INFERRERA et al v. WAL-MART STORES, INC. et al
Filing
8
MEMORANDUM OPINION AND ORDER: The Defendant's application for a protective order is DENIED. Defendant shall produce its videotape of plaintiff's incident within 7 days of the date of this Order, etc.. Signed by Magistrate Judge Joel Schneider on 12/20/2011. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
IRENE INFERRERA, et al.,
Plaintiffs,
Civil No. 11-5675 (RMB/JS)
v.
WAL-MART STORES, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This personal injury case arises from plaintiff’s “slip” on
December 8, 2008, at defendant’s store in Millville, New Jersey.
The issue before the Court is whether defendant may withhold the
production
of
its
videotape
plaintiff is deposed.
of
plaintiff’s
fall
until
after
The Court received the parties’ letter
briefs and exercises its discretion not to hold oral argument.
R.
Civ.
P.
37.1(b)(3).
For
the
reasons
to
be
L.
discussed,
defendant’s application for a protective order is DENIED.1
Plaintiff alleges that on December 8, 2008, she “encountered
a
wet,
waxy,
slippery
and/or
other
hazardous
condition
on
[defendant’s] floor which disrupted her balance and/or caused her
to slip resulting in injury to her person.”
Complaint ¶5.
Defendant acknowledges it has a videotape of the alleged incident.
Defendant does not allege that the video involves anything but the
1
The issue before the Court was raised at the Fed. R. Civ. P.
16 Scheduling Conference. Rather than filing a motion, the Court
requested letter briefs.
routine taping it does in the normal course of its business.
Defendant does not contend, for example, that plaintiff acted
suspiciously so its cameras specifically focused on her. Defendant
believes its tape impeaches plaintiff’s version of her accident and
does not want to produce the tape until after she is deposed.
Defendant
undoubtedly
hopes
to
show
inconsistencies
between
plaintiff’s deposition testimony and its tape. There is no dispute
that the tape is relevant to the claims and defenses in the case
and that absent a Court Order it should be produced in connection
with defendant’s Fed. R. Civ. P. 26(a) disclosure.
Defendant is essentially asking for a protective order that it
can delay the production of its tape.
Fed. R. Civ. P. 26(c)(1)(B)
states that for good cause shown the court may specify the terms,
including time and place, for a disclosure or discovery. Although
the Court recognizes the tactical reasons for defendant’s request,
it finds that defendant has not established good cause to support
its application.
In this instance, the hope or expectation that
relevant evidence may impeach a witness does not establish good
cause to
delay
the
production
of
the
evidence
in discovery.
Impeachment evidence is available in virtually every case.
If a
party could delay the production of relevant evidence to use for
impeachment purposes at a deposition, than large swatches of
discovery could be withheld.
In addition, the same issue present
here would come up in almost every case.
2
If defendant’s reasoning
is
adopted,
the
same
argument
could
be
made
with
regard
to
incriminating documents, e-mails, photographs, audiotapes, etc.
Defendant’s position would create an avenue to delay producing
relevant discovery that does not exist.
Furthermore, although in
this instance defendant is seeking to delay the production of
relevant evidence, later in the case the tables could be turned.
If the Court grants plaintiff’s application it is not far-fetched
to expect that at a later date
will
want
to
hold
back
in this or another case plaintiff
relevant
defendant at its deposition.2
evidence
to
use
to
impeach
Taken to an extreme, the delayed
production of relevant evidence could become the rule rather than
the exception.
either
the
The Court does not believe this is consistent with
letter
or
spirit
of
the
Federal
Rules
of
Civil
Procedure.
The purpose of the court system is to resolve civil disputes
in a civil way.
1999).
Blumenthal v. Drudge, 186 F.R.D. 236, 239 (D.D.C.
Thus, “gotcha games” are not acceptable.
See Worden v.
Interbake Foods, LLC, No. 10-4118, 2011 WL 4954628, at *1 (D.S.D.
October 18, 2011); Georgacarkos v. Wiley, No. 07-cv-01712-MSK-MEH,
2011 WL 940803, at *5 (D. Colo. March 16, 2011.
2
See also Carr v.
For example, in a future “fall down” case against defendant,
a plaintiff who took a photograph of an accident scene could ask to
withhold production of the photograph so he or she could impeach
defendant’s witnesses who may deny that a dangerous condition
existed. If this situation occurred, the Court does not expect
that defendant would agree that it is fair or reasonable to
withhold relevant evidence until after it is deposed.
3
Spherion, No. 08-0326, 2009 WL 3064721, at
at *7 (W.D.La. August
17, 2009)(“[T]he law has ... evolved beyond a transparent game of
‘gotcha’”); Compaq Computer Corp. v. Ergonome, Inc., No. H-97-1026,
2000 WL 345903, at *3 (S.D. Tex. 2000)(“The law and this Court
abhor a ‘gotcha’”). The Court will not authorize “gotcha games.”
Defendant’s tape will be produced and then plaintiff will be
deposed.
This is how the orderly progression of civil cases has
and will proceed.
