On February 20, 2012, the Plaintiffs' filed a Complaint alleging negligence, gross negligence, and loss of consortium against the Defendants arising from injuries sustained by Charles Black which occurred on the Abyss Waterslide at the Atlantis Resort in the Bahamas. (DE 1) The Defendants answered the Complaint on June 15, 2012, asserting a number of affirmative defenses including the fact that the U.S. Kerzner Defendants are not proper parties to this action as they do not own, operate, control or possess the Atlantis Resort, including the water park (First Affirmative Defense). (DE 33) The Bahamiam Kerzner Defendants have moved to dismiss the Complaint against them asserting that the proper forum for this action is The Bahamas owing to the forum selection clause contained in the guest registration card that the Plaintiffs signed, and the doctrine of forum non conveniens. (DE 34)

The parties filed a Joint Scheduling Report on July 2, 2012 in which they agreed that discovery should be conducted in two phases; the first phase to be devoted to the issues relating to the proper forum for this case, and to the U.S. Kerzner Defendants' claim that they are not proper parties to this suit. (DE 37) The Parties agreed that the first phase of discovery would continue until July 25, 2012, and that if Court intervention were required, they would submit to an expedited briefing schedule so that the Court could enter an order by July 20, 2012 in advance of venue depositions scheduled for July 24 and 25, 2012.

The Plaintiffs filed their motion to compel on July 2, 2012 seeking better responses to Interrogatories numbered 1, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, and 20, and Requests for Production numbered 1, 2, 6, 7, 9, 10, 11, 12, 14, 15, 16, 27, 28, 29, 30, 31, 32, 35, 37, 40, 43, and 44. The Plaintiffs seek an award for attorney's fees in connection with their motion.

As a preliminary matter, the Defendants argue that the Plaintiffs' motion should be stricken for failure to comply with Local Rule 7.1(c)(2) which requires parties to obtain prior permission of the Court before filing motions in excess of twenty (20) pages.[1] Alternatively, the Defendants argue that the excess pages should be stricken.

It is undisputed that the Plaintiffs did not seek leave of Court to file a motion in excess of twenty pages as required by the Local Rules. However, the Plaintiffs assert that the relief the Defendants seek is draconian under the circumstances as there were a large number of improper objections to the discovery requests to address in the motion, and they were unsuccessful in getting the Defendants to provide better responses. In addition, the violation was unintentional.

*2 Both parties cite cases in this District in support of their respective positions. The Defendants cite an order entered by Judge Ryskamp in the case of United States of America v. Raphael Solomons, Case No. 06-80733-CIV-RYSKAMP/VITUNAC (S.D. Fla. Oct. 3, 2007) (DE 48), in which Judge Ryskamp declined to consider excess pages filed without prior leave of Court by both parties in that case in connection with a motion to compel.[2] Judge Ryskamp also declined to consider a sur-reply in connection with the same motion which was also filed without leave of Court. The Plaintiff cites the case of Flexiteek v. Plasteak, 2009 WL 1288562 (S.D. Fla. 2009), in which Judge Cohn declined to strike multiple filings for various violations of the local rules, including a Renewed Motion to Dismiss which exceeded the page limit set forth by Local Rule 7.1(c)(2). He found that the although the rules had been violated, the prejudice flowing from the violations did not warrant the draconian relief of striking the papers and instead warned that parties that the rules would be strictly enforced going forward.

The Court notes that the expedited briefing schedule the parties agreed to gives the Court a truncated amount of time to consider the issues raised in the Plaintiffs' motion. Nevertheless, the Court finds that to the extent that the discovery the Plaintiffs seek to compel relates to the issue of venue and the propriety of naming the U.S. Kerzner Entities as Defendants, addressing those issues now may assist in the orderly progression of this case. Therefore, the Court will not strike the Plaintiffs' motion or the excess pages, however, it will only consider the discovery requests which clearly go to the issues the parties agreed to litigate at this early stage in the litigation.[3] However, future memoranda exceeding 20 pages will be stricken unless prior leave of court has been obtained.

