## Facts

- Casey Holladay was injured aboard Royal Caribbean’s *Mariner of the Seas* while using the “Sky Pad,” a trampoline attraction using a harness and bungee cords.
- During use, the bungee equipment failed, Holladay became unattached from the harness system, and he fell onto the adjacent deck, suffering injuries including pelvic fractures.
- After the incident and before suit, Royal Caribbean’s in-house counsel retained engineer Bryan Emond of SEA, Ltd. to inspect the Sky Pad and provide an engineering report for anticipated litigation.
- SEA inspected the Sky Pad and delivered a report to in-house counsel several weeks later.
- The Sky Pad was later disassembled, and an incomplete inventory was transferred to defense counsel’s office.
- In the ensuing negligence action, Holladay sought discovery of documents relating to the incident; Royal Caribbean withheld the SEA report as protected work product under Federal Rule of Civil Procedure 26(b)(3).
- Holladay moved to compel, arguing the report was not prepared primarily for litigation and, in any event, he had substantial need because he could not inspect the Sky Pad in its pre-disassembly condition.

## Issues

1. Whether the SEA engineering report was prepared “in anticipation of litigation” and therefore constitutes work product under Federal Rule of Civil Procedure 26(b)(3).
2. If the report is work product, whether Holladay showed substantial need and inability, without undue hardship, to obtain the substantial equivalent by other means, warranting disclosure under Rule 26(b)(3)(A)(ii).
3. If disclosure is warranted, what portions (factual versus opinion work product) must be produced and what may be redacted.

## Decision

- The court held the SEA report was protected work product because it was prepared due to anticipated litigation at the direction of in-house counsel.
- The court nevertheless ordered production of the report’s factual portions because Holladay demonstrated substantial need and undue hardship, including inability to replicate the inspection after the Sky Pad’s disassembly.
- The court required redaction of opinion work product, including material reflecting attorney or representative mental impressions, conclusions, or legal theories.
- The motion to compel was effectively granted as to factual work product and denied as to protected opinion content.

## Legal Principles

- Under Rule 26(b)(3), documents prepared in anticipation of litigation by or for a party or its representative are protected from discovery, even when they also serve business or safety functions, if created because of the prospect of litigation.
- Factual work product may be discovered if the requesting party shows substantial need to prepare its case and inability, without undue hardship, to obtain the substantial equivalent by other means.  
- Opinion work product (mental impressions, conclusions, opinions, or legal theories) receives heightened protection and is generally subject to redaction even when factual work product must be produced.
- Where a party’s control over or alteration of physical evidence prevents an opponent from conducting an equivalent inspection, courts may compel production of otherwise protected factual investigative materials to avoid unfairness.

## Conclusion

The court recognized the engineering report as work product because it was commissioned by counsel in anticipation of litigation, but compelled disclosure of its factual observations under Rule 26(b)(3)’s substantial-need exception because the attraction had been disassembled and equivalent evidence could not be obtained without undue hardship.


Holladay v. Royal Caribbean Cruises, Ltd., 333 F.R.D. 588 (S.D. Fla. 2019)