Lawton-Davis et al v. State Farm Mutual Automobile Insurance Company

Filing 134

ORDER regarding pretrial evidentiary disclosures. See Order for details. Signed by Judge Roy B. Dalton, Jr. on 4/8/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICKA LAWTON-DAVIS; ANTHONY
DAVIS; and ZORIYAH DAVIS,
Plaintiffs,
v.

Case No. 6:14-cv-1157-Orl-37DAB

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
ORDER
This cause is before the Court on its own motion. Upon review of the parties’
pretrial evidentiary disclosures (Docs. 115, 120, 121, 130) and respective objections
thereto (Docs. 115, 119, 132), it is hereby ORDERED AND ADJUDGED:
1.

The Court will not admit into evidence at trial any document or exhibit that
was not produced for inspection at the parties’ March 1, 2016, in-person
meeting to prepare the Joint Final Pretrial Statement (“JPS Meeting”). The
Court will not make any exceptions to this ruling, unless such evidence is
offered exclusively for impeachment purposes.

2.

The Court will not admit into evidence at trial any deposition designation
that was not provided at the time of the JPS Meeting,1 unless such evidence
is offered exclusively for impeachment purposes.

1

Federal Rule of Civil Procedure 26(a)(3)(B) requires pretrial disclosure of
evidence thirty days before trial, unless the Court orders otherwise. Pursuant to the Case
Management and Scheduling Order, the deadline for pretrial disclosure of evidence is the
JPS Meeting. (Doc. 17, p. 8.)

3.

The Court will not admit into evidence at trial the deposition testimony of
any expert or other non-party witness, who does not meet the requirements
of Federal Rule of Evidence 32(a)(4).

4.

Consistent with the great weight of sound, federal case law on the
discoverability of surveillance video in personal injury cases,2 on or before
Monday, April 11, 2016, Defendant is DIRECTED to produce to Plaintiffs
any surveillance video that has not previously been produced. The Court
reserves ruling on whether any portion of such surveillance video will be
admissible at trial.

“[D]istrict courts have uniformly ordered the discovery of surveillance videos in
cases like this despite their status as work product. The rationale for permitting the
discovery of surveillance videos in personal injury cases is based on the fact that videos
can be selectively edited or manipulated by the photographer. Furthermore, a plaintiff
alleging claims for personal injury has a substantial need for surveillance evidence in
preparing his case for trial, due to the relevance and importance of such evidence, and
the substantial impact it may have at trial.” Young v. Friedel, No. 4:14-cv-499,
2014 WL 3418891, at *2 (E.D. Mo. July 14, 2014) (requiring the defendant to submit to
plaintiff a copy of any surveillance video taken of plaintiff, regardless of the purpose for
which the defendant intends to use the video at trial). Accord Roa v. Tetrick,
No. 1:13-cv-379, 2014 WL 695961 (S.D. Ohio Feb. 24, 2014) (“Because of the highly
persuasive nature of video evidence, its use as substantive and impeachment evidence
at trial, and the inability of a plaintiff to reproduce or discover video evidence by another
means, courts have routinely ordered the production of such video evidence after the
deposition of the plaintiff has occurred.”); Kari v. Four Seasons Maritime, Ltd.,
No. Civ.A.02-3413, 2004 WL 797728, at *4 (E.D. Mo. July 14, 2014); Evan v. Estell,
203 F.R.D. 172 (M.D. Pa. 2001); Papadakis v. CSX Transp., 233 F.R.D. 227 (D. Mass.
2006).
The Court underscores its agreement with the line of case law finding such
surveillance video to be both substantive and impeachment evidence. E.g., Chiasson v.
Zapata Gulf Marine, 988 F.2d 513 (5th Cir. 1993); Morris v. Metals USA,
No. 2:09-cv-1267, 2011 WL 94559 (D.S.C. Jan. 11, 2011); see also, e.g., Blair v. Crown
Point Resort, No. 1:12-cv-110, 2014 WL 2204093 (E.D. Ark. May 27, 2014). As such, the
Court rejects the contrary conclusion reached in the unpublished and non-binding opinion
in Alphonso v. Esfeller Oil Field Constr., Inc., 380 F. Appx. 808, 810–11 (11th Cir. 2010),
as unpersuasive.
2

2

5.

On or before Monday, April 11, 2016, each side is required to identify, by
written response: (1) any evidence it intends to proffer at trial that was not
produced or exchanged at the time of the JPS Meeting; and (2) any witness,
for whom it intends to proffer deposition testimony at trial, who does not
meet the requirements of Federal Rule of Evidence 32(a)(4).

DONE AND ORDERED in Chambers in Orlando, Florida, on April 8, 2016.

Copies:
Counsel of Record

3