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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 PRODUCTION OF INCIDENT REPORT USED 

TO REFRESH THE CORPORATE REPRESENTATIVE’S RECOLLECTION AND 

MOTION FOR SANCTIONS AGAINST DEFENDANT FOR FAILURE TO PRODUCE A 

CORPORATE REPRESENTATIVE WITH ADEQUATE KNOWLEDGE OF 

DESIGNATED AREAS OF INQUIRY, OR IN THE ALTERNATIVE, MOTION TO 

COMPEL CORPORATE REPRESENTATIVE DEPOSITION

Plaintiff, ASHLEY HODSON, by and through her undersigned counsel, and pursuant to 

Rules 26, 30 & 37 of the Federal Rules of Civil Procedure, and Local Rule 26.1(h), hereby 

moves this Honorable Court for an Order compelling Defendant, MSC CRUISES, S.A., to 

provide the incident report that it used to refresh it’s corporate representative’s recollection for 

the Rule 30(b)(6) deposition taken in this case, and for an Order imposing sanctions for its 

failure to prepare and produce a corporate representative with adequate knowledge of designated 

areas of inquiry, or in the alternative, to compel Defendant to produce a corporate representative 

with adequate knowledge of these areas of inquiry. Attached hereto are Plaintiff’s Second ReNotice of Taking Deposition of Defendant’s Corporate Representative (“Depo Notice”), attached 

hereto as Exhibit 3, and the transcript of the deposition of Defendant’s Corporate Representative

(“30b6 Depo”), attached hereto as Exhibit 4. In support of this motion, Plaintiff states the 

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following:

Introduction

This is a maritime personal injury action in which, on or about September 1, 2019, as 

Plaintiff descended the stairs from approximately deck 17 to deck 16 of the MSC Seaside in a 

normal and proper manner, she slipped on the unreasonably wet and slippery surface of a stair 

step, causing her to suffer traumatic injuries that include, but are not limited to, multiple fractures 

to her tibia and ankle, as well as other injuries. See [DE 6 at ¶. 14].

Incident Report and Memorandum of Law

1. “Where a party uses attorney work product to refresh his memory, the potential for 

conflict exists between Rule 612, which favors disclosure of materials used to refresh a 

witness’ recollection, and the work-product privilege.” See In re Joint Eastern and 

Southern District Asbestos Litigation, 119 F.R.D. 4 (E.D. & S.D.N.Y. 1988) (emphasis 

added) (highlighting added), attached hereto as Exhibit 1 at *5, p. 2.

2. When this scenario occurs, due to the issues of fairness raised in Federal Rule of 

Evidence 612, it is within the Court’s discretion to find that a party using such work 

product to refresh his own memory waives the work-product privilege. See Id. at *6, p. 3 

(“When this simple choice emerges the decision to give the work product to the witness 

could well be deemed a waiver of the privilege.”).

3. In this regard, a factor “to be weighed include(s) whether the work product is ‘factual’

work product or ‘opinion’ work product involving the attorney’s conclusions and legal 

strategies which are absolutely protected.” Id.; see also Johnson v. Carnival Corp., No. 

19-CV-23167, 2020 WL 5653818 at * 1 (S.D. Fla. Sept. 23, 2020) (Louis, M.J.), aff'd, 

No. 19-CV-23167, 2020 WL 6544490 (S.D. Fla. Nov. 6, 2020) (“In fact, the court in 

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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.”).

4. Indeed, another federal court in the Middle District of Florida considered this issue, and 

found that,

[I]n light of the modern rules favoring broad disclosure, it is disquieting to posit

that a party's lawyer may ‘aid’ a witness with items of work product2 and then 

prevent totally the access that might reveal and counteract the effects of such 

assistance.” Asbestos Litigation, 119 F.R.D. at 5-6.

. . .

Construed too broadly, the work product privilege can interfere with the essential

function of the discovery process of narrowing issues for trial. United States v. 

