DEBORAH REED, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., a foreign corporation, Defendant CASE NO. 19-24668-CIV-LENARD United States District Court, S.D. Florida Entered on FLSD Docket October 23, 2020 Counsel Abby Hernandez Ivey, Matthias Masayasu Hayashi, Spencer Marc Aronfeld, Aronfeld Trial Lawyers, Coral Gables, FL, for Plaintiff. David James Horr, Joshua Roger Lopez, Juan Carlos Perez, Jr., Justin Michael Henning, Horr Novak & Skipp, P.A., Bryan Edward Probst, Royal Caribbean Cruises, Ltd., Miami, FL, for Defendant. Lenard, Joan A., United States District Judge ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE HONORABLE MAGISTRATE JUDGE'S AUGUST 13, 2020 ORDER (D.E. 55) *1 THIS CAUSE is before the Court on Plaintiff Deborah Reed's Motion for Reconsideration of the Honorable Magistrate Judge's August 13, 2020 Order, (“Motion,” D.E. 55), filed August 26, 2020. Defendant Royal Caribbean Cruises, Ltd. filed a Response on September 9, 2020, (“Response,” D.E. 58), to which Plaintiff filed a Reply on September 16, 2020, (“Reply,” D.E. 62). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows. I. Background On May 26, 2020, Plaintiff filed the operative Second Amended Complaint for Damages she sustained while aboard Defendant's cruise ship, the Vision of the Seas. (D.E. 35.) The Second Amended Complaint alleges that a drunk male passenger “grabbed Plaintiff and forcibly spun her around during ‘The Hustle’ line dance” causing her to fall and suffer injuries. (Id. ¶¶ 13-14.) Plaintiff alleges that Royal Caribbean's negligence proximately caused her injuries. (Id. ¶¶ 25, 44, 64.) On February 24, 2020, Plaintiff served her Initial set of Interrogatories and First Request for Production. (See D.E. 36 at 1.) Relevant here are Requests for Production Nos. 15 and 17 and Defendants responses thereto: 15. Any and all documents (including log entries) regarding passenger and crew complaints of dangerous risk-creating and/or hazardous conditions related to the RCCL-sponsored dance parties fleetwide for three (3) years prior and six (6) months subsequent where Plaintiff's accident occurred. RESPONSE: Objection. This request is overly broad, not sufficiently limited in time or scope, not proportional to the needs of the case, not limited to the subject area or even substantially similar areas as the one involved in Plaintiff's alleged incident and the burden of the proposed discovery outweighs its likely benefit. ... 17. For a time period beginning five (5) years prior to the date of the Plaintiff's incident, and one (1) year subsequent, identify all incidents, complaints of incidents, records of incidents, or recollections of incidents similar to the Plaintiff's incident, i.e. passengers, crew members or other persons being assaulted and/or injured by unruly, aggressive and/or intoxicated passengers on both the ship on which Plaintiff was injured and on any cruise ship in Defendant's fleet. Additionally, please provide copies of pictures and floor plans reflecting the location of the subject incidents disclosed, and contact information for the individuals identified. RESPONSE: Objection. This request is overly broad, not sufficiently limited in scope, not proportional to the needs of the case, and the burden of the proposed discovery outweighs its likely benefit. This request seeks documents for well over three years prior to the incident alleged in the subject Complaint. See, Rodriguez v. SMI Sec. Mgmt., Inc., 2009 U.S. Dist. LEXIS 122202 at *7 (S.D. Fla. 2009) (finding a request for production was overbroad for seeking records from “well over three years before” the event giving rise to the cause of action). Moreover, this request potentially calls for the production of documents protected by the work product privilege, namely accident reports and witness statements from prior incidents. Defendant requests that the scope of this request be narrowed so it can provide an appropriate privilege log. *2 (D.E. 73-3 at 2-3.) Also relevant here are Interrogatories Nos. 8 and 9 and Defendant's responses thereto: 8. Please state any and all claims and/or complaints received by the Defendant, within five (5) year period preceding the date of the Plaintiff's incident, concerning the hazard(s) posed by unruly, aggressive and/or intoxicated passengers on both the ship on which Plaintiff was injured and on any cruise ship in Defendant/s fleet. For each such complaint, please state: (a) the date of said complaint; (b) the name, address, email address and telephone number of the person