The discovery requests in the Plaintiffs motion are directed toward the Bahamian Kerzner Defendants. The response to the motion to compel was filed on behalf of all of the Kerzner Defendants in an abundance of caution. The Court will address the discovery requests in turn.

The response then lists 26 witnesses, 24 of whom have Bahamian addresses and one a Plantation, Florida address. The remaining witness, Mike Eder, was the Director of Water Park Operations and is no longer employed by the Defendants. The Defendants do not have current contact information for him. The response also lists “Treating physicians, nurses and staff at Doctors' Hospital,” and “Treating physicians, nurses and staff in South Carolina.”

The Court finds that this interrogatory is relevant to the Defendants' forum non conveniens argument. One of the factors the Court will consider in deciding the appropriate forum for this case will be the location of the witnesses and the relative ease of obtaining their attendance. American Dredging Co. v. Miller, 510 U.S. 443, 448 (1994).

*3 The Plaintiffs complain that the Defendants omitted the witnesses' phone numbers, and the address, telephone number, place of employment and job title for individuals no longer employed by the Kerzner Defendants.[4] Finally, the Plaintiffs contend that there were other hotel guests present when the incident occurred, and that the Defendants should provide their contact information as well.

The Defendants respond that they have provided the names and contact information for all potential witnesses maintained by the Bahamian Kerzner Defendants. They do not have contact information for the one former employee on the list. The records maintained do not include any other hotel guests.

The Plaintiffs reply that if there is a record of additional witnesses, the names and other information should be produced.

If it was not clear from the response to the interrogatory, the Defendants' response to the motion to compel makes clear that they have provided all of the information that the Bahamian Kerzner Defendants have that is responsive. The Court cannot compel anything further from them. L.M.P. v. School Board of Broward County, Fla. 2009 WL 2578987, *4 (S.D. Fla. Aug. 18, 2009). Accordingly, the Plaintiffs' motion with regard to Interrogatory #1 is denied.

The Defendants assert that Interrogatories numbered 5 and 6 go to the heart of the substantive issues in this case, rather than jurisdictional issues. The Court agrees that this is true for Interrogatory number 5. Therefore, the Court will not address the Plaintiffs motion with regard to Interrogatory number 5 at this time. However, the Plaintiffs correctly point out that Interrogatory number 6 seeks information about non-parties, some of whom may share liability and therefore be appropriately added as Defendants at a future date. The question is accordingly relevant to whether this case should remain in the Southern District of Florida. The Defendants responded to Interrogatory number 6 as follows:

*4 The Plaintiffs assert that Interrogatory number 6 is a Florida Supreme Court Standard Form Interrogatory. They complain that in light of the Defendants' objections which precede the answer, it is impossible to determine if the factual portion of the answer is complete. The Defendants respond that further detail would provide the Plaintiff with the Defendants strategy and surely would be privileged. The Plaintiffs contend that the Defendants' privilege log does not contain the information required by Fed.R.Civ.P. 26(b)(5) and Local Rule 26.1(g)(3)(B).

The Defendants do not appear to dispute the relevance of the information the Plaintiffs seek.[5] Further, this Court disfavors the practice of objecting to a discovery request, but answering subject to the objection. See Consumer Electronics Association v. Compras and Buys Magazine, Inc., 2008 WL 4327253 (S.D. Fla. Sep. 18, 2008) (formulaic objections followed by an answer serve only to waste the time and resources of both the parties and the Court, leaving the requesting party to wonder whether the question has actually been fully answered), Pepperwood of Naples Condominium Ass'n., Inc. v. Nationwide Mut. Fire Ins. Co., 2011 WL 4382104 (M.D. Fla. Sep. 20, 2011) (Court reluctant to sustain objections where Defendant reserved its objections and partially answered interrogatories) citing Mann v. Island Resorts Development, Inc., 2009 WL 6409113 (N.D. Fla. Feb 21, 2009), Meese v. Eaton Mfg. Co., 35 F.R.D. 162 (N.D. Ohio 1964) (holding that a party who objects and then answers an interrogatory waives the objection.)

