GARDNER et al v. NORFOLK SOUTHERN CORPORATION et al
Filing
41
MEMORANDUM OPINION AND ORDER: ORDERED that Defendants' motion for a protective order 32 is DENIED; and it is further ORDERED that the Defendants shall, by 4/30/2014, produce any withheld surveillance materials responsive to Plaintiffs' requests. Signed by Magistrate Judge Ann Marie Donio on 4/17/2014. (tf, )
[Doc. No. 32]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BRAD GARDNER and DENISE
CASTALDI,
Plaintiffs,
Civil No. 13-6912 (JEI/AMD)
v.
NORFOLK SOUTHERN CORPORATION,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
In
pursuant
to
production
this
personal
Federal
of
depositions.
injury
action,
Rule
Civil
Procedure
materials
until
surveillance
In
of
opposition,
Plaintiffs
Defendants
26(c)
after
assert
to
move
defer
Plaintiffs’
that
any
surveillance materials constitute substantive evidence to which
Plaintiffs
are
immediately
discovery requests.
entitled
in
accordance
with
their
The Court decides this matter pursuant to
Federal Rule of Civil Procedure 78(b). 1 For the reasons set forth
herein, the Court denies Defendants’ motion, and orders that
1
At a telephone conference on February 11, 2014, the parties
waived oral argument with respect to the pending motion.
Defendants
produce
all
surveillance
materials
responsive
to
Plaintiffs’ discovery requests by no later than April 30, 2014.
Plaintiffs
(hereinafter,
Brad
Gardner
“Plaintiffs”)
action against
Norfolk
and
initiated
Southern
Denise
this
Castaldi
personal
Corporation,
Norfolk
injury
Southern
Railway Company, and Consolidated Rail Corporation a/k/a Conrail
(hereinafter,
“Defendants”)
on
June
19,
2013
in
the
Eastern
District of Pennsylvania. (See Complaint and Jury Demand [Doc.
No. 1].) Plaintiffs generally allege that on June 21, 2011 their
motorcycle
struck
Defendants’
“dangerous
and
deteriorated
railroad roadway crossing[.]” (Id. at ¶ 8.) Plaintiffs further
allege that Defendants “failed to take any and all appropriate
action
public”
to
protect
from
harm,
or
prevent
the
Plaintiffs
notwithstanding
and
Defendants’
the
notice
general
of
the
alleged condition. (Id. at ¶¶ 8-9.) Plaintiffs seek monetary
damages for the “severe and permanent injuries requiring medical
treatment[.]” (See id. at ¶¶ 13, 18.)
Plaintiffs served their first set of interrogatories
and requests for the production of documents on July 23, 2013.
(See Defendants, Norfolk Southern Corporation, Norfolk Southern
Railway
Company,
and
Consolidated
Rail
Corporation
a/k/a
Conrail, Motion for Protective Order (hereinafter, “Defs.’ Br.”)
[Doc. No. 32], 4 on the docket, ¶ 3; see also Exhibit A [Doc No.
32-1], 1-8 on the docket; Exhibit B [Doc. No. 32-1], 9-13 on the
2
docket.)
Plaintiffs’
information
discovery
concerning
“sound,
requests
generally
photographic,
motion
sought
picture
film, personal sight[,] or any other type of surveillance” of
Plaintiffs,
and
requested
production
of
any
and
all
such
“photographs, diagrams, drawings, charts, models, movie films or
video-tapes[.]” (Defs.’ Br. [Doc. No. 32], 5 on the docket, ¶ 3;
see Exhibit A [Doc. No. 32-1], 7-8 on the docket; Exhibit B
[Doc.
No.
32-1],
12
on
the
docket.)
On
September
30,
2013,
Defendants provided photographs and a diagram of the disputed
railway roadway crossing, but objected to the provision of any
information concerning “the existence” of video (surveillance or
otherwise).
(Exhibit
thereafter,
the
D
Eastern
[Doc.
No.
District
32-2],
of
¶
20.)
Shortly
Pennsylvania
granted
Defendants’ motion to transfer this action to the District of
New Jersey on October 3, 2013. (See Order [Doc. No. 18], Oct. 3,
2013, 1.) The pending motion followed on January 3, 2014. (See
generally Defs.’ Br. [Doc. No. 32].)
Defendants
generally
assert
that
production
of
any
surveillance should be delayed pending Plaintiffs’ depositions
in
order
to
preserve
“the
impeachment
surveillance. (Defs.’ Br. [Doc. No. 32], 5.)
value”
of
the
Defendants argue
that the “overwhelming majority of federal courts that [have]
decided
this
specific
issue
agree
that
the
defense
‘must
be
given an opportunity to depose the plaintiff fully as to his
3
injuries,
their
disclosing
the
Southern
effects
details
Corporation,
and
of
his
present
surveillance.”
