Speigle v. Costco Wholesale Corporation
ORDER granting 31 Motion to Compel production of surveillance videotapes. Defendant is ORDERED to produce any and all surveillance videotape which captured the Plaintiff's fall to counsel for Plaintiff on or before April 12, 2018. Signed by Magistrate Judge Karla R. Spaulding on 4/10/2018. (Spaulding, Karla)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:17-cv-1532-Orl-37KRS
This cause came on for consideration without oral argument on the following motion filed
PLAINTIFF’S AMENDED MOTION TO COMPEL
PRODUCTION OF VIDEO TAPE PRIOR TO PLAINTIFF’S
DEPOSITION (Doc. No. 31)
April 9, 2018
THEREON it is ORDERED that the motion is GRANTED.
Plaintiff contends she was injured when she slipped on a substance on the floor of
Defendant’s store and fell injuring herself. She served a discovery request seeking all surveillance
videotape which captured her fall. Doc. No. 31, at 1. Defendant objected to the request as seeking
confidential, proprietary and work-product protected information. Defendant stated, however, that
“[n]otwithstanding and without waiving any privilege, Defendant agree[s] to produce a copy of the
surveillance video after the deposition of Plaintiff.” Id. at 2.
Plaintiff now seeks to compel production of the videotape before she is deposed. In
response to the motion, Defendant concedes that the videotape was not made in anticipation of
litigation, but it contends, without supporting evidence, that the videotape was preserved upon
instructions of Defendant’s Risk Management department in anticipation of litigation. Doc. No.
33, at 1-2. Defense counsel relies on Bolitho v. Home Depot USA, Inc., No. 10-60053-CIV, 2010
WL 2639639 (S.D. Fla. June 3, 2010), for the proposition that work product applies in these
circumstances. However, as noted in another case, the work product finding in Bolitho is dicta and,
in any event, the Bolitho decision is not binding on this Court. See Schulte v. NCL (Bahamas) Ltd.,
No. 10-23265-CIV, 2011 WL 256542, at * 4 (S.D. Fla. Jan. 25, 2011).
Federal law governs the assertion of the work-product doctrine in this Court. Auto Owners
Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, 201 (M.D. Fla. 1990) (citations omitted). Under federal
law, a party may not refuse to disclose purported work product that it intends to rely upon as direct
or impeachment evidence in a case. See, e.g., United States v. Nobles, 422 U.S. 225, 239 & n. 14
(1975). Defendant does not stipulate that it will not attempt to affirmatively rely on the videotape
as direct or impeachment evidence.
If Defendant wished to depose Plaintiff to obtain her unrefreshed recollection of her slip and
fall, it could have done so promptly after discovery began in this case. Rather, it originally set
Plaintiff’s deposition for June 27, 2018 (Doc. No. 28, at 2), after the close of discovery. This
deposition date would have permitted Defendant, under its proposal, to withhold the surveillance
video until discovery in this case was closed. This attempted gamesmanship to obstruct discovery
in this case does not establish good cause to permit Defendant to continue to withhold the videotape
until Plaintiff’s now rescheduled deposition is completed.
Accordingly, it is ORDERED that Defendant shall produce any and all surveillance
videotape which captured the Plaintiff’s fall to counsel for Plaintiff on or before April 12, 2018.
DONE and ORDERED in Orlando, Florida on April 10, 2018.
Karla R. Spaulding
KARLA R. SPAULDING
UNITED STATES MAGISTRATE JUDGE
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