Pepper's Steel & Alloys, Inc., 132 F.R.D. 695, 698 (S.D.Fla.1990). “Whatever 

heightened protection may be conferred upon opinion work product, that level of 

protection is not triggered unless disclosure creates a real, nonspeculative danger 

of revealing the lawyer's thoughts.” In re San Juan Dupont Plaza Hotel Fire 

Litigation, 859 F.2d 1007, 1015 (1st Cir.1988). On this record, AstraZeneca in 

resisting disclosure, has not shown that disclosure of the documents Ms. Ruhl 

reviewed in preparation for her deposition creates a “real, non-speculative 

danger” of revealing counsel's thoughts, and, to the extent it might, Plaintiffs 

are entitled to know what documents the witness relied on.

See In re Seroquel Products Liability Litigation, 2008 WL 215707 (M.D., Fla. 2008) (emphasis 

added) (highlighting added), attached hereto as Exhibit 1 at *4, p. 4.

5. Indeed, another Court in the Southern District of Florida just recently resolved this exact 

same issue involving MSC, and what Plaintiff can only imagine is the exact same type of 

incident report at issue in this case, by ordering the Defendant to file the incident report 

under seal, and after reviewing the incident report itself to determine based on its own 

review whether the incident report contained opinion work product, ruled that,

The Undersigned has reviewed in camera the incident report (which 

Defendant filed under seal, at my direction) and the deposition transcript of 

Luigi Guarracino, the safety officer on the ship.

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Mr. Guarracino testified that he did not recall the slip and fall incident. He 

explained that he responds to many incidents and that he therefore did not 

remember the one at issue in this lawsuit.

However, he was able to provide substantive testimony by reading the incident 

report he prepared many months earlier. He refreshed his recollection by reading 

(before the deposition) the report for which Defendant MSC Cruises has asserted 

a work product claim. He did not have the report with him at the deposition, 

though.

Given these circumstances, and pursuant to Federal Rule of Evidence 612(a)(2), 

the Undersigned, exercising my discretion, concludes that justice requires 

Plaintiff to have the incident report. MSC has waived the work product protection 

for the incident report by showing it to the deponent for deposition preparation 

and by having the witness rely heavily on it.

In making this ruling, the Undersigned notes that the incident report does 

not contain an attorney's mental impressions and does not contain Mr. 

Guarracino's mental impressions. Instead, it consists of a succinct summary 

of the main facts, on a standard form with boxes checked off and a brief 

textual explanation.

MSC shall produce the incident report to Plaintiff's counsel by December 30, 

2020. Signed by Magistrate Judge Jonathan Goodman on 12/22/2020. (JG)

See [DE 27-1] (emphasis added).

6. Here, Defendant’s corporate representative clearly reviewed the subject report, and 

although he appears to have believed that the incident report was already provided to 

Plaintiff, he was incorrect about that point, as Defendant continues to withhold this 

report. Defendant’s corporate representative testified as follows:

Q.· ·Okay.· Other than the specific conversations you may have had with Mr. 

Holman or any of the other lawyers that represent MSC, can you tell me 

what you did to prepare for today's deposition, what you looked at, who you 

spoke to, what you reviewed, in as much detail as possible?

A.· ·Okay.· So the lawyers, they sent me the documents, I think like response to 

discovery, the complaint, some of the documents I believe that they provided to 

you, the accident report for Ms. Hodson, and yeah, that's pretty much it.

Q.· ·When you say the accident report, what do you mean?

A.· ·So there was an accident report that was developed on board the ship when 

Ms. Hodson fell, fell down the stairs, so I looked at that -- oh, accident report.

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And then there was also a medical report that was included with it.

Q.· ·Is the accident report an internal investigating -- investigative report that your 

crew put together?

A.· ·That is correct.

Q.· ·Did the accident report come to some conclusions as to how the accident 

happened?

