Court Denies Defendant’s Request to Withhold Video Footage Until After Deposition: eDiscovery Case Law

In Avila v. Target Corp., No. 21-CV-907 (PKC)(JMW) (E.D.N.Y. Sept. 22, 2021), New York Magistrate Judge James M. Wicks denied the defendant’s application (sought in the form of a protective order) to withhold video footage of a slip and fall event at the heart of the case until after the plaintiff’s deposition was completed.

Case Background

In this case involving a slip and fall accident at one of the defendant’s stores, the defendant, in the regular course of its business, maintained video surveillance footage at that location which, in this case, captured the incident.  The defendant identified the footage for production to the plaintiff but wanted to delay its production until after Plaintiff’s deposition, so it sought a protective order under Rule 26(c) to withhold video footage until testimony is complete.

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The defendant claimed that since “the allegations contained in plaintiff’s discovery responses and medical records are at complete odds with what is depicted in the store video, [this warrants] withholding the video in order to preserve its impeachment value.” The defendant purported three areas of disparity: 1) Plaintiff was caused to slip and fall due to a “liquid/yogurty substance” existing on the floor; 2) As a result of Plaintiff’s slip and fall, the Plaintiff’s entire body, predominantly his left side, came into contact with the floor surface; and 3) “pt states he lost consciousness for a few seconds s/p fall…”.

As a result, the defendant requested to withhold video footage, see what the plaintiff said in his deposition, then use the video to impeach later at trial or in a motion.  At the defendant’s suggestion and proffer, the Court was provided the footage for an in camera viewing prior to oral argument.

Judge’s Ruling

Judge Wicks began his ruling with a quote from Ginns v. Towle, as follows: “The basic purpose of the federal rules, particularly those concerning discovery and disclosure, is to eliminate trial by ambush, sometimes called the sporting theory of justice, and avoid … surprise.”  He also noted: “In seeking such a protective order here, the Court notes that ‘this ain’t [Target’s] first rodeo’ under Rule 26(c). Indeed, Target’s applications in this very Court have received varying results.”

Considering the request for a protective order under Rule 26(c), Judge Wicks stated: “The cases that have addressed the issue presented here, namely, whether the surveillance video footage may be withheld until the plaintiff’s deposition is complete, appear to have been raised in the context of a Rule 26(c) application. However, nothing in the language of Rule 26(c) would seem to support that the device may be used to gain a strategic or tactical advantage in a litigation, for example, to hold back production of evidence to provide fodder for later impeachment. Rather, in this Court’s view, such an application seeks to alter the sequence of discovery, which is governed by Rule 26(d)… However, like Rule 26(c), nothing in Rule 26(d) contemplates sequencing discovery for tactical advantage to one party over another.”

In denying the defendant’s motion for a protective order to withhold video footage and directing the defendant to produce the video footage of the incident to the plaintiff, Judge Wicks stated: “A protective order used to alter the sequence of discovery for strategic purposes ‘deviates from the general principle of federal discovery that parties be forthcoming with relevant information in their possession.’…Parties are not entitled to protective orders to simply withhold emails, documents, and photos until after a witness’s deposition on the grounds that the witness might simply tailor testimony…Seeking a protective order for a video that Plaintiff is entitled to see does not amount to the ‘abuse’ that Rule 26(c) was founded upon. Rather, ‘[o]pen discovery is the norm. Gamesmanship with information is discouraged and surprises are abhorred. Adherence to these principles assists the trier of fact and serves efficiency in the adjudication of disputes.’”

So, what do you think?  Do you agree that the video should be produced before the plaintiff is deposed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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  1. If Target wanted the plaintiff’s deposition before producing the video of the fall, then Target should have been proactive in securing the deposition before plaintiff sought discovery of the video.

    The Court is correct in noting that the discovery rules are geared to doing away with trial by ambush. Will the plaintiff’s testimony change based upon the video? It may, and in that event the plaintiff can be impeached by prior inconsistent statements, if any. What also might change is the plaintiff’s counsel’s assessment of the plaintiff and the perceived value of the case, resulting in early settlement or voluntary dismissal. That’s the point of discovery: let the parties know what the evidence will show so they can assess their prospects at trial. Withholding evidence when it’s been timely sought in discovery runs counter to the raison d’etre of the Rules. Good decision.

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