UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-22627-CIV-MORENO/GOODMAN

LAUREN BARHAM and 

MATTHEW UREY, 

Plaintiffs, 

v. 

ROYAL CARIBBEAN CRUISES, LTD.,

Defendant.

____________________________________/ 

ORDER ON PLAINTIFFS’ REQUEST TO COMPEL

PRODUCTION OF WORK PRODUCT WITNESS STATEMENTS

On August 11, 2022, the Undersigned held an in-person discovery hearing on the 

parties’ multiple discovery disputes, including Plaintiffs’ renewed request to compel the 

production of ten witness statements of current and former RCCL employees. [ECF Nos. 

123-24; 139; 151]. 

Following the hearing, the Undersigned issued a Post-Discovery Hearing 

Administrative Order directing the parties to file legal memoranda responding to six 

questions posed by the Court concerning counsel’s obligations (if any) in preparing a 

client for a fact witness deposition (i.e., a non-Rule 30(b)(6) deposition) and in refreshing 

that witness’s recollection when he or she testifies that she does not recall a fact and a 

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work product protected document would refresh his or her recollection. [ECF No. 152].1

The Undersigned’s Order further directed Plaintiffs to “file a list (page and line) 

specifically quoting the questions and the responses, on a witness-by-witness basis, 

where the deponent testified to a lack of recall and that reviewing the witness 

statement would, could, or might refresh his or her recollection.” Id. at 2 (emphasis 

added).

The Undersigned also issued two Orders requiring Defendant to file under seal 

the event timelines (also deemed work product) prepared by two of the deponents. [ECF 

Nos. 171; 185].

Plaintiffs filed deposition excerpts for the ten witnesses [ECF No. 158], the parties 

filed their post-hearing memoranda [ECF Nos. 159; 166], and Defendant filed under seal 

the two event timelines [ECF Nos. 175; 186].

Having carefully reviewed the filings, the Undersigned orders as follows:

I. Overview

From an overarching, 30,000-feet overview, a substantial part of this discovery 

dispute is, to use the line from Shakespeare, “much ado about nothing.” That is because 

much of the relief Plaintiffs urge is illusory.

1 The Undersigned also ruled on Plaintiffs’ Motion to Compel Defendant, Royal

Caribbean Cruises Ltd., to Provide Better Responses to Plaintiffs’ Fifth Supplemental 

Request for Production [ECF No. 123] and Plaintiffs’ Motion to Compel Defendant, Royal 

Caribbean Cruises Ltd., to Provide Better Responses to Plaintiffs’ Third Supplemental 

Request for Admissions and Sixth Supplemental Request for Production [ECF No. 124].

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Plaintiffs contend that the ten defense witnesses should have been shown their 

witness statements or timelines (which Defendant contends are protected by the work 

product doctrine) before the deposition or during the deposition to refresh their 

recollections about certain points. But a careful and comprehensive in camera examination

of all the witness statements and event timelines reveals that the reviews would mostly

have been unhelpful -- because most of the witness statements and event timelines do not 

discuss or even mention the details for which the witnesses asserted a lack of recall.

II. Background

A. Request for Production No. 23

This is Plaintiffs’ third attempt to compel the production of witness statements. 

On June 10, 2021, Plaintiffs propounded on Defendant Initial Interrogatories, Initial 

Requests for Admissions, and Initial Requests for Production. [ECF No. 72, ¶ 1]. These 

discovery requests included Request for Production No. 23, which sought: “[a]ny and all 

statements given by any witness or any other person who may have knowledge of 

relevant facts with respect to the subject incident, including, but not limited to, those 

given at or near the time of the incident by Defendant’s employees and/or ship’s medical 

personnel.” [ECF No. 77-2, p. 8].

On August 27, 2021, RCCL objected to, among other things, Request for 

Production No. 23, asserting that these statements “were created, prepared, and/or 

obtained in anticipation of litigation at the direction of defense counsel, and [were]

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protected by the attorney-client and/or work product privileges.” Id. RCCL also produced

two privilege logs. [ECF Nos. 77-3; 83-1].

Notwithstanding RCCL’s invocation of the attorney-client privilege in its answer 

to Request for Production No. 23, Defendant’s privilege logs sought to protect the listed

items based only on the work product doctrine (and not the attorney-client privilege).

RCCL’s initial privilege log is dated September 28, 2021 and consists of 15 items:

13 statements from 12 witnesses2 and two event timelines.3 [ECF No. 77-3].

RCCL’s amended privilege log is dated October 29, 2021. [ECF No. 83-1]. It is a 

truncated version of the initial privilege log. It lists four items which had already been 

listed in the initial privilege log: the statements from Shore Excursion Team Member Yao 

Chen and Assistant Front Desk Manager Laura Bernard and the two event timelines. 

[ECF No. 83-1].4

2 Gavin Smith, Vice President and Managing Director of RCL, provided two 

statements. [ECF No. 77-3 (items 5-6)].

3 The event timelines were created by Chief Security Officer Craig Darling and Staff 

Captain James Nazar. Id. (items 14-15).

4 RCCL amended its privilege log in order to comport with the Local Rules, which 

require a privilege log for “all documents, electronically stored information, things and 

oral communications withheld on the basis of a claim of privilege or work product 

protection except . . . written and oral communications between a party and its counsel 

after commencement of the action and work product material created after 

commencement of the action.” S.D. Fla. L.R. 26.1(e)(2)(C) (emphasis added).

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B. Plaintiffs’ Motion to Compel [ECF No. 77]

On October 15, 2021, Plaintiffs filed a motion seeking to compel, among other 

things,5 the 13 witness statements responsive to Request for Production No. 23. [ECF No. 

77]. Plaintiffs argued that the 13 statements were “outside the scope of the work product 

doctrine because” these types of statements “are routinely prepared as a matter of course 

following any incident,” were not prepared in anticipation of litigation, did not contain 

an attorney’s mental impressions, and “likely contain[ed] a recording of objective facts[.]” 

Id. at 7. Plaintiffs also argued that, at least with respect to the October 22, 2020 statement 

provided by Gavin Smith, Defendant had waived the work product doctrine when it gave

a copy of the statement to WorkSafe, a New Zealand government agency. Id.

Lastly, Plaintiffs argued that they had a substantial need for the 13 statements 

because: (1) they were “unable to obtain the substantial equivalent of the statements 

without undue hardship due to the passage of time since the incident” and (2) because 

Defendant failed to disclose the location of some of the witnesses, Plaintiffs were 

uncertain whether they would be able to subpoena those witnesses for deposition. Id. at 

7-8.

5 Although Plaintiffs’ motion sought to compel additional discovery, at the time of 

Defendant’s response, the only remaining discovery dispute concerned the 13 witness

statements being withheld based on the work product doctrine. See [ECF No. 83, p. 1 (“As 

evident from Royal Caribbean’s response, the only remaining discovery dispute pertains 

to Plaintiffs’ Initial Request for Production No. 23, wherein Plaintiffs request all witness 

statements concerning the subject incident.”)].

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Defendant filed a response in opposition to Plaintiffs’ motion to compel. [ECF No. 

82]. Defendant argued that the witness statements were obtained in anticipation of 

litigation, noting that “RCL/RCCL attorneys assisted in the preparation of [the] 

statements, which in turn were created in preparation and anticipation of litigation and 

at the direction of counsel.” Id. at 3. It further asserted that “the subject statements, which 

were created with the assistance of counsel, contain[ed] the mental impressions and 

conclusions of RCCL’s employees, which subject[ed] these statements to the protection 

of the work product privilege.” Id. at 4. In support of its position, Defendant filed a 

declaration from Amanda Campos, the Director of Guest Claims & Litigation and counsel 

for RCCL. [ECF No. 82-1].

Defendant also argued that its production of one of Mr. Smith’s statements to 

WorkSafe did not necessarily waive the work product protection. [ECF No. 82, p. 3, n.1. 

(citing Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 653 (S.D. Fla. Nov. 6, 2009) 

(“[B]ecause the work product privilege looks to the vitality of the adversary system rather 

than simply seeking to preserve confidentiality, it is not automatically waived by the 

disclosure to a third party."))].

Finally, Defendant argued that Plaintiffs had not shown substantial need, noting 

that “Plaintiffs . . . made no attempts to gather this information via other means” and had 

made no requests to Defendant to depose RCCL employees. Id. at 5-6.

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In their Reply, Plaintiffs continued to insist that “all thirteen (13) statements should 

be produced because they were prepared as a matter of course and pursuant to Royal 

Caribbean’s procedures to obtain witness statements following the incident” and “likely 

contain[ed] only a recitation of objective facts and . . . Royal Caribbean’s remedial 

response, which [were] not protected under the work product doctrine.” [ECF No. 83, p. 

2]. Plaintiffs also asked, in the alternative, that the Court conduct an in camera inspection 

of the statements to determine if they were in fact work product. Id.

United States District Judge Federico A. Moreno referred this matter to the 

Undersigned [ECF No. 84]. The Undersigned directed RCCL to file under seal all 13 

statements and to prepare a chart identifying “on a witness-by-witness basis, (1) the date 

that the statement was originally taken or provided, (2) the date the statement was signed 

or acknowledged by the witness, and (3) the circumstances under which the statement 

was taken[.]” [ECF No. 86].

On December 2, 2021, Defendant filed its chart. [ECF No. 91]. Defendant also filed 

under seal the 13 statements. [ECF No. 92].

C. December 9, 2021 Discovery Hearing

On December 9, 2021, the Undersigned held a Zoom videoconference hearing and 

issued a Post-Discovery Hearing Administrative Order [ECF No. 96]. This was the first 

of three Post-Discovery Hearing Administrative Orders addressing these statements. See

[ECF Nos. 109; 120; 152].

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The Undersigned’s December 9, 2021 Order denied without prejudice Plaintiffs’ 

request to compel the witness statements. [ECF No. 96]. Having reviewed the statements 

in camera, the Undersigned specifically stated in the Order that all thirteen statements 

were protected by the work product doctrine, but “reserve[d]ruling on Plaintiffs’ attempt 

to obtain these work product witness statements under the substantial need exception to 

the work product doctrine.” Id. at 1-2. The Undersigned found “Plaintiffs’ request [to be]

premature” and instructed Defendant to provide Plaintiffs with information concerning 

the witnesses. Id. at 2. The Court also advised Plaintiffs that they could renew their 

substantial need argument, if necessary, after they made efforts to contact Defendant’s 

former employees or to schedule the depositions of Defendant’s current employees. Id. at 

2-3.

