38 Fla. L. Weekly D2302a Torts — Premises liability — Slip and fall — Discovery — Trial court did not depart from essential requirements of law in compelling plaintiff’s deposition prior to production of defendant’s store security video of the slip and fall
JUDITH McCLURE, Petitioner, v. PUBLIX SUPER MARKETS, INC., Respondent. 4th District. Case No. 4D13-1220. November 6, 2013. Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marina Garcia-Wood, Judge; L.T. Case No. 12-33810 18. Counsel: R. Timothy Vannatta of R. Timothy Vannatta, P.A., Fort Lauderdale, for petitioner. Edward G. Guedes of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for respondent.
“If plaintiff is wrongfully required to answer defendant’s interrogatories, she is beyond relief. We conceive no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant, for truly ‘the moving finger having writ moves on nor any appeal shall lure it back to cancel half a line.’ ”1
unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party’s discovery.
Judicial discretion is not an unleashed power by which a judge may set at naught the rights of parties to a cause and define them as suits his will or the will of others who may seek to influence his judgment. Judicial discretion is a discretion guarded by the legal and moral conventions that mold the acceptable concept of right and justice. If this is not true, then judicial discretion, like equity, will depend on the length of the judge’s foot, the state of his temper, the intensity of his prejudice, or perhaps his zeal to reward or punish a litigant. It takes more than a woolsack and a judicial robe to dehumanize human characteristics that are rehumanized each biennium.
The Court Rules do not allow parties to unilaterally pick and choose which discovery they will produce and in what order. A contrary interpretation would allow parties to manipulate the discovery process by withholding certain discovery in an effort to obtain a strategic advantage in the litigation. . . . To allow defendant to withhold this discovery would fundamentally change how pretrial discovery is conducted and allow parties to delay production of certain discovery to gain an upper hand in the litigation. There is simply no sound reason to treat the video surveillance at issue differently from other routine discovery such as prior statements or admissions made by a party. If defendant is permitted to withhold the video surveillance, it would open the floodgates of motion practice. Parties would begin to routinely refuse to produce all evidence that would be more beneficial to produce after depositions are conducted.
. . .
Defendant has expressed concerns that if the video surveillance in question is produced prior to plaintiffs’ deposition, then plaintiffs’ unfettered, independent recollection will “be forever tainted.” This argument is not without merit. Nevertheless, the same argument could be advanced with respect to a practically limitless list of frequently produced discovery, including, but not limited to, police reports, witness statements, party admissions, emails, and photographs. . . . Allowing defendant to withhold the video surveillance until after plaintiffs’ depositions would lead to a slippery slope where, potentially, all discovery could be withheld out of concern that the information/material may influence or alter a party’s deposition testimony.
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