[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
A recent decision involved whether voluntary disclosure of work product to the FBI as part of a cooperative effort to investigate an alleged crime was a waiver of work product protection. The court in this case held that it was not. L.M. v. Carnival Corp., 2025 WL 3515503 (S.D. Fl. Dec. 8, 2025).
L.M., a cruise ship passenger, sued Carnival Corporation alleging that Carnival’s former employee sexually assaulted her while she was aboard ship.
Defendant interviewed the crewmember as part of its investigation into Plaintiff’s allegations, and he maintained that all the actions inside his cabin were consensual…. The crewmember’s account is reflected in a written witness statement and on body worn camera video (“BWC”) obtained by Defendant’s security team during its investigation into the incident….
Carnival learned of the alleged assault from the FBI. The court wrote that “Defendant corresponded with the FBI via e-mail and provided the FBI with information and documents about the alleged sexual assault, including the crewmember’s written witness statement….” [emphasis added]. It was undisputed that the statement was work product.
L.M. sought to compel production of the crewmember’s written statement. “Plaintiff argues that Defendant’s production of the crewmember’s statement to the FBI constitutes waiver of the work-product doctrine….”
In its response, Carnival argued that there was no waiver because “it disclosed the information from its investigation in a cooperative manner to assist the FBI with a criminal prosecution….”
The L.M. court wrote that “courts look at several factors to determine whether a party’s voluntary disclosure of a document to a third-party waives a claim of work-product privilege.” Work product protection “is waived when protected materials are disclosed in a way that substantially increases the opportunity for potential adversaries to obtain the information.”
But, according to the L.M. court, “not every situation in which work-product materials are disclosed warrants a finding of waiver. Rather, the circumstances surrounding the disclosure are key to determining whether an actual waiver of the work-product protection has occurred.” [quotations and citations omitted].
One key consideration is whether the disclosing party had an “adversarial relationship” with law enforcement when it provided the protected material. Id. at *3. The L.M. court wrote that “the most important factor is whether law enforcement and Defendant were adversaries at the time of disclosures, and there is nothing here to suggest that they were.” A cooperative, non-adversarial effort to assist the FBI is not a waiver. Id. at *4.
A cooperative, non-adversarial effort to assist the FBI is not a waiver.
Michael Berman, E-Discovery LLC.
L.M. asserted that an adversarial relationship existed because the alleged assault was by a crewmember. The L.M. court disagreed, writing that the fact of employment did not make it “inherently” an adversarial relationship, and:
Notably, the allegations in this case do not raise any specter that Defendant, the cruise line, is criminally liable for the alleged sexual assault or that the FBI was investigating Defendant. To the contrary, all representations indicate that the crewmember’s conduct was outside his proscribed employment duties.
The court added: “Nothing in this record indicates that Defendant’s production of the crewmember’s statement to the FBI was compelled, that Defendant was also a target of the FBI’s investigation, or that Defendant’s production of the statement was self-serving or would somehow improve its own position with law enforcement. To the contrary, Defendant submitted a Declaration stating that the crewmember’s statement was provided to the FBI to assist in their investigation of serious criminal allegations and was done without the intent to waive the work product privilege….” Given that both Carnival and the FBI were investigating the alleged sexual assault, there was no adversity.
Carnival was not the target. That is important because: “On the other hand, a waiver occurs when a party, who is the target of a law enforcement investigation, voluntarily discloses documents to the law enforcement agency.” Id. at *5. For example, disclosure to seek more lenient punishment – which was not the case here – is a waiver.
Carnival also asserted that non-waiver was good public policy, making a “good corporate citizen” argument. It asserted that: “If such voluntary cooperation waives the cruise line’s work product protection when the cruise line is not the subject of the investigation, it could have a chilling effect on the cruise line’s willingness to assist law enforcement in prosecuting offenses perpetrated onboard the ship, where law enforcement has a diminished ability to investigate in the absence of the cruise line’s cooperation.”
On the facts presented, the L.M. court held that L.M. had not shown substantial need for the work product. Notably, the court wrote that: “Importantly, the BWC video of the crewmember’s verbal statements regarding the alleged assault has already been produced to Plaintiff.” [emphasis added]. Quoting another decision, it wrote that in “run-of-the-mill situations, no showing of special need can be made….” Instead, it stated: “[D]o you own work. Go and interview the witness yourself or go and take the deposition of party witness or subpoena the recalcitrant witness.” [citation and quotations omitted].
The L.M. court also addressed a request by L.M. to have her expert inspect the ship and a challenge to the conditions of a medical examination of L.M. under Fed.R.Civ.P. 35.
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