Case 1:18-cv-00238-JAO-RLP Document 39 Filed 02/20/19 Page 1 of 12 PageID #: 235

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

MD MIA, ) CIVIL NO. 18-00238 JAO-RLP

)
Plaintiff, ) ORDER GRANTING PLAINTIFF’S
) MOTION TO COMPEL DEFENDANT
vs. ) PRIDE OF AMERICA SHIP HOLDING,
) LLC TO PRODUCE DOCUMENTS
PRIDE OF AMERICA SHIP HOLDING, )
LLC, )
)
Defendant. )
______________________________ )

ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DEFENDANT

PRIDE OF AMERICA SHIP HOLDING, LLC TO PRODUCE DOCUMENTS

Before the Court is Plaintiff’s Motion to Compel

Defendant Pride of America Ship Holding, LLC to Produce

Documents, filed on January 15, 2019 (“Motion”). See ECF No. 29.

Defendant filed its Opposition to the Motion on January 29, 2019.

ECF No. 32. Plaintiff filed his Reply on January 31, 2019. ECF

No. 34. The Court found this matter suitable for disposition

without a hearing pursuant to Rule 7.2(d) of the Local Rules of

Practice for the United States District Court for the District of

Hawaii. ECF No. 30. After careful consideration of the

submissions of the parties and the relevant legal authority, the

Court GRANTS Plaintiff’s Motion.

BACKGROUND

This Jones Act case arises out an incident that

occurred in April 2018, when Plaintiff was working as a seaman

aboard Defendant’s cruise ship. ECF No. 1. Plaintiff alleges

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that he suffered severe injuries to his left hand and left thumb

when they were caught in a mooring line while a shuttle boat was

mooring alongside the cruise ship. Id. Plaintiff filed this

action against Defendant asserting claims for negligence,

maintenance and cure, and unearned wages. Id.

Plaintiff served his Request for Production of

Documents to Defendant Pride of America Ship Holding, LLC Set No.

One by mail on September 10, 2018 (“Discovery Requests”). See

ECF No. 29-2 at 6-11. Defendant’s responses to the Discovery

Requests were due on October 15, 2018. See Fed. R. Civ. P.

34(b)(2)(A); Fed. R. Civ. P. 6(d); Fed. R. Civ. P. 6(a)(1)(c).

Defendant did not respond to the Discovery Requests on October

15, 2018, but instead sought a 30-day extension of time to

respond. See ECF No. 29-2 at 17. Plaintiff granted Defendant

the requested extension, which meant that Defendant’s responses

to the Discovery Requests were due on November 14, 2018. Id.

Defendant did not respond to the Discovery Requests on November

14, 2018. Id. at 19. Plaintiff’s counsel sent a letter to

Defendant’s counsel on November 26, 2018, noting that the

responses were overdue and stating that if Plaintiff did not

receive Defendant’s responses “without objections” by November

30, 2018, Plaintiff would file a motion to compel. Id.

Plaintiff’s counsel and Defendant’s counsel had a

telephone call on November 27, 2018. Id. at 2, ¶ 6; ECF No. 32-1

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at 2-3, ¶¶ 8-9. The parties disagree regarding what was said

during this call. Defendant’s counsel states that Plaintiff’s

counsel agreed to extend the time for Defendant to respond and to

object to the Discovery Requests. ECF No. 32-1 at 2-3, ¶ 9.

Plaintiff’s counsel states that he only agreed not to file a

motion to compel for 30 days and that Defendant had already

waived any objections to the Discovery Requests. ECF No. 29-2 at

2, ¶ 6. Defendant’s counsel sent an email to Plaintiff’s counsel

regarding their telephone call on November 30, 2018. Id. at 21.

