Following the initiation of a personal injury suit, many defendants will start to conduct covert surveillance of the plaintiff in hope of uncovering evidence that can later to used to impeach inconsistent testimony. Beyond obvious privacy concerns, the production and use of surveillance footage raises numerous legal issues related to authenticity. Accordingly, it is well settled that defendants are required to turn over surveillance footage that they intend to use at trial during the discovery process. However, there is often an argument about when the defendant must turn over this footage. These timing issues are at the core of the discussion in a recent decision from Florida’s Fourth District Court of Appeal, Hankerson v. Wiley.
Hankerson started with an alleged act of auto negligence, which ultimately led the plaintiff in this case to bring suit against the other driver. During the course of pre-trial discovery, the defendant acquired surveillance footage of the plaintiff, which the plaintiff then sought to acquire prior to her deposition. The trial court granted an order that would permit the plaintiff to view the surveillance footage prior to her deposition. Following issuance of this order, the defendant sought immediate certiorari review by the Fourth District Court of Appeal, arguing that permitting the plaintiff to view the footage prior to having an opportunity to depose her would lead to irreparable harm that warranted immediate review by the appellate court. Thus, there were two issues before the Court of Appeal: 1) whether the harm attendant to turning over footage is of a degree that warrants immediate appellate review; and 2) whether the defendant could be ordered to turn over work product surveillance footage prior to deposing the plaintiff.
With respect to the first question, it is not uncommon for a trial court to immediately grant review under these circumstances, since the utility of the videotape footage cannot be restored should the appellate court take action following the conclusion of the litigation. See State Farm Mut. Auto. Ins. Co. v. H Rehab, Inc., 77 So. 3d 724, 725 (Fla. 3d DCA 2011) (granting review of trial court order and remanding case “with instructions that State Farm is not required to produce the surveillance video/DVD prior to taking the deposition”). With respect to the second question, the Supreme Court of Florida has looked at the issue but did not make a definite ruling regarding timing. See Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). In that case, the court held that “fairness requires that we allow the use of surveillance materials to establish any inconsistency in a claim by allowing the surveilling party to depose the party surveilled after the movies have been taken or evidence acquired but before their contents are presented for the adversary’s pretrial examination.” Id. at 708. However, the Supreme Court did not strictly mandate this timing of events. Instead, the court noted the realities of procedural time constraints and left it to “the trial court’s discretion to allow the discovery deposition before disclosure” in certain circumstances. Id. at 708.
Although Dodson left the timing of disclosure up to trial court discretion, the Third District Court of Appeal, which is based in Miami, has adopted a bright line rule regarding the issue and has held that it is an abuse of discretion to allow disclosure of this evidence prior to deposition of the plaintiff and, as noted above, permits immediate review of a trial court order under the circumstances. See State Farm Mut. Auto. Ins. Co., 77 So. 3d 724. In Hankerson, the Fourth District opted to follow suit and held that application of a bright line rule is preferable, since it provides uniformity and protects the interests the defendant has in being able to most effectively use the videotape footage. Thus, the Fourth District has held that it is a per-se abuse of discretion to allow disclosure of post-injury surveillance footage prior to the defendant having a opportunity to depose the plaintiff.
Although this decision may in fact bolster judicial uniformity, it does not benefit the interests of plaintiffs who need adequate time to conduct pre-trial investigation of occasionally prejudicial videotape evidence. Given the Fourth District application of this bright line rule, plaintiffs now need to be more prepared for deposition testimony than ever before. Indeed, the aid of counsel helps in this sort of situation, and many injured plaintiffs would benefit from the advice of an attorney during not only the discovery process, but at all steps of litigation. The South Florida car accident attorneys at Frankl & Kominsky have many years of experience representing injured clients and can provide you with the assistance you may need with your possible case. Feel free to contact us for a free case consultation if you are interested in hearing about the options you may have.