SWEENEY
v.
CARNIVAL CORPORATION
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The court held that the defendant failed to establish the work product privilege for an incident report, and therefore must produce it.
Plaintiff's decedent died on an ATV tour operated by Aanansi, a co-defendant. Aanansi prepared an incident report which Carnival possessed and refused…
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The discovery request at issue was propounded to Carnival, which did not prepare the incident report. Carnival’s counsel conceded that Carnival was not in a position to establish that the Aanansi-generated report was covered by the work product doctrine. Therefore, the Undersigned entered an Order giving Aanansi the opportunity to file submissions designed to establish the work product exception to discovery and to demonstrate the existence of a joint defense arrangement or common interest theory.
[ECF No. 60]. I also provided Carnival with the opportunity to file materials to bolster the claim that Carnival and Aanansi had a joint defense agreement or could take advantage of the common interest theory. In the post-hearing Order, I clearly advised both counsel that Carnival’s argument was not compelling, and that Carnival would be required to produce the Aanansiproduced report it possessed “unless the Undersigned receives additional information supporting a contrary ruling.” Id. at p. 3. I also pointed out that Carnival had not met its burden on its work product assertion and required Aanansi to file the report under seal if it was going to take advantage of the opportunity to file materials in support of the work product claim. Neither Aanansi nor Carnival filed any materials and Aanansi did not file the report under seal. Therefore, it seems as though Carnival has abandoned its work product argument or that Aanansi determined that it could not meet its burden or that one or both Defendants decided to not further pursue their positions (and to consequently allow the
Court’s tentative decision -- that the work product claim had not been established -- to remain intact.).
Because the work product assertion over the Aanansi-prepared Incident Report has not been established, the Undersigned need not determine the existence of a joint defense agreement or the applicability of the common interest theory.1 The Undersigned now requires Carnival to produce that report to Plaintiff by July 30, 2020. See generally Bridgewater v. Carnival Corp., 286 F.R.D. 636 (S.D. Fla. 2011) (noting the well-established point that the party claiming a privilege has the burden to prove its applicability and all of its essential points, and holding that the incident reports prepared by the excursion company -- which operated a catamaran sailing company in Montego Bay, Jamaica used
Jgnathan Goodman
UNITED STATES MAGISTRATE JUDGE
Copies furnished to: The Honorable Marcia G. Cooke All counsel of record
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