A.· ·The statement in the accident report indicated that they found that there 

was nothing wrong with the stairs, that it was in shipshape condition is kind 

of what they put in the report, and they put the reason, just a lack of 

attention by the guest.

See Corporate Representative Deposition, Exhibit 4 at 7:23-9:1 (emphasis added) (highlighted 

added).

7. As such, it is clear that Defendant’s privilege claims as to the incident report at issue here 

was waived just as it was in the Milana case decided against Defendant recently, and to 

the extent that Defendant contends that the incident report in this case somehow includes 

opinion work product (despite the apparent testimony of its corporate representative

suggesting otherwise), Plaintiff respectfully submits that it should be required to submit 

its incident report under seal for an in-camera inspection just like in the Milana case.

Corporate Representative Deposition

Issue 1

8. On December 4, 2020, counsel for Plaintiff took the deposition Defendant’s Corporate 

Representative. See 30b6 Depo, Exhibit 4, at 1:1. Plaintiff timely filed her notice of 

taking deposition duces tecum, which designated as Plaintiff’s area of inquiry number 

fourteen (14), "Safety videos and/or safety instructions and/or warnings provided to 

passengers regarding the use of the stairways on Defendant’s ships." See Depo Notice, 

Exhibit 3, at p. 4 (emphasis added).

9. However, when Defendant’s corporate representative was asked the following question, 

he answered as follows:

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Q.· ·Okay.· Were there any Wet Floor signs anywhere near the stairs when Ms. 

Hodson fell?

A.· ·I'm trying to remember what was in the report, but I do not remember

reading that as being there. I do not remember seeing any mention of a Wet 

Floor sign.

See Corporate Representative Depo, Exhibit 4 at 12:19-23 (emphasis added).

10. Plaintiff respectfully submits that she was entitled to a better prepared corporate 

representative who was able to provide a definitive answer as to whether there was a wet 

floor sign in the subject area, as the presence of such a wet floor sign can constitute 

evidence of notice. See, e.g., Frasca v. NCL (Bahamas), Ltd., 654 F. App'x 949, 953 

(11th Cir. 2016) (“[W]e held that the plaintiff had raised a genuine issue of material fact 

as to the cruise ship operator's prior knowledge where there was testimony that “warning 

signs were sometimes posted on the pool deck after rain” to warn passengers of the deck's 

slipperiness.”).

Issue 2

11. In addition, Plaintiff timely designated as Plaintiff’s area of inquiry number twenty-three

(23),

The full details of all previous slip and fall occurrences, if any, of 

passenger injuries, accidents or incidents on the subject stairs and/or 

other stairs with the same and/or similar flooring as the subject area 

aboard the Seaside or other vessels in Defendant’s fleet for three (3) years 

prior to Plaintiff’s incident including: (a) the date of each occurrence; (b) 

defendant's date of notice; (c) the defendant's complete understanding as 

to what happened; (d) the nature of the injury; and (e) the details of any 

resulting legal claims.

See Depo Notice, Exhibit 1, at p. 5, (emphasis added). 

12. She also timely designated her area of inquiry number twenty-four (24), “Guest 

complaints regarding slip and fall occurrences on the Seaside and its sister ships due to 

wet and/or slippery stairs.” Id.

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13. Likewise, she also timely designated her area of inquiry number twenty-six (26), 

“Policies and procedures for documenting and memorializing incidents where passengers 

suffered injuries such as those Plaintiff reported, as well as any logs that would verify 

actions performed, when they were performed, and by whom.” Id.

14. However, when Defendant’s corporate representative was asked the following question, 

he answered as follows:

Q.· ·Okay.· So when you threw out this net of looking at priors, did you limit it to 

a particular location on the ship or was it ship-wide?

A.· ·I searched by the class of ship, so it was the Seaside and the Seaview because 

they were the two ships with the same class of ship and similar stairways, and I

searched for pretty much all -- it was anything that said stairway.

Q.· ·Oh, okay. And what were the results of that search?