A fundamental error in defendant’s argument is that it is
seeking to delay the production of a “surveillance” tape.
not the case.
That is
As used in this context surveillance connotes the
close observation of a person under suspicion.
In this case,
defendant is seeking to delay the production of a
tape prepared in
the regular course of its business.
Defendant’s references to its
surveillance tape are, therefore, erroneous, misleading, and illconceived.
This is especially true since defendant is aware that
the cases it relies upon address classic surveillance tapes and not
contemporaneous business tapes of a plaintiff’s accident in a
retail store.
Defendant’s
argument
that
the
Court
should
apply
a
“substantial need” balancing test is also ill-conceived. Defendant
is referring to Fed. R. Civ. P. 26(b)(3) which provides that
attorney-work product is not discoverable unless a party shows it
has a substantial need for the materials.
4
A surveillance tape of
a plaintiff prepared for impeachment purposes is fundamentally
different than a store’s tape of its customers. No work-product
issues are implicated when a store tape is prepared.
To the extent
defendant argues its in-store video of plaintiff is work-product,
the argument is frivolous.3
The video of plaintiff was plainly
prepared in the regular course of defendant’s business.
Plaintiff
primarily
relies
upon
the
Honorable
Joel
M.
Slomsky’s March 7, 2011 Order in Delacruz v. Walmart Store 5103,
Walmart Associates, Inc., C.A. No. 10-5932 (E.D. Pa. March 7,
2001), and his March 21, 2011 Order denying plaintiff’s motion for
reconsideration.
delayed
the
It appears from the Orders that Judge Slomsky
production
of
defendant’s
videotape
until
after
plaintiff’s deposition. However, the only support the court relied
upon was Machi v. Metropolitan Life Ins., Co., No. 02:07cv1754,
2008 WL 24120947, at *1-2 (W.D. Pa. June 10, 2008).
That case is
distinguishable because it addressed surveillance tapes, not a tape
of the underlying incident in question that was prepared in the
regular course of business.
(The Machi decision relied upon Snead
3
Defendant argues it “may withhold [its video] because it is
protected as work product by Fed. R. Civ. P. 26(b)(a)(3) as it is
a tangible thing prepared in anticipation of litigation and because
Plaintiff does not have a ‘substantial need’ for this video to be
produced prior to her deposition.” See November 15, 2011 Letter
Brief at 1-2 (emphasis in original). Defendant is or should be
aware that it has the burden to show that the work product doctrine
applies and that documents and tapes prepared in the regular course
of business are not protected.
United States v. Rockwell Int’l.,
897 F.2d 1255, 1265-66 (3d Cir. 1990); Torres v. Kuzniasz, 936 F.
Supp. 1201, 1208 (D.N.J. 1996).
5
v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa.
1973), which also addressed the production of surveillance tapes).
None of the cases defendant relies upon are similar to this case.
See Jenkins v. Rainner, 69 N.J. 50 (1976)(motion pictures taken of
plaintiff by defendant’s insurer in preparation for trial); Daniels
v.
National
R.R.
Passenger
Corp.,
110
F.R.D.
160
(S.D.N.Y.
1986)(surveillance films); Tripp v. Severe, No. L-99-1478, 2000 WL
708807 (D. Md. 2000)(surveillance videotapes); Martino v. Baker,
179 F.R.D. 588 (D. Colo. 1998)(surveillance tapes); Ward v. CSX
Transp.,
Inc.,
161
F.R.D.
38
(E.D.N.C.
1995)(surveillance
materials).
For the reasons discussed herein, the Court respectfully
declines to follow Judge Slomsky’s ruling in Delacruz.
The Court
disagrees that defendant can delay the production of its clearly
relevant videotape so it can use the tape for impeachment purposes
at plaintiff’s deposition.
In United States v. Procter & Gamble Co., 356 U.S. 677, 682
(1958), the Court stated that “[m]odern instruments of discovery
serve a useful purpose....
They together with pretrial procedures
make a trial less a game of blind man’s buff and more a fair
contest with the basic issues and facts disclosed to the fullest
practicable extent.
disclosure.”
Only strong public policies weigh against
In Hayes v. Cha, 338 F. Supp. 2d 470, 505 (D.N.J.
2004), the Court indicated that “reducing gamesmanship is a core
aim” of the disclosure requirements in Fed. R. Civ. P. 26.
6
These
goals and aims are furthered by the prompt production of relevant
evidence.
Sufficient safeguards such as cross-examination are
available to assure that defendant’s concern about potentially
tainted deposition testimony is overblown.4
Accordingly, for all the foregoing reasons,
IT IS HEREBY ORDERED this 20th day of December, 2011, that
defendant’s
application
for
a
protective
order
is
DENIED.
Defendant shall produce its videotape of plaintiff’s incident
within seven (7) days of the date of this Order.
Thereafter,
plaintiff’s deposition may be taken.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
4
To be sure, there may be instances where good cause is
established to delay the production of relevant evidence. However,
that is not the case here.
7
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?