Plaintiff’s counsel responded with a letter on December 3, 2018,

stating that Defendant had waived any objections because it did

not timely respond to the Discovery Requests and that Plaintiff

only agreed not to bring a motion to compel until December 28,

2018. Id. at 23.

Defendant provided responses to the Discovery Requests

on December 27, 2018. ECF No. 29-1 at 5. Defendant objected to

several requests and withheld multiple documents listed on a

privilege log asserting attorney-client privilege and the work

product doctrine. Id. at 5-13; ECF No. 29-2 at 34. The parties

attempted to meet and confer regarding Defendant’s responses from

January 3, 2019, through January 12, 2019. ECF No. 29-2 at 2,

¶¶ 9-17; ECF No. 32-2 ¶¶ 4-22. The present Motion followed.

In his Motion, Plaintiff seeks an order compelling

Defendant to produce all documents responsive to Request Nos. 1,

2, 5, 6, and 7, including the documents identified in Defendant’s

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privilege log. After the present Motion was filed, Defendant

provided supplemental responses to the Discovery Requests

indicating that no documents exist that are responsive to

Requests No. 5 and 6. ECF No. 32-2 ¶ 27. Further, Defendant

produced one of the documents previously withheld on the basis of

privilege and produced a revised privilege log listing three

documents. ECF No. 32 at 21 n. 6; ECF No. 32-6. Defendant

provided the three documents to the Court for in camera review.

See ECF No. 38.

ANALYSIS

I. Meet and Confer Process

Pursuant to Local 37.1(a), the parties must engage in a

meaningful meet and confer prior to the filing of any discovery

motion. See LR37.1(a). Defendant argues that Plaintiff’s Motion

should be denied because Plaintiff’s counsel failed to comply

with this requirement. ECF No. 32 at 8-10. The Court disagrees.

After providing Defendant with two extensions of time to respond

to discovery, Plaintiff’s counsel attempted several times to

confer with Defendant’s counsel regarding Defendant’s responses,

but was told that Defendant’s counsel was not available. Based

on the Court’s review of the correspondence between counsel,

Plaintiff’s counsel attempted to confer and was told that

Defendant’s counsel was not available to discuss the discovery

dispute further with Plaintiff’s counsel until the week of

January 18, 2019, more than three months after Defendant’s

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responses were originally due. In these circumstances, the Court

finds that Plaintiff has satisfied his meet and confer

obligations under Local Rule 37.1(a).

II. Timeliness of Defendant’s Objections

As detailed above, Defendant’s responses to the

discovery requests were due on November 14, 2018, after Plaintiff

agreed to a 30-day continuance. There is no dispute that

Defendant did not respond to the Discovery Requests on November

14, 2018. “It is well established that a failure to object to

discovery requests within the time required constitutes a waiver

of any objection.” Richmark Corp. v. Timber Falling Consultants,

959 F.2d 1468, 1473 (9th Cir. 1992)(citation omitted); see also

Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 281 (N.D.

Cal. 2015). The Court rejects Defendant’s argument that waiver

requires any showing of prejudice. Defendant waived all of its

objections to the Discovery Requests when it failed to timely

respond on November 14, 2018. Further, Defendant did not seek an

extension of time to provide responses until after Defendant’s

counsel was contacted by Plaintiff’s counsel on November 26,

2018. In that correspondence, Plaintiff’s counsel stated that if

Plaintiff did not receive Defendant’s responses “without

objections” by November 30, 2018, Plaintiff would file a motion

to compel. ECF No. 29-2 at 19. Defendant argues that its

objections are timely because Plaintiff’s counsel provided an

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additional extension during a telephone call on November 26,

2018. ECF No. 32 at 9 n.1. Setting aside the parties’

disagreement regarding what occurred during that telephone call,

there is no dispute that Plaintiff made his position clear in

correspondence to Defendant on December 3, 2018, stating that

Defendant had waived any objections because it did not timely

respond to the Discovery Requests and that Plaintiff only agreed

not to bring a motion to compel until December 28, 2018. ECF No.

29-2 at 23. After receiving this correspondence, Defendant did

not file a motion seeking an extension or a protective order from

the Court. Instead, Defendant waited until December 28, 2018, to

provide its responses and objections to the Discovery Requests.

