later version to be a factor in

assessing whether Royal Caribbean sustained its burden.

noting that a draft document can be work product protected -- if it meets the other

requirements of the doctrine. For all practical purposes, Royal Caribbean argues that any

draft document is protected by the work product doctrine simply and solely by virtue of

its status as a draft version, regardless of whether the document meets the other

requirements.

Specifically, Royal Caribbean boldly proclaims that “draft reports, regardless of

the form in which they are recorded, are protected by the work product doctrine.” [ECF

No. 72, p. 5 (emphasis added)]. The Undersigned disagrees.

Royal Caribbean has not cited any legal authority to support its sweeping

proclamation that every draft document is entitled to work product protection simply

because it is called a draft. The caselaw authority it cites does not support this novel

theory.

To be sure, Federal Rule of Civil Procedure 26(b)(4)(B) provides that “Rules

26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2),

regardless of the form in which the draft is recorded.” But Rule 26(a)(2) concerns the

obligation to provide a written report prepared and signed by an expert witness “retained

or specially employed to provide expert testimony in the case or whose duties as the

party’s employee regularly involve giving expert testimony.”

Royal Caribbean is ignoring the all-important fact that this rule concerns testifying

experts. It does not concern experts like Celtic, who Royal Caribbean says is not a

testifying expert. If Royal Caribbean had retained Celtic to be a testifying expert, then it

would be required to identify Celtic and arrange for Celtic to prepare and sign a written

report and then turn over that report to Holladay. Had that been the scenario, and it is

not, then any draft report prepared by Celtic would not have to be produced (even though

the final report would be subject to the mandatory turnover provision).

But the Draft Report at issue here is not covered by the protection of Rule

26(b)(4)(B) because Celtic is not a testifying expert retained or specially employed to

provide expert testimony in the case.

Under Royal Caribbean’s view of draft documents, parties could immunize any

document (whether prepared by an expert, an employee, or a third party) from being

discovered by merely designating it as a draft. Indeed, any person or entity could

effectively avoid all obligations to provide written discovery in a lawsuit, whether filed

or threatened, by writing the word “draft” on all letters, memoranda, reports and other

documents.

Because Celtic is not a testifying expert, its Draft Report to Royal Caribbean would

be protected -- if the report meets the criteria of the work product doctrine. But Royal

Caribbean skips over this critical requirement and proclaims that the document’s “draft”

status is independently sufficient to block discovery of it. The Undersigned is not aware

of any legal authority which supports this view and Royal Caribbean has not called the

Court’s attention to any either. Thus, Royal Caribbean’s approach comes full circle,

requiring the Undersigned to decide whether it sustained its burden of establishing work

product protection for the Celtic Draft Report.

The Undersigned’s decision is that Royal Caribbean has not met its burden.

As noted, it failed to provide affidavits or declarations. It merely submitted

attorney rhetoric in a memorandum, announcing that it retained Celtic in anticipation of

litigation. It did not adequately address the reality that it regularly used this engineering

firm in connection with other projects not related to anticipated litigation. It similarly

failed to sufficiently discuss its pre-incident retention of Celtic and Plaintiff’s argument

that the post-incident Draft Report is a follow-up to Celtic’s continuation of its pre-

incident activities.

Moreover, Royal Caribbean has not resolved the inconsistency of saying that Celtic

was retained in anticipation of litigation in a project calling for an inspection of an

attraction on another ship where no incident occurred.

And it has not at all commented about why the language of the Celtic Draft Report

does not mention the incident, the injury or any topic relating to litigation.

Although the burden to establish the work product protection for the Celtic Draft

Report is on Royal Caribbean, Holladay has made a compelling argument that Royal

Caribbean likely had several business reasons arising in the ordinary course of business

to investigate and test the Sky Pad’s safety mechanisms and whether they were prone to

failure. For example, Holladay says that Royal Caribbean’s other motivations were to:

“(1) improve the overall performance of the Sky Pad; (2) protect future passengers from

potential arm; and (3) avoid or minimize negative publicity in connection with the

attraction’s failures.” [ECF No. 71, p. 4].

Assuming, for the sake of discussion, that Royal Caribbean based its post-incident

decision to retain Celtic again for another Sky Pad project because of one or more of the

reasons listed immediately above, an additional litigation preparation purpose would not

change the result under the unique circumstances of this case. Allied Irish Banks v. Bank of

America, 240 F.R.D. 96, 106 (S.D.N.Y. 2007) (work product protection “is not available for

documents ‘that are prepared in the ordinary course of business or that would have been

created in essentially similar form irrespective of litigation’”)3; Janicker v. George

Washington University, 94 F.R.D. 648, 650 (D.D.C. 1982) (committee report not entitled to

work product protection because reports were prepared in the ordinary course of

business); Soeder v. General Dynamics Corp., 90 F.R.D. 253, 255 (D. Nev. 1980) (in-house

report about crash did not qualify as a work product document); cf. Durling v. Papa John’s

Int’l, Inc., No. 16 Civ. 3592, 2018 WL 557915, at *7 (S.D.N.Y. Jan. 24, 2018) (granting in part

motion to compel after in camera review of documents and determining that documents

are “generally business strategy documents addressing, for example, cost calculations

and data, not anticipated litigation”).

3 The Allied Irish Banks Court ordered production of, among other documents, drafts

of a report, because the materials were prepared in the ordinary course of business. Id. at

102.

Royal Caribbean has not met its burden of establishing that Celtic was retained in

anticipation of litigation and that its Draft Report is entitled to work product protection.

The Celtic Draft Report does not contain legal analyses or litigation strategies. To the

contrary, it focuses on safety issues pinpointed as a result of the inspections and makes

safety-recommendations. It appears to be the type of report which a cruise ship operator

would have assigned in the ordinary course of business after an accident, regardless of

whether litigation was anticipated. See generally In Re Welspun Litigation, No. 16-cv-6792,

2017 WL 10311206, at *3 (S.D.N.Y. October 31, 2017) (rejecting work product assertion and

compelling production of documents involving testing of linen sheets, noting that the

anticipation of possible litigation was insufficient and highlighting that a “business-

related purpose for testing the sheets” existed); see also In re Otal Invs. Ltd. v. Capital Bank

Pub. Ltd. Co., No. 03 Civ. 4304, 2005 WL 1473925, at *1 (S.D.N.Y. June 22, 2005) (factual

statement prepared following collision of boats not work product where “business

reasons for obtaining a statement from their captains” would have compelled the report

regardless of litigation); Weinrib v. Winthrop-University Hospital, No. 14-953, 2016 WL

1122033, at *6 (E.D.N.Y. March 22, 2016) (noting that a hospital may have multiple

purposes for preparing a complaint database [i.e., to ensure efficient operations, patient

satisfaction, quality control and proper compliance with statutory and regulatory

requirements] and holding that party failed to meet its “heavy burden” of establishing

work product doctrine because the complaint file at issue in a deposition was kept in the

ordinary course of business).

Accordingly, Royal Caribbean shall produce the document to Holladay on or

before January 24, 2020.

DONE AND ORDERED in Chambers, in Miami, Florida, on January 22, 2020.

jj ae

Jénathan Goodman

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

All counsel of record

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