D. February 24, 2022 Discovery Hearing

On February 24, 2022, the Undersigned held a second Zoom videoconference 

hearing concerning the witness statements. At the hearing, Plaintiffs sought to compel 

the statements of former RCCL employees on the basis of substantial need. Following the 

hearing, the Undersigned issued a second Post-Discovery Hearing Administrative Order 

on this topic. [ECF No. 109]. The Order directed RCCL to produce the witness statements 

of Shore Excursion Team Member Yao Chen, Sales Operation Manager Mark Rheinbay 

Anton Alexander, and Regional Manager of RCL Cruises, Ltd. Mark Kinchley. Id. The 

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Undersigned found that with respect to these three witnesses, Plaintiffs had met their 

burden of showing substantial need. Id.

Between June 6, 2022 and July 19, 2022, Plaintiffs took the videoconference 

depositions of the remaining ten current and former RCCL employees who had provided 

witness statements.

E. August 11, 2022 Discovery Hearing

On August 11, 2022, the Undersigned held a discovery hearing, addressing for the 

third time Plaintiffs’ request to compel the witness statements. Plaintiffs cited two reasons 

why they were now entitled to the remaining ten work product protected statements.

First, Plaintiffs asserted that they had reason to suspect that RCCL’s counsel had 

instructed the witnesses not to review their statements before their depositions. Plaintiffs 

cited three reasons for this suspicion: (1) during Gavin Smith’s deposition, RCCL’s 

counsel instructed the witness not to answer based on attorney-client privilege, when 

Plaintiffs’ counsel asked Mr. Smith if anyone had instructed him not to read his 

statement;6 (2) with the exception of Kwame Konata Matthews, none of the witnesses 

6 During Mr. Smith’s deposition, the following exchange took place:

Q. Were you instructed by anyone not to read your 18 to 20-page 

statement[]?

[COUNSEL FOR DEFENDANT]: Let me object to the form and --

and even though -- just out of an abundance of caution, just because 

you’re talking about instructions, and to the extent it included any 

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reviewed their statements before their depositions; and (3) RCCL’s counsel impeded the 

witnesses from reviewing their statements during their depositions. Plaintiffs argued that 

if Defendant’s counsel gave this pre-deposition instruction, it was improper because it 

potentially affected each witness’s recollection of the incident and of what was contained 

in his or her statement.

Second, Plaintiffs argued that RCCL’s counsel had acted improperly when, during 

the depositions, he prevented the witnesses from accessing their statements despite 

testimony from the witnesses that their memory would be refreshed by reading the 

statements.

According to Plaintiffs, they had now shown substantial need for the statements 

based on defense counsel’s purported instruction to the witnesses not to read their 

statements before the depositions and counsel’s refusal, during the depositions, to allow 

the witnesses to read their statements.

attorney-client communications, I will instruct Mr. Smith not to answer 

that question.

[COUNSEL FOR PLAINTIFFS]: Okay. We’ll certify that question.

[COUNSEL FOR DEFENDANT]: I don’t think you need to certify.

It’s an old thing.

[COUNSEL FOR PLAINTIFFS]: It’s [sic] sounds fancy to me. Helps 

me remember when I bring it before the Judge.

[ECF No. 158-4, p. 3 (37:1-16) (emphasis added)].

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Plaintiffs also stated that there were “numerous” inconsistencies between RCCL’s 

privilege logs and the testimony of the witnesses, but provided only one concrete 

example. The privilege log listed one of Gavin Smith’s statements as being three pages, 

when in fact it was 18 pages. According to the excerpt of Mr. Smith’s deposition, however, 

RCCL’s counsel notified Plaintiffs’ counsel of this error the day before Mr. Smith’s 

deposition. [ECF No. 158-4, pp. 8-9 (57:23-58:3 (“I haven’t looked at that document in 

forever and just yesterday I stumbled upon it and I compared the two documents and I 

realized it had the typo and called [Plaintiffs’ counsel]. So it wasn’t three. It was 18 

pages.”))].

RCCL’s counsel represented to the Court, during the hearing, that he did not give 

any instruction to the witnesses. He did not feel obligated to affirmatively tell the 

witnesses to read their statements (which is different from specifically telling the 

witnesses not to read their statements) largely because he knew that the statements would 

not contain any information that was relevant to the remaining issues in the case, there 

were no topics designated in the deposition notices, and these were not duces tecum 

depositions. Defense counsel stated that when he met with the witnesses to prepare them, 

it was his impression that they had a very good memory of everything the witnesses had 

done.

Plaintiffs argued that an attorney should not impede a deposition by instructing 

the witness not to read his or her statement in preparation for that deposition in order to 

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prevent Federal Rule of Evidence 612 from being triggered. According to Plaintiffs, once 

the witness testified during his or her deposition that a statement would refresh his or 

her recollection, Rule 612 automatically required that the witness be given the statement 

in order to establish whether or not the witness’s memory was in fact refreshed by 

reviewing the statement.

Plaintiffs noted that the entire purpose of taking these depositions was for 

Plaintiffs to obtain the substantial equivalent of the witness’s statements -- i.e., their 

recollections at the time they made their statements. And, if Defendant’s counsel was 

impeding that process by preventing Plaintiffs from obtaining the substantial equivalent 

of the statements, then Plaintiffs argued, they had shown a substantial need for the 

statements.

III. Applicable Law

A. Work Product Doctrine

“The United States Supreme Court first recognized that an attorney’s ‘written 

statements, private memoranda and personal recollections’ should be afforded qualified 

immunity from discovery in Hickman v. Taylor, 329 U.S. 495 (1947), noting that ‘[i]n 

performing . . . various duties . . . it is essential that a lawyer work with a certain degree 

of privacy, free from unnecessary intrusion by opposing parties and their counsel.’” In re 

Seroquel Prod. Liab. Litig., No. 6:06MD1769 ORL22DAB, 2008 WL 591929, at *2 (M.D. Fla. 

Feb. 28, 2008) (quoting Hickman, 329 U.S. at 510).

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The work product doctrine protects the materials of both plaintiffs and 

defendants. The doctrine applies equally to documents withheld by either type of party, 

in open or closed matters. See MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 

550, 619 (S.D. Fla. 2013). The Supreme Court has articulated that the purpose of work 

product protection is to immunize the work product of the attorney or his agents from 

discovery, so that they can analyze and prepare their client’s case for litigation. See United 

States v. Nobles, 422 U.S. 225, 238-39 (1975); see also Upjohn Co. v. United States, 449 U.S. 

383, 397-98 (1981); Hickman, 329 U.S. at 509-10. “[It] is intended to prevent a litigant from 

taking a free ride on the research and thinking of his opponent’s lawyer and to avoid the 

resulting deterrent to a lawyer’s committing his thoughts to paper.” United States v. 

Frederick, 182 F.3d 496, 500 (7th Cir. 1999).

“The work product protections are codified in Federal Rule of Civil Procedure 

26(b)(3).” EFN W. Palm Motor Sales, LLC v. Hyundai Motor Am., No. 21-CV-80348, 2022 WL 

2116547, at *1 (S.D. Fla. June 13, 2022). Work product includes: (1) any document or 

tangible thing that is (2) prepared in anticipation of litigation (3) by or for a party, or by 

or for that party or its representative. See Fed. R. Civ. P. 26(b)(3)(A).

Rule 26(b)(3) differentiates between fact work product and opinion work product.

“Factual work product may be subject to discovery upon the showing of a ‘substantial 

need’ and the inability to obtain substantially equivalent evidence by other means 

without undue hardship. Hoover v. NCL (BAHAMAS) Ltd., No. 19-22906-CIV, 2020 WL 

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4505634, at *12 (S.D. Fla. Aug. 5, 2020) (citing Burrow v. Forjas Taurus S.A., 334 F. Supp. 3d 

1222, 1229 (S.D. Fla. 2018)).

7

Opinion work product, on the other hand, “enjoys a nearly absolute immunity and 

can be discovered only in very rare and extraordinary circumstances.” Cox v. Adm’r U.S. 

Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.), opinion modified on reh’g, 30 F.3d 1347 

(11th Cir. 1994); see also Drummond Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1334–

35 (11th Cir. 2018) (“Attorney work product protection extends to material obtained or 

prepared by counsel in the course of their legal duties provided that the work was done 

with an eye toward litigation.” (citing Fed. R Civ. P. 26(b)(3)(A); Cox, 17 F.3d at 1421–22)).

The party seeking to invoke the work product doctrine has the burden of 

establishing its applicability. Regency of Palm Beach, Inc. v. QBE Ins. Corp., 259 F.R.D. 645, 

649 (S.D. Fla. 2009). “Once that burden is met, the burden then shifts to the requesting 

party to show a ‘substantial need’ and ‘undue hardship’ in accordance with Fed. R. Civ. 

P. 26(b)(3)(A)(ii).” Luc v. Korean Air Lines Co., No. 1:18-CV-5900-LMM, 2019 WL 7824693, 

7 In assessing substantial need, courts consider multiple factors, including:

(1) the importance of the materials to the party seeking them for case 

preparation, (2) the difficulty the party will have obtaining them by other 

means, and (3) the likelihood that the party, even if he obtains the 

information by independent means, will not have the substantial equivalent 

of the documents he seeks.

Hoover, 2020 WL 4505634, at *12 (quoting Burrow, 334 F. Supp. 3d at 1230 (citing Fed. R. 

Civ. P. 26 advisory committee’s note to 1970 amendment)).

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at *1 (N.D. Ga. May 31, 2019). “[W]here the Court has had the benefit of reviewing the 

documents in question in camera, it is better positioned to assess a moving party’s 

showing of substantial need than even the moving party.” TIG Ins. Co. v. United Nat’l Ins. 

Co., No. 05-60672-CIV, 2006 WL 8431479, at *8 (S.D. Fla. June 23, 2006).

B. Federal Rule of Evidence 612

Federal Rule of Evidence 612 “governs the process for producing writings used to 

refresh memory.” Rando v. Gov’t Emps. Ins. Co., No. 5:06-CV-336-OC-10GRJ, 2008 WL 

11434557, at *1 (M.D. Fla. Jan. 4, 2008). It states, in part, as follows:

(a) Scope. This rule gives an adverse party certain options when a witness 

uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires 

the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. 

§ 3500 provides otherwise in a criminal case, an adverse party is entitled to 

have the writing produced at the hearing, to inspect it, to cross-examine the 

witness about it, and to introduce in evidence any portion that relates to the 

witness’s testimony. If the producing party claims that the writing includes 

unrelated matter, the court must examine the writing in camera, delete any 

unrelated portion, and order that the rest be delivered to the adverse party. 

Any portion deleted over objection must be preserved for the record.

Fed. R. Evid. 612(a)-(b).