making the complaint; (c) the substance of the complaint; and (d) the method the complaint was made (e.g., written comment card, etc.). ANSWER: Objection. This interrogatory is overly broad, not sufficiently limited in time or scope, not proportional to the needs of the case, and the burden of the proposed discovery outweighs its likely benefit. Moreover, this request seeks information for well over three years prior to the incident alleged in the subject Complaint. See, Rodriguez v. SMI Sec. Mgmt., Inc., 2009 U.S. Dist. LEXIS 122202 at *7 (S.D. Fla. 2009) (finding a request for production was overbroad for seeking records from “well over three years before” the event giving rise to the cause of action). 9. Please list any and all accidents and/or incidents of a similar nature (i.e. passengers, crew members or other persons being assaulted and/or injured by unruly, aggressive and/or intoxicated passengers on both the ship on which Plaintiff was injured and on any cruise ship in Defendant's fleet, during the five (5) year period preceding the date of the Plaintiff's incident. For each such incident please state: (a) the date of the incident; (b) a brief description of the incident; (c) the name of the individual(s) involved in the incident; and, (d) the injury(ies) suffered as a result of the incident. Additionally, please provide contact information (phone number, e-mail, physical address) for the individuals identified. ANSWER: Objection. This interrogatory is overly broad, not sufficiently limited in time or scope, not proportional to the needs of the case, and the burden of the proposed discovery outweighs its likely benefit. Moreover, this request seeks information for well over three years prior to the incident alleged in the subject Complaint. See, Rodriguez v. SMI Sec. Mgmt., Inc., 2009 U.S. Dist. LEXIS 122202 at *7 (S.D. Fla. 2009) (finding a request for production was overbroad for seeking records from “well over three years before” the event giving rise to the cause of action). (D.E. 73-2 at 2-3.) After serving the discovery requests, Plaintiff noticed a discovery hearing for June 11, 2020 before Magistrate Judge John J. O'Sullivan in which she moved to “compel discovery to Plaintiff's Request for Productions Nos. 15 and 17, and Interrogatories Nos. 8 and 9.” (D.E. 36 at 1.) On June 11, 2020, Judge O'Sullivan held an informal discovery conference on the issue. (See D.E. 38.) Thereafter, Judge O'Sullivan issued an Order limiting the scope of discovery, requiring that in response to Plaintiff's Request for Productions Nos. 15 and 17 and Interrogatories Nos. 8 and 9, the defendant shall provide a summary of any and all instances of passengers and crew members who suffered injuries as a result of interaction with another person during a dance event for the three (3) years prior to the subject incident. The defendant's response shall be fleet wide. *3 (Id. at 1 (emphasis added).) Plaintiff did not object to this Order. It appears that Defendants produced a list of 40 to 50 prior incidents involving dance injuries on Defendant's ships following Judge O'Sullivan’s June 11, 2020 Order. (See Tr. of Aug. 13, 2020 Discovery Hr'g, D.E. 73-1 at 9:14-18, 10:11-24.) On July 9, 2020, Plaintiff deposed Defendant's corporate representative. (See D.E. 63-1.) Among the areas designated for inquiry were the following: 12. Prior incidents regarding passenger and crew complaints of dangerous risk-creating and/or hazardous conditions related to the RCCL-sponsored dance parties fleetwide for three (3) years prior and six (6) months subsequent of Plaintiff's incident. 13. Prior incidents regarding passenger and crew complaints of unruly, aggressive and/or intoxicated passengers fleetwide for three (3) years prior and six (6) months subsequent of Plaintiff's incident. 14. Prior incidents, complaints of incidents, records of incidents, or recollections of incidents similar to the Plaintiff's incident, i.e. passengers, crew members or other persons being assaulted and/or injured by unruly, aggressive and/or intoxicated passengers on both the ship on which Plaintiff was injured and on any cruise ship in Defendant's fleet for three (3) years prior and six (6) months subsequent of Plaintiff's incident. (Id. at 4.) Following the deposition, Plaintiff noticed a discovery hearing for August 13, 2020 before Judge O'Sullivan indicating that the corporate representative “was not prepared to testify as to areas of inquiry 12, 13, and 14.” (D.E. 45.) On August 13, 2020, Judge O'Sullivan held an informal discovery