*1 Pending before the Court is Claimant's Motion to Compel Discovery, filed on January 13, 2022. (Doc. 48). Petitioner, AWE Watersports, LLC, filed its response in opposition on February 10, 2022. (Doc. 70). The motion is, therefore, ripe.

In the interests of judicial economy and efficiency, the Court dispenses with any unnecessary recitation of the procedural posture of this case, the parties’ arguments, or the well-established legal standards governing this discovery dispute. The Court has carefully reviewed the parties’ submissions and considered each and every argument raised. Upon consideration and being otherwise fully informed, Claimant's motion is GRANTED in part and DENIED in part, as set forth below.

This discovery dispute centers on Petitioner's objections to Claimant's Requests for Production Nos. 5, 6, 7, 15, 16, 18, 19, 24, 26, 28, 49, 50, 51, 60, 61, 62, 78, and 79. (See Doc. 48). The parties have addressed the requests in logical groupings comprised of discovery related to: (1) vessels owed by Petitioner (Request Nos. 5-7); (2) Petitioner's joint venturers and/or partners (Request Nos. 15-16, 18-19); (3) Petitioner's actions after the subject incident (Request Nos. 24, 26, 28, 61, 62); (4) Petitioner's insurance coverage (Request Nos. 49-51); (5) prior incidents (Request No. 60); (6) communications between Petitioner and Aaron Ruffcorn (Request No. 78); and (7) any photos taken at the March 23, 2021 inspection, (Request Nos. 79). (See id. at 3-12; see also Doc. 70 at 2-11). The Court adopts the structure used by the parties.

I. Request Nos. 5-7

In Request Nos. 5-7, Claimant seeks “[a]ny and all” specified documents related to the purchase, ownership, and use of vessels by Petitioner from the date of the incident through the present. (Doc. 48-1 at 3-4; see also Doc. 48 at 3). Claimant argues that these documents are relevant because the “Flotilla Doctrine,” which would effectively increase the amount of limitation liability based on the worth of other vessels, applies in this action. (Doc. 48 at 3). Petitioner argues that the requested documents are not relevant because the Flotilla Doctrine does not apply in this case. (See Doc. 70 at 3-5).

Upon review, the Court finds that the requested documents are at least minimally relevant to the claims and defenses at issue. Indeed, the documents sought are at least facially relevant to Claimant's Fourth Affirmative Defense—that, under the Flotilla Doctrine, Petitioner's liability must be increased to include the value of all vessels at all of Petitioner's locations. (See Doc. 11 at 6). Although Petitioner now challenges the applicability of the Flotilla Doctrine, (see Doc. 70 at 3-5), Petitioner did not move to strike this defense and has not moved for or been granted summary judgment on this defense. In fact, it appears that before this motion, Petitioner merely denied the applicability of the doctrine in its responses to Claimant's Answer. (See Doc. 14 at 31; see also Doc. 63 at 36; Doc. 83 at 36). Thus, Claimant's contention that Petitioner's liability must be increased to include the value of all vessels at all of Petitioner's locations remains at issue. Whether the argument is meritorious remains to be seen. But, at this time and on this record, the Court finds the requested documents at least minimally relevant.

*2 Accordingly, Petitioner's objections are overruled. Petitioner must produce any non-privileged documents responsive to Request Nos. 5-7 as limited above. To the extent Petitioner withholds any documents on privilege grounds, Petitioner must provide an adequate privilege log.

II. Request Nos. 15-16, 18-19

As to Request Nos. 15, 16, 18, and 19, the Court finds that the motion is due to be denied without prejudice. Since Claimant served her discovery requests, Petitioner responded, and Claimant filed the instant motion, the pleadings in the case have materially changed in that The Hyatt Corporation and HST HRCP LLC (collectively “The Hyatt”) were added as parties and later dismissed. (See Docs. 51, 88; see also Doc. 70 at 6). In light of the change to the scope of the action, the Court finds it more prudent to deny Claimant's motion without prejudice as to Request Nos. 15, 16, 18, and 19.