Norfolk
Southern
disabilities’
(Defendants,
Railway
before
Norfolk
Company,
and
Consolidated Rail Corporation a/k/a Conrail, Reply in Support of
its Motion for Protective Order (hereinafter, “Defs.’ Reply”)
[Doc. No. 35], 3 on the docket (emphasis in original) (citations
omitted).) Defendants cite a litany of nonbinding precedent in
which courts have permitted deferred production of surveillance
recordings
pending
completion
of
relevant
depositions.
(See
Defs.’ Reply [Doc. No. 35], 3 on the docket (citing cases).) For
example,
Defendants
cite
Snead
v.
American
Export-Isbrandtsen
Lines, Incorporated, 59 F.R.D. 148 (E.D. Pa. 1973) to support
their assertion that a party may delay production of any details
concerning surveillance. (See Defs.’ Reply [Doc. No. 35], 3 on
the
docket
(citing
cases).)
In
Snead,
a
three-judge
panel
considered whether the circumstances of a personal injury action
warranted deferred production of “secret motion pictures taken
to reveal the true nature and extent of plaintiff’s injuries”
pending plaintiff’s deposition. 59 F.R.D. 148, 149 (E.D. Pa.
1973). The court concluded that “the defense must be given an
opportunity to depose the plaintiff fully as to his injuries,
their effects, and his present disabilities” prior to “requiring
the defense to disclose the existence of surveillance films” to
plaintiff in order to facilitate effective impeachment. Id. at
4
151.
Accordingly,
Defendants
request
an
“Order
protecting
disclosure of surveillance information and items until after the
conclusion of [P]laintiffs’ depositions.” (Defs.’ Br. [Doc. No.
32], 6; Defs.’ Reply [Doc. No. 35], 6 on the docket.)
In opposition to Defendants’ motion, Plaintiffs assert
that surveillance material “provides substantive evidence of the
extent a plaintiff’s injuries, often corroborating rather than
impeaching the plaintiff’s claims.” (Plaintiffs’ Memorandum of
Law in Opposition to Defendants’ Motion for Protective Order
(hereinafter,
“Pls.’
Br.”)
[Doc.
No.
33],
9
on
the
docket.)
Plaintiffs further assert that the “substantive value” of the
“surveillance items” outweighs any potential impeachment value,
and precludes Defendants from “unilaterally withhold[ing] such
materials
support
of
even
temporarily.”
their
position,
(Id.
at
Plaintiffs
7
on
rely
the
upon
docket.)
In
Babyage.com,
Incorporated v. Toys “R” Us, Incorporated, 458 F. Supp. 2d 263
(E.D. Pa. 2006). In Babyage.com, defendant moved to compel the
production
of
“surreptitious”
recordings
by
plaintiff
of
conversations between the parties. Id. at 264. The plaintiff in
Babyage.com conceded the recordings’ discoverability, but sought
permission to delay production of the recordings until after the
deposition of defendant’s representative in order to preserve
the recordings’ impeachment value. Id. at 264-65. Guided by “the
underlying
purpose
of
the
civil
5
discovery
rules[,]”
the
Babyage.com court noted that “impeachment value alone does not
justify
a
delay
where,
as
[there],
the
disputed
statements
constituted substantive evidence relevant to the parties’ claims
and defenses.” Id. at 264-65. The Babyage.com court concluded
that “plaintiffs are not entitled to unilaterally withhold the
recordings
and
transcripts,
even
temporarily”
and
therefore
ordered immediate production. Id. at 266.
Federal
Rule
of
Civil
Procedure
26(c)
provides
in
relevant part that the Court may, for good cause issue an order
“(A)
forbidding
terms,
including
the
disclosure
time
and
or
place,
discovery;
for
the
(B)
specifying
disclosure
or
discovery; (C) prescribing a discovery method other than the one
selected by the party seeking discovery; [or] (D) forbidding
inquiry
into
certain
matters,
or
limiting
the
scope
of
disclosure or discovery to certain matters[.]” FED. R. CIV. P.
26(c)(1)(A), (B), (C), (D). The party seeking a protective order
“bears the burden of demonstrating” good cause to support such
limitation, and must further “demonstrate a ‘particular need for
protection.’” Graham, 2010 WL 2483294, at *2 (quoting Cipollone
v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)).
“‘Open discovery is the norm.
Gamesmanship with information is
discouraged and surprises are abhorred.’” Kosher Sports, Inc. v.
