Discovery Prior to Deposition

Published February 2014 by Ted Babbitt

McClure v Publix Super Markets, Inc., 38 Fla. L. Weekly D2302 (Fla. 4th DCA, Nov. 6, 2013) involved a petition for certiorari to review an order of the trial court compelling the plaintiff’s deposition prior to the production of a store security video of a slip and fall.  The trial court, in keeping with its policy regarding the production of the video, denied plaintiff’s motion to compel the video until after defendant had taken plaintiff’s deposition.  In a two to one decision, the Fourth District found that the trial court had not abused its discretion in allowing the defendant to withhold production of the video until after the deposition was taken, concluding that the plaintiff had not shown irreparable harm.  The majority relied upon the prior holding of the Court in Target Corporation v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010).

In a well-reasoned dissent, Judge Warner also cited Target, supra, which held that a security video is not work product and is, therefore, discoverable under the Rules of Procedure.

The majority relied on the Florida Supreme Court’s opinion in Dodson v. Persell, 390 So. 2d 704 (Fla. 1980) which held that a surveillance video discovery request was subject to the discretion of the Court as to the timing of its production.  Judge Warner points out that Dodson, supra, involved a surveillance film made after an accident as opposed to a video of the accident as was the case in Target.

The dissent relied upon numerous cases in a variety of jurisdictions which have considered the same question.  The dissent quotes with approval Herrick v. Wilson, 59 A. 3rd 604 (N.J. Super. Law Div. 2011) which reasoned that to allow a party to withhold discovery that is neither privileged nor work product is to permit a party to gain an upper hand in litigation by the timing of discovery.  At 2303, the dissent states:

It appears that in Florida the vast weight of authority rejects the withholding of security video until after the plaintiff’s deposition is taken, unless specific
 factual circumstances in a particular case provide for a contrary result.

The video reflects the actual occurrence of the accident. Viewing the video prior to the plaintiff’s deposition may not only promote truth-seeking but foster settlement in cases
of disputed liability.  On the other hand, to withhold the video, as with withholding of any other witness statement or photographs, would only result in the type of surprise and
trickery that the rules of civil procedure were designed to eliminate.  See Surf Drugs, 236 So. 2d at 111.

The concern this decision raises is that a variety of nonprivileged discovery could be withheld under the theory that a party has a right to test the memory of the opposing party before permitting production of relevant and nonprivileged evidence.  The logical extension of this reasoning would permit the deposition of a doctor in a medical malpractice case without allowing the doctor to have the benefit of plaintiff’s theory of the case in pleadings or discovery.  All manner of evidence normally produced could be withheld before a party’s deposition was taken.  There is little to distinguish a surveillance video from photographs, witness’ statements or medical documents.  This case could easily be cited to permit a party to control the timing of discovery of all manner of evidence until a party’s deposition has been taken.  The surveillance video is actual evidence of the event which is the subject of the lawsuit.  What could be gained from precluding the plaintiff from reviewing it before giving testimony other than to paint a faulty recollection of the events as an intentional deception?  If an accident scene had been captured on the video of a police cruiser, would it make sense to require the parties to testify as to their recollection of how the accident happened when the real time video could contradict them?

Nevertheless, until a contrary opinion of the Supreme Court changes the law, this case permits a trial court to allow a party to delay discovery of now privileged evidence pending completion of a party’s deposition.