conference on the issue. (See D.E. 49.) During the hearing, Plaintiff's counsel argued, apparently for the first time, that “the Court erred in its last discovery rulings in which it held that the scope of the priors was limited to passenger and crew injuries as a result of interaction with another person during a dance event.” (Tr. of Aug. 13, 2020 Discovery Hr'g, D.E. 73-1 at 3:13-16.) Plaintiff asserted that discovery “should be limited to instances where passengers were injured by intoxicated passengers” for the entire fleet of ships. (Id. at 4:14-17.) Defendant argued that the issue had already been addressed at the prior discovery hearing and that Plaintiff was attempting to “readdress the issue without objecting to [Judge O'Sullivan’s] prior ruling.” (Id. at 4:23-24.) Counsel for Defendant continued: The areas that are listed in their corporate representative notice are virtually identical to the ones that were in their request for production that we objected to. We were going to have a hearing on this back on June 11th. Prior to the hearing, I emailed Ms. Ivey and informed her that we objected to, I believe, 16 areas of inquiry in their corporate representative notice, including Areas 12, 13 and 14, which we are here about today. And we had an email interaction where we discussed the idea of waiting to finish discussing the objections to the corporate rep notice until after you ruled on the prior issue, because that would go ahead and answer that question for us and we wouldn't have to debate the priors any further. Rather than bringing up any of the areas that we objected to in the corporate representative notice at that hearing, they limited their discovery hearing to just the areas that you addressed in your order. And then we proceeded with the discovery. We provided the discovery that you ordered. And for some reason, they believe that the priors should now be different for the corporate representative's testimony versus what actually had to be produced. *4 (Id. at 5:2-22.) Judge O'Sullivan then noted that area of inquiry No. 12 appears to cover the discovery he previously ruled Plaintiff was entitled to, and wondered why the corporate representative was unprepared to testify as to inquiry No. 12. (Id. at 5:25 – 26:2.) Defendant responded that the corporate representative was prepared to testify to inquiry No. 12 to the extent it covers “risk-creating and/or hazardous conditions” involving dancing with another guest, but not other “risk-creating and/or hazardous conditions” like slip-and-falls or trip-and-falls. (Id. at 6:3 – 7:4.) Ultimately, Judge O'Sullivan agreed with Defendant and found that the areas of inquiry listed in Nos. 12, 13, and 14 “are limited to the same aspects as my ruling on June 11th at Docket Entry No. 39.” (Id. at 11:25 – 12:2.) As such, Judge O'Sullivan ruled that Plaintiff may redepose Defendant's corporate representative, and as to areas of inquiry 12, 13, and 14, the corporate representative must “be prepared to respond to any instances of passengers and crew members who suffered injuries as a result of interaction with another person during a dance event for the three years prior to the subject incident, which would be the 50 that they gave you.” (Id. at 12:2-6.) On August 13, 2020, Judge O'Sullivan issued a written order requiring Defendant's corporate representative to “be prepared to address the areas of inquiry 12, 13, and 14 for passengers and crew members who suffered injuries as a result of interaction with another person during a dance event for the three (3) years prior to the subject incident, for the 50 above-mentioned individuals as well as the individuals involved in dance floor incidents on Celebrity ships that the defendant provided to the plaintiff.” (D.E. 50 at 1-2.) On August 26, 2020, Plaintiff filed the instant Motion for Reconsideration of the Honorable Magistrate Judge's August 13, 2020 Order. (D.E. 55.) II. Legal Standard A district court must set aside a magistrate judge's order on a nondispositive pretrial matter “where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). See also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”) A “factual finding is clearly erroneous when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535, 1543 (11th Cir. 1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Matter of Application of O'Keefe, 184 F. Supp. 3d 1362, 1366 (S.D. Fla. 2016) (citation omitted). III. Discussion Plaintiff argues that Judge O'Sullivan’s “order denying Plaintiff's Motion to Compel Defendant's