UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 20-cv-22463-FAM

ASHLEY HODSON,

Plaintiff,

v.

MSC CRUISES, S.A.,

Defendant.

/

PLAINTIFF’S MOTION TO COMPEL BETTER ANSWERS TO HER FIRST 

INTERROGATORIES AND HER FIRST REQUESTS FOR PRODUCTION

Plaintiff, ASHLEY HODSON, by and through undersigned counsel, respectfully moves

the Court to Compel Better Answers to Plaintiff’s First Interrogatories and Better Responses to

Plaintiff’s First Requests for Production identified below. In support of Plaintiff’s motion, 

Plaintiff states as follows:

I. Defendant’s Deficient Response as to Plaintiff’s Interrogatory Number 8.

Interrogatory Number 8:

For a time period beginning five (5) years prior to the date of the Plaintiff's 

incident, and one (1) year subsequent, identify and describe all incidents, 

complaints of incidents, records of incidents, claims of incidents, or recollections 

of incidents similar to the Plaintiff's incident, i.e. slips and falls of passengers, 

crew members or other persons on the subject stairs and/or other stairs with 

substantially-similar flooring on the MSC Seaside and its sister ships. 

Additionally, please provide contact information (phone number, email, physical 

address) for the individuals identified.

RESPONSE: Per the agreement of counsel for both Parties, Defendant responds 

as to slip and falls due to water on the nosing of the stairs in the subject area of 

the MSC Seaside and her sister ships for three years prior to Plaintiff’s alleged 

incident:

On July 12, 2018 at approximately 12:10 a.m., a passenger allegedly slipped on 

the “wet medal [sic] part of stairs” going down to Deck 15 aboard the Seaside. 

The passenger did not indicate the nature or source of the substance that allegedly 

caused the area to be “wet.” He did not report the alleged incident until July 13 so 

MSC was unable to conduct a proper investigation.

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Notwithstanding Defendant’s response, Defendant objects that this Interrogatory 

is overbroad as to time and scope, unduly burdensome, encompasses potential 

incidents that are not relevant to any party’s claim or defense, and is 

disproportionate to the needs of the case. Requesting Defendant search vessels 

other than Seaside is so overbroad that it renders the request irrelevant to any 

party’s claim or defense and would be disproportional to the needs of the case. 

Different vessels have differing designs and configurations, are exposed to

different climates and conditions, and are differing ages. Ships other than the 

subject vessel are therefore not substantially similar to the vessel in question and 

irrelevant to any party’s claim or defense. The Interrogatory is overbroad as to 

time, as five years is overbroad and the Interrogatory continues into the future. 

Incidents after Plaintiff’s alleged incident are irrelevant to this lawsuit. 

Furthermore, this Interrogatory is ambiguous as to the physical scope requested. 

In addition, this Interrogatory encompasses potential incidents that are not

relevant to any party’s claim or defense. The request includes every incident 

regardless of the mechanism of the incident. Plaintiff alleged that she fell because 

of a deformed carpet on the steps between deck 17 and 16, but the request 

encompasses any trip and fall regardless of similarity to Plaintiff’s incident. 

Defendant also objects to providing the name and contact information of other 

passengers as it violates U.S. and international privacy laws, including the Health 

Insurance Portability and Accountability Act and Florida State Laws.

See Exhibit 1 at pp. 4-5. As an initial matter, Defendant’s recitation of the parties’ discovery 

agreement is not correct, and Plaintiff in fact sent an email memorizing the parties’ agreement,

which contained the following memorialization,

You agreed to provide all prior incidents involving the subject stairs from the 

Seaside in the 3 years prior to the incident. You also advised that the ship might

only be about 3 years old anyway so 5 years might not be necessary for that 

reason. After we receive these priors, we can see if we need to discuss the further 

scope requested after that. You will also ask about the 6 months subsequent 

request since this is relevant to whether the condition is open and obvious. 

However, please note that we believe we are entitled to all similar stairways on 

Defendant's ships, which are typically on any sister ships, and the Judges almost 

always grant this to Plaintiffs, do you agree to providing all similar stairs as well? 

If so that will maximize our chances of resolving this without the need of a 

discovery hearing.

