Pinkney v. Winn-Dixie Stores, Inc.

Filing 18

ORDER granting in part and denying in part 11 Motion for Order Compelling Disclosure of Photographs, Surveillance Video, and Incident Report. Based on Defendant's representations, it appears that this portion of Plaintiff's Motion is moot. This portion of Plaintiff's Motion is DISMISSED. Signed by Magistrate Judge James E. Graham. (csr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

LADONNA PINKNEY,
Plaintiff,
CIVIL ACTION NO.: CV214-075

V.

WINN-DIXIE STORES, INC.,
Defendant.

ORDER

Plaintiff has filed a Motion for Order Compelling Disclosure of Photographs,
Surveillance Video, and Incident Report. (Doc. II). Defendant has filed a Response
(doc. 12), and Plaintiff has filed a Reply (doc. 16). The Court rules as follows:
1.

Photographs - Plaintiff moves the Court to order Defendant to produce "all

photographs depicting the area where Ethel subject incident occurred." (Doc. 11, p. 11).
Plaintiff cites Defendant's response to interrogatory that "photographs were taken at the
time of [the] investigation" of the incident. (Id. at Exh. D, p. 38). Defendant asserts that
there are no photographs of the incident scene itself and that after Plaintiff filed the
instant Motion, Defendant provided to Plaintiff all previously undisclosed photographs in
Defendant's possession. (Doc. 12, pp. 7-8).
Based on Defendant's representations, it appears that this portion of Plaintiff's
Motion is moot. This portion of Plaintiffs Motion is DISMISSED.

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2.

Surveillance Video - Plaintiff also seeks production of "all surveillance

videotapes in any way depicting [the] subject incident prior to depositions" of Plaintiff
and eyewitness Mr. Tim Overstreet. (Doc. II, p. 11).

Plaintiff emphasizes that

production of such video will allow Plaintiff to refresh her recollection and will eliminate
an otherwise unfair advantage for Defendant during the depositions. ( Ld. at pp. 7-8).
Defendant maintains that the surveillance video is not discoverable, because the video
is work product for which Plaintiff has not shown a substantial need. (Doc. 12, pp. 2-3).
Alternatively, Defendant seeks to withhold production of the surveillance video until after
deposing both Plaintiff and Mr. Overstreet. ( Id. at 3-5).
Federal Rule of Civil Procedure 26(b)(3)(A) sets forth the parameters of the work
product doctrine:
(A) Documents and Tangible Things. Ordinarily, 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, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule
26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by
other means.
Work product thus encompasses not only materials that an attorney has prepared but
also materials prepared "by or for a party or any representative acting on his behalf."
Fed. R. Civ. P. 26 advisory committee's note. A party invoking work-product protection
must show that the material was "prepared for litigation purposes and not merely in the
ordinary course of business." Jackson v. Deen, No. CV412-139, 2013 WL 1911445, at
*10 n.21 (S.D. Ga. May 8, 2013) ("A party must anticipate litigation at the time the
documents were drafted .... Materials or documents drafted in the ordinary course of

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business are not protected."). The focus, then, in assessing whether the work product
doctrine applies is when and why the material was created. Id.
Defendant recorded the video of the incident during the routine recording of its
store surveillance system. (Doc. 12, p. 2). Defendant does not allege that it maintains
the surveillance system in anticipation of litigation. See Sowell v. Target Corp., No.
5:14-cv-93, 2014 WL 2208058, at *2 (N.D. Fla. May 28, 2014) ("Indeed, common sense
dictates that store surveillance videos are utilized by stores to prevent and detect theft
by customers or by store employees."). It therefore appears that the video of the
incident was recorded in the ordinary course of Defendant's business and is not
protected work product.
Defendant's act of preserving the footage of the incident beyond the time when
the system normally deletes videos, though done for the purposes of litigation, is not
sufficient to transform the video into work product. At that time, Defendant had a duty to
preserve the video to avoid spoliation of evidence. See Schulte v. NCL (Bahamas) Ltd.,
No. 10-23265-dy, 2011 WL 256542, at *3 (S.D. Fla. Jan. 25, 2011) ("It would be
anomalous, to say the least, if by ordering a client to preserve evidence created in the
ordinary of business, in anticipation of litigation, counsel was able to shield that
evidence from production based upon work product protection.").
While the surveillance video is subject to discovery, the Court retains the
discretion to determine the timing of such discovery. See Fed. R. Civ. P. 26(d).
Consistent with this Court's recent decision in Pate v. Winn-Dixie Stores, Inc., No.
CV213-166, 2014 U.S. Dist. LEXIS 25494, at *3 (S.D. Ga Feb. 20, 2014), the Court
finds that Defendant should have an opportunity to depose Plaintiff and Mr. Overstreet

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based on their own independent, unrefreshed recollections of the incident, prior to
producing the surveillance video. Plaintiff will not suffer any prejudice from delaying
production of the surveillance video. If either deponent has limited recollection as to
any details of the incident, he or she may testify to that.
This portion of Plaintiffs Motion is GRANTED in part. Defendant shall produce
the surveillance video but need not do so until after deposing Plaintiff and Mr.
Overstreet.
3.

Incident Report - Plaintiff also requests the incident report that Defendant's

manager prepared, stating that disclosure would refresh Plaintiffs recollection and
promote fairness among the parties and that work-product protections do not apply.
(Doc. 11, pp. 7-8). Defendant asserts that the investigative report is privileged work
product and that Plaintiff does not have a substantial need because Plaintiff can depose
the manager as a substantial equivalent. (Doc 12, p. 6). Defendant states that it
nevertheless served to Plaintiff, after Plaintiff filed the instant Motion, a redacted copy of
the incident report that excludes the mental impressions and conclusions of the
manager. (L at p. 6 & n.3).
d.
The work-product framework, discussed supra, applies equally to the
investigative report. When an incident occurs in one of Defendant's stores, store
employees investigate and create an incident report, which is transmitted to Defendant's
claims department and to defense counsel. (l. at p. 6). Defendant's incident report
policy appears to exist solely for the purposes of evaluating claims and preparing for the
prospect of litigation. The incident report in this case thus falls within the realm of work
product.

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Defendant nonetheless produced to Plaintiff a redacted copy of the incident
report, and, to the extent that Plaintiffs Motion seeks an unredacted version, Plaintiff
has not shown substantial need and undue hardship with regard to the redacted
portions. Given that Plaintiff has the factual portions of the incident report, Plaintiff can
adequately prepare her case; Plaintiff does not have a substantial need for the
managers mental impressions and conclusions in order to do so. See Southern
Railway Co.

V.

Lanham, 403 F.2d 119, 132-33 (5th Cir. 1968) ('No doubt opposing

counsel would like to confront the [appellant] with an evaluation or recommendation
from its own agent that tends to undermine the [appellant's] case. But the agent's
impressions are by no means necessary for the adequate preparation of appellee's
case.").
To the extent that Plaintiff requests production of an unredacted incident report,
this portion of Plaintiff's Motion is DENIED.

SO ORDERED, this /Lay of September, 2014.

VIES E. GRAHAM
lIED STATES MAGISTRATE JUDGE

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