A.· ·I just -- whenever that came up, I just forwarded it to our lawyers.

Q.· ·Okay. How many came up --

A.· ·Because I did this --

Q.· ·-- approximately?

A.· ·I don't remember.· I did it a few months ago, so I didn't look again on what 

was actually sent. I can't give you an exact number because I didn't actually count.

Q.· ·That's okay. I don't need an exact number. Can I get an approximate number?

Was it more than 100? More than 500? A dozen? Just approximately.

·A.· ·I don't know. I didn't -- because I did it a while ago and then I also was 

doing other research for other cases for our lawyers, so I cannot remember how

much -- how many that was actually sent to them.

Q.· ·And what would you need to look at to tell us either an estimation or 

specifically how many you actually found?

A.· ·I would have to go back to my previous email that I sent to them to look at 

the exact number.

. . .

Q.· ·Because I got late yesterday some answers -- some supplemental answers 

from your attorneys that said that in July of 2018 at 12:10 in the -- 12:10 a.m., a

passenger slipped on a wet metal part of the stairs. And so I'm concerned that 

passengers may have slipped on other parts of the stairs, but the answer that you

provided is just limited to metal parts of the stairs. Do you see what I'm saying?

So when you did your search, were there more than one person that had fallen 

down a carpeted staircase?

A.· ·So like I mentioned before, I just gave all accidents, no matter what -- what 

occurred. You know, it could have been someone just falling, somebody running.

You know, I just provided any accidents that occurred in the stairway area. You 

know, it could have been -- I don't know because I didn't read them. I mean, you 

could have like a fight. It could have been anything that occurred on a stairway. I 

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gave that all to our lawyers and then they were the ones who did the search.

Q.· ·It was more than one is what I'm saying?

A.· ·Yeah. No, I sent -- yeah, I sent more than one report.

Q.· ·Are you able to give us an estimation anything beyond one? Is it between one 

and a hundred?

MR. HOLMAN: Don't speculate.

BY MR. ARONFELD:

Q.· ·An estimation.

A.· ·No, I cannot. I'm sorry.

Q.· ·It's between one and infinity?

A.· ·I'm not sure.· I would have to -- I mean, I want to -- I would have to look at 

my prior emails to see.

See Corporate Representative Depo, Exhibit 4 at 29:5-30:10, 48:3-49:11 (emphasis added).

15. Plaintiff respectfully submits that she is entitled to know more details about these other 

incidents, since although Defendant claims these other incidents that were sent to its 

attorney were not substantially similar, first, “[t]he entitlement to discovery concerning 

other incidents does not require a party to lay the same foundation of substantial 

similarity as would be necessary to support admission into evidence.” Ree v. Royal 

Caribbean Cruises Ltd., 315 F.R.D. 682, 686 (S.D. Fla. 2016).

16. Second, and more importantly however, is that whether the incidents are substantially 

similar or not will ultimately be a decision for this Honorable Court to make after 

reviewing the incidents. To allow a Defendant to unilaterally decide which incidents are 

substantially similar or not would be tantamount to handing the role of the judiciary to 

the Defense, and as such, Plaintiff respectfully submits that Defendant should have 

provided a corporate representative who was able to answer how many prior incidents 

occurred that he turned over to Defendant’s attorneys, and at least basic information 

about these incidents such as where they occurred on the stairs, whether the stairs were 

wet, and whether the incidents occurred going up or down the steps, both because this 

evidence in and of itself is relevant for her case, and this information is also relevant for 

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this Honorable Court to consider when ruling on Plaintiff’s motion to compel a better 

response to her interrogatories and requests for production on prior incidents. [DE 17].

Issue 3

17. In addition, Plaintiff timely designated as Plaintiff’s area of inquiry number one

(1), “[a]ll the facts alleged in the Complaint.” See Depo Notice, Exhibit 3, at p. 3; 

see also areas of inquiry 5, 6, and 27, Id. at pp. 3 and 5.