This result is also bolstered by Petitioner's representations that at the time of filing its response, it “ha[d] been amending its discovery responses and providing additional documentation to Claimant in a good faith effort to narrow the issues presented to the Court,” that “[t]hose efforts [were] ... ongoing,” and that Petitioner would be amending its objections. (Doc. 70 at 6). Based on these representations, the Court is not persuaded that the current arguments as to Request Nos. 15, 16, 18, and 19 take into account any subsequent discovery or the parties’ current positions.

Accordingly, the Court denies the motion without prejudice to the extent it seeks an Order compelling production of documents responsive to Request Nos. 15, 16, 18, and 19. Claimant may renew her motion, if appropriate, addressing the issue based on the current procedural posture of the case and in light of any subsequent discovery. Before filing any renewed motion, however, Claimant must confer in good faith with Petitioner in an attempt to resolve the issues without the Court's intervention.

III. Request Nos. 24, 26, 28, 61, 62

In Request Nos. 24, 26, 28, 61, and 62, Claimant seeks “[a]ny and all” specified documents related to any incidents that occurred after the incident at issue here as well as subsequent remedial measures. (Doc. 48-1 at 7-8, 15-16; see also Doc. 48 at 6-7). Petitioner argues that these requests are “not limited or narrowly tailored in any way to the facts of the instant case or any subsequent actions thereto,” presumably include items protected by privilege, and relate to subsequent remedial measures, which would be inadmissible. (See Doc. 70 at 7-8). The Court agrees with Petitioner in part.

As a threshold matter, the Court addresses the discoverability of this information in the broad sense. While Petitioner asserts that the requested documents are not discoverable because they would be inadmissible at trial, admissibility is not the question before the Court at this time. Rather, the question is discoverability, which centers on the twin poles of relevancy and proportionality. “Evidence is relevant if it has any tendency to make the existence of any fact or consequence more or less probable than it would be without the evidence.” Gonzalez v. ETourandTravel, Inc., No. 6:13-cv-827-Orl-36TBS, 2014 WL 1250034, at *2 (M.D. Fla. Mar. 26, 2014) (citing United States v. Capers, 708 F.3d 1286, 1308 (11th Cir. 2013)).

*3 Upon review, the Court finds that the requested documents regarding subsequent incidents and remedial measures are at least minimally relevant, notwithstanding that some evidence may not be admissible at trial. For example, the requested documents, at least minimally, have the tendency to make the existence of the alleged knowledge, or the reasonable ability to obtain such knowledge, of a dangerous condition more or less probable because this evidence, coupled with the evidence related to prior incidents, may show that Petitioner was or should have been on notice of the dangerous condition, if any. This then could impact whether Petitioner is entitled to a limitation of liability. Moreover, the Court finds that the mere fact that the evidence may not be admissible does not affect its discoverability. See Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”). Thus, the Court finds the evidence relevant, and therefore discoverable, even if it may not ultimately be admissible. See Pierre v. Intuitive Surgical, Inc., No. 18-60095-CIV, 2019 WL 4731934, at *6 (S.D. Fla. June 3, 2019) (permitting discovery of subsequent remedial measures despite that the information may not be admissible because inter alia Fed. R. Civ. P. 26(b)(1) provides that information need not be admissible to be discoverable); see also Yergey v. Brinker Fla., Inc., No. 6:20-cv-917-Orl-37LRH, 2020 WL 10817752, at *3 (M.D. Fla. Dec. 9, 2020) (collecting cases compelling discovery of subsequent remedial measures).

Nevertheless, the Court finds the requests to be not entirely proportional to the needs of the case, facially overbroad, and unduly burdensome insofar as they seek documents related to incidents that are materially distinguishable to the incident at issue here. Thus, the Court limits the requests to substantially similar prior incidents—i.e., events involving the same type of personal watercraft as is involved here. This limitation allows Claimant to assess the merits of her claims and defenses without otherwise unduly burdening Petitioner or vitiating proportionality.