Rule 26(b)(5) requires a party withholding information otherwise discoverable on the basis of privilege must, expressly make the claim and describe the nature of the documents, communications, or tangible things not produced or disclosed. The disclosure must be done in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim. Local Rule 26.1(g)(B) more specifically describes the information that should be provided in the objection unless divulgence would cause disclosure of the allegedly privileged information. For documents or electronically stored information (ESI), the objection must provide 1) the type of document and, if electronically stored, the software application used to create it; 2) the general subject matter of the document or ESI; 3) the date of the document or ESI; 4) such other information as is sufficient to identify the document or ESI. For oral communications, the objection must provide1) the name of the person making the communication and the names of persons present while the communication was made and where not apparent, the relationship of the persons present to the person making the communication; 2) the date and the place of the communication; and 3) the general subject matter of the communication.

Although the Defendants did provide a privilege log, it is impossible to tell which, if any, of the documents listed in the log would contain information responsive to this Interrogatory. The Defendants have not otherwise provided enough information for the Plaintiffs to assess a privilege claim. Accordingly, the Court will compel the Defendants to provide a more complete response to Interrogatory number 6. The response shall provide the Plaintiffs with the information necessary to assess the Defendants' assertion of work product and/or attorney client privilege. Otherwise, the Defendants shall clarify whether the remainder of the answer is complete, and if not, list any other individuals or entities which it intends to assert may be liable in this action.

The Plaintiffs again argue that this Interrogatory is a Florida Supreme Court Standard Interrogatory. They further assert that they are not aware of any “non-privileged” information produced by the Defendants in response to this interrogatory. The Defendants respond that their response to Interrogatory number 1 contains a list of persons and their significance in to the case. Additionally, the names of the companies involved in the manufacture and installation of the slide were provided in another answer. They assert any other information would be subject to work product and/or attorney-client privilege. Plaintiffs reply that the Defendants should be ordered to produce or identify the non-privileged items the Defendants agreed to produce.

The Court agrees with the Plaintiffs that at the very least the Defendants should more specifically identify the non-privileged documents referred to in their answer to this question. Accordingly, the Court will compel the Defendants to provide a more full and complete response to Interrogatory number 7 identifying with specificity the non-privileged documents it either produced or will produce that are responsive.

The Plaintiffs contend that the interrogatory does not ask for the substance of the investigation; therefore privilege should not apply. Additionally, the response does not identify the information the Defendants are withholding on the basis of privilege with enough specificity. In response to the motion to compel, the Bahamian Kerzner Defendants clarify that they have no knowledge of any proceedings or investigations besides their own internal investigation.

*6 The Court will compel the Defendants to identify with more detail in their privilege log the information they are withholding on the basis of privilege which are responsive to Interrogatory number 9.

*7 The Plaintiffs want the Defendants to produce the two emails the Defendants refer to in their response. They also want the name and address of each person or entity that provided the documents to the Plaintiffs. They assert that they need this information because a primary issue in this case is whether the forum selection clause was “reasonably communicated” to the Plaintiffs prior to their arrival.

The Defendants respond that they have provided everything the Bahamian Kerzner Defendants maintained in connection with the Plaintiffs' reservation. The actual emails which were sent are not stored in their system. The email address of the sender was provided in the response.

In light of the Defendants response to the motion to compel, the Plaintiff reply that they request nothing further in connection with Interrogatory number 10.

The Plaintiffs assert that the lifeguards' prior employers are relevant because they may have been employed by one of the U.S. Kerzner entities which would strengthen a U.S. connection to the matter. The Plaintiffs also contend that it is unclear whether the Defendants have provided the documents they promise to provide in response to subsections c), d), and e).

The Defendants respond that prior employment is irrelevant, and assert that if the Plaintiffs want to ask whether “certain Bahamian employees previously worked for the U.S. Kerzner Entities, they will disappointed by the answer....”