“Rule 612 is not a vehicle for a plenary search for contradictory or rebutting 

evidence that may be in a file but rather is a means to reawaken recollection of the witness 

to the witness’s past perception about a writing.” United States v. Sheffield, 55 F.3d 341, 343 

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(8th Cir. 1995). “Rule 612 exists, in part, to ‘safeguard against using the rule as a pretext 

for wholesale exploration of an opposing party’s files and to insure that access is limited 

only to those writings which may fairly be said in fact to have an impact upon the 

testimony of the witness.” Edwards v. Speedway, LLC, No. 18-23091-CIV, 2019 WL 

13066871, at *1 (S.D. Fla. May 15, 2019) (citing Fed. R. Evid. 612 advisory committee’s 

notes).

Under Rule 612, “an adverse party is entitled to the production of a document if a 

witness uses the document to refresh his or her memory (1) while testifying or (2) before 

testifying, if the court in its discretion determines it is necessary in the interests of justice.”

Id. (citing Fed. R. Evid. 612). The rule applies to both deposition testimony and trial 

testimony. Id. (“Courts have routinely applied this rule to documents reviewed in 

preparation for depositions as well as for trial testimony preparation.”).

Although Rule 612 permits the opposing party to obtain a document used by a 

witness to refresh his or her recollection, “nothing in the Rule [should] be construed as 

barring the assertion of a privilege[.]” Fed. R. Evid. 612 advisory committee’s note.

Thus, a litigant has the right to object to the production of a document and seek a 

court ruling on whether the interests of justice are met. Cf. Ross v. Sejin Am., Inc., No. 3:18-

CV-537-RAH-JTA, 2021 WL 6973877, at *3 (M.D. Ala. Apr. 9, 2021) (“By failing to object 

to production, as was her right under Federal Rule of Evidence 612, [the] [p]laintiff . . . 

forfeited the option of asking the court to determine whether the interests of justice 

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required the disclosure of her notes under Rule 612(a).” (citing Sporck v. Peil, 759 F.2d 312, 

317 (3d Cir. 1985)).8

“Even if the document consulted is privileged, the Court has discretionary power 

to determine whether a waiver has occurred.” CMS Wireless, LLC v. Fid. & Deposit Co. of 

8 Sporck is often cited for the view that the collection of documents used by counsel 

to prepare the witnesses for depositions is privileged and protected from disclosure by 

the work product doctrine, but it appears as though the Eleventh Circuit has yet to adopt 

or endorse that approach. In re Seroquel Product Liability Litigation, No. 6:06-md-1769, 2008 

WL 215707, at *3 (M.D. Fla. Jan. 24, 2008) (noting that other Florida district courts 

acknowledged Sporck’s “far-reaching effect” and distinguished the facts before them from 

the Sporck decision); Loc. Access, LLC v. Peerless Network, Inc., No. 617CV236ORL40TBS, 

2018 WL 2938393, at *5 (M.D. Fla. June 12, 2018) (“’The Eleventh Circuit has not had 

opportunity as yet to consider the applicability of the Sporck doctrine. The cases within 

this Circuit that have had such opportunity, however, have recognized the far-reaching 

effects of the decision, and have crafted a narrower application of the doctrine.’” (quoting 

In re Trasylol Prod. Liab. Litig., No. 08–MD–1928, 2009 WL 936597, at *4 (S.D. Fla. Apr. 7, 

2009)); Avant Garde Eng'g & Res. Ltd. v. Nationwide Equip. Co., No. 3:11-CV-525-J-20TEM, 

2013 WL 2106817, at *8 (M.D. Fla. May 15, 2013) (“While counsel is correct that the 

Eleventh Circuit has not yet analyzed the issue of whether the selection and ordering of 

documents to show a witness is protected work product, [the] [d]efendants’ reliance on 

a Third Circuit case is misplaced as district courts within the Eleventh Circuit have had 

occasion to analyze this issue. The district courts have been reluctant to expand the 

attorney work product doctrine, noting ‘that an overly broad application of workproduct immunity could easily eviscerate the discovery rules and their purpose.’” 

(quoting Jackson v. Geometrica, Inc., No. 304CV640J20HTS, 2006 WL 510059 (M.D. Fla. Mar. 

2, 2006))); Chase v. Nova Se. Univ., Inc., No. 11-61290-CIV, 2012 WL 204173, at *2 (S.D. Fla. 

Jan. 24, 2012) (“This Court agrees with the Trasylol Court and the other courts that require 

the party raising a ‘selection based opinion work product’ objection to ‘come forward 

with some evidence that disclosure of the requested documents creates a real, nonspeculative danger of revealing counsel’s thoughts.’” (quoting In re Trasylol, 2009 WL 

936597, at *4)).

By citing cases which also cite Sporck, the Undersigned is not adopting Sporck’s socalled rule that the collection of documents is itself a privileged step which immunizes a 

fact witness from disclosing what he or she reviewed to prepare for testimony.

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Md., No. 4:11CV00755 RTD, 2013 WL 12286172, at *4 (E.D. Ark. Mar. 11, 2013) (citing Fed. 

R. Evid. 612; McCormick on Evid. § 93 (6th ed.)); see also Valvoline Instant Oil Change 

Franchising v. RFG Oil, Inc., No. 12CV2079-GPC(KSC), 2014 WL 12026073, at *5 (S.D. Cal. 

May 20, 2014) (acknowledging that “[p]ursuant to Rule 612(a)(2), ‘justice’ may sometimes 

‘require the production of a document as to which the privilege has not been waived in 

order to permit adequate cross-examination’” (quoting In re Rivastigmine Patent Lit. (MDL 

No. 1661), 486 F. Supp. 2d 241, 243 (S.D.N.Y. 2007)).

The rule treats documents used before testifying and documents used while

testifying differently. “The amendment to Rule 612 reflects Congress’ intent to treat the 

two situations differently.” Balbiani v. Chester Pub. Util. Dist., Inc., No. 2:20-CV-2310-TLNDMC, 2022 WL 3594385, at *8 (E.D. Cal. Aug. 23, 2022); Suss v. MSX Int’l Eng’g Servs., Inc., 

212 F.R.D. 159, 163 (S.D.N.Y. 2002) (noting that while “courts have been grappling with 

the scope of Rule 612 with varying degrees of clarity[,]” “[t]he one area of agreement 

appears to be that the standard for production varies between Rule 612(1) and 612(2)”).

“Whether to order production of materials referred to before testifying is within the 

Court’s discretion after balancing the need for the material against the author’s need to 

protect confidential information.” Balbiani, 2022 WL 3594385, at *8 (citing Derderian v. 

Polaroid Corp., 121 F.R.D. 13 (D. Mass. 1988)); see also Edwards, 2019 WL 13066871, at *1 

(“The production of a writing used to refresh a witness’s recollection prior to testifying is 

left to the discretion of the district court in the interests of justice.” (emphasis added)); 

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Ferry v. BJ’s Wholesale Club, No. CIV.3:06CV226-C, 2007 WL 75375, at *3, n.1 (W.D.N.C. 

Jan. 8, 2007) (“As is clear from the rule, when a document is used to refresh a deponent’s 

memory prior to the deposition, a balancing test must be applied.” (citing Fed. R. Evid. 

612(2) (emphasis in original))).

Conversely, documents used by a witness during his or her testimony must

generally be produced. See Suss, 212 F.R.D. at 163 (“[I]f the witness uses the document 

while testifying, it must be produced.”).

In exercising their discretion, some courts:

have found that three conditions must be met before a party may obtain 

documents used by a witness prior to testifying: (1) the witness uses the 

writing to refresh his memory; (2) the witness uses the writing for the 

purpose of testifying; and (3) the court determines that production is 

necessary in the interest of justice.

Ross, 2021 WL 6973877, at *1 (citing Sporck, 759 F.2d at 317 and In re Managed Care 

Litigation, 415 F. Supp. 2d 1378, 1380 (S.D. Fla. 2006) (Moreno, J.)). Of course, other courts

have employed other factors. See Suss, 212 F.R.D. at 163 (observing that “the cases 

[applying Rule 612] do not provide a uniform analytical framework”).

Finally, the burden is on the party seeking to compel production to show the 

applicability of Rule 612. See Napolitano v. Omaha Airport Auth., No. 8:08CV299, 2009 WL 

1740826, at *3 (D. Neb. June 15, 2009) (“[T]he burden is on the party requesting production 

to show ‘that the document actually influenced the witness’s testimony.’” (quoting 

Sporck, 759 F.2d at 318)); Lubritz v. AIG Claims, Inc., No. 217CV02310APGNJK, 2018 WL 

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10456239, at *2 (D. Nev. Apr. 18, 2018) (“The party seeking disclosure bears the burden 

of showing that disclosure is warranted.”).

IV. Analysis

A. Counsel’s Duty to Prepare a Client for a Fact Witness (i.e., a Non-Rule 

30(b)(6)) Deposition)

At the heart of this dispute is the extent to which counsel must prepare a fact 

witness for deposition. Plaintiffs assert that “an attorney has an ethical duty to 

competently prepare their client-witness for testimony.” [ECF No. 159, p. 2 (emphasis in 

original)]. RCCL states that “any duty to prepare a non-30(b)(6) witness—let alone 

prepare in a particular manner—that a lawyer may have stems from rules governing 

professional conduct, not legal mandates.” [ECF No. 166, p. 1].

The Rules Regulating the Florida Bar state that “[a] lawyer must provide 

competent representation to a client. Competent representation requires the legal 

knowledge, skill, thoroughness, and preparation reasonably necessary for the 

representation.” Fla. R. Reg. Fla. Bar 4-1.1.

9

“[A] deposition is a major event in the life of a case.” Evans v. Griffin, 932 F.3d 

1043, 1048 (7th Cir. 2019). As one court observed:

Depositions serve multiple purposes. Depositions allow a party to find out 

what a witness saw, heard, did, or thinks. Hall v. Clifton Precision, a Div. of 

Litton Sys., Inc., 150 F.R.D. 525, 528 (E.D. Pa. 1993). Depositions frequently 

9 “The Rules Regulating the Florida Bar govern the professional conduct of 

attorneys in the Southern District of Florida.” Vital Pharms., Inc. v. Alfieri, No. 20-61307-

CIV, 2022 WL 456403, at *2 (S.D. Fla. Feb. 11, 2022) (citing S.D. Fla. Local Rule 11.1(C)).

