The United States District Court for New Jersey has ruled that surveillance video taken of a plaintiff after his accident must be produced by defense counsel prior to the taking of plaintiff's deposition.
In this matter, plaintiff alleged that he was injured while riding his motorcycle across a dilapidated railroad crossing maintained by the defendant. During the course of the litigation, the defendant obtained surveillance video of the plaintiff. The defendant then sought a protective order from the court allowing them to withhold the production of the video until after plaintiff's deposition. The plaintiff objected arguing that as the video provided substantive evidence (rather than just impeachment potential), the video should immediately be produced by the defendant.
In reviewing the motion for a protective order, the Court noted that other courts have issued varying rulings when faced with this issue. Some courts have held that it is proper to withhold the surveillance video until the deposition occurs. Other courts have ordered it produced before the deposition.
In ruling for its production, the Court accepted the plaintiff's argument that the substantive value (e.g. demonstrating the injury sustained by the plaintiff) outweighs the potential impeachment value (e.g. Mr. Plaintiff you say you cannot do anything, they why does surveillance show you dancing, bowling and climbing trees in one night?).
The court ruled that "because the surveillance evidence directly relates to plaintiff's physical conditions, it constitutes evidence relevant to the subject matter of this action, and [therefore] discoverable." Further, the court noted "fairness 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."
Going forward, you should expect plaintiff's attorneys to cite this decision to support the disclosure of surveillance video prior to the taking of plaintiff's deposition. Counsel should be prepared to argue that this is a Federal court decision regulated by Federal Rules of Civil Procedure and has no binding effect on State courts. Whether the trial judge in state courts accept this argument remains to be seen.
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