*8 The Defendants objection to subsection b) is boilerplate and the Court finds that the prior employment of the two lifeguards listed in the Defendants' response is potentially relevant to this matter. Further, the responses to subsections c), d), and e), do not make clear what documents the Defendants are referring to. Evidently, the Defendants have provided a single document, but the Plaintiffs are not sure that this document contains all of the responsive information. Accordingly, the Defendants shall provide information responsive to subsection b) of Interrogatory number 11. The Defendants shall also clarify whether the single document it produced in response to subsections c), d), and e) comprises all of the information responsive to those subsections.

Interrogatories numbered 12 and 14 deal with the Defendants' efforts at advertising and marketing in the United States. The interrogatories and the responses read as follows:

The Defendants responded identically to both interrogatories as follows:

The Plaintiffs assert that these interrogatories are neither vague nor overbroad and they seek information that is clearly relevant to whether this case should remain in the Southern District of Florida. Defendants respond that the several Kerzner Defendants are separate and distinct entities. The Bahamian Kerzner Defendants conduct no business in the United States, rather they maintain a contractual relationship with the U.S. Kerzner entities to provide ancillary services, including advertising. The Bahamian Kerzner Defendants do not possess the information requested. These interrogatories are more properly directed to the U.S. Kerzner Defendants.

The Bahamian Kerzner Defendants to whom these interrogatories were directed contend that they do not possess the information needed to respond more fully to these interrogatories. Accordingly, the motion to compel is denied with regard to Interrogatories 12 and 14.

In light of the Defendants' response to the motion to compel with regard to Interrogatories numbered 13, 15, 17, and 20, the Plaintiffs do not seek to compel anything further.

The Defendants contend that they have provided the relevant conversation that goes to the heart of this case. The Court agrees that this Interrogatory goes to substantive, as opposed to jurisdictional issues. Accordingly, the Court will not address the motion with regard to Interrogatory number 16 at this time.

The Defendants' response to the motion to compel makes clear that they are not aware of any footage of the incident. The Plaintiffs contend that the privilege objections should be overruled. The Defendants shall supplement their response to Interrogatory number 19 to confirm that they are not aware of any of footage of the incident. The privilege objections are overruled as it appears that there is no evidence as to such privileges could attach.

The Defendants contend that this request is more properly directed to the U.S. Kerzner Defendants. Their response makes clear that they are not in possession of documents responsive to this Request. Accordingly, the motion to compel with regard to Request for Production number 1 is denied.

Requests for Production numbered 2 and 7 deal with documents related to the forum selection clause. The Requests state as follows:

*10 The Kerzner Defendants responded to both Requests in the same manner as follows:

The Plaintiffs contend that they have not received the confirmation package the Defendants promised to produce, nor have they received any emails allegedly sent to them in connection with the trip at issue in this case. The Defendants respond that the emails are not stored in their system. Therefore, they do not have any emails to produce. The response does not address the Plaintiffs' contention that they have not received the confirmation package as promised. Accordingly, the motion to compel with regard to Request to Produce number 2 is granted. Defendants shall produce the confirmation package as promised. They need not produce the emails requested in Request number 7.

The Plaintiff accepts the Defendants' revised response to Request number 6. Accordingly, the Court need not address the motion as it concerns this Request.

The Defendants' responses to Requests 9, 10, and 12 are the same as their response to Requests 2 and 7. The Court has already ordered the Defendants to produce the confirmation package as promised.

The Plaintiffs argue that because the U.S. Kerzner entities are represented by the same lawyers as the Bahamian Kerzner entities, the documents should be produced. The fact remains however, that the Request was served on the Bahamian Kerzner Defendants and they are not in possession of the documents. The Court cannot order them to produce what they do not have. Accordingly, the motion to compel with regard to Request number 11 is denied.