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allow parties to discover key facts and ascertain which deponents will 

prove to be suitable or desirable witnesses at trial. Depositions also can 

elicit information that may lead to other useful evidence. Redwood v. Dobson, 

476 F.3d 462, 469 (7th Cir. 2007). Furthermore, depositions allow a party to 

“lock” a deponent into key admissions and secure the deponent’s “final” 

version of the relevant events. Once a deponent’s testimony is secured in a 

deposition transcript or recording, it becomes difficult for the deponent to 

alter his testimony materially. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 

1306-07 (11th Cir. 2016) (holding that a court may “disregard an affidavit as 

a matter of law when, without explanation, it flatly contradicts” a 

deponent’s “prior deposition testimony for the transparent purpose of 

creating a genuine issue of fact”).

The information obtained through pretrial depositions can assist parties in 

moving for summary judgment or defending against a summary judgment 

motion. See Fed. R. Civ. P. 56. Depositions also help parties determine 

whether settlement is appropriate or whether the relevant deponents will 

suffice to establish or disprove elements of claims or defenses. See Herbert 

v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); United States 

v. Sensient Colors, Inc., 649 F. Supp. 2d 309, 321 (D.N.J. 2009). Indeed, in civil 

actions, depositions are “the factual battleground where the vast majority 

of litigation actually takes place.” Hall, 150 F.R.D. at 531.

Mitnor Corp. v. Club Condo., 339 F.R.D. 312, 315-16 (N.D. Fla. 2021).

Given the significantrole played by depositions in civil cases, lawyers are expected 

to prepare their clients for this often-consequential event. In re Seroquel Prod. Liab. Litig., 

No. 606MD-1769ORL-22DAB, 2008 WL 215707, at *5 (M.D. Fla. Jan. 24, 2008), aff’d, No. 

6:06MD1769 ORL22DAB, 2008 WL 591929 (M.D. Fla. Feb. 28, 2008) (observing that 

“[e]very responsible attorney prepares with her client-witness before that witness 

testifies”); Hall, 150 F.R.D. at 528 (“A lawyer, of course, has the right, if not the duty, to 

prepare a client for a deposition.”(citing Pa. R. Prof. Conduct 1.1.) (footnote omitted)).

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How that lawyer prepares the client-witness, however, will likely turn on the type 

of deposition noticed.

Fact witness depositions are different from Rule 30(b)(6) depositions. See Christie 

v. Royal Caribbean Cruises, Ltd., No. 20-22439, 2021 WL 2940251, at *4 (S.D. Fla. July 13, 

2021) (“[A] deposition pursuant to Rule 30(b)(6) is materially different than a witness 

deposition as an individual.”); Castle-Foster v. Cintas Corp. No. 2, No. CV419-139, 2021 WL 

601877, at *9 (S.D. Ga. Feb. 16, 2021) (“[T]he Court will not approve [the] defendants’ plan 

to retroactively designate fact witnesses for 30(b)(6) purposes . . . . Attorneys do not treat 

these deponents similarly, nor should they be expected to.”).

In the context of a Rule 30(b)(6) deposition, the designee will know ahead of time 

the topics that will be discussed at her deposition and the party noticing the corporate 

deposition will not necessarily know the identity (or identities) of the designee(s) until 

the day of the deposition.

On the other hand, the name of a fact witness is typically (although not always) 

listed in the notice, but the subjects to be discussed at the deposition do not need to be 

previewed in advance. Fed. R. Civ. P. 30(b)(1).

Another important distinction is that a fact witness is expected to testify based on 

his or her personal knowledge. See McGonegle v. Select Comfort Retail Corp., No. 1:19-CV442, 2022 WL 394381, at *2 (S.D. Ohio Feb. 9, 2022) (“The testimony of a fact witness must 

have a basis in the witness’s personal knowledge.” (citing Fed. R. Evid. 602)); United States 

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v. Cuti, 720 F.3d 453, 458 (2d Cir. 2013) (“[P]ersonal knowledge [is] a foundational 

requirement for fact witness testimony and is premised on the common law belief that ‘a 

witness who testifies to a fact which can be perceived by the senses must have had an 

opportunity to observe, and must have actually observed the fact.’” (quoting Fed. R. Evid. 

602 advisory committee’s note)).

“[A]s contrasted with Rule 30(b)(6) witnesses, fact witnesses are under no duty to 

educate themselves about all information available to the corporation on a particular 

topic.” In re E.I. du Pont de Nemours & Co., No. 2:13-MD-2433, 2014 WL 1653158, at *4 (S.D. 

Ohio Apr. 24, 2014).

In contrast, “corporate parties have an obligation to present witnesses who are 

capable of providing testimony on the noticed topics regardless of whether the 

information was in the witness’s personal knowledge, provided that the information is 

reasonably available to the corporation.” Memory Integrity, LLC v. Intel Corp., 308 F.R.D. 

656, 661 (D. Or. 2015). His or her answers will bind the corporation or entity. See Reed v. 

Royal Caribbean Cruises, Ltd., No. 19-24668-CIV, 2021 WL 4990902, at *2 (S.D. Fla. Aug. 20, 

2021) (“The deposition testimony of a Rule 30(b)(6) corporate representative is binding 

on the corporation and the corporate representative.”). In instances “where a [Rule 

30(b)(6)] corporate designee testifies on topics of which he denies any personal 

knowledge, he is an ‘empty vessel’ and documents reviewed on those topics in 

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preparation for the deposition necessarily informed his testimony.” Coryn Grp. II, LLC v. 

O.C. Seacrets, Inc., 265 F.R.D. 235, 243 (D. Md. 2010).

Given the differences between fact witness depositions and Rule 30(b)(6) 

depositions, the Court would expect that counsel’s obligations vis-à-vis his client-witness 

will depend on the type of deposition being noticed. Much has been written in the case 

law and in secondary sources about the art of preparing a Rule 30(b)(6) corporate 

designee. The legal authority is less abundant when it comes to the topic of preparing a 

fact witness for deposition.

The parties seem to agree that, at the very least, a lawyer has an ethical obligation 

to prepare a client to testify. In the Undersigned’s view, the specifics of how the attorney 

discharges that ethical obligation in preparing the client for a fact-witness deposition is

up to the attorney’s discretion.

Plaintiffs argue that RCCL’s counsel had an obligation to not impede the witnesses

from reviewing their statements and once those witnesses testified during their 

depositions that their statements would or could refresh their recollection, RCCL’s 

counsel had an affirmative obligation to provide those statements to those witnesses. 

And, if the witnesses’ recollections were refreshed upon reading their statements, then 

RCCL’s counsel was required under Rule 612 to produce the statements to Plaintiffs, 

notwithstanding the Court’s earlier determination that these statements were subject to

work product protection.

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Plaintiffs have not cited any binding authority requiring an attorney to specifically 

review a fact witness client’s statement before a fact witness deposition taken by 

opposing counsel (or during the actual deposition).

To be sure, Rule 612 does state that if “a witness uses a writing to refresh memory” 

either while testifying or “before testifying” upon an interest of justice finding by the 

court then “an adverse party is entitled to have the writing produced at the hearing, to 

inspect it, to cross-examine the witness about it, and to introduce in evidence any portion 

that relates to the witness’s testimony.” Fed. R. Evid. 612. However, that is not the same 

as requiring counsel to prepare a witness using a specific document (such as a work 

product protected statement).

As noted above, the burden is on the party seeking production of a document 

pursuant to Rule 612 to show the rule’s applicability. Here, Plaintiffs have not met that 

burden.

By its very terms, Rule 612 is largely inapplicable here because (with the exception 

of Mr. Matthews), the witnesses did not review their statements before their depositions. 

Moreover, none of the witnesses were shown their statements during their depositions.

Nonetheless, materials which have previously been deemed work product may be 

discoverable if the party seeking production establishes substantial need and undue 

hardship. Fed. R. Civ. P. 26(b)(3)(A)(ii). Absent a showing of substantial need and undue 

hardship, however, Plaintiffs are not entitled to RCCL’s work product.

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B. Use of Work Product Protected Materials in Preparing a Witness for 

Deposition or During a Deposition May Result in Waiver

The deposition excerpts filed by Plaintiffs show that RCCL’s counsel was hesitant

to allow the witnesses to view their statements during their depositions -- absent a 

stipulation by the parties -- because he was concerned about waiving the documents’ 

work product protections. Defense counsel’s concerns were well-founded.

It is beyond dispute that “the work product doctrine provides only a qualified and 

limited degree of immunity from discovery[.]” Neonode Smartphone LLC v. Apple, Inc., No. 

21CV08872EMCRMI, 2022 WL 1285429, at *2 (N.D. Cal. Apr. 29, 2022). Under the right

conditions (or the wrong conditions, depending on which side counsel is on), it is subject 

to waiver. See Chick-fil-A v. ExxonMobil Corp., No. 08-61422-CIV, 2009 WL 3763032, at *3 

(S.D. Fla. Nov. 10, 2009) (“[T]he Court finds that Exxon counsel’s intentional, voluntary 

disclosure to Chick-fil-A of attorney Quiralte’s Memorandum waived Exxon’s work 

product protection.”); Ross, 2021 WL 6973877, at *3 (“The absence of a clear objection on 

the record and [the] [p]laintiff’s active participation in the disclosure compel the court to 

find her actions were intentional and voluntary, and consequently waived any work 

product privilege she may have claimed.” (citing Chick-fil-A, 2009 WL 3763032, at *3)).

Thus, given the legions of cases illustrating the pitfalls of voluntarily producing

work product protected documents, RCCL’s counsel sensibly chose not to show the work 

product protected statements to the witnesses during their depositions (and, in Daragh

Robbins’ case, instructed him not to get his statement which was somewhere in his 

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house), because doing so risked waiving the statements’ work product protections. See

Jolly v. Coughlin, No. 92 CIV. 9026 (JGK), 1995 WL 495641, at *2 (S.D.N.Y. Aug. 21, 1995) 

(“The fact that the document used to refresh a witness’s recollection while testifying 

would otherwise be privileged, does not shield it from being produced under [Fed R. 

Evid.] 612(1).”).

And, RCCL’s counsel understandably chose not to use the statements to prepare

his witnesses for deposition because doing so could also result in waiver. See United States 

ex rel. Bingham v. HCA, Inc., No. 13-23671-CIV, 2016 WL 4543871, at *1 (S.D. Fla. Apr. 18, 

2016) (Torres, M.J.) (“[B]ased on settled principl[es] applied in our District, . . . the use of 

the Relator of that same document to prepare for his deposition answers effectively 

waived any work product protection in the document, except for pure opinion work 

product that, if disclosed, would substantially prejudice the Relator in the litigation.”

(emphasis added)); Mitchell v. Royal Caribbean Cruises, Ltd., No. 12-CV-22734-UU, 2013 

WL 12064484, at *1 (S.D. Fla. May 2, 2013) (Torres, M.J.) (requiring cruise line to produce 

“Confidential Vessel Report/Personal Injury Illness Statement” pursuant to Fed. R. Evid. 

