Discovery To Continue For Norwegian Cruise Line In Libertad Act Lawsuit: Judge- "sufficiency of the government’s actions, not how Defendant may have interpreted them."

HAVANA DOCKS CORPORATION V. NORWEGIAN CRUISE LINE HOLDINGS, LTD. [1:19-cv-23591; Southern Florida District]

Colson Hicks Eidson, P.A. (plaintiff)
Margol & Margol, P.A. (plaintiff)
Hogan Lovells US LLP (defendant)

LINK To 24-Page Order On Plaintiff’s Motion To Compel (5/10/21)

Excerpts:

This cause is before the Court on Havana Docks Corporation’s (“Plaintiff”) Motion to Compel Production of Evidence Withheld Under the Attorney-Client Privilege and Work Product Doctrine. ECF No. 128. Defendant Norwegian Cruise Line Holdings, LTD., (“NCL” or “Defendant”) filed a Response, ECF No. 139, and Plaintiff further filed a Reply, ECF No. 144. The Court determined an in camera review of certain documents was necessary related to the second category of documents challenged, and as per the Court’s Interim Order, ECF No. 157, Defendant submitted a sample of 20 documents, as discussed in further detail below. Upon consideration of the Motion, Response, Reply, the in camera documents, oral argument and being otherwise apprised in the matter, Plaintiff’s Motion to Compel is GRANTED in part, and DENIED in part.

Defendant contends its travel to Havana was lawful, and its use of Plaintiff’s dock was “necessary” “given that the Cuban Government mandated use of the Subject Property.” ECF No. 98 at 2. Among other challenges, Plaintiff contests the availability of the lawful travel defense to NCL, which indisputably also traveled on the general license to other ports in Cuba. Plaintiff further challenges Defendant’s contention that use of the port in Havana was “necessary” because Defendant had alternative means of disembarking passengers, for example, anchoring offshore. According to Plaintiff, the contested documents at issue in this Motion relate to and would reveal Defendant’s knowledge and state of mind regarding its use of Plaintiff’s Subject Property.

Defendant avers that the Act’s statement that the United States government “may suspend the right to bring an action under this subchapter for additional periods of not more than 6 months each,” coupled with the fact that Title III was indeed suspended continuously for more than 20 years, would be sufficient to permit an objective person of ordinary intelligence to conclude that, during the time the Act was suspended, no liability would attach.

Without unnecessarily delving into the merits of Defendant’s due process claim, I find that the inquiry here is an objective one; the relevant question considers the sufficiency of the government’s actions, not how Defendant may have interpreted them.

Plaintiff avers that Defendant put its relationship with its in-house legal counsel “at the heart of this case” primarily because Defendant’s General Counsel, Dan Farkas and Lincoln Vidal, “coordinated the berthing requests for [Defendant] ships at the Subject Property, negotiated contracts with the Cuban Government relating to its use of the port, prepared applications for licenses from United States government to operate in Cuba, and participated in [Defendant’s] OFAC compliance program.”

In accordance with my findings above, I find that Defendant, simply by virtue of the fact that its counsel performs dual business and legal functions, did not waive privilege over records reflecting its knowledge and intent to comply with the Act and OFAC regulations.

Upon review of the sample documents provided by Defendant, I find that it has not satisfied its burden to show that COMAR was providing legal services. Rather, these documents reflect a relationship in which COMAR was a liaison between Defendant and the other relevant authorities, essentially shuttling documents back and forth and reporting information to Defendant conveyed from the other contracting parties.

Because Defendant has not shown that the CLIA members share a substantially similar legal interest, Defendant has not carried its burden here and is thus compelled to produce responsive communications with the cruise industry trade association group Cruise Lines International Association (“CLIA”), as well as responsive communications with CLIA members.

An award of attorney’s fees is mandatory under Rule 37(a)(5) to the party who prevails on a motion to compel, unless the court finds the objections to the discovery substantially justified or other circumstances that would render such an award unjust. Because the undersigned finds that Defendant was not justified in withholding the COMAR documents, Plaintiff is entitled to an award of its expenses, unless Defendant intends to show that its position was substantially justified or an award would be otherwise unjust.

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