SOWELL et al v. TARGET CORPORATION
Filing
21
ORDER denying 12 Defendant's Motion for Protective Order; granting in part and denying in part 13 Defendant's Motion to Seal Protected Materials. Signed by MAGISTRATE JUDGE GARY R JONES on 05/28/2014. (grj)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
MARY SOWELL et al.,
Plaintiffs,
v.
CASE NO. 5:14-cv-93-RS-GRJ
TARGET CORPORATION,
Defendant.
_____________________________/
ORDER
Pending before the Court is Defendants’ Motion for Protective Order, Doc. 12, to
which Plaintiffs have filed a response in opposition. Doc. 15. Defendant seeks a
protective order regarding production of a store surveillance video depicting Plaintiff’s
slip and fall accident. Alternatively, Defendant requests the Court to enter an order
allowing Defendant to withhold production of the video until after the Defendant has
taken the deposition of Plaintiff. For the reasons discussed below, Defendant’s Motion
for Protective Order is due to be denied.
DISCUSSION
The issue before the Court is whether the digital recording of a surveillance video
taken by Defendant’s in-store cameras depicting the slip and fall in this case is
protected from disclosure under the work product privilege.
Defendant contends that the footage of the video surveillance was prepared in
anticipation of litigation because the “defendant went out of its way to create and
preserve a digital recording from the video in order to assist in the preparation of its
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defense to potential litigation.” Doc. 12, p. 3. According to Defendant, the video taken
by Defendant’s store cameras would have been erased in the ordinary course of
business after a period of time but instead was preserved and maintained under the
direction and policies of Defendant’s claims department. Notably absent, however, from
the record is any declaration or other evidence submitted by Defendant regarding the
policy of Defendant, if any, for recording over surveillance tapes or any evidence
identifying the policy of Target for retaining the video when there is an accident in the
store.
The claim in this case is straightforward. Plaintiff alleges she was injured as a
result of a slip and fall in a Target Store. As part of Plaintiff’s routine discovery requests,
Plaintiff requested Defendant to produce “[a] copy of any video showing Plaintiff’s ... fall
or area where Plaintiff ... fell.” The digital recording of the surveillance video Defendant
seeks to protect as work product is directly responsive to Plaintiff’s discovery request.
The work product doctrine has its origins in Hickman v Taylor, 329 U.S. 495
(1947) and was eventually incorporated into Rule 26(b)(3) of the Federal Rules of Civil
Procedure. Rule 26(b)(3) provides in pertinent part: “[O]rdinarily, a party may not
discover documents and tangible things that are prepared in anticipation of litigation or
for trial by or for another party or its representative (including the other party’s attorney
... or agent)” Thus, as contemplated, the work-product doctrine protects from
disclosure materials prepared by an attorney or by an agent of a party1 in anticipation of
1
The m aterial need not be prepared by an attorney since Rule 26(b)(3) expressly extends
protection to m aterials prepared by or for a representative of a party, including his agent. Advisory
Committee Note to Rule 26(b)(3).
Case No: 5:14-cv-93-RS -GRJ
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litigation. Unlike the attorney-client privilege, the scope of protection provided by the
work product doctrine is a procedural question and thus governed by federal, as
opposed to state law in a diversity action. Camacho v Nationwide Mut. Ins. Co., 287
F.R.D. 688, 694 (N.D. Ga. 2012). The burden is on Defendant, the party withholding
discovery, to show that the document or thing should be afforded work-product
protection. Essex Builders Group, Inc. v Amerisure Ins. Co., no. 6:04-cv-1838-Orl22JGG, 2006 WL 1733857 (M.D. Fla. June 20, 2006)(citations omitted).
There is no consensus among the courts as to whether surveillance videos are
prepared in anticipation of litigation and thus subject to protection as work product. For
example, in Bolitho v Home Depot, no. 10-60053-CIV-Cohn/Seltzer, 2010 WL 2639639
(S.D. Fla. June 3, 2010) the Court there concluded that a surveillance video of a slip
and fall in a store was protected work product where the plaintiff returned to the store
two hours later to report the incident, which caused Plaintiff to copy and preserve the
surveillance video. In contrast, in Schulte v NCL (Bahamas) Ltd., no. 10-23265-CIV,
2011 WL 256542 (S.D. Fla. Jan. 25, 2011) the Court concluded that a surveillance
video of a slip and fall incident aboard a cruise ship was not protected work product
even though it was copied and preserved at the request of counsel for the cruise line.