Corporate Representative to testify as to the full scope of areas of inquiry nos. twelve, thirteen, and fourteen was clearly erroneous and contrary to law.” (Mot. at 6.) She argues that the Federal Rules of Civil Procedure allow for broad discovery of evidence that need not be admissible at trial, and discovery should be allowed “unless it is clear that the information sought can have no possible bearing on the subject matter of the action.” (Id. (quoting Norton v. Bank of Am., N.A., Case No. 05-61344-Civ-Hurley/Hopkins, 2006 WL 8432180, at *3 (S.D. Fla. Apr. 27, 2006) (quoting Dunkin’ Donuts, Inc. v. Mary's Donuts, Inc., No. 01-0392-CIV-GOLD, 2001 WL 34079319, at *2 (S.D. Fla. 2001))).) She argues that the burden is on the party resisting production to show that the requested discovery is not relevant to the issues in the case, (id.), and that Judge O'Sullivan improperly placed the burden of establishing relevance on Plaintiff, (id.). She argues that *5 the noticed areas of inquiry sought that the corporate representative be prepared to testify as to prior incidents regarding passenger and crew complaints of unruly, aggressive, and/or overly intoxicated passengers fleetwide. Because the scope of the incidents occurred on Defendant's ship and concern unruly and/or intoxicated passengers the scope of the priors contained in areas of inquiries nos. twelve, thirteen, and fourteen comply with the substantial similarity doctrine under which “a past incident must be reasonably related in terms of location and condition.” Id. This testimony is relevant to Plaintiff's claims and are relevant to establish Defendant's notice of the dangerous condition. (Id. at 7.) She argues that the scope of the prior incidents should not be limited to “dance events” because “dancing is not the dangerous condition which she is alleging.” (Id.) Rather, “[t]he dangerous condition which Plaintiff alleges Defendant, Royal Caribbean Cruises Ltd., should have or had notice of is the hazards presented by unruly and/or overly intoxicated passengers.” (Id. (citing Lobegeiger v. Celebrity Cruises, Inc., CASE NO. 11–21620–CIV–ALTONAGA/Simonton, 2012 WL 12844732, at *5 (S.D. Fla. Apr. 18, 2012)).) Defendant argues that Plaintiff is really seeking to enlarge the scope of discovery established by Judge O'Sullivan in his June 11, 2020 Order, which limited discovery of prior similar instances to instances of passengers and crew members suffering injuries as a result of interaction with another person during a dance event for the three (3) years prior to the subject incident. (D.E. 58 at 3 (citing D.E. 39).) Defendant argues that Plaintiff waived any challenge to the scope of discovery regarding prior similar incidents by failing to timely object to Judge O'Sullivan’s June 11, 2020 Order. (Id.) Defendant argues that Judge O'Sullivan’s August 13, 2020 is not clearly erroneous or contrary to law because permitting Plaintiff to discover prior incidents regarding intoxicated passengers on any portion of the ship would be inconsistent with Rule 26(b)(1), which limits discovery to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” (Id. at 4.) Regardless of the “story” Plaintiff's counsel tells this Court, Ms. Reed's Guest Injury Statement clearly states she “was dancing went in a twirl and fell catching my fall with my left hand.” (Guest Injury Statement, Exhibit 1). Under the portion of the form that asks “What do you believe caused this incident,” Ms. Reed wrote “losing balance while dancing.” (Ex. 1). The CCTV footage reflects similarly. For Plaintiff to argue the appropriate scope of discovery is any unruly or intoxicated passengers anywhere on the entire vessel is improper, irrelevant, and no where near proportional to the needs of this case. Plaintiff seeks to broaden the scope of discovery to “safety” in general in order to try and prove notice. However, the fact remains that Ms. Reed fell while dancing with another passenger. As a result, Judge O'Sullivan’s ruling that the scope of discovery is limited to “passengers and crew members who suffered injuries as a result of interaction with another person during a dance event for three years prior” is appropriate and proportional to the needs of this case. (Id. at 4-5.) In her Reply, Plaintiff argues that she has alleged multiple theories of liability and that she is “merely seeking discovery on prior incidents that corresponds to the allegations in her complaint. More specifically, Plaintiff is seeking, as she has been doing since the inception of her case, for prior