612 -- “[e]ven assuming that the report would qualify as work product” -- where witness 

testified at his deposition that he recalled certain facts because he had reviewed his notes 

regarding the incident).

As Judge Torres warned in HCA, Inc.,

it is clear that factual work product contained in [a] document is 

discoverable because any work product protection [is] lost when the 

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witness specifically relie[s] on the document in preparation for his 

deposition. The decision to review the document is also purposeful and 

understandable. But it has consequences under Rule 612, based upon the 

unfairness to the adverse litigant in not being able to cross-examine the 

witness on this document.

2016 WL 4543871, at *2.

Instead, RCCL’s counsel chose to litigate the issue before the Court, as was his 

right. See Gutherless v. Union Pac. R.R. Co., No. 8:20CV442, 2021 WL 5771285, at *3 (D. Neb. 

Dec. 6, 2021) (“[A] party seeking to preserve work product protection over writing used 

to refresh recollection may seek relief from the court before disclosing the protected 

materials.”); Ross, 2021 WL 6973877, at *3 (observing that a litigant has “the option of 

asking the court to determine whether the interests of justice required the disclosure of 

her notes under Rule 612(a)”).

C. Fact Witness Depositions10

As noted above, the Undersigned directed Plaintiffs to “file a list (page and line) 

specifically quoting the questions and the responses, on a witness-by-witness basis, 

where the deponent testified to a lack of recall and that reviewing the witness statement 

would, could, or might refresh his or her recollection.” [ECF No. 152, p. 2]. Plaintiffs filed 

deposition excerpts for all ten witnesses. [ECF No. 158].

10 Unless otherwise noted, the information summarized in this section is from the 

deposition excerpts filed by Plaintiffs. [ECF No. 158]. Although the Undersigned 

reviewed in camera the filed-under-seal witness statements and event timelines [ECF Nos. 

92, 175; 186], none of the information contained in this Order (or the attachment) discloses 

the substance of those sealed filings.

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The Undersigned will now address, on a witness-by-witness basis, each instance 

in which the witness testified that he or she could not recall or could not remember a fact, 

as well as other testimony relevant to the Undersigned’s ruling. For those witnesses 

whose depositions will be resumed, the Undersigned will also include an attachment, in 

chart form, listing those instances where the witness testified that he or she did not 

remember or did not recall a fact and identifying by paragraph number where the 

information may be found in the witness’s statement.

1. Kwame Konata Matthews, Front Desk Manager

Kwame Konata Matthews provided a six-page statement taken on January 12, 

2020. [ECF No. 77-4, item 9].

Of the ten witnesses, Mr. Matthews was the only deponent who testified that he 

reviewed his witness statement before his deposition. Mr. Matthews testified that he 

reviewed his statement approximately three months before his deposition, when RCCL’s

counsel reached out to him about Plaintiffs’ desire to take his deposition. [ECF No. 158-

1, p. 2 (13:7-25)]).

Mr. Matthews read his statement because the incident “was in 2019 and so much 

happened during that time.” Id. at 13:13-14. He believed he would not work for Royal 

Caribbean again, due to the pandemic, and he had “wiped the whole situation out of [his] 

mind and when it was brought to [his] attention, [he] just read through [the statement]

to remember, briefly.” Id. at 13:13-18.

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Although Mr. Matthews denied that he reviewed his statement in preparation for 

his deposition, he did state that he reviewed it so he could refresh his recollection. Id. at 

14:7-10. He explained that there were “so many names . . . and it was so long ago, that 

[he] just wanted to refresh [his] memory.” Id. at 14:15-19. When asked why he wanted to 

refresh his recollection, Mr. Matthews stated that it was “[s]o that when . . . [he was] asked 

any questions, that [he] [would] be able to tell very accurately [the] answer” because 

“[t]he incident that happened, . . . was three years ago.” Id. at 14:20-24. Nonetheless, he 

testified that he “didn’t read through [the statement], [he] just brushed through it very 

briefly[.]” Id. at 14:25-15:5. “[He] could not remember all the names, so [he] had to refresh 

[his] memory.” Id. at 15:13-14.

During the deposition, Plaintiffs’ counsel asked RCCL’s counsel for a copy of Mr. 

Matthews’ statement, citing Fed. R. Evid. 612, because Mr. Matthews had testified that he 

had read his statement in preparation for his deposition. Id. at 16:12-17. RCCL’s counsel 

refused, arguing that, under Rule 612, it was up to the Court to decide whether Plaintiffs 

were entitled to the statement and asserting that Mr. Matthews’ review of the statement 

“[did] not qualify [as] a waiver of the work product doctrine.” Id. at 16:18-25. RCCL’s 

counsel proposed giving the statement to Mr. Matthews so that he could refer to it, “to 

remember maybe names of people,” provided that the parties stipulated that doing so 

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would not waive the work product doctrine. Id. at 19:25-20:6. Plaintiffs’ counsel refused. 

Id. at 20:7-16.11

During his deposition, Mr. Matthews could not recall the names of some of the 

Ooi12 family members who were in the ship’s conference room following the eruption of 

the volcano. Id. at 30:22-31:2. He believed these names would be in his statement. Id. at 

31:3-17. RCCL’s counsel again offered to provide these names, “subject to not waiving 

the work product protection.” Id. at 31:19-22.

Mr. Matthews was also not able to recall the names of all of his team members who 

were in the conference room, other than Lee, Nicole Consumate, Jennifer Stork, and Laura 

Bernard. Id. at 33:10-34:3. He believed this information would be in his statement. Id. at 

34:4-7.

Mr. Matthews testified that he called approximately seven or eight passengers 

who were on the excursion. Id. at 34:8-16. He listed several names, but when asked if there 

was anyone else that he could remember, he stated that “[t]hose were the guests that we 

called . . . that was what I can recall.” Id. at 35:4-7.

11 If Plaintiffs’ counsel had genuinely been interested in obtaining the deponent’s 

refreshed recollection, then counsel presumably would have agreed to this proposed 

stipulation. The refusal suggests that Plaintiffs were more interested in pursuing a 

strategy to obtain the work product statements themselves rather than the few facts 

which the deponent did not recall.

12 The Ooi surname is sometimes misspelled in the deposition transcripts as “Oii.”

In this Order, the Undersigned will use the correct spelling.

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Finally, Mr. Matthews could not recall the surname of a passenger named Jason 

and testified that Jason’s last name would be in his statement. Id. at 39: 24-40:6.

Given this history, the Undersigned will allow Plaintiffs to take a second, limited

deposition of Mr. Matthews, consistent with the procedures outlined below. I am 

allowing this second, limited deposition because Mr. Matthews testified that he could 

not recall the names of certain passengers and crew members and that reviewing his 

statement would likely refresh his recollection. However, I will not compel RCCL to 

provide to Plaintiffs a copy of Mr. Matthews’ statement (which I have already determined 

is protected by the work product doctrine) because Plaintiffs have not shown a 

substantial need for the production of this statement. For purposes of waiver, there is a 

dramatic difference between a witness who voluntarily reviews a document to prepare for 

testimony and one who is ordered to review a statement. 

2. James Nazar, Staff Captain

James Nazar provided a nine-page statement dated December 16, 2019. [ECF No. 

77-3, item 2]. Mr. Nazar also prepared a five-page event timeline. Id. at item 15; [ECF 

Nos 83-1, item 4; 186].

Mr. Nazar testified that he had two meetings with outside counsel, but he could

not recall when the second meeting took place or how long it lasted. [ECF No. 58-2, p. 2 

(126:4-11)]. He could not recall how many revisions he made to his statement, how many 

pages the statement was, whether there were any attachments, or if he kept a copy. Id. at 

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128:11-14; 128:124-129:20. He explained that the incident was very difficult for him 

because some people were badly hurt and children died. Id. at 129:21-130:10. The 

statement was not something he wanted to read, review, or remember. Id. The last time 

Mr. Nazar reviewed his statement was in August of 2020. Id. at 130:11-13.

Mr. Nazar also could not remember whether he prepared a timeline related to the 

incident, separate from his statement. Id. at 130:22-25; 132:10-133:8.

The Undersigned will not require Mr. Nazar to sit for a second deposition or 

compel Defendant to produce to Plaintiffs copies of Mr. Nazar’s statement or event 

timeline. Although Mr. Nazar did not want to recall the incident, the deposition excerpts 

filed by Plaintiffs do not reveal any answers to factual questions about the incident or 

related to the incident which would likely be in Mr. Nazar’s statement or event timeline.13

In other words, the deposition excerpts filed by Plaintiffs do not reveal any 

questions concerning factual details which would be answered by the statement/event 

timeline. Plaintiffs’ questions to Mr. Nazar concerned when and how long he met with 

outside counsel, how many revisions he made to his statement, the length of his 

statement, whether it had any attachments, whether Mr. Nazar kept a copy of the 

statement, and whether there was a timeline separate and apart from the statement. The

13 Based on the excerpts filed by Plaintiffs, Mr. Nazar’s deposition transcript was 

more than 133 pages. Thus, he must have provided some relevant testimony to Plaintiffs.

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answers to those questions are either in Defendant’s initial privilege log [ECF No. 77-3] 

or are not the sort of information that is contained in the statement and event timeline.

For this reason, the Undersigned will not order the second deposition of Mr. Nazar 

or the production of his statement and/or event timeline.

3. Flavia Fernandez Machado, Guest Services Manager

Flavia Fernandez Machado provided a 10-page witness statement taken on 

December 16, 2019 and January 14, 2020. [ECF No. 77-3, item 3].

Ms. Machado testified that she signed her statement sometime in July of 2020 and 

had not looked at it since that time. [ECF No. 158-3, p. 2 (10:10-21; 11:10-14; 12:5-8)]. She 

believed a copy of the statement (and a list with the names of passengers and their cabin 

numbers) would be in her email. Id. at 11:22-25. She testified that she did not review her 

statement since July 2020 because she did not believe it was needed. Id. at 12:9-25. She 

stated that “[e]verything [she] wrote[,] [she] remember[ed],” though “there might be . . 

.·very, very small details, such as times, specific times that [she] wrote at that time that 

[she] [would not] maybe recall . . . but in general the most important things [she]

[did]·remember.” Id. at 13:3-13.

Ms. Machado learned of the volcanic eruption from Gianluca Corneli, the Hotel 

Director. Id. at 14:24-15:6. Mr. Corneli told Ms. Machado to meet him at the gangway. Id.

at 16:2-5. When Ms. Machado arrived at the gangway, Mr. Corneli was speaking with the 

tour operator. Id. at 17: 10-25. Although Ms. Machado could not initially remember the 

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name of the tour operator, after some prompting from Plaintiffs’ counsel, she testified 

that she believed it was White Island Tours. Id. at 18:1-23.