Based on the record before the Court, Defendant failed

to provide timely responses to Plaintiff’s Discovery Requests and

waived any objections to the Discovery Requests. The Discovery

Requests propounded by Plaintiff seek documents that are relevant

to the parties’ claims and defenses and proportional to the needs

of this case. See Fed. R. Civ. P. 26(b)(1). The Court GRANTS

Plaintiff’s request to compel Defendant to produce all documents

responsive to Request Nos. 1, 2, 5, 6, and 7, including the three

documents identified in Defendant’s privilege log and all

attachments to those documents.

2. Even Assuming That Defendant’s Objections Were Not

Waived, Defendant’s Objections Are Without Merit.

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Even assuming that Defendant’s failure to timely

respond to the Discovery Requests did not result in the waiver of

its objections, the Court finds that Defendant’s objections are

without merit.

First, Defendant objected to producing documents

responsive to Request Nos. 1 and 7 on the basis that these

requests sought documents protected by the attorney-client

privilege and the work product doctrine. ECF No. 29-1 at 5-6,

12-13. Defendant’s revised privilege log details the three

documents withheld: (1) the accident report from James Conway,

vessel security, dated April 4, 2018; (2) the injury

investigation report from Mr. Conway dated April 5, 2018; and

(3) the injury medical report by Dr. Caroughi dated April 4,

2018. See ECF No. 29-2 at 34. Defendant’s privilege log states

that these documents “were provided to the Legal Department under

the standing instructions by the Legal Department.” Id.

Defendant also provided a declaration from the Director of

Passenger and Crew Claims for the operator of the cruise ship,1

who states that the documents listed in the revised privilege log

were prepared pursuant to company policy in anticipation of

litigation. See ECF No. 32-7.

“The attorney-client privilege protects confidential

1
Defendant does not provide any information regarding the
legal relationship between itself and the operator of the cruise
ship, NCL (Bahamas) Ltd.
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communications between attorneys and clients, which are made for

the purpose of giving legal advice.” United States v. Richey,

632 F.3d 559, 566 (9th Cir. 2011) (citing Upjohn Co. v. United

States, 449 U.S. 383, 389 (1981)). The party asserting the

attorney-client privilege has the burden of establishing the

relationship and the privileged nature of the communication. Id.

With respect to communications to or from in-house counsel,

district courts within the Ninth Circuit have applied the

“primary purpose” test to determine if attorney-client privilege

applies. See, e.g., Phillips v. C.R. Bard, Inc., 290 F.R.D.

615, 628-29 (D. Nev. 2013); United States v. Salyer, 853 F. Supp.

2d 1014, 1018 (E.D. Cal. 2012). Under this test, the privilege

applies only if the primary purpose of the attorney-client

communications is to seek legal advice. Id. The Court finds

that the primary purpose of these accident and injury reports was

not to seek legal advice. As noted by Plaintiff, Defendant has a

duty under federal Coast Guard regulations to investigate

accidents and analyze them to improve safety. See ECF No. 29-1

at 13-14 (citing 33 C.F.R. § 96.250(i)(4)). Based on the Court’s

review of the documents, these reports are not communications

between attorney and client seeking legal advice, but are instead

factual reports regarding the incident involving Plaintiff. Even

assuming that Defendant had not waived its objections, Defendant

has failed to establish that the documents at issue are protected

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by the attorney-client privilege.

Additionally, Defendant has not satisfied its burden to

demonstrate that these documents are not discoverable under the

work product doctrine. “The work product doctrine, codified in

Federal Rule of Civil Procedure 26(b)(3), protects from

‘discovery documents and tangible things prepared by a party or

his representative in anticipation of litigation.’” In re Grand

Jury Subpoena (Mark Torf/Torf Env. Mgmt.), 357 F.3d 900, 906 (9th

Cir. 2004) (citation omitted) (“Torf”). Defendant states that

these documents are “dual purpose” documents created in part in

anticipation of litigation. See ECF No. 32 at 5-7. When a

document is created for dual purposes, it is entitled to

protection if “in light of the nature of the document and the

factual situation in the particular case, the document can be

fairly said to have been prepared or obtained because of the

prospect of litigation.” Torf, 357 F.3d at 907. In applying the

“because of” standard, courts must consider the totality of the

circumstances and determine whether the “‘document was created

because of anticipated litigation, and would not have been

created in substantially similar form but for the prospect of

litigation.’” Id. at 908 (quoting United States v. Adlman, 134

F.3d 1194 (2d Cir. 1998)). “Materials assembled in the ordinary

course of business, or pursuant to public requirements unrelated

to litigation, or for other nonlitigation purposes” are not

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protected under the work product doctrine. See Fed. R. Civ. P.