After Defendant served the supplemental answer outlined above, the parties discussed this 

discrepancy, but Defendant maintains its position that Plaintiff is only entitled priors on the 

nosing of the stairs, rather than any other slips and/or trips and falls on the subject staircase or 

substantially similar staircases on other ships in Defendant’s fleet (typically such substantially 

similar designs are found on sister ships, but are sometimes found on other ships as well). The 

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reason why Plaintiff seeks all such falls on the same or similar staircases is that the cruise lines 

do not always categorize by mechanism of fall, or provide (or investigate) the details of the falls 

such as whether they involved the metal nosing or even wet conditions, and Plaintiff respectfully 

submits that she is entitled to review the facts of such prior incidents and to reach out to the 

person who had the prior incident to find these details out herself if necessary.

Evidence of prior, similar enough incidents/complaints is discoverable. See, e.g., Ree v. 

Royal Caribbean Cruises Ltd., 315 F.R.D. 682, 686 (S.D. Fla. 2016) (also finding that the 

standard for determining the scope of permissible discovery is not necessarily the same as for the 

scope of admissibility). In this regard, five (5) years of prior similar incidents/complaints fleetwide is not overbroad or unduly burdensome. See, e.g., Berner v. Carnival Corp., No. 08-22569-

CIV, 2009 WL 982621, at *1 (S.D. Fla. Apr. 10, 2009); see also Fisher v. Bumbo Int'l Tr., No. 

1:14-CV-22209-UU, 2014 WL 12042519, at *6 (S.D. Fla. Aug. 27, 2014) (finding a scope of 

discovery beyond three years to be proper).

Furthermore, aside from the scope of the prior incidents, Plaintiff is entitled to the contact 

information for both the prior incident produced, as well as any other prior incidents this 

Honorable Court finds that Plaintiff is entitled to. See Transcript from Discovery Hearing in 

Lebron v. Royal Caribbean Cruises, Ltd., Exhibit 2 at 22:1-10 (“THE COURT: Okay. Well, the 

first thing that I want to do on this is, I want to know why you gave physical addresses and 

not e-mails and phone numbers. I am troubled by that and I am troubled by the fact that you 

said you sent the request to my client and this is what they sent back. I clearly required contact 

information. And you know, maybe I didn't specifically said all contact information, but I think 

it is implicit that if you have easily accessible contact information that it should be

provided.”) (emphasis added). As such, Plaintiff respectfully submits that Defendant does not 

have a valid objection to withholding at least all prior incidents of slips and/or trips and falls on 

the subject stairs or any substantially similar stairs on its other ships, and Plaintiff is entitled to at 

least 3 years of such prior incidents (although Plaintiff respectfully submits that five years is 

appropriate given that Defendant’s search so far has only uncovered one prior incident, given the 

importance of such prior incidents in proving notice), and Plaintiff submits that six months of 

subsequent complaints is also relevant to show that the subject conditions she encountered were 

not open and obvious to other passengers even after her incident.

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II. Defendant’s Deficient Responses as to Plaintiff’s Requests for Production.

Request for Production Number 8:

Any and all "statements" of all parties to this suit, their agents and employees, and

independent witnesses which relate to or concern Plaintiff, Plaintiff’s accident, 

Plaintiff’s injuries, Plaintiff’s medical treatment and/or Defendant’s affirmative 

defenses.

RESPONSE: Defendant responds only as to non-privileged documents: see 

documents produced.

Notwithstanding Defendant’s response, Defendant objects that as drafted this 

requests a document covered by the attorney-client privilege and work product 

doctrine. Safety Officer Marcello Ercolano completed an incident report in 

anticipation of litigation on September 1, 2019. The report on the top of each and 

every page states “STRICTLY CONFIDENTIAL PREPARED IN 

ANTICIPATION OF LITIGATION AND FOR USE BY COMPANY 

ATTORNEYS.” The Defendant’s legal department and its defense counsel are the 

custodians of this report. A Privilege Log is being provided.

See Exhibit 3 at pp. 3-4. As this Honorable Court held in Johnson v. Carnival Corp., No. 19-CV23167, 2020 WL 5653818 (S.D. Fla. Sept. 23, 2020), aff'd, No. 19-CV-23167, 2020 WL 

6544490 (S.D. Fla. Nov. 6, 2020),

In fact, the court in Bridgewater v. Carnival Corp., 286 F.R.D. 636, 642 (S.D. 