Ms. Machado identified the Guest Services Officer as “Amy,” but she could not 

remember her last name. Id. at 29:6-17. She also could not remember the first name of a 

female passenger whose last name was Browitt. Id. at 40:19-41:3.14 And she could not 

remember which family member from the Ooi family she spoke with. Id. at 56:18-20.

Subject to the procedure discussed below, the Undersigned will allow Plaintiffs (if 

they so choose) to take a second, limited deposition of Ms. Machado. However, given the 

limited information Ms. Machado did not recall (i.e., the last name of the Guest Services 

Officer, the first name of one passenger, and the full name of another passenger), 

Plaintiffs may decide it is more cost-effective to simply ask Defendant to provide the 

missing names, or decide that the expense of taking a second deposition of Ms. Machado 

in order to obtain at most three names is not justified, given the late posture of the case

(substantive motions have already been filed) and the likely limited value of this 

information to the issues being litigated by the parties.

Alternatively, Plaintiffs can use Federal Rule of Civil Procedure 31’s Deposition by 

Written Question procedure. The Court does not need to be involved in the details of how 

14 The Undersigned has reviewed Ms. Machado’s statement in camera and notes that 

Ms. Browitt’s first name is not contained in the statement. However, perhaps a review of 

the statement may, nonetheless, jog Ms. Machado’s memory.

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Plaintiffs obtain these names (or not) and trusts that defense counsel will provide any 

needed assistance.

In any event, the Undersigned will not compel Defendant to produce to Plaintiffs 

Ms. Machado’s statement. Plaintiffs may (but are not required to) take another limited 

deposition of Ms. Machado.

4. Gavin Smith, Vice President and Managing Director of RCL

Gavin Smith provided two witness statements. [ECF Nos. 77-3, items 5-6; 92-7; 92-

8]. A four-page statement dated October 22, 2020 and an 18-page statement15 dated 

August 27, 2021. Id. at 77-3, items 5-6. “RCCL obtained [the four-page] statement from 

Mr. Smith in response to a request by WorkSafe, New Zealand’s primary workplace 

health and safety regulator, as part of their investigation following the subject incident.” 

[82-1, ¶ 10].

Mr. Smith testified that he last reviewed his 18-page statement in August of 2021,

when he sent it back to counsel and kept a copy of it in his email, subject to RCCL’s email 

retention policy. [ECF No. 158-4, p. 3 (34:4-17)]. Mr. Smith believed that the statement 

was “an accurate account of [his] experience . . . after it became known to [him] that there 

15 Mr. Smith described this document as “18 to 20 pages.” [ECF No. 158-4, p. 2 (33:8)]. 

RCCL’s initial privilege log incorrectly stated that Mr. Smith’s August 27, 2021 statement 

was three pages. [ECF No. 77-3, item 6]. During Mr. Smith’s deposition, counsel for RCCL 

stated that he had advised Plaintiffs’ counsel of this typographical error in the privilege 

log the day before and that the statement was actually 18 pages. [ECF No. 158-4, p. 8 

(57:12-58: 17)].

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had been an explosion.” Id. at 35:3-6. He did not review his statement before his 

deposition because he had not “participated in a forum like this before” and “was 

satisfied that [his] recollections of the events post-eruption would satisfy the needs of this 

forum.” Id. at 35: 12-15.

Mr. Smith testified that no one read the 18-page statement to him. Id. at 36:23-25.

When Plaintiffs’ counsel asked Mr. Smith if anyone instructed him not to read this 

statement, RCCL’s counsel instructed Mr. Smith not to answer, asserting the attorneyclient privilege. Id. at 37:1-9.

In addition to this 18-page statement, Mr. Smith testified that he provided a three 

to four-page statement and had attended a workplace safety hearing on Zoom conducted 

by WorkSafe. Id. at 37:18-38:9. Mr. Smith testified that he provided the statement to Royal 

Caribbean’s New Zealand counsel before the Zoom hearing and counsel provided it to

the workplace safety group conducting the investigation. Id. at 38:10-39:6. Mr. Smith 

could not recall if the WorkSafe Zoom meeting was recorded. Id. at 58:19-21.

When asked about the four-page statement, Mr. Smith referred to his “memory of 

this [as] not great.” Id. at 39:7-15. He explained that there was “a brief meeting on Zoom, 

and a statement was created based on [his] recollection, and then [he] signed it and 

returned it”, but that he was “just less clear about that statement.” Id. at 40:1-20. “[T]he 

specifics of it [he] [was] just less clear.” Id. at 40:19-20. Mr. Smith stated that he was “really 

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not able to provide a detailed recollection of [the] content . . . of that statement.” Id. at 

42:9-10.

Mr. Smith believed he provided this statement in November of 2021, before the 

second anniversary of the eruption. Id. at 39:18-25. Later, in response to questioning from 

Plaintiffs’ counsel, Mr. Smith began to doubt that the statement was in November 2021 

and that it could have been in late 2020. Id. at 54:6-17. He admitted that he did not know 

whether the statement was prepared in 2020 or 2021. Id. at 54:18-21. RCCL’s counsel 

clarified during the deposition that the statement was created in October 2020. Id. at 55:1-

6.

The last time Mr. Smith looked at the four-page statement was the day he signed 

it and provided it to New Zealand counsel. Id. at 41:21-25. Mr. Smith did not review the 

four-page statement before his deposition because he “didn’t think that [it] was 

particularly relevant to [his deposition]” and he was “unclear about what [they] were 

going to talk about [that day].” Id. at 41:18-20.

When asked if there was a document which he could review to refresh his 

recollection of the contents of the four-page statement, Mr. Smith responded that he could 

request a copy of that statement. Id. at 42:12-16.

Plaintiffs’ counsel then asked RCCL’s counsel to provide Mr. Smith with a copy of 

the statement. Id. at 42:24-43:1. RCCL’s counsel refused: “We’ve had this conversation in 

the context of every -- almost every other deposition that you’ve taken of individuals

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whose statements were deemed to be protected by the Court. You chose to take their

depositions, and we provided them for you to take their depositions.” Id. at 43:3-9.

RCCL’s counsel indicated that he was willing to show the statement to Mr. Smith, 

provided the parties would stipulate that Plaintiffs would not get the statement because 

the statement was protected:

That statement was deemed to be protected by the Court. And unless we 

can get some sort of stipulation that the protection remains, and considering 

that this is not a duces tecum deposition, then we’re not going to provide 

him anything. But, again, I’m happy to give him the statement so he can 

reference [it,] with the agreement that we do not lose that protection that 

the Court gave us.

Id. at 43:20-44:3.

The Undersigned will not permit Plaintiffs to take a second deposition of Mr. 

Smith. Although Mr. Smith acknowledged that his memory was “not great” and he 

expressed confusion about what year the four-page statement was prepared, Plaintiffs’ 

counsel did not ask Mr. Smith any specific, substantive questions which would be 

answered by the information contained in the statements.

In In re Veeco Instruments, Inc. Sec. Litig., for example, the district court affirmed the 

magistrate judge’s ruling that certain “materials created [by outside securities counsel 

(and their agents)] in connection with [an internal] investigation were protected work 

product under Rule 26(b)(3).” No. 05-MD-01695 CM GAY, 2007 WL 724555, at *2 

(S.D.N.Y. Mar. 9, 2007). The district court further affirmed the magistrate judge’s 

determination that the lead plaintiff had not established a substantial need for those

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documents because it could obtain substantially equivalent information through 

deposition testimony. Id. at *12.

In discussing the parameters of the to-be-taken depositions, the district court in 

Veeco explained that while the “lead plaintiff [could not] ask the witnesses what they were 

asked by . . . [outside securities counsel] (or those acting at the attorneys’ behest) or what 

they told such individuals in interviews, [the ]plaintiff [was] free through depositions to 

ask questions pertaining to the claims and defenses in this action” and “[could] ask 

the very same questions that [outside counsel attorneys] would have asked during 

their interviews[] and the witnesses [could not] refrain from answering on the ground 

that they gave answers to the same questions to [outside counsel].” Id. (emphasis added).

Here, with respect to the 18-page statement, counsel asked Mr. Smith how long 

the document was, when he sent it back, if he kept a copy, and whether it was read to 

him by someone. The first two questions are answered by RCCL’s initial privilege log. 

[ECF No. 77-3, item 6] and RCCL’s counsel’s statement correcting the record about the 

typographical error concerning the length of the statement. The latter two questions 

would not be in the statement itself and Mr. Smith testified that no one read the statement 

to him.

Plaintiffs’ counsel also asked Mr. Smith if he gave other statements besides the 18-

page statement and Mr. Smith stated he prepared a statement in connection with the 

WorkSafe event. Id. at 37:18-38:9. He described the circumstances under which that

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statement came about. Id. at 38:11-39:15 (“[A]s a result of [a] conversation with the 

counsel in New Zealand[,] they asked me questions about my recollection, and that was 

put into a statement for my review and signature.”).

Although Mr. Smith admitted his memory was “not great” and that he was “less 

clear” about that statement, Plaintiffs’ counsel did not ask specific questions whose 

answers would be contained within the contents of either statement.

Because Plaintiffs’ excerpts do not reveal questions which can be answered by the 

contents of either witness statement, the Undersigned will not compel Mr. Smith to sit 

through a second deposition or require Defendant to provide the statements to Plaintiffs.

5. Carlos Gustavo Diaz, Chief Officer Safety

Carlos Gustavo Diaz provided a four-page statement taken on January 13, 2020. 

[ECF No. 77-3, item 7].

There were several instances during Mr. Diaz’s deposition where he did not recall 

a detail or fact. Mr. Diaz could not recall the name of the bridge officer who was on duty 

at the time of the eruption. [ECF No. 158-5, p. 2 (10:2-9)]. Mr. Diaz stated he “could not 

recall very well” the details of “exactly what was discussed” during a meeting with 

Cecilia Wong and Craig Darling at the gangway, following the incident. Id. at 14: 4-5. He

remembered “it was about the incident itself” and that some of the ship’s passengers had 

been “affect[ed] by the incident.” Id. at 14:17-24. He also could not remember whether 

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there was any plan in effect or discussed at the meeting regarding the incident. Id. at 

14:25-15:9.

Mr. Diaz could not remember the name of a passenger who had been on the 

excursion to the volcano or the names of that passenger’s friends. Id. at 18:1-19. He also 

could not remember the name of Royal Caribbean’s shoreside representative whom he 

met at the hospital, which office she worked from, and whether she had traveled from 

Australia or Miami. Id. at 19:4-20:19.