Thus, Petitioner's objections are sustained in part and overruled in part. Petitioner must produce any non-privileged documents responsive to Request Nos. 24, 26, 28, 61, and 62 as limited above. To the extent Petitioner withholds any documents on privilege grounds, Petitioner must provide an adequate privilege log.

IV. Request Nos. 49-51

In Request Nos. 49-51, Claimant seeks documents relevant to Petitioner's insurance coverage. (Doc. 48-1 at 13; see also Doc. 48 at 8-9). In support, Claimant essentially argues that the requested documents are discoverable because (1) limitation of liability is unavailable to Petitioner and (2) the relevant contract between Petitioner and The Hyatt provided that Petitioner would carry and maintain liability insurance in a minimum amount of $2 million but Petitioner has only produced an insurance policy in the amount of $1 million. (See Doc. 48 at 9-10). Petitioner contends that the requested documents are not discoverable in a negligent action against the insured, Claimant is not the insured under the policy, and the suit does not involve a claim for coverage or for bad faith. (Doc. 70 at 8-9).

Upon review, the Court finds that the documents sought are not wholly relevant. Whereas Claimant asserts that the documents are relevant because limitation of liability is unavailable to Petitioner, (see Doc. 48 at 9-10), the Court finds that argument to be premature. Rather, whether limitation of liability is available to Petitioner is the essence of the instant lawsuit. Thus, the requests, as written, seek documents that are not relevant at this time.

Nevertheless, because Claimant has asserted a claim for breach of the third-party beneficiary contract against Petitioner based on, inter alia, Petitioner's failure to carry and maintain liability insurance in a minimum amount of $2 million, (see Doc. 51 at 100-105), the Court finds any policy between Petitioner and The Hyatt to be relevant. Accordingly, the Court will require Petitioner to produce any policy agreements that cover the incident underlying this action and that were in effect at the time of the incident. Alternatively, Petitioner may provide a sworn affidavit representing that any and all policy agreements covering the incident underlying this action and in effect at the time of the incident have been produced.

V. Request No. 60

*4 In Request No. 60, Claimant seeks “[a]ny and all incident reports, photographs, video tapes, audio tapes, diagrams, illustrations, reproductions, witness statements, memoranda, forms, notes, correspondence, and any and all other documents which describe, refer to or depict any prior incidents.” (Doc. 48-1 at 15; see also Doc. 48 at 10). Petitioner argues that this request is “patently overbroad” and that “[d]iscovery should be limited to those matters which are substantially similar to the instant lawsuit.” (Doc. 70 at 9). The Court agrees.

First, the Court finds the request to be not proportional to the needs of the case, facially overbroad, and unduly burdensome insofar as it seeks “[a]ny and all” of the specified documents and “any and all other documents which describe, refer to or depict” prior incidents. (See Doc. 48-1 at 15). Literally construed, the request calls for the production of every scrap of paper or bit of electronically stored information that exists relating to any prior incident with no temporal limitation. Thus, the Court limits the request temporally to September 26, 2017, through September 26, 2020, the three years preceding the incident at issue here. Additionally, the Court limits the request to only those documents specifically described in the language of the request. This limitation allows Claimant to assess the merits of her claims without otherwise unduly burdening Petitioner and ignoring proportionality.