The Schulte court reasoned that the surveillance video was not work product when it
was created because it was taken and recorded in the ordinary course of business and
not in anticipation of litigation. The defendant there argued that the surveillance video
became subject to work product protection when it was preserved, and not copied over,
based upon instructions by NCL’s counsel. The Schulte court rejected this argument
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concluding that preserving the tape was carried out pursuant to the defendant’s duty to
preserve evidence. The Court wrote:
It would be anomalous, to say the least, if by ordering a client
to preserve evidence created in the ordinary course of business,
in anticipation of litigation, counsel was able to shield that evidence
from production based upon work product protection.
Id., at *3.
The approach taken in Schulte makes the most sense. A document or thing is
subject to work product protection when the proponent of the privilege demonstrates
that at the time the document or thing was prepared the entity anticipated litigation.
CSX Transp., Inc. v Admiral Ins. Co., 1995 WL 855421, at *2 (M.D. Fla. July 20, 1995).
On the other hand, materials prepared in the ordinary course of business are not
protected. Id. The key determination, therefore, in assessing the applicability of the
work product privilege, is when the document or thing was created and why the
document or thing was created. See, e.g. In re Sealed Case, 146 F. 3d 881, 884 (D.C.
Cir. 1998)(“The ‘testing question for the work-product privilege ... is ‘whether, in light of
the nature of document and the factual situation in the particular case, the document
can fairly be said to have been prepared or obtained because of the prospect of
litigation.’”).
The surveillance video in this case was taken and recorded in the routine and
ordinary course of business of Target. There is no evidence (nor does Defendant
argue) that the store surveillance video system was implemented or created because of
the prospect of litigation. Indeed, common sense dictates that store surveillance videos
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are utilized by stores to prevent and detect theft by customers or by store employees.
Consequently, Defendant has not demonstrated that the recording of the slip and fall in
this case during the store’s routine surveillance was created in anticipation of litigation.
Moreover, as the Schulte court concluded the mere act of preserving the tape –
as opposed to creating the original recording – is not sufficient to transform a document
created in the ordinary course of business into work product protected from disclosure.2
Indeed, if that was the law literally ever piece of electronically stored information (“ESI”)
preserved by a defendant as part of a defendant’s duty of preservation would be off
limits in discovery because it would be considered work product.
Lastly, to the extent that the act of preserving the tape and not erasing it could
be viewed as being created in anticipation of litigation, the Defendant has failed to meet
its burden of demonstrating how the tape was created or why it was created – essential
information for determining whether a document or thing was created in anticipation of
litigation. This case is therefore different from those cases where courts have
concluded that incident reports created after a slip and fall were protected as work
product. See, e.g. Fojtasek v NCL (Bahamas) Ltd., 262 F.R.D. 650 (S.D. Fla. 2009);
Alexander v Carnival Corporation, 238 F.R.D. 318 (S.D. Fla. 2006). In those cases the
proponent of the work product privilege submitted affidavits from its claims manager (or
2
Schulte relied upon Target Corp. Vogel, 41 So. 3d 962, 963 (Fla. Dist. Ct. App. 2010, a Florida
state law case, as highly persuasive. The court in Vogel held that a surveillance video recorded by the
store as part of its ordinary course of business is not work product as opposed to surveillance video taken
after the incident. W hile the Court recognizes that the determ ination of whether a docum ent or thing is
work product is controlled by federal and not state law, Florida law regarding the work product privilege is
largely consistent with federal law. Vogel is also particularly instructive here because the defendant there
and the defendant here are the sam e.
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other suitable person) that it was the policy of the cruise line based upon the advice of
its legal counsel to investigate customer injuries and create an accident report. In this
case because the Defendant has not submitted any declaration or other evidence
concerning when the tape was recorded or even whether it was created at the express
request of counsel or risk management the Court is left to guess as to whether the tape
was preserved after or before Defendant received notice of a potential claim by the
Plaintiff. Indeed, to the extent that the tape simply was preserved as part of a general
policy of preserving the surveillance tapes in every instance where a customer slips and
falls the practice would be more akin to a routine business practice rather than an
action taken by the defendant in anticipation of litigation. The Court, however, need not
speculate as to when the tape was preserved or the reason the tape was preserved
because the Defendant has failed to submit any evidence on the issue. Accordingly, the
Defendant has failed to meet its burden of demonstrating that the surveillance video
should be protected from disclosure as work product.
Defendant alternatively requests the Court to delay production of the store
surveillance tape until after the Plaintiff’s deposition has been completed in the event
the Court determines that the video is not protected by the work product privilege.
