Tough Sailing

Unread evidence and claims of shredding send a cruise suit into the shoals

A legal battle brewing in Houston's First Court of Appeals raises two pressing questions:

1. What is it with Vinson & Elkins and shredding?

2. And what is it with Judge Brent Gamble and simple paperwork?

The 270th District judge is fighting for his political career because he listed the wrong court on the forms he filed for re-election. He sued to be placed back on the "right" ballot spot, and he and his Democratic opponent have been taking their arguments to various judicial forums across the state.

In Douglas Spector, et al. v. Norwegian Cruise Line, Ltd., a very different legal fight, Gamble is accused of having further problems with documents.

Spector and others are suing the Miami-based cruise line because, they claim, it discriminates against handicapped tourists (see "Access Denied," by Dylan Otto Krider, November 15). The suit accuses Norwegian Cruise Line of selling its "Texaribbean" cruises to handicapped customers without telling them they could not access all areas of the ship or ports of call. The cruise line denies that and says that its ships do not fall under relevant laws such as the Americans with Disabilities Act because they are registered in either the Bahamas or Panama.

The plaintiffs' lawyers are trying to get their case made into a class-action suit. They argue that nearly 1,000 handicapped customers -- or the companions they say the cruise line mandated they be accompanied by on cruises -- were all affected by the lack of promised amenities and being shut off from large parts of the ships.

NCL is fighting the class-action designation, saying there are nowhere near 1,000 potential plaintiffs and that the disputes are different in each case, so the suits should remain separate.

Gamble refused to declare the case a class-action suit in a December ruling, and the plaintiffs are appealing that order. Partly, they say, because Gamble never even looked at the evidence they filed.

Because of confidentiality concerns, the plaintiffs agreed to file under seal two appendices to their motion. The material included pages from an NCL database regarding its mobility-impaired passengers; the papers were placed in a box and taped shut.

Gamble ruled against the motion. When the plaintiffs decided to appeal, they went to pick up the evidence. The box had never been opened.

Attorney Rex Burch won't comment on his reaction in finding that the material hadn't been read, but the appeal notes -- in sedate legal language -- what he likely felt. "Plaintiffs' disappointment (and, quite frankly, dismay) at the trial court's decision to deny class certification was compounded by the discovery that the trial court had never bothered to examine [the] evidence," the brief reads.

Gamble didn't return phone calls, and NCL attorney Michael Muskat says his client doesn't allow him to talk to the media about the case. But in its brief to the appeals court, NCL says the fact that the box was never opened is irrelevant.

The evidence in the box, the cruise line argues, related only to the plaintiffs' claim that enough NCL handicapped passengers existed to justify a class-action suit. Gamble never issued findings of fact on his ruling, so there's no evidence that the class action was rejected solely on that issue. Gamble could have decided against a class action on other grounds, they say.

"A trial court is not required even to explain its class certification decision, let alone demonstrate that it has read every exhibit submitted to it," NCL's brief says.

Burch and the plaintiffs also complain to the appellate court that NCL has shredded crucial evidence in the case, going so far to call the company "the Arthur Andersen of the sea."

The not-so-subtle jab at the mess engendered by V&E client Enron did not go unanswered. "Sensationalizing a discovery dispute with references to 'Arthur Andersen' will not magically transform this lawsuit into a certifiable class action," NCL's brief says.

The plaintiffs claim that NCL ignored repeated warnings and shredded customer comment cards, complaint letters, e-mails and recordings of phone calls. The cruise line says the plaintiffs' lawyers are confused about what the company was required to save, and that NCL did all it could to preserve evidence.

"When NCL became aware that some comment cards inadvertently may not have been preserved," the company's brief says, "it sent out additional instructions emphasizing the need to preserve all cards."

The plaintiffs say NCL shredded up to 5,000 comment cards a week.

"I was just astounded that a company of that size would so flagrantly violate the rules as to the preservation of evidence," Burch says. "The judge warned them several times about it, but he never felt like he should pull the trigger on them" by issuing sanctions.

NCL attorneys note that indeed they were not sanctioned, and calls the issue "preposterous."

The case seems like a good candidate for a settlement -- reimburse the passengers for some percentage of their tickets and stop paying a ton of legal fees -- but Burch (the only lawyer commenting) says he thinks NCL is worried about setting a precedent. The company doesn't want to admit it falls under U.S. laws, he says.

"They don't mind being headquartered [in America], picking up passengers here or taking our money here," he says. "They just don't want to have to follow the law here."

 
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