Mr. Diaz spoke to three injured passengers at the hospital: a woman and a couple.

Id. at 24:7-22. However, he could not remember their names or provide a summary of the 

conversations he had with these three passengers. Id. at 24:10-11; 25:19-25.

Mr. Diaz acknowledged that his statement would contain the details he could not 

remember and that reading his statement would refresh his recollection. Id. at 34:11-35:15. 

Plaintiffs’ counsel then asked Defendant’s counsel to provide a copy of the statement to 

Mr. Diaz. Id. at 35:24-36:11. RCCL’s counsel refused because the Court had already 

deemed the statement protected by the work product doctrine and counsel was 

concerned that if he provided the document to the witness, then Plaintiffs would claim 

they were entitled to see it. Id. at 36:12-24; 37:21-24.

As occurred during other depositions, RCCL’s counsel offered to show the 

statement to Mr. Diaz during the deposition, provided that the parties would agree to a 

stipulation that by showing it to Mr. Diaz, RCCL would not have waived the statement’s 

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work product protection. Id. at 39:22-40:25; 41:24-42:6; 50:16-20. Plaintiffs refused this 

offer. Id. at 41:1-20; 42:6-43:3; 52:22-53:12. Defendant’s counsel also proposed that 

Plaintiffs obtain the information Mr. Diaz could not remember by propounding 

interrogatories or by having RCCL’s counsel provide the missing passenger names. Id. at 

44:1-46:11. Plaintiffs’ counsel continued to insist that the statement be provided to the 

witness, pursuant to Rule 612. Id. at 46:21-48:2; 49:20-59:3; 51:5-6.

Because Mr. Diaz’s memory concerning the gangway meeting after the eruption 

appears fuzzy, he could not remember certain names, and could not recall some details 

about the conversations he had with injured passengers at the hospital, the Court will 

exercise its discretion and allow Plaintiffs to take a limited deposition of Mr. Diaz after 

he has had an opportunity to refresh his recollection by reading his statement, subject to 

the procedures discussed below. The Undersigned will not, however, require Defendant 

to produce Mr. Diaz’s statement.

6. Laura Bernard, Assistant Front Desk Manager

Laura Bernard provided a four-page statement on January 12, 2020. [ECF No. 77-

3, item 8].

At the outset, the Undersigned notes that Ms. Bernard had a tendency to qualify 

her answers with words like “[f]rom what I remember” and “[n]ot that I remember.” 

[ECF No. 158-6, p. 2 (27:2; 28:19)]. However, none of the information Plaintiffs cite to in 

the excerpts is in Ms. Bernard’s statement.

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Plaintiffs’ counsel asked Ms. Bernard what she was doing on December 10, 2019 

in relation to the incident. Id. at 26:10-23. Ms. Bernard provided a recitation of what she 

did that day, including preparing an Excel spreadsheet. Id. at 26:14-21. Plaintiffs’ counsel 

then asked Ms. Bernard if that was all she did that day and she stated “[y]es.” Id. at 26:22-

25. Plaintiffs’ counsel began to ask Ms. Bernard what she did on December 11th and Ms. 

Bernard, appearing to respond to the previous question about December 10, 2019, added, 

“[f]rom what I remember.” Id. at 27:1-2.

There was no response in this exchange where Ms. Bernard stated she did not 

remember or did not recall a specific fact; she merely stated that this was what she 

remembered doing on December 10, 2019. To the extent Plaintiffs’ counsel was asking 

about December 11, 2019, Ms. Bernard’s statement would not include this information 

because it does not include any events past December 10, 2019.

Plaintiffs’ counsel also asked Ms. Bernard whether she was working on the list 

(i.e., the Excel spreadsheet) on December 12, 2019 and whether “between December 12 of 

2019 and [Ms. Bernard’s] meeting with the lawyers in January of 2020[,] . . . [she was]

doing anything relating to the incident[.]” Id. at 27:11-16; 28:15-29:10. As noted above, 

that information is not in Ms. Bernard’s statement because the statement does not go past 

December 10, 2019.

Finally, Plaintiffs’ counsel asked Ms. Bernard about “any conversations at any 

point after the eruption with Royal Caribbean[’s] shore excursion department regarding 

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the volcano tour.” Id. at 34:17-21. Ms. Bernard’s statement covers two dates, December 9-

10, 2019, and does not discuss any conversations she may (or may not) have had with the 

shore excursion department.

Because reading the statement will not refresh Ms. Bernard’s recollection, the 

Undersigned will not permit Plaintiffs to take another deposition of Ms. Bernard and will 

not compel Defendant to produce Ms. Bernard’s statement.

7. Daragh Robbins, Strategic Sales and Support Manager

Daragh Robbins prepared a ten-page statement taken on March 19, 2020. [ECF No. 

77-3, item 11].

Approximately a week after the incident, Mr. Robbins approached his direct 

manager, Miranda Hinkins, about drafting a summary of his recollection. [ECF No. 158-

7, p. 2 (10:2-15; 13:14-18)]. Soon after, a legal team from Australia assisted Mr. Robbins by 

“taking down the statement.” Id. at 11:1-3; 13:19-21. Mr. Robbins explained that he drafted 

the statement in his own words and the legal team “helped [him]” by “format[ting] it 

correctly.” Id. at 11:4-13. He met in person with the legal team and they “went through 

what [he] had written.” Id. at 13:5-13.

The last time Mr. Robbins viewed the statement was when he signed the final 

version. Id. at 11:17-20. He believed it was eight pages long. Id. at 24-25. Mr. Robbins kept 

a printed copy of the statement. Id. at 14:3-19. He testified that he could not confirm the 

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number of pages without finding the statement. Id. at 20:10-15. RCCL’s initial privilege 

log reflects that the statement was 10 pages long. [ECF No. 77-3, item 11].

Mr. Robbins did not review the statement before his deposition because he “ha[d] 

a clear recollection of what happened.” [ECF No. 158-7, p. 2 (12:12-20)]. ”Apart from the, 

like, smaller details of date -- exact dates, [Mr. Robbins believed he] ha[d] a pretty good 

recollection of what happen[.]” Id. at 20:2-4; id. at 20:22-23 (“I remember every -- pretty 

much the majority of it, apart from minor details like dates.”).

Plaintiffs’ counsel asked Mr. Robbins for the date on the statement. Id. at 14:23. 

When Mr. Robbins responded that he did not “know the exact date on the statement,” 

Plaintiffs’ counsel asked Mr. Robbins if he could go find the statement so he could refresh

his recollection as to its date. Id. at 14:25-15:1. Defendant’s counsel instructed Mr. Robbins 

not to do so because this was not a duces tecum deposition and the statement had been 

deemed privileged by the Court. Id. at 15:2-5.

Counsel for Plaintiffs then asked the witness if there was a document that would 

refresh his recollection about when he signed the statement and Mr. Robbins responded 

that “[t]he only thing that would refresh [his] memory [was] the statement,” which was 

somewhere in his house. Id. at 15:6-23.16 He did not know how long it would take him to 

find the document and he did not know exactly where it was located. Id. at 18:1-5.

16 Mr. Robbins was in his house at the time of his remote videoconference deposition. 

[ECF No. 158-7, p. 3 (15:13-23)].

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Mr. Robbins testified that he believed he signed the document in December 2019 

and did not recall signing any documents in March 2020. Id. at 21:5-20. RCCL’s privilege 

log lists the date of the document as March 19, 2020. [ECF No. 77-3, item 11]. When 

Plaintiffs’ counsel asked Mr. Robbins about the March 19, 2020 date, Mr. Robbins 

acknowledged that his timeline was “off” and stated that he remembered “something 

prior to [COVID], which possibly [was] [him] signing that document.” But he could not 

recall “the exact date” and was “not entirely sure.” [ECF No. 158-7, pp. 4-5 (21:21-25; 23:2-

18)].

The deposition excerpts filed by Plaintiffs show that Mr. Robbins incorrectly 

remembered the number of pages in his statement and the date he signed it. Defendant’s 

initial privilege log answers these two questions. [ECF No. 77-3, item 11]. Plaintiffs have 

not pointed to any other questions Mr. Robbins could not recall or could not remember 

whose answers would be contained within the contents of his statement. For this reason, 

the Court will not permit Plaintiffs to retake Mr. Robbins’ deposition or obtain Mr. 

Robbins’ statement.

8. Josephine Furfaro, Executive Guest Escalations and Incidents

Josephine Furfaro provided a 12-page statement which was taken on March 24, 

2020 and April 9, 2020. [ECF No. 77-3, item 11].

Ms. Furfaro visited injured passengers at a hospital in Christchurch, New Zealand

and assisted family members. Ms. Furfaro testified that she spoke with family members 

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from the Ho family,17 the Browitt family, and the McGill family. [ECF No. 158-8, p. 2 

(20:23-21:6)]. She stated that these were the names that she could remember and that she 

“suspect[ed]” her statement would include all of the names of the families she helped. Id.

at 21:5-10. Plaintiffs’ counsel asked Ms. Furfaro if reading her “statement . . . would 

refresh [her] recollection as to what family members [she] spoke to at Christchurch 

hospital” and Ms. Furfaro responded that she “believe[d] so, yeah.” Id. at 21:25-22:4.

Plaintiffs’ counsel then asked Defendant’s counsel to allow Ms. Furfaro to read her 

statement. Id. at 22:5-9. Defendant’s counsel responded that he did not:

have a problem with [the witness] looking at the statement subject to the 

stipulation that that does not constitute a waiver of the work product 

doctrine. Alternatively, [he] [could] provide the names from the statement 

that was deemed protected by the [C]ourt, provided, again, [that the 

parties] have an agreement that [Defendant] [does not] waive the work 

product doctrine and [Defendant] [does not] have to turn over the 

statement.

Id. at 22:8-17. Plaintiffs’ counsel did not agree to either proposal, stating that it was 

“contrary to what the rules say” and they would “just leave this for an issue for the 

[C]ourt.” Id. at 22:18-22.

Ms. Furfaro could not remember the names of all the family members she helped 

or spoke with at the hospital. The Undersigned will allow Plaintiffs to retake Ms. 

Furfaro’s deposition on this one topic, after Ms. Furfaro has refreshed her recollection by 

17 Ms. Furfaro later testified that she did not recall the correct spelling, but the family 

member was Allen Ho and the injured passenger was Devon Ho. [ECF No. 158-8, p. 3 (23: 

18-24)].