Queens Ballpark Co., LLC, No. 10-2618, 2011 WL 3471508, at *8
6
(E.D.N.Y. Aug. 5, 2011) (quoting Costa v. AFGO Mech. Servs.,
Inc., 237 F.R.D. 21, 26 (E.D.N.Y. 2004) (citation omitted)).
At issue in this case is surveillance of Plaintiffs
obtained by Defendants after the incident that gives rise to
Plaintiffs' claims. The Court is therefore not confronted with
contemporaneous
“surveillance”
Inferrera
v.
footage
of
materials
Wal-Mart
the
accident—the
routinely
Stores,
found
Inc.,
No.
type
of
discoverable.
See
11-5675,
2011
WL
6372340, at *3 (D.N.J. Dec. 20, 2011) (finding no good cause to
delay production “of a tape prepared in the regular course of
its business”). Rather, the Court must consider whether a party
may delay production of images, films, and/or photographs taken
surreptitiously after the incident.
Case law has reached various outcomes concerning the
discoverability and the timing of the production of these types
of
materials.
surveillance
substantive,
Some
courts
possessed
value
in
have
solely
determining
considered
impeachment,
whether
a
whether
rather
party
may
the
than
delay
production until after a plaintiff’s deposition. See Newsome v.
Penske Truck Leasing Corp., 437 F. Supp. 2d 431, 435-438 (D. Md.
2006) (noting the distinction which has emerged with respect to
surveillance
evidence).
In
Bachir
v.
Transoceanic
Cable
Ship
Company, No. 98-4625, 1998 WL 901735 (S.D.N.Y. Dec. 28, 1998),
the
court
referenced
the
distinction
7
between
surveillance
videotapes
used
as
“‘substantive
evidence’”
and
those
used
solely for “‘impeachment’” purposes. Id. at *1 (quoting Brannan
v.
Great
Lakes
(S.D.N.Y.
May
Dredge
7,
&
Co.,
1998)).
The
No.
96-4142,
Bachir
1998
court
WL
229521
concluded
that
surveillance must be immediately produced if a party intends to
use such tapes “for any purpose beyond impeachment.” Id. at *1.
If, however, a party intends to use such tapes “for the purpose
of
impeachment
surveillance
plaintiff’s
only,”
may
be
then
the
delayed
deposition.”
Id.
production
until
at
the
*2.
of
the
“after
In
video
the
Daniels
tape
date”
v.
of
National
Railroad Passenger Corporation, 110 F.R.D. 160 (S.D.N.Y. 1986),
the court similarly concluded that it may be appropriate, under
certain circumstances, “to require disclosure of [] impeachment
materials only after the depositions of the plaintiff or other
witnesses
to
be
impeached,
so
that
their
testimony
may
be
frozen[.]” Id. at 161.
Other
courts,
however,
have
found
surveillance
evidence discoverable despite a party’s intention to rely upon
the surveillance materials for impeachment purposes only. See
Gutshall v. New Prime, Inc., 196 F.R.D. 43, 46 (W.D. Va. 2000)
(granting
plaintiff’s
motion
to
compel
production
of
surveillance evidence intended solely for impeachment purposes);
see
also
defendants’
Babyage.com,
motion
to
458
compel
F.
Supp.
production
8
2d
of
at
266
(granting
secret
recordings
because
the
recordings
constituted
“substantive
evidence
relevant to the parties’ claims and defenses”). In Gutshall, for
example,
the
court
addressed
the
discoverability
of
a
surveillance film taken of the plaintiff subsequent to the event
that gave rise to his complaint. Id. at 44. The court noted the
paucity
of
bearing
“on
authority
the
on
the
plaintiff’s
issue,
but
physical
found
that
condition”
evidence
constituted
“relevant” and “discoverable” evidence in the context of the
litigation,
notwithstanding
defendant’s
intent
“to
use
such
evidence at trial for [solely] impeachment purposes.” Id. at 45.
Indeed, the Court noted that, “‘[w]hile surprise has a healthy
prophylactic effect against possible perjury, on balance, cases
are more likely to be decided fairly on their merits if the
parties are aware of all the evidence[,]’” and therefore ordered
immediate production of the surveillance footage. Id.
Certain
other
courts
have
weighed
the
challenged
material’s substantive value against any impeachment value to be
derived from delayed production. See, e.g., Louisma v. Automated
Fin., LLC, No. 11-2104, 2011 WL 5105377, at *3 (N.D. Ill. Oct.