The Plaintiffs contend that the Defendants' assertion of privilege are waived because they did not comply with the Federal and Local Rules and that the rest of the objections are baseless. The Defendants respond that the Bahamian Kerzner Defendants are not aware of any records that name any guests as witnesses. The records that do exist were created in anticipation of litigation. Non-party contact information is not maintained in the ordinary course of business and any personal information of non-parties is confidential.

*11 The Court finds that the information requested in Request 14 is potentially relevant to the jurisdictional issues presently being litigated. Further, the Defendants' response does not identify with any specificity what, if any documents they are withholding on the basis of privilege in violation of the Fed.R.Civ.P. 26(b)(5)(A) and Local Rule 26.1(g)(B)(ii). The Defendants response to the motion to compel asserts both that there are no records that identify any guests as witnesses, and those records which do exists are privileged. These two assertions contradict each other. Accordingly, the Court will compel the Defendants to produce any records to the extent they exist that are responsive to Request 14.

The Defendants' response to Requests 15 and 16 are identical. The Requests and the Defendants objections state as follows:

The Plaintiffs contend that the Defendants' privilege log does not describe any notes or statements that the Defendants are withholding based on privilege and therefore any privilege should be waived. The Defendants respond that the notes and recordings regarding the incident were created specifically in anticipation of litigation. The names of any persons identified in the notes and recordings have been provided to the Plaintiffs.

The Court agrees that it is unclear whether the privilege log the Defendants provided lists the documents the Defendants are withholding which would be responsive to these Requests. Accordingly, the Defendants shall supplement their response to these requests to more clearly state whether there are documents being withheld responsive to Requests 15 and 16 on the basis of privilege, and to specifically identify them in accordance with Local Rule 26.1(g)(B). In particular, the Defendants are directed to identify the witnesses who prepared any notes or recordings, or who provided statements.

The Plaintiffs again assert that the Defendants assertion of privilege is not compliant with the Federal and Local Rules. Further, the Request seeks any and all photographs or video of Plaintiffs, not limited to the incident itself. These would include and photographs or videos taken at check-in which might show Defendants speaking to the Plaintiffs about the forum selection clause contained in the guest registration. The Defendants argue that this request is purely substantive and to the extent that it is not, it is unduly burdensome and irrelevant.

The Court agrees that any photographs or video of the Plaintiffs may be relevant, particularly any showing them checking in to the Resort. Further, the Defendants' assertion of privilege is boilerplate and non-specific. Accordingly, the Plaintiffs motion to compel the production of documents responsive to Request 27 is granted. It the Defendants do not possess any documents responsive to the Request, they shall supplement their response to clearly indicate that they do not.

The parties agree that this Request is not relevant to jurisdictional issues. However, the Defendants did agree to produce the documents. Accordingly, the Court will compel them to do so.

The Plaintiffs assert that they need this information in order to respond to the Defendants' pending motion to dismiss. It is the Defendants' burden to establish that in the case of witnesses who cannot be compelled to a Florida trial, that the witnesses' live testimony is necessary to their defense, or that necessary testimony could not be procured through videotaped depositions, letters rogatory, or some similar procedure. Larsen v. Kerzner Int'l Hotels Ltd., 2009 WL 1759585 (S.D. Fla. 2002).

The Defendants respond that their response is adequate. There is a distinction between whether testimony cannot be procured and testimony that will be very difficult to procure.

The Court finds that the Request is relevant. Accordingly, the Defendants shall supplement their response to Request number 29 to_state whether they have any responsive documents and if so, they shall provide them. If the Defendants have no responsive documents, they shall so state.

The Defendants contend that this Request is purely substantive. The Court agrees and will not address the motion to compel with regard to Request number 30 at this time.

Requests numbered 31 and 40 involve any training the lifeguards received. The Requests and the Defendants' identical response are as follows:

The Plaintiffs seek to compel information and or materials dating before 2009 or afterwards that were used to train these individuals, assuming any were used. The Defendants respond that they produced relevant documentation responsive to the Request. The Plaintiffs will have the opportunity to obtain evidence relating to whether decision making, training and/or procedures or materials were created in Florida during the venue depositions noticed for late July.

