Should Video Surveillance (ESI) Warrant Delayed Production During Discovery?
In the Part I of Sowell v. TARGET CORPORATION, No. 5: 14-cv-93-RS-GRJ (N.D. Fla. May 28, 2014), we took up the issue of whether or not video surveillance, as ESI, can be considered protected work product. Now, we address the question of if and when video surveillance should warrant delayed production during discovery.
In the case, Plaintiff alleged that she was injured as a result of a slip and fall in a Target Store. Part of plaintiff electronic discovery requests asked for Defendant to produce a copy of any video that would show where Plaintiff fell or the area in which Plaintiff fell. Defendant sought to protect the video as work product.
In continuing from the preceding blog, we saw that the court ruled against Defendant when it concluded that the video tapes were made in the ordinary course of business, and thus not protected work product.
Next, Defendant alternatively sought to request that the court delay production of the surveillance videos until after Plaintiff’s deposition was completed. Defendant asserted that, “it [had] the right to hear Plaintiff’s unrefreshed recollection of events so as to prevent Plaintiff from altering her testimony to mirror what the tape shows.”
In addressing the issue, the court found that other courts have taken conflicting views on whether the production of the video should be delayed. Courts that have ordered a delay in production have typically relied on the rationale that requiring a plaintiff to provide independent recollection does not prejudice the plaintiff and delaying the disclosure of the video precludes the likelihood that a plaintiff might tailor their testimony to the video.
In contrast, other courts have refused to delay disclosure of surveillance videos when iterating that the video was being used as substantive evidence. In addition to this, courts have found it important to consider whether the defendant has pointed to any evidence that would support a position that disclosure of the video would lead a plaintiff to tailor their testimony.
The court, in looking at the facts, found that the tape depicted incidents that gave rise to Plaintiff’s claim and its primary evidentiary value was proof of the underlying facts that surrounded the incident. In sum, the surveillance video constituted substantive evidence of the slip and fall incident. As such, delaying production would deprive Plaintiff of the opportunity to obtain discovery.
Did you know? Video surveillance system market expected to exceed $36 billion by 2018.