26(b)(3) advisory committee’s note (1970 Amendment). Here,

Defendant has failed to demonstrate that the documents at issue

were created because of the prospect of litigation. There is no

dispute that these reports are routinely prepared in the normal

course of Defendant’s business and recite factual information

regarding the incident that occurred including safety measures in

place and actions taken to prevent recurrence. The documents

contain notes from interviews with the crew, analysis of the

incident, and corrective action recommended. Defendant has not

provided any evidence to show that these documents would not have

been created but for the prospect of litigation. In light of

these circumstances, the Court finds that, even if Defendant had

not waived its objections, Defendant has failed to establish that

the work product doctrine protects the documents at issue from

discovery. The Court GRANTS Plaintiff’s request to compel

Defendant to produce all documents responsive to Request Nos. 1

and 7.

Second, Defendant objected to producing documents

responsive to Request No. 2, which sought all Coast Guard and

ownership documents pertaining to the shuttle boat involved in

the incident. See ECF No. 29-1 at 11. Defendant objected to

this request “as being unnecessary and pointlessly burdensome

[because] Defendant admits that it owns the shuttle boat” and

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would answer a request for admissions to this effect if Plaintiff

propounded one. Id. The Court is not persuaded by Defendant’s

arguments that the documents sought are not relevant or

proportional and finds that Defendant’s objections are without

merit. See ECF No. 32 at 10-13. The documents requested are

specific to the official government documents and ownership

papers of the boat at issue in this litigation. Although

Defendant thinks that these documents are “unnecessary” because

of its current litigation position, that is not an appropriate

basis to object to producing requested documents that are

discoverable and relevant. Further, Defendant’s argument that it

may limit the production to the documents that it believes are

sufficient to provide information to Plaintiff is also without

merit. Defendant has not provided any support for its position

that the request seeking all Coast Guard documents related to the

vessel at issue is overly broad, burdensome, or disproportional

to the need of this case. The Court GRANTS Plaintiff’s request

to compel Defendant to produce all documents responsive to

Request No. 2.

Third, Defendant objected to producing documents in

response to Requests No. 5 and 6, which requested all written

policies regarding line handling and docketing the shuttle boat.

See ECF No. 29-1 at 11-12. Defendant objected to these requests

as overly broad, vague, and ambiguous. Id. The Court finds that

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Defendant’s objections are without merit. This determination is

underscored by the fact that Defendant has provided supplemental

responses stating that no documents responsive to these Requests

exist. See ECF No. 32-6. Defendant’s argument that Plaintiff

needed to clarify that his request for all written policies

regarding line handling and docketing the shuttle boat meant all

written policies regarding line handling and docketing the

shuttle boat, see ECF No. 32 at 13-15, is without merit.

Plaintiff’s “clarification” merely reiterated what was already

requested and what Defendant should have known did not exist when

it initially responded to the Discovery Requests.

CONCLUSION

In accordance with the foregoing, the Court GRANTS

Plaintiff’s Motion to Compel Defendant Pride of America Ship

Holding, LLC to Produce Documents. No later than February 25,

2019, Defendant Pride of America Ship Holding, LLC shall produce

all responsive documents as detailed above.

IT IS SO ORDERED.

DATED AT HONOLULU, HAWAII, FEBRUARY 20, 2019.

____________________________
Richard L. Puglisi
United States Magistrate Judge

MIA vs. PRIDE OF AMERICA SHIP HOLDING, LLC; CIVIL NO. 18-00238 JAO-
RLP; ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL DEFENDANT PRIDE OF
AMERICA SHIP HOLDING, LLC TO PRODUCE DOCUMENTS

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