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reading her statement and subject to the procedures and limitations below. However, 

Plaintiffs may find it more cost-effective and less time-consuming to take Defendant’s 

counsel’s offer and obtain a list of these names in lieu of deposition. Alternatively, as 

noted earlier, Plaintiff can use the deposition-by-written-question procedure. In any 

event, the Court will not require Defendant to produce Ms. Furfaro’s statement.

9. Craig Darling, RCCL Chief Security Officer

Craig Darling did not complete a statement. He completed an unsigned event 

timeline, with exhibits. [ECF Nos. 77-3, item 14; 83-1, item 3]. RCCL filed the documents 

under seal pursuant to the Court’s Order. [ECF Nos. 171; 174].

Mr. Darling testified that he could not recall the date he got back on the ship in 

Wellington, New Zealand, but stated that he could potentially find out, if he still had “a 

flight ticket or something that would indicate” that information. [ECF No. 158-9, p. 2 

(43:12-24)]. He said it was the date the ship was docked in Wellington. Id. Mr. Darling 

could not “quite remember” if Wellington “was a planned port of call or an unplanned 

port of call.” Id. at 43:25-44:15.

Mr. Darling could not recall the names of all the crew members who were on the 

excursion at the time of the eruption. Id. at 45:23-46:3. He testified that “[a]t the time of 

the incident, [he] would have known the names, but [he] could not tell [Plaintiffs’ 

counsel] right now[.]” Id. at 46:1-3. He stated that he would have obtained that 

information in the crew manifests and the shore excursion manifest. Id. at 46:4-8.

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Plaintiffs’ counsel asked Mr. Darling for the “time everyone left the vessel” and 

Mr. Darling said he could not remember because it was “so long ago.” Id. at 48:6-9.

Mr. Darling testified that he did not review the event timeline he created before 

his deposition. Id. at 48:10-12.

Plaintiffs’ counsel noted that there had been “a couple of times throughout . . . 

[the] deposition where [Mr. Darling] couldn’t give [counsel] the exact dates or the exact 

time in response to [a] question” and asked Mr. Darling if “the timeline [would] help 

[him] answer those questions with more specificity[.]” Id. at 49:21-50:1. Mr. Darling 

responded that:

The timeline effectively would be just the time that the person dinged their 

card. So if anything, it would be a factual piece of information that would 

say that person went off. As an example, 11:05, 14:06 or whatever. Whatever 

time they punched their card when they went off the gangway. That[] [was] 

basically what[] [was] going on.

Id. at 50:3-11. It would list the time when the passengers left the vessel to go on the 

excursion. Id. at 50:13-16. Mr. Darling acknowledged that he did not have that 

information at the moment. Id. at 50:17-19. But he indicated that the timeline would have 

that information. Id. at 52:13-18 (“Q. Right. But the timeline would have the exact time 

the passengers actually left the vessel, correct? . . . . THE WITNESS: Yes, that would be 

correct.”).

The excerpts filed by Plaintiffs show that Mr. Darling could not answer three 

questions: (1) when he rejoined the ship in Wellington; (2) the name(s) of the crew 

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member(s) who were on the excursion at the time of the eruption; and (3) the exact times 

each passenger left the vessel to go on the excursion.

With respect to the first item, Mr. Darling testified that it would have been the day 

the vessel was docked in Wellington. With respect to the second item, RCCL’s answers 

to Plaintiffs’ Initial Interrogatory No. 1 provided a list of the individuals who were on the 

excursion, including Yao Chen, the only RCCL employee on the list. [ECF No. 77-1, p. 5].

Lastly, the third item -- the exact time each passenger left the vessel -- is not 

information the Undersigned would expect Mr. Darling to recall, based off his memory

and based on his own personal knowledge. According to Yao Chen’s already-produced 

statement (attached to Plaintiffs’ Statement of Undisputed Facts), there were 37 guests, 

plus Ms. Chen on the excursion. [ECF No. 128-12, ¶ 13]. Unless Mr. Darling has a 

photographic memory, the Undersigned would not expect Mr. Darling to be able to rattle 

off the exact times each excursion-bound passenger left the vessel, even 10 minutes after 

completing his timeline.

Nonetheless, to the extent Plaintiffs need the exact times each passenger left the 

ship to go on the excursion, that information is in an exhibit -- REF 9(a) -- to Mr. Darling’s 

timeline. Defendant will provide a copy of only REF 9(a), limited to the times each 

passenger left the ship, and may redact any unnecessary information. The Undersigned 

will not, however, order Defendants to produce Mr. Darling’s timeline. “[T]he work 

product privilege need not be invaded when the benefits of disclosure would prove to be 

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minimal, at best.” TIG Ins. Co. v. United Nat'l Ins. Co., No. 05-60672-CIV, 2006 WL 8431479, 

at *8 (S.D. Fla. June 23, 2006).

10. Gianluca Corneli, Hotel Director

Gianluca Corneli provided a nine-page statement taken on December 16, 2019. 

[ECF No. 77-3, item 1].

Plaintiff cites only the following exchange from Mr. Corneli’s deposition:

Q. Did you review your 9-to-10 page statement in preparation for today’s 

deposition?

A. No, I didn’t.

[ECF No. 158, p. 20 (citing [ECF No. 158-10, p. 3 (15:5-7)].

The fact that Mr. Corneli did not review his statement, without more, does not 

entitle Plaintiffs to a copy of this work product protected document. Nor are Plaintiffs 

entitled to re-take Mr. Corneli’s deposition, after he has reviewed his statement. Plaintiffs 

have not cited to any portion of Mr. Corneli’s deposition wherein he states that he cannot

remember something and that the answer is likely in Mr. Corneli’s statement.

V. The Undersigned’s Rulings

For those witnesses whose statements and timelines do not mention the facts they 

did not recall, there is no actual discovery dispute because a review would not have 

mattered -- i.e., the witness’ recollection would not have been (and could not have been) 

refreshed. For those few witnesses whose witness statements mention information which 

might have refreshed their recollection, both sides have legitimate points.

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Plaintiffs have an understandable desire and need to obtain testimony from fact 

witnesses whose recollections might be refreshed by reviewing a document subject to the 

work product doctrine. On the other hand, defense counsel had a logical concern about 

not generating a waiver of the work product doctrine.

The Undersigned finds that there is an analytical difference between an attorney 

who voluntarily chooses to have her client’s recollection refreshed through review of a 

work product document and a witness who is subject to a Court Order requiring a review 

of a privileged document to refresh recollection. A witness who is compelled to review a 

privileged document to refresh recollection is not engaged in an activity which should 

lead to a waiver.

As one court explained:

Justice requires a different result where the deponent is compelled to use . 

. . a [protected or privileged] document to refresh [his or her recollection]. 

Finding that [the witness] ha[s] waived the work-product privilege by 

complying with this order would be tantamount to ordering a waiver of the 

privilege. This, of course, is beyond the power of the Court, except in the 

most unusual of cases. Thus, by complying with the order of this Court that 

[the witness] refresh her recollection with such privileged documents as 

necessary, the deponent will not waive the work product or attorney client 

privileges.

Laxalt v. McClatchy, 116 F.R.D. 438, 455 (D. Nev. 1987).

Both sides have shown legitimate, albeit competing, interests. To balance the 

legitimate interests of each side, I exercise my considerable discretion over discovery 

matters by issuing a ruling designed to satisfy the bona fide litigation needs of both sides:

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The Procedure

Specifically, Plaintiffs may retake, on an extremely limited basis, the depositions 

of those few witnesses who have witness statements which mention factual issues 

triggered by one or more deposition questions. The witness will be required to review 

the statement before the resumed deposition begins. The witness will then be asked if his 

or her recollection (about a specific factual topic, such as the name of a passenger or fellow 

employee) was refreshed by their statement. If the answer is “no,” then no further inquiry 

on that point is permitted. If the answer is “yes,” then the witness will testify about his 

or her refreshed recollection (e.g., I spoke to a passenger named Mary Smith at the 

hospital after the volcano erupted) and the attorney can ask any logical follow-up 

questions.

Plaintiffs will need to lay a foundation for each permissible factual topic because 

“[t]he ‘principal requirements’ for permitting a witness to use a document to refresh his 

recollection are ‘that the witness demonstrated a need for having his memory refreshed 

and that the paper used had that effect.’” Espinoza v. Galardi S. Enters., Inc., 772 F. App’x 

768, 770 (11th Cir. 2019) (quoting Thompson v. United States, 342 F.2d 137, 139 (5th Cir. 

1965));18 Butler Mfg. Co. v. Americold Corp., 148 F.R.D. 275, 278 (D. Kan. 1993) (“A showing 

must be made that the document actually influenced the witness’ testimony.”). 

18 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), our appellate court held 

that all Fifth Circuit decisions issued before September 30, 1981 would become binding 

precedent in the Eleventh Circuit.

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However, Defendant will not need to produce the privileged materials reviewed 

because this procedure does not result in a waiver. If defense counsel shows nonprivileged, non-work product material to his client before the resumed deposition to 

refresh her recollection, then the document will be produced by Defendant at the 

deposition.

Because most of the witness statements and timelines are not going to be helpful

for recollection-refreshing purposes, there will be only, at most, a few resumed

depositions, and those will likely last only, at most, a few minutes.

VI. No Fee-Shifting Award

The Undersigned will not impose a fee-shifting award pursuant to Fed. R. Civ. P. 

37(a)(5)(A). As discussed above, the parties’ positions and competing interests were 

substantially justified. “[A] party seeking to preserve work product protection over 

writing used to refresh recollection may seek relief from the court before disclosing the 

protected materials.” Gutherless, 2021 WL 5771285, at *3. Additionally, RCCL’s counsel 

offered multiple times (and in various ways) to produce to Plaintiffs the missing 

information, provided that the work product protection was not waived. Under these 

circumstances, the imposition of a fee-shifting award is not warranted.

VII. Conclusion

Defendant will produce Mr. Matthews, Ms. Machado, Mr. Diaz, and Ms. Furfaro

for a second, limited deposition. Alternatively, Plaintiffs may decide that they do not 

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want to retake some or all of these depositions, or that they would prefer to obtain the 

missing details (i.e., names, dates, etc.) from Defendant’s counsel or deposition-bywritten-question in lieu of deposition.

If Plaintiffs wish to pursue some or all of these depositions, then before each

deposition, Defendant will show the witness his or her statement. By showing the witness 

the statement (and complying with this Order), Defendant is not waiving the protection 

afforded by Fed. R. Civ. P. 26(b)(3) and the work product doctrine.

DONE AND ORDERED in Chambers, in Miami, Florida, on September 26, 2022. 

Copies furnished to: 

The Honorable Federico A. Moreno

All Counsel of Record

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