Smith v. Baywater Drilling, LLC
Filing
132
ORDER AND REASONS GRANTING 127 Motion to Exclude Surveillance. Signed by Judge Stanwood R. Duval, Jr on 10/27/16. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TYLER SMITH
CIVIL ACTION
VERSUS
NO. 14-643
BAYWATER DRILLING, LLC, ET AL.
SECTION âKâ(2)
ORDER AND REASONS
Before the Court a Motion to Exclude Surveillance (Doc. 127) filed by plaintiff Tyler Smith.
Plaintiff contends that this surveillance footage must be excluded because defendant Baywater
Drilling LLC ("Baywater") waited until the eve of trial to produce it. Having reviewed the
memoranda and the relevant law, the Court finds the motion to have merit.
This Jones Act case has had a long and tortured road to trial. Trial was first set for April 6,
2015 and was continued to July 20, 2015, at the parties' request. It was again continued at the
parties' request from July 20, 2015 to November 16, 2015. The matter was then continued to
February 1, 2016, with the case to be frozen except for the deposition of treating physician Dr. Cupic
and Jared O'Quinn. With the addition of another defendant, the case was again continued to August
15, 2016. On August 10, 2016, because of a personal tragedy for plaintiff's counsel, the matter was
again continued at which time the Court ordered that "no further discovery shall be conducted and
no motions shall be filed without leave of Court." (Doc. 111).
On October 2, 2016, defendants Baywater and Frank's International, L.L.C. ("Frank's") had
plaintiff under surveillance and a video of Mr. Smith working on his truck, using a handheld jack
to jack up his truck and physically lying under his truck was taken. A copy of this tape was turned
over to plaintiff on October 19, 2016. The Court was not provided a copy of the video until October
26, 2016 when the instant motion was filed. At no time had leave been requested or given to
conduct further discovery. Moreover, and more importantly, at no time did defendants move to
amend the pretrial order to include the videographer as a witness or the video itself as an exhibit.
As the United States Court of Appeals for the Fifth Circuit has made clear in Chiasson v.
Zapata Gulf Marine Co.988 F.2d 513 (5th Cir. 1993), surveillance evidence is consider substantive
evidence that is subject to discovery and the failure to timely disclose it, can lead to its exclusion.
However, under Baker v. Canadian National/Illinois Central RR, 536 F.3d 357 (5th Cir. 2008), the
court explained that Chiasson did not provide that a surveillance tape disclosed after the discovery
cutoff, but before trial, is not automatically inadmissible. Id. at 368-69.
Thus, courts have looked to Fed. R. Civ. P. 26(e)(1)(A) which provides for supplementing
disclosures and responses "in a timely manner if the party learns that in some material respect the
disclosure or response in incomplete or incorrect, and if the additional or corrective information has
not otherwise been made known to the other parties during the discovery process or in writing."
The basic reason for this rule is to prevent prejudice and surprise. Brower v. Staley, Inc. 306 Fed.
Appx. 36, 39 (5th Cir. 2008) citing Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir.
1994). Thus, where a surveillance video was provided three months before the initial trial setting
and ten months before the actual start of trial, the court found that there had been ample time to
prepare a response to the video at trial and its admission was not an abuse of discretion. Id.
In Campbell v. Chet Morrison Contractors, LLC, 2012 WL 3028079 (W.D. La. July 24,
2012), surveillance video was taken on April 14-18, 2012, which was after the filing of the pretrial
order and after defendant denied having any video surveillance in its responses to plaintiff's
interrogatories. It was not until May 4, 2012, that plaintiff learned of the video. Trial commenced
on June 11, 2012. That court found that under these circumstances, and unlike Baker, plaintiff did
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not have sufficient opportunity to conduct discovery concerning the video. "Because disclosing the
surveillance video so close to the trial date is a similar surprise to its complete nondisclosure, the
Court is persuaded by the holding in Chaisson (sic). Admitting this evidence would be inequitable
under these circumstances." Id. at *7.
Likewise, the surveillance at issue was taken on October 2, 2016 after discovery was closed
and less than one month prior to trial which is scheduled to commence on October 31, 2016. It was
not disclosed until October 19, 2016 to plaintiff. Clearly, to allow this surveillance to be introduced
would be highly prejudicial to plaintiff and indeed constitutes surprise of the type that Chiasson
circumscribes. In addition, defendants have not even moved the Court to amend the pretrial order
for this video or the person who filmed it to be included in the trial. It would be impossible for
plaintiff to undertake discovery concerning this video on the eve of trial and on no account will this
trial be continued again. Accordingly,
IT IS ORDERED that the Motion to Exclude Surveillance (Doc. 127) filed by plaintiff
Tyler Smith is GRANTED.
New Orleans, Louisiana, this 27th day of October, 2016.
STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE
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