18. Here, Plaintiff’s operative Complaint clearly alleges that Defendant was 

vicariously liable for the actions of its medical crew, including the following 

specific facts, which Plaintiff was expecting Defendant to be prepared to discuss,

125. Defendant pays to stock the medical center with all supplies, medical 

machinery, various medicines, and equipment to be used therein, regularly 

stocking and restocking same.

126. Defendant collected all medical revenues directly from passengers and 

generated a profit on the sale of medical services, supplies, and equipment made 

by the ship’s medical personnel to the passengers of the vessel.

[DE 6 at p. 22].

19. However, when Defendant’s corporate representative was asked the following question, 

he answered as follows:

Q.· ·I understand.· And I'm really asking the position of MSC.· Is MSC taking the 

position these are independent contractors and we're not responsible for the care 

and treatment they provided or are they saying they're independent contractors, 

but they're working for us to take care of our passengers and we're responsible for 

whatever care and treatment they provide?

MR. HOLMAN:· Form.

THE WITNESS:· Yeah, I can't -- I don't know exactly how that arrangement 

is done. I'm just not knowledgeable on that medical part of it.

. . .

Q.· ·Sure.· Do you provide the facility, the medical center, for use by the 

physicians and nurses?

A.· ·Do we provide?

Q.· ·Yeah.· That's your medical center.

A.· ·Yeah, there is -- yeah, that's correct.

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Q.· ·Okay.· And do you, MSC, pay for the supplies, the Band-Aids and the 

thermometers and whatever else they have in there, x-rays, do you all pay for 

that?

A.· ·I'm not familiar, I guess, how the medical department gets their supplies 

and how they're getting paid.· I'm not sure.

Q.· ·Did you bill Mrs. Hodson for the care she received?

A.· ·I'm sorry.· I don't know either.· I'm not sure. I have to look at the final bill on 

how they -- I think normally that would be on their -- it would be on their bill if 

they charged her or not.· I guess it would be indicated under her final bill.

Q.· ·Does MSC on occasion bill their passengers for care that's received in the 

medical center?

A.· ·Yes, that's correct.

Q.· ·And does MSC keep the revenues from those encounters?· So, for instance, if 

I go in complaining of being seasick and they bill me $150 for the consult, is that 

money that goes to MSC?

A.· ·I do not know where that would go to.

See Corporate Representative Depo, Exhibit 4 at 46:16-47:1, 50:5-51:5 (emphasis added).

20. As the answers to these questions are squarely relevant to Plaintiff’s vicariously liability 

count, Plaintiff respectfully submits that she was entitled to a corporate representative 

who was prepared to discuss these issues.

Memorandum of Law re: 30(b)(6) Deposition

If Defendant had good faith objections, Defendant should have raised such objections

through a motion for a protective order, rather than wasting Plaintiff’s and now the Court’s time 

by producing an unprepared witness. See QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 

676, 691 (S.D. Fla. 2012) (“Despite the potentially difficult burdens which sometimes are 

generated by Rule 30(b)(6) depositions, the corporation is not without some protection, as it may 

timely seek a protective order or other relief.”) (emphasis added) (citing C.F.T.C. v. Noble 

Metals Int'l, Inc., 67 F.3d 766, 772 (9th Cir. 1995) (emphasis added).

Defendant had an obligation under Fed. R. Civ. P. 30(b)(6) to prepare its corporate

representative so that he could give complete, knowledgeable, and binding answers on behalf of 

Defendant. QBE Ins. Corp., 277 F.R.D. at 689-90; Continental Cas. Co. v. First Financial 

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Employee Leasing, Inc., 716 F.Supp.2d 1176, 1189 (M.D. Fla. 2010) (“A corporate party does 

not satisfy its obligations under Rule 30(b)(6) by merely ‘producing a designee and [then] seeing 

what he has to say or what he can cover.’”) (citing Poole ex rel. Elliott v. Textron, Inc., 192 

F.R.D. 494, 504 (D. Md. 2000)); Provide Commerce, Inc. v. Preferred Commerce, Inc., 2008 

WL 360588 *2 (S.D. Fla. 2008).

