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New Jersey Federal Court Orders Defendant to Produce Surveillance Video of Plaintiff Before Deposition

In a controversial decision favoring the plaintiff’s bar, United States Magistrate Judge Ann Marie Donio denied a defendant’s Protective Order and directed that surveillance video captured of the plaintiff be produced prior to his deposition.  To be clear, in Gardner v. Norfolk Southern Corporation, 2014 WL1515525 (D.N.J. April 17, 2014), the court addressed surveillance of the plaintiff taken after the accident and not contemporaneous footage of the accident.  In reaching her decision, Judge Donio weighed the plaintiff’s assertion that the “substantive” value of the surveillance outweighed any potential impeachment value, as argued by the defense. 

Judge Donio looked to case law from other federal districts across the nation that had reached various outcomes on this same issue.  Ultimately, the court followed the rationale in Gutshall v. New Prime, Inc., 196 FRD 43, 46 (W.D.Va. 2000), wherein the court granted plaintiff’s Motion to Compel Production of Surveillance Video even though it was intended solely for impeachment purposes.  Per Gutshall, Judge Donio found that the surveillance video directly related to the plaintiff’s physical conditions and therefore constituted evidence relevant to the cause of action, making it discoverable pursuant to the standard set forth in Federal Rule of Civil Procedure 26. The Court took the approach of favoring fairness over gamesmanship by stating “fairness concerns weigh against the kind of sandbagging involved when a moving party sets a ground for impeachment by using undisclosed materials in an attempt to manufacture inconsistencies.”

On the other hand, in New Jersey Superior Court, surveillance video is discoverable, but only after plaintiff’s deposition has been completed.  See Jenkins v. Rainner, 69 N.J. 50 (1976).  In Jenkins, the court reasoned that plaintiff could not without “undo hardship” obtain the substantial equivalent of this surveillance footage and therefore was entitled to its discovery.  Id. at 58.  The Court’s ruling was supported by the underlying purpose upon which discovery in New Jersey is premised, that being to “insure that the outcome of litigation in this State shall depend on its merits in the light of all the available facts, rather than on the craftiness of the parties or the guile of their counsel.”  However, unlike in Gardner, the court reasoned that fairness and full discovery for both sides was best achieved by allowing the defendant to first take plaintiff’s deposition before turning over the surveillance footage. 

Timing of Surveillance Footage Production

Obviously, from a defense standpoint, surveillance of a plaintiff can be crucial in disproving claimed physical injuries and limitations.  As it stands, the New Jersey defense bar needs to be cognizant of the different approaches being taken by the federal and state courts with regards to the timing of the production of surveillance footage in relation to plaintiff’s deposition.  However, since New Jersey discovery rules are largely modeled after the federal rules, New Jersey courts often give particular deference to the practical consequences of federal rule interpretations.  Judge Donio’s ruling may have the effect of triggering a revision of state precedent with regard to the timing of required disclosure of surveillance video.  Unless and until the issue is dispositively addressed by either precedent or a rule amendment, defense counsel should be aware of the potential for a change in current state practice and should endeavor to delay surveillance until after the plaintiff’s deposition whenever possible to avoid the prospect of an adverse evidentiary ruling.  


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