Second, the Court finds that the request should be limited to those matters which are substantially similar to the incident at issue. Thus, the Court limits the request to prior incidents involving the same type of personal watercraft as is involved here—i.e., a jet ski. Petitioner appears to concede that this evidence is relevant and discoverable. (See Doc. 70 at 9 (“Discovery should be limited to those matters which are substantially similar to the instant lawsuit.”)). Likewise, the cases cited by Petitioner suggest that such a limitation is necessary. (See Doc. 48 at 11 (citing inter alia Acevedo v. NCL (Bahamas) Ltd., 317 F. Supp. 3d 1188, 1193 (S.D. Fla. 2017)). Indeed, Acevedo v. NCL (Bahamas) Ltd., cited by Claimant, notes that under Eleventh Circuit precedent, “evidence of similar occurrences” may be admissible for the reasons described by Claimant. See 317 F. Supp at 1193 (emphasis added) (citing Hessen for Use & Benefit of Allstate Ins. Co. v. Jaguar Cars, Inc., 915 F.2d 641, 650 (11th Cir. 1990); Jones v. Otis Elevator Co., 861 F.2d 655, 661–62 (11th Cir. 1998)). Whereas discoverability and admissibility involve different standards, the Court finds that Claimant has articulated no basis for the Court to find documents related to incidents involving wholly different types of vessels relevant in this lawsuit.

Thus, Petitioner's objections are sustained in part and overruled in part. Petitioner must produce any non-privileged documents responsive to the request as limited above. Any documents withheld on privilege grounds must be identified in an adequate privilege log.

VI. Request No. 78

As to Request No. 78, the Court finds that the motion is due to be denied without prejudice. Specifically, Claimant notes in her motion that at the time of filing, no privilege log had been provided. (See Doc. 48 at 12). Yet, Petitioner represents that “the parties previously agreed that a privilege log would be provided during the Rule 3 conferral prior to Claimant filing the motion to compel at issue” and that “[a] privilege log has been provided to counsel for Claimant.” (Doc. 70 at 9). Based on these representations, the Court is not persuaded that the current arguments as to Request No. 78 take into account the subsequently provided privilege log. Further, because the subject privilege log has not been provided to the Court, the Court cannot consider the merits of any assertion of privilege.

*5 Accordingly, the Court denies the motion without prejudice to the extent it seeks an Order compelling production of documents responsive to Request No. 78. Claimant may renew her motion, if appropriate, addressing the issue pursuant to the current procedural posture of the case and in light of any subsequent discovery. Before filing any renewed motion, however, Claimant must confer in good faith with Petitioner in an attempt to resolve the issues without the Court's intervention.

VII. Request No. 79

As to Request No. 79, the Court finds the request to be facially overbroad, potentially burdensome, and not proportional to the needs of the case because it appears to seek privileged information. Specifically, in seeking “[a]ny and all photos from the inspection in this case conducted on March 23, 2021,” the request likely encompasses documents protected under the work-product exception as a non-testifying consultant report. See Fed. R. Civ. P. 26(b)(4)(D) (“Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”). Claimant's vague and unsupported argument that “[t]he photos from the inspection are factual in nature,” (see Doc. 48 at 12), do not persuasively address this issue. Accordingly, although Fed. R. Civ. P. 26(b)(4)(D) creates only a qualified privilege, the Court finds that Claimant has proffered no argument sufficient to satisfy the Court that any photos taken by a non-testifying expert are discoverable. (See Doc. 48 at 12); see also Fed. R. Civ. P. 26(b)(4)(D).

Nevertheless, the Court finds that a possibility remains that additional photos, not subject to any viable assertion of privilege or work-product protection, may have been taken at the March 23, 2021 inspection. Accordingly, Petitioner's objections are sustained in part and overruled in part. Petitioner must produce any other nonprivileged documents responsive to this request do not qualify for protection under Fed. R. Civ. P. 26(b)(4)(D). To the extent Petitioner withholds any documents on privilege grounds, Petitioner must provide an adequate privilege log.

VIII. Attorney's Fees and Costs

The motion does not request an award of fees and costs. (See Doc. 48). In any event, the Court declines to award fees and costs associated with this motion given the partial denial of the motion.

Accordingly, the Court ORDERS that:

DONE and ORDERED in Fort Myers, Florida on June 24, 2022.