According to Defendant, it has 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.
Courts addressing this issue – like the issue of whether the surveillance videos
are work product – have taken conflicting views on whether production of the video
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should be delayed. District courts ordering that delay in production is justified have
relied primarily upon the rationale that requiring a plaintiff to provide independent
recollection of the incident does not prejudice the plaintiff and delaying disclosure of the
video precludes any possibility of a plaintiff tailoring her testimony to the video. See,
e.g. Bolitho v Home Depot, USA, Inc., 2010 U.S. Dist. LEXIS 76487, *4 (S.D. Fla. June
3, 2010)(denying plaintiff’s motion to compel store surveillance video prior to her
deposition); Parks v NCL (Bahamas) Ltd., 285 F.R.D. 674 (S.D. Fal. 2012)(“The Court
agrees with Defendant that Plaintiff should be required to give her deposition testimony
bases on her own independent recollection fo the incident, without being refreshed in
any way by the videotape.”). In contrast, courts that have refused to delay disclosure of
surveillance videos have focused upon whether the video was to be used solely for
impeachment purposes or was to be used as substantive evidence. Muzaffarr v Ross
Dress For Less, Inc., 941 F. Supp. 2d 1373 (S.D. Fla. 2013); DeHart v Wal-Mart Stores,
East, L.P., no. 4:05cv00061, 2006 WL 83405 (W.D. Va. Jan. 6, 2006)(“[w]here the
substantive value of the evidence predominates, courts have held that production
should not be delayed until after deposition.”) Courts also have considered whether the
defendant has pointed to any evidence that disclosure of the video would lead a plaintiff
to improperly tailor her testimony. Schulte, at, *4.
While the Court concludes there may be circumstances justifying delay in
disclosure of a surveillance tape, the Court finds that Defendant here has not pointed to
any justification for delaying disclosure of the tape other than unsupported speculation
that the Plaintiff’s testimony may be altered in some way to reflect the events on the
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surveillance tape. The surveillance tape in this case – which the Defendant has
submitted and the Court has reviewed – depicts what appears to be a typical slip and
fall accident. The tape was not produced by an investigator depicting Plaintiff engaging
in activities inconsistent with her claimed injuries. If that was the case there would be a
compelling reason to delay disclosure of the tape. Because the tape here depicts the
incident giving rise to Plaintiff’s claim its primary evidentiary value is proof of the
underlying facts surrounding the incident and not primarily for impeachment purposes.
There is also another reason not to delay disclosure of the surveillance tape. If
the Court was to delay disclosure of the videotape until after the Plaintiff’s deposition,
the store employees, who witnessed the incident, presumably would have the benefit of
viewing the tape before their depositions are taken, thus, creating a disadvantage.
In sum, the surveillance video is substantive evidence of the slip and fall incident
that does not appear to have any great value as impeachment evidence. The video is
not protected by the work product privilege and therefore delaying production of the
video would deprive Plaintiff of the opportunity to obtain discovery to which she is
entitled. The Defendant has not offered any specific information demonstrating that
disclosure of the video would cause Plaintiff improperly to tailor her testimony. And to
the extent that viewing the surveillance video could cause a witness to tailor his or her
testimony delaying disclosure of the surveillance video potentially could provide the
Defendant with an advantage because its witnesses would have the benefit of viewing
the video before their depositions are conducted and Plaintiff would not.
Accordingly, for these reasons, the Court concludes that the circumstances in
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this case do not warrant delaying the disclosure of the surveillance video. The
Defendant is required to make arrangements to produce the surveillance video for
inspection and copying before Plaintiff’s deposition.
Accordingly, it is ORDERED:
(1)
Defendant’s Motion for Protective Order, Doc. 12, is DENIED. Defendant
must produce the surveillance video for inspection and copying prior to
Plaintiff’s deposition.
(2)
Defend ant’s Motion To Seal Protected Materials, Doc. 13, is GRANTED
in part and DENIED in part. The request is granted to the limited extent
that the Court was required to review the videotape in camera before
ruling on Defendant’s Motion for Protective Order. Because the Court has
denied Defendant’s Motion for Protective Order there is no reason to seal
the videotape and therefore the Clerk is directed to unseal the videotape
filed at Doc. 19.
DONE AND ORDERED this 28th day of May 2014.
s/ Gary R. Jones
GARY R. JONES
United States Magistrate Judge
Case No: 5:14-cv-93-RS -GRJ
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