Fla. 2011), a case on which Defendant heavily relies, indicates that a 

straightforward recitation of objective facts about the circumstances 

surrounding an accident should not be protected by work product privilege. 

Other courts have also found that such recitation of facts and circumstances of an 

accident in the injured party's own words are not protected by work product. In 

Holbourn v. NCL (Bahamas) Ltd., No. 14-21887-CIV, 2014 WL 12600498, at *1 

(S.D. Fla. Oct. 30, 2014), the court addressed the very same issue at hand and 

found that Passenger Injury Statements were not protected by work product 

privilege, and ordered the production of all Passenger Injury Statements that 

involved the same dangerous condition from the prior three years.”).

Johnson, 2020 WL 5653818, at *1. Here, Plaintiff likewise seeks only such statements that 

provide “a straightforward recitation of objective facts about the circumstances surrounding” her 

incident, but Defendant nonetheless persists in withholding such statements despite the clear law 

of this Honorable Court. Plaintiff also, Defendant provides no description in either an affidavit or 

its privilege log sufficient for Plaintiff or this Honorable Court to evaluate its claim of privilege.

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See, e.g., International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 94 (D.Del. 1974). As such, 

Plaintiff respectfully submits that she is entitled to these statements (or at least to the substance 

of these statements, for example, in interrogatory form). See Alexander v. Carnival Corp., 238 

F.R.D. 318, 320 (S.D. Fla. 2006) (“Further, Defendant has indicated that it does not object to 

providing ‘essentially the same information’ Plaintiff requests, but in interrogatory form. See DE 

43 at 2 n. 2. The Court find that this is a reasonable result that will allow Plaintiff to obtain what 

she seeks without forcing Defendant to provide documents prepared primarily to aid possible 

future litigation.”).

Request for Production Number 21:

Any and all documents (including log entries) regarding passenger and crew 

complaints of dangerous risk-creating and/or hazardous conditions related to the 

subject area on the MSC Seaside or its sister ships for three (3) years prior and six 

(6) months subsequent where Plaintiff’s accident occurred.

RESPONSE: Objection, this request is overbroad in scope as it encompasses 

documents that are not relevant to any party’s claim or defense and 

disproportionate to the needs of the case. The request encompasses documents 

from every MSC vessel in the Seaside class, regardless of similarity to the 

circumstances of Plaintiff’s alleged incident. As drafted, the request encompasses 

complaints that the carpet was ugly or that the handrail was sticky. None of those 

complaints are relevant to any party’s claim or defense. Furthermore, this request 

is unduly burdensome and disproportionate to the needs of the case.

In addition, this request is overbroad in the time period requested. The request 

includes information after the date of Plaintiff’s incident. This request is neither 

proportional to the needs of the case and any complaints after the alleged incident 

are irrelevant to the claims or defenses of either party.

See Exhibit 3 at p. 6. Plaintiff notes that, in addition to requesting “complaints of dangerous 

risk-creating and/or hazardous conditions related to the subject area on the MSC Seaside or 

its sister ships” (emphasis added), this request also encompasses the passenger injury statements 

of any such responsive passenger who was injured, including the prior incident that was 

disclosed in response to Plaintiff’s Interrogatory Number 8.

Evidence of prior, similar enough incidents/complaints is discoverable. See, e.g., Ree v. 

Royal Caribbean Cruises Ltd., 315 F.R.D. 682, 686 (S.D. Fla. 2016) (also finding that the 

standard for determining the scope of permissible discovery is not necessarily the same as for the 

scope of admissibility). In this regard, five (5) years of prior similar incidents/complaints fleetwide is not overbroad or unduly burdensome. See, e.g., Berner v. Carnival Corp., No. 08-22569-

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CIV, 2009 WL 982621, at *1 (S.D. Fla. Apr. 10, 2009); see also Fisher v. Bumbo Int'l Tr., No. 