27,
2011)
(“Where
the
substantive
value
of
the
challenged
material outweighs its impeachment value, the production should
not
be
conducting
delayed
the
until
necessary
after
depositions.”).
balancing,
courts
have
However,
noted
in
that
surveillance evidence “rarely fits into a single category,” and
9
have
ordered
production
prior
to
the
plaintiff’s
deposition
where the intended use extended beyond mere impeachment. Dehart
v. Wal-Mart Stores, East, L.P., No. 05-061, 2006 WL 83405, at *1
(W.D. Va. Jan. 6, 2006) (ordering production of the surveillance
evidence
prior
to
the
deposition
of
plaintiff
because
the
evidence constituted “both substantive as well as impeachment
evidence”); see also Karr v. Four Seasons Mar., Ltd., No. 023413,
2004
(requiring
WL
797728,
production
at
of
*5-*6
(E.D.
surveillance
La.
tapes
Apr.
12,
2004)
where
the
court
could not conclude “that the surveillance information requested”
would
be
“limited
exclusively
to
impeachment
with
no
other
relevance to the case”).
Here,
Defendants
gives
short
shrift
to
whether
the
requested materials are relevant for substantive value. 2 (Defs.’
Br. [Doc. No. 32], 5 ¶ 10.) As set forth supra, Plaintiffs
assert
that
the
materials
constitute
which they are presently entitled.
on
the
docket.)
production
of
This
Court,
discoverable
substantive
to
(Pls.’ Br. [Doc. No. 33], 9
however,
rejects
surveillance.
2
evidence
the
Rather,
staggered
the
Court
Defendants specifically assert that “production of the
surveillance
after
plaintiffs’
deposition
comports
with
fundamental notions of fairness to both parties” because “it
preserves the impeachment value of the surveillance” while
“still allow[ing] the plaintiff(s) sufficient time before trial
to evaluate the surveillance video to determine its authenticity
and accuracy or to prepare for its substantive use at trial.”
(Defs.’ Br. [Doc. No. 32], 5 ¶ 10 (emphasis in original).)
10
follows
the
rationale
Incorporated,
and
set
forth
concludes
in
that
Gutshall
because
v.
the
New
Prime,
surveillance
evidence directly relates to Plaintiffs’ physical conditions, it
constitutes
evidence
relevant
to
the
subject
matter
of
this
action, and discoverable pursuant to the standards set forth in
Federal Rule of Civil Procedure 26. 196 F.R.D. at 45. Indeed,
Federal Rule of Civil Procedure 26 creates “a broad vista for
discovery.” 3 Tele-Radio Sys. Ltd. v. DeForest Elecs., Inc., 92-1
F.R.D. 371, 375 (D.N.J. 1981). The Court further concludes that
permitting parties to delay production of this relevant evidence
requested
in
the
context
of
the
parties’
discovery
requests
would nullify the discovery process. “[F]airness concerns weigh
against the kind of sandbagging involved when the moving party
sets up grounds for impeachment by using undisclosed materials
in an attempt to manufacture inconsistencies.” Louisma, 2011 WL
5105377, at *3. These concerns therefore “militate against [any]
proposed
protective
protective
order.”
order,
light
in
Id.
of
(denying
“the
3
the
substantive
motion
value
for
of
a
the
Although Federal Rule of Civil Procedure 26(a) excepts from the
parties’ initial disclosure obligations information “solely for
impeachment” purposes, Federal Rule of Civil Procedure 26(b)
provides
no
similar
exception.
Compare
FED. R. CIV. P.
26(a)(1)(B), (a)(3), with FED. R. CIV. P. 26(b)(1). A party must
therefore “disclose impeachment evidence in response to a
specific discovery request.” Newsome, 437 F. Supp. 2d at 436.
As set forth supra, Plaintiffs expressly request the disputed
surveillance materials in their discovery requests. (See Exhibit
A [Doc. No. 32-1], 2-8 on the docket; Exhibit B [Doc. No. 32-1],
10-13 on the docket.)
11
withheld photographs”). Defendants in this instance have failed
to demonstrate circumstances sufficient to defer production of
discoverable
information.
See
Bradley
v.
Liberty
Mut.
Grp.,
Inc., No. 13-100, 2013 WL 3864316, at *3 (M.D. La. July 24,
2013) (requiring defendant to produce the surveillance evidence
prior
to
plaintiff’s
Defendants’
motion
deposition).
and
directs
The
Court
therefore
Defendants
to
denies
produce
the
withheld surveillance materials by no later than April 30, 2014.
Consequently, for the reasons set forth herein, and
for good cause shown:
IT IS on this 17th day of April 2014,
ORDERED that Defendants’ motion for a protective order
[Doc. No. 32] shall be, and hereby is, DENIED; and it is further
ORDERED that the Defendants shall, by April 30, 2014,
produce
any
withheld
surveillance
materials
responsive
Plaintiffs’ requests.
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
cc: Hon. Joseph E. Irenas
12
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