1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-22783-BLOOM/LOUIS

KATHRYN BIRREN 

and MANDY BIRREN,

Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES LTD.,

Defendant.

_______________________________________/

DISCOVERY ORDER 

THIS CAUSE comes before the Court upon Plaintiffs’ Notice of Discovery Issues (ECF No. 

33). This matter was referred to the undersigned United States Magistrate Judge by the Honorable 

Beth Bloom, United States District Judge, for disposition of all discovery matters (ECF No. 11). A 

hearing was conducted on the noticed disputes on March 16, 2021. At the hearing, Plaintiffs sought 

an order compelling Defendant to disclose contact information for, and the hand-written statements 

by, the passengers involved in the 29 prior incidents Defendant has disclosed in the course of 

discovery.1 Defendant has withheld the passenger statements on the assertion that they constitute

protected work product. Leave was granted for Defendant to file a memorandum in support of its 

assertion of work product protection over the passenger statements (ECF No. 39). Having now 

reviewed Defendant’s Memorandum of Law in Support of its Assertion of Work Product Privilege 

1 Defendant has since withdrawn its objection to the production of contact information for passengers involved in the 

previously disclosed prior incidents (ECF No. 45 at 2, n. 1).

Case 1:20-cv-22783-BB Document 53 Entered on FLSD Docket 04/21/2021 Page 1 of 4
2

(ECF No. 45), affidavit in support (ECF No. 27-1), Plaintiffs’ response (ECF No. 46), and being 

otherwise duly advised on the matter, the Court finds that the passenger statements at issue are not 

protected by work product privilege. 

“The attorney work product privilege generally protects documents prepared by an attorney 

in anticipation of litigation.” Miccosukee Tribe of Indians of Fla. v. U.S., 516 F.3d 1235, 1263 

(11th Cir. 2008) (citing Hickman v. Taylor, 329 U.S. 495, 509-10 (1947)). Thus, “a party may not 

discover documents and tangible things that are prepared in anticipation of litigation or for trial by 

or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). Included under the work 

product doctrine are “witness statement[s] taken by a party's attorney or agent in anticipation of 

litigation.” Bridgewater v. Carnival Corp., 286 F.R.D. 636, 644 (S.D. Fla. 2011).

Here, Defendant asserts work product privilege over passenger injury statements, which 

were each made using a standardized form containing the following instructions/questions for an 

injured passenger to fill out in their own words: “describe in detail how the incident happened”; 

“what do you think caused the incident?”; and “what could you (or anyone else) have done to avoid 

the incident?” (ECF No. 45 at 5-6). Defendant claims that these passenger injury statements are 

tangible forms that were prepared in anticipation of litigation by or for Defendant, or for its 

representative (id. at 4). 

While the form itself, i.e. the questions and instructions, might have been prepared by 

Defendant or its counsel in anticipation of litigation, this form has already been disclosed (see ECF 

No. 45-2) and there is no meaningful argument that the form continues to enjoy protection from 

disclosure on the basis that counsel drafted the form. What Plaintiffs here seek are the responses 

prepared by the injured passengers themselves, in which they describe the circumstances leading 

to their injury. The assertion of work product protection over such forms was been rejected by the 

Case 1:20-cv-22783-BB Document 53 Entered on FLSD Docket 04/21/2021 Page 2 of 4
3

court in Holbourn v. NCL (Bahamas) Ltd., No. 14-21887-CIV, 2014 WL 12600498, at *2 (S.D. 

Fla. Oct. 30, 2014), and by this Court recently in Johnson v. Carnival Corp., No. 19-CV-23167, 

2020 WL 5653818, (S.D. Fla. Sept. 23, 2020), aff’d, No. 19-CV-23167, 2020 WL 6544490 (S.D. 

Fla. Nov. 6, 2020). Defendant attempts to distinguish my decision in Johnson on the basis that the 

defendant there failed to assert that any of the content of the statement constituted work product 

protection, and indeed, defense counsel in Johnson conceded that there was not a word on the page 

that was not a fact discoverable by plaintiff. By contrast, Defendant herein argues that two 

questions on the form reveal opinion work product, in that the questions ask the injured passenger 

to opine on causation and comparative fault. Of course, what is reflected on the form is the 

perception of the injured passenger, not of the adverse party, its counsel or a third-party witness. 

Moreover, this is not a basis to distinguish my opinion in Johnson, as substantially identical 

questions were posed by the defendant’s form there.

Having examined the form, the affidavit in support of the assertion of protection, and upon 

consideration of arguments raised by Defendant, I find Defendant has not carried its burden to 

show that the passenger statements were prepared in anticipation of litigation and entitled to work 

product protection. The form is indistinguishable from that at issue in Johnson, and similarly, 

Defendant’s evidence advanced in support of the assertion of work production privilege describes 

in generalities the Defendant’s practices attendant to passenger complaints, but are too conclusory 

to evidence the circumstances surrounding these particular statements. For the reasons explained 

in Johnson, I will overrule the assertion of privilege and compel the production of the passenger 

statements.

Moreover, work product privilege is a qualified privilege that “may have to yield to a 

compelling need for information that can only be found in the protected document.” Eisenberg v. 

Case 1:20-cv-22783-BB Document 53 Entered on FLSD Docket 04/21/2021 Page 3 of 4
4

Carnival Corp., No. 07-22058-CIV, 2008 WL 2946029, at *3 (S.D. Fla. July 7, 2008). Work 

product is still subject to discovery “upon a showing that the party seeking discovery has 

substantial need of the materials in preparation of the party's case and that the party is unable 

without undue hardship to obtain the substantial equivalent of the materials by other means.” 

Bridgewater, 286 F.R.D. at 639 (citing Calderon v. Reederei Claus–Peter Offen GmbH & Co., 

No. 07–61022–CIV–COHN/SELTZER, 2009 WL 1748089, *1–2 (S.D. Fla. June 19, 2009)). 

Plaintiffs herein allege that Defendant knew or should have known about the condition that caused 

Plaintiffs’ injuries due to prior similar incidents and complaints, among other sources of 

knowledge (ECF No. 8 at ¶ 18). The contested passenger statements constitute factual descriptions 

of the circumstances surrounding those similar events for which Plaintiffs have demonstrated a 

need and no alternative ability to discover. Thus, even if the passenger injury statements are work 

product, those that pertain to injuries similarly cause by malfunctioning elevators are here 

discoverable. 

Based on the forgoing, the Court hereby ORDERS that Defendant produce the 29 

passenger injury statements previously identified to the Plaintiffs.

DONE AND ORDERED in Chambers at Miami, Florida, this 21st day of April, 2021.

 

LAUREN FLEISCHER LOUIS

UNITED STATES MAGISTRATE JUDGE

Case 1:20-cv-22783-BB Document 53 Entered on FLSD Docket 04/21/2021 Page 4 of 4