Defendant has breached its obligation to prepare and produce a knowledgeable designee.

This Court has the authority to impose sanctions against Defendant for its failure to prepare and 

produce a knowledgeable designee. Inmuno Vital, Inc. v. Telemundo Group, Inc., 203 F.R.D. 

561, 566 (S.D. Fla. 2001) (“A ‘previous directive order is not a prerequisite’ to the imposition of 

sanctions under Fed. R. Civ. P. 37(d))” (quoting Hall v. Leon County Building Supply Company, 

Inc., 84 F.R.D. 372 (N.D. Fla. 1979)).

In this instance, Plaintiff requests that this Court impose upon Defendant the sanction of a 

negative inference that its failure to produce a corporate representative with knowledge of 

Plaintiff’s designated areas of inquiry be taken as conclusive proof that, if Plaintiff had been 

afforded the opportunity to depose a corporate representative with such adequate knowledge, 

evidence favorable to Plaintiff would have been uncovered on each question asked. Plaintiff 

further requests that Defendant be precluded from presenting any argument, evidence, testimony 

or facts relating to these unanswered areas of inquiry at trial. A negative inference is one of the 

least severe sanctions which this Court can impose, and is sufficiently warranted by the failure of 

Defendant to prepare and produce a corporate representative with adequate knowledge of her 

designated areas of inquiry.

In the alternative, or in addition to a negative inference (as requested herein), Plaintiff 

requests that this Court order Defendant to perform a complete search of its records, including, 

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but not limited to, all electronically stored information, as well as all physical documents in its 

possession or which it can obtain without suffering undue hardship, and to retrieve any and all

other documentation and information necessary to prepare a Rule 30(b)(6) designee and to 

produce within fourteen (14) days a designee with adequate knowledge of the aforementioned 

designated areas of inquiry (after reviewing that documentation and information) for binding 

deposition testimony at Defendant’s expense, including court reporting fees, videography fees, 

costs of transcripts and videos, as well as the cost for expedited transcripts and videos.

Plaintiff additionally requests any and all further relief this Court deems appropriate 

under the circumstances, including, but not limited to, the imposition of other sanctions upon 

Defendant, MSC CRUISES, S.A.

RULE 7.1 CERTIFICATION

Pursuant to Local Rule 7.1(a)(3)(B), undersigned certifies that counsel for Plaintiff has 

conferred with opposing counsel in a good faith effort to resolve the issues raised in the motion, 

but has been unable to do so.

WHEREFORE, Plaintiff, ASHLEY HODSON, respectfully moves this Court for an Order 

imposing sanctions against Defendant, MSC CRUISES, S.A., for its failure to prepare and 

produce a corporate representative with adequate knowledge of Plaintiff’s Designated areas of 

inquiry as described above, or in the alternative, Plaintiff requests the Court to compel Defendant 

to produce a corporate representative with adequate knowledge of Plaintiff’s designated areas of 

inquiry. Plaintiff additionally requests all further relief this Court deems just or appropriate under 

the circumstances, including, but not limited to, the imposition of other sanctions upon 

Defendant.

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CERTIFICATE OF SERVICE

I hereby certify that on December 31, 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 below 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 receive electronically Notices of Electronic Filing.

Respectfully submitted,

ARONFELD TRIAL LAWYERS

1 Alhambra Plaza, Penthouse

Coral Gables, Florida 33134

Tel: (305) 441- 0440

Fax: (305) 441 - 0198

Attorneys for Plaintiff

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

Spencer Marc Aronfeld, Esq.

Florida Bar Number: 905161

aronfeld@aronfeld.com

Matthias M. Hayashi, Esq.

Florida Bar No. 115973

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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