1:14-CV-22209-UU, 2014 WL 12042519, at *6 (S.D. Fla. Aug. 27, 2014) (finding a scope of 

discovery beyond three years to be proper). As such, Plaintiff respectfully submits that 

Defendant does not have a valid objection to withholding at least all prior complaints of

dangerous, risk-creating, and/or hazardous conditions on the subject stairs or any substantially 

similar stairs on its other ships, and Plaintiff submits that six months of subsequent complaints is 

also relevant to show that the subject conditions she encountered were not open and obvious to 

other passengers even after her incident.

Furthermore, Plaintiff’s request for documents such as the passenger injury statements for 

such responsive complaints (including prior incidents) seek only such statements that provide “a 

straightforward recitation of objective facts about the circumstances surrounding” the incidents, 

but Defendant nonetheless persists in withholding such statements despite the clear law of this 

Honorable Court. Plaintiff also, Defendant provides no description in either an affidavit or its 

privilege log sufficient for Plaintiff or this Honorable Court to evaluate its claim of privilege.

See, e.g., International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 94 (D.Del. 1974). As such, 

Plaintiff respectfully submits that she is entitled to these statements (or at least to the substance 

of these statements, for example, in interrogatory form). See Alexander v. Carnival Corp., 238 

F.R.D. 318, 320 (S.D. Fla. 2006) (“Further, Defendant has indicated that it does not object to 

providing ‘essentially the same information’ Plaintiff requests, but in interrogatory form. See DE 

43 at 2 n. 2. The Court find that this is a reasonable result that will allow Plaintiff to obtain what 

she seeks without forcing Defendant to provide documents prepared primarily to aid possible 

future litigation.”).

Request for Production Number 50:

Any and all documents and/or materials, in effect on the date of the subject 

incident, used to train and/or evaluate crew members responsible for inspecting, 

repairing, replacing and/or maintaining the subject area in a reasonably safe 

condition, including, but not limited to, manuals, handbooks, company protocols, 

manufacturer policy recommendations, department regulations/guidelines, etc.

RESPONSE: See documents produced.

See Exhibit 3 at p. 10. Plaintiff appreciates that Defendant believes that all responsive documents 

have been produced, but Plaintiff was unable to get a conclusive answer from Defendant as to 

whether the relevant portions of the reference documents she highlighted in the policy

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documents Defendant produced (and which are attached as Exhibit 4) were in fact in the policy 

documents produced, or whether they are in separate documents that are yet to be produced. To 

the extent the relevant portion of these reference documents have not yet been produced, Plaintiff 

respectfully submits that Defendant produce them so she can understand the policy documents 

Defendant produced to the same extent Defendant’s counsel can.

RULE 7.1 CERTIFICATION

Pursuant to S.D. Fla. L. R. 7.1(a)(3), counsel for Plaintiff certifies that he has conferred 

with opposing counsel in a good faith effort to resolve the issues raised in this motion, but has 

not been unable to do so.

WHEREFORE, Plaintiff respectfully requests that the Court issue an order compelling 

Defendant to provide better answers to the interrogatories and better responses to the requests for 

production discussed in this motion, and to grant any other relief which it deems just and

appropriate.

SIGNATURE AND CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 9, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I ALSO CERTIFY that the foregoing 

document is being served this day on all counsel of record or pro se parties identified on the 

attached Service List in the manner specified, either via transmission of Notices of Electronic 

Filing generated by CM/ECF or in some other authorized manner for those counsel or parties 

who are not authorized to electronically receive Notices of Electronic Filing.

Respectfully submitted,

ARONFELD TRIAL LAWYERS

Attorneys for Plaintiff

One Alhambra Plaza, Penthouse

Coral Gables, Florida 33134

Tel: (305) 441 - 0440

Fax: (305) 441 - 0198

By: /s/Matthias M. Hayashi, Esq.

Spencer M. Aronfeld, Esq.

Florida Bar No.: 905161

Aronfeld@aronfeld.com

Matthias M. Hayashi, Esq.

Florida Bar No.: 0115973

 MHayashi@Aronfeld.com

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SERVICE LIST

Jeffrey B. Maltzman, Esq.

jeffreym@maltzmanpartners.com

Steve Holman, Esq.

steveh@maltzmanpartners.com

MALTZMAN & PARTNERS, P.A.

55 Miracle Mile, Suite 300

Coral Gables, FL 33134

Phone: 305-779-5665

Fax: 305-779-5664

Attorneys for Defendant

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