Huffman v. K. C. Transport, LLC et al
Filing
77
ORDER granting Plaintiffs' Motion 73 to Compel and granting Plaintiffs' Motion 74 for Protective Order. Signed by Magistrate Judge John C. Gargiulo on 9/29/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
BRENT HUFFMAN
v.
PLAINTIFF
Lead Case: Civil Action No. 3:13-cv-734-TSL-JCG
K.C. TRANSPORT, LLC; JOHN
ANDERSON, individually; and
JOHN DOES 1-3
DEFENDANTS
consolidated with
CINDY THAMES and
KATHRYN ERRINGTON, a minor,
by and trhough her PARENT and
NATURAL GUARDIAN, CINDY THAMES
PLAINTIFFS
v.
Civil Action No. 3:13-cv-301-TSL-JCG
K.C. TRANSPORT, LLC; JOHN
ANDERSON, individually; and
JOHN DOES 1-3
DEFENDANTS
ORDER GRANTING PLAINTIFFS’ MOTION [73] TO COMPEL AND
GRANTING PLAINTIFFS’ MOTION [74] FOR PROTECTIVE ORDER
BEFORE THE COURT are Plaintiffs’ Motion [73] to Compel and Motion
[74] for Protective Order. Defendants K.C. Transport, LLC and John Anderson
have filed Responses [75, 76]. Having considered the parties’ submissions, the
record, and relevant legal authority, the Court finds that Plaintiffs’ Motions
should be granted.
I. ANALYSIS
Plaintiffs recently learned that Defendants have surveillance videos of
Plaintiffs. At a deposition of Plaintiff Brent Huffman on September 24, 2014,
Huffman was presented with surveillance video of himself, which Defendants
submit “was irreconcilable with his prior deposition testimony regarding his
physical limitations and activities.” Defs.’ Resp. [75] 2. Although Plaintiffs’
specifically requested “surveillance movies, tapes, photographs, etc.” in a
discovery request, the surveillance videos have not been furnished. Defendants
submit that they should not be required to produce the surveillance videos at this
time because: (1) video surveillance is work product; (2) if Defendants intend to
use the surveillance videos at trial, they would only be required to produce them
after the Plaintiffs have been deposed; and (3) if Defendants do not intend to use
the surveillance videos at trial, they are not required to produce them. Id. at 2.
Defendants acknowledge precedent from the Fifth Circuit Court of Appeals
that addresses the withholding of surveillance tapes in personal injury cases.
Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993). In
Chiasson, the Fifth Circuit vacated a jury verdict and remanded for a new trial
where the trial court allowed into evidence a surveillance tape of a personal
injury plaintiff performing day-to-day activities where that surveillance tape had
not been produced during discovery. The defendant in Chiasson, like Defendants
here, argued that the tape was work product. Id. at 514. The Fifth Circuit in
Chiasson found that the severity of the plaintiff’s injuries was among the key
issues for the jury to decide. It held that evidence, like the surveillance tape,
-2-
tending to prove or disprove such injuries must be considered substantive and
should have been disclosed during discovery, regardless of whether it was also
impeachment evidence. Id. at 516-17. The Fifth Circuit in Chiasson also noted
that “[t]he federal rules promote broad discovery so that all relevant evidence is
disclosed as early as possible, making a trial ‘less a game of blind man’s bluff and
more a fair contest.’” Id. at 517 (quoting United States v. Procter & Gamble Co.,
356 U.S. 677, 682 (1958)).
Defendants maintain that Chiasson does not require that surveillance
tapes be produced prior to a deposition but only that they be produced prior to
trial and only then, if the defendant chooses to use the tapes at trial. However,
in Mason v. T.K. Stanley, Inc., this Court rejected such arguments and quashed
the deposition of a witness who was confronted with surreptitious recordings of
himself during his deposition. 229 F.R.D. 533, 537 (S.D. Miss. 2005). The Court
compelled the opposing party to produce the recordings and held that the
deposition would not go forward until the recordings had been produced. Id. In
addition to concluding that the recordings were substantive evidence, the Court
in Mason based its decision on concerns of fundamental fairness, finding that an
opposite ruling would violate the spirit of Chiasson.
Finding no meaningful distinction between this case and Mason, the Court
concludes that Plaintiffs’ Motion [73] to Compel and Motion [74] for Protective
Order should be granted. Defendants must produce all surveillance videos,
-3-
tapes, or photographs, depicting Plaintiffs to Plaintiffs’ counsel on or before
October 1, 2014. Further depositions noticed by Defendants, including those
scheduled for September 30, 2014, and October 2, 2014, are quashed until the
surveillance videos, tapes, or photographs have been produced.
II. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiffs’
Motion [73] to Compel is GRANTED. Defendants must produce all surveillance
videos, tapes, or photographs depicting Plaintiffs to Plaintiffs’ counsel on or
before October 1, 2014. With this disclosure, Defendants are to provide the
names of all persons who filmed or took the surveillance. Defendants are also
ordered to supplement their discovery responses with information regarding
surveillance videos, tapes, or photographs depicting Plaintiffs.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiffs’ Motion
[74] for Protective Order is GRANTED. Further depositions noticed by
Defendants, including those scheduled for September 30, 2014, and October 2,
2014, are quashed until Defendants have produced the surveillance discovery
discussed herein.
SO ORDERED AND ADJUDGED, this the 29th day of September, 2014.
s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?