US District Court SD of Florida Admonishes Defendant Attempting to Use ESI as Sword and Shield.

US District Court SD of Florida Admonishes Defendant Attempting to Use ESI as Sword and Shield.

The federal court for the Southern District of Florida recently issued an order that a retail store could not claim surveillance video evidence as work product in anticipation of litigation protection when the video documented the trip and fall which was the basis of the case.
In Cabezudo-Vazquez v. Ross Dress for Less, Inc, 27 Fla. L. Weekly Fed D99a (July 27, 2018), the US. District Court, Southern District of Florida. The Court ruled that the store could not withhold video surveillance which reflected the slip and fall incident of the Plaintiff. The following main points of the ruling point to no privilege for this type of video footage in the possession of the Defendant:

• The surveillance video was work product, and there was no justification for delaying the disclosure of the videos until after Plaintiff’s deposition was completed.
• The Plaintiff had the right to inspect electronically stored information (ESI) which included sound recordings and images on devices that were in the possession custody or control of the store.
• Materials or documents such as the video footage that are created in the “ordinary course of business” are not protected as work product. In this case, the Defendant admittedly routinely recorded areas of their facility for various reasons.
• Although the company saved the video so that it would not be automatically deleted, that did not mean that the video was automatically converted to privileged work product information. It was not saved in anticipation of litigation and the videos were clearly relevant. In this case, the videos were relevant because they showed the Plaintiff on the premises that day and included the incident that was the basis of the Plaintiff’s lawsuit.
• The videos could be produced before the Plaintiff’s deposition. The court ruled the disclosure before the deposition would not prejudice the Defendant if the Plaintiff was permitted to view the videos to refresh her recollection prior to the deposition.

The Florida Rules of Civil Procedure relating to ESI and other state court case law regarding ESI would also include this type of video footage. Fla. R. Civ. P. 1.288(b)(3) states, “(3) Electronically Stored Information. A party may obtain discovery of electronically stored information in accordance with these rules.” The Florida rules apply the same tests and standards often used by the federal courts to resolve discovery disputes related to ESI.

The video depicting the incident, as is the case in many slip and fall and other bodily injury cases, often is a critical piece of evidence that is important for a judge or jury to view you to make a determination in the case. The same occurred in the State court case, Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389 (Fla. 2d DCA 2012)

All parties should actively seek out, the video surveillance and other ESI, to ensure preservation and production of evidence in discovery. Conversely, Defendants should be ready for court orders compelling production of video recordings. This type of evidence is often highly relevant to most, if not all, personal injury cases.