As to Requests numbered 31 and 40, the Court orders the Defendants to provide any responsive documents in their possession which they have not already produced to the Plaintiffs. If not, the Defendants shall supplement their responses by stating clearly that the only document responsive to Requests 31 and 40 is the 2009 manual that has been produced.

The Defendants have agreed to produce the responsive documents at the venue depositions, subject to their request that the confidential nature of the documents be maintained. The Plaintiffs seek an order compelling earlier disclosure to give counsel time to review the documents.

The Court orders the Defendants to provide the documents responsive to Request number 35 in advance of the venue depositions scheduled on July 24 and 25, 2012. The Plaintiffs are ordered to maintain the confidential nature of the documents. If necessary, the parties may enter into a stipulated protective agreement.

The Plaintiffs again point to the deficiencies in the Defendants' assertion of privilege. Further, they argue that correspondence between parties would not be protected by privilege in any case. The Defendants respond that they have already provided the Plaintiffs with correspondence regarding the booking of the reservation. Any other correspondence responsive to this request would have been generated in anticipation of litigation, or would involve counsel. The Plaintiffs reply that correspondence between any of the U.S. Kerzner Entities and the Bahamian Kerzner Entities in connection with an investigation of the incident would be relevant. If there is a privilege it should be properly asserted with the required information in the privilege log.

*14 The Court agrees that the Request seeks relevant information. Accordingly, the Defendants shall supplement their response to Request #37 to indicate whether documents responsive to the Request exist, and if there is an assertion of privilege it shall be properly asserted with the required information in the privilege log.

The Plaintiffs again contend that the Defendants have not properly asserted privilege. The Defendants respond that the reports which were created in anticipation of litigation are indeed protected by privilege.

The Defendants shall supplement their response to Request number 43 to clearly identify the reports being withheld based on privilege and including information identifying who generated the reports.

The Defendants response to the Request indicates that they are not in possession of photographs, video or other recording of the subject incident. They contend that this Request is duplicative of an earlier Request.

The Court finds that Request number 44 seeks evidence included in Request number 27. The Defendants' response is identical to their response to Request number 27. The Request is not limited to photographs, video or recording of the subject incident, but rather includes any such evidence from either before or after the incident. Therefore, for the same reasons it compelled the production of documents responsive to Request 27, the Court will compel documents responsive to Request 44 to the extent they exist. If the Defendants do not possess documents responsive to Request 44, they shall supplement their response to clearly indicate that they do not.

With the Court being advised, it is hereby

ORDERED AND ADJUDGED that the Plaintiffs' Motion to Compel Better Responses to First Interrogatories and Requests for Production (DE 38) is GRANTED in part as follows:

1. On or before July 23, 2012, the Defendants shall provide a more complete response to Interrogatories numbered 6, 7, 9, 11, and 19. They shall also provide more complete responses to Requests for Production numbered 2, 9, 10, 12, 14, 15, 16, 27, 28, 29, 31, 35, 37, 40, 43 and 44, in the manner outlined in the body of this Order.

2. The Plaintiffs' request that the Court award their attorney's fees in connection with their motion to compel is DENIED.

DONE AND ORDERED at Fort Lauderdale, Florida, this 20th day of July, 2012.

The motion to compel is thirty three pages in length.

The response was 27 pages and the reply 13 pages.

Of course the Plaintiffs will be free to seek the remaining discovery regarding substantive issues beginning when the Court enters its Order on the Defendants' pending motion to dismiss.

The Plaintiffs concede that the only person it appears this applies to is Mike Eder, but would like the Defendants to provide the information for any other former employees with knowledge of the incident who are not listed in response to this interrogatory.

The Court disregards the Defendants' General Objections, (and will do so wherever they appear), as they do not relieve the Defendants of the obligation to make specific objections where appropriate to each individual discovery request should they wish to preserve such objections.