incidents in which an intoxicated passenger touched a person without his or her consent.” (D.E. 62 at 1.) For example, in Count I of the Second Amended Complaint, Plaintiff alleges that Defendant “[f]ailed to adequately monitor aggressive and/or unruly passengers; and/or ... [f]ailed to enforce its ‘Guest Conduct Policy’ and/or other internal policies and/or guidelines regarding unruly, drunken, and/or excessive behavior that affects other passengers; and/or ... [f]ailed to prevent uninvited physical contact aboard RCCL's ships[.]” (Id. at 5 (citing Second Am. Compl. ¶ 24 (emphasis provided by Plaintiff)).) Count II alleges that Defendant failed to warn Plaintiff about the dangers of intoxicated and/or unruly passengers regardless of location. (Id. at 5 (citing Second Am. Compl. ¶¶ 35-44).) Count III alleges that Defendant negligently overserved the male passenger who injured Plaintiff by, inter alia, failing to regulate and monitor the alcohol consumption of passengers. (Id. at 6 (citing Second Am. Compl. ¶ 63).) As such, Plaintiff argues that Judge O'Sullivan’s order limiting the corporate representative's testimony regarding prior incidents is clearly erroneous. (Id. at 7-8.) Finally, Plaintiff argues that Judge O'Sullivan’s June 11, 2020 Order only limited the scope of the Requests for Production and Interrogatories, and not the testimony of the corporate representative. (Id. at 8-9.) *6 A district court has wide discretion in discovery matters and review of a discovery order is “accordingly deferential.” Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009) (quoting Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998)). Rule 26(b)(1) states: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Relevancy under Rule 26 is “construed broadly to encompass any matter that bears on, or that reasonably could lead to another matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978). “[T]he burden of showing that the requested discovery is not relevant to the issues in the case is on the party resisting discovery.” Dunkin’ Donuts, 2001 WL 34079319, at *2 (citation omitted). Here, Defendant objected to the scope of discovery sought from its corporate representative, arguing that it was not relevant to the issues in, or proportional to the needs of, the case. (See Tr. of Aug. 13, 2020 Discovery Hr'g at 4:22 – 8:19.) It argued that Judge O'Sullivan had previously limited the scope of discovery of prior similar incidents, and the scope of the Rule 30(b)(6) deposition went beyond Judge O'Sullivan’s June 11, 2020 Order. (Id. at 6:3-6.) Judge O'Sullivan agreed with Defendant and found that the areas of inquiry listed in Nos. 12, 13, and 14 “are limited to the same aspects as my ruling on June 11th at Docket Entry No. 39.” (Id. at 11:25 – 12:2.) Judge O'Sullivan memorialized this ruling in a written Order dated August 13, 2020 requiring the corporate representative to “be prepared to address the areas of inquiry 12, 13, and 14 for passengers and crew members who suffered injuries as a result of interaction with another person during a dance event for the three (3) years prior to the subject incident[.]” (D.E. 50.) If Plaintiff thought she was entitled to broader discovery regarding prior similar incidents, she should have objected to the June 11, 2020 Order. Her failure to timely object to that Order waived the objection. See Fed. R. Civ. P. 72 (“A party may serve and file objections to [a magistrate judge's order on a pretrial, nondispositive matter] within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to.”). Although Plaintiff argues that the June 11, 2020 Order did not apply to testimony by a corporate representative, after considering the Parties’ arguments and the record, the Court is not “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” Laite, 756 F.2d at 1543 (quoting U.S. Gypsum Co., 333 U.S. at 395). Judge O'Sullivan’s Order limits the scope of discovery to that which is proportional to the needs of the case, considering that the Second Amended Complaint alleges that Plaintiff was injured when a drunk male passenger “grabbed Plaintiff and forcibly spun her around during ‘The Hustle’ line dance.” (D.E. 35 ¶¶ 13-14.) As such, the Court finds that Judge O'Sullivan’s August 13, 2020 Order is not clearly erroneous or contrary to law. IV. Conclusion *7 Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Reconsideration of the Honorable Magistrate Judge's August 13, 2020 Order is DENIED. DONE AND ORDERED in Chambers at Miami, Florida this 23rd day of October, 2020.