IVELISSE CABEZUDO-VAZQUEZ, Plaintiff, v. ROSS DRESS FOR LESS, INC., Defendant. U.S. District Court, Southern District of Florida. Case No. 18-80469-CV-MIDDLEBROOKS. July 27, 2018. Donald M. Middlebrooks, Judge.

A. Background

On May 31, 2018, Plaintiff served her first Requests for Production on Defendant which included a request for all video evidence from the date of the alleged slip-and-fall depicting (1) the Plaintiff on Defendant’s premises, (2) the area where the slip-and-fall occurred both before and after the incident, and (3) the slip-and-fall itself. (DE 18 at 2). After the Parties stipulated that Defendant could reply to the discovery requests by July 6, 2018, Defendant objected to the relevant video requests, Nos. 14 through 17, based in part on assertions that the video was work product “sequestered in anticipation of litigation.” (DE 18 at 2-3; Ex. A). Although Defendant asserts that the videos are work product, Defendant then states that it “is prepared to produce the surveillance video following the completion of the Plaintiff’s deposition.” (Id.). The Parties dispute (1) whether the video is work product, and (2) whether delaying disclosure of the videos until after Plaintiff’s deposition is appropriate.

Motions to compel discovery under Rule 37(a) are committed to the discretion of the trial court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). The scope of discovery is governed by Fed. R. Civ. P. 26(b)(1), which states:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1) (emphasis added). Within the scope of Rule 26(b), Rule 34 permits the inspection of electronically stored information, including sound recordings and images on devices within the responding party’s possession, custody, or control. Fed. R. Civ. P. 34(a)(1).

B. Work-Product Doctrine

“The attorney-work-product doctrine protects from disclosure materials prepared by an attorney acting for his client in anticipation of litigation.” In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979)¹ (citing Hickman v. Taylor, 329 U.S. 495, 508 (1947)). The doctrine “protects materials prepared by the attorney, whether or not disclosed to the client.” Id. “[T]he party asserting the doctrine must demonstrate that at the time the materials were created or drafted, the entity must have anticipated litigation.” Holbourn v. NCL (Bahamas) Ltd., 305 F.R.D. 685, 687 (S.D. Fla. 2014) (quoting Schulte v. NCL (Bahamas) Ltd., No. 10-23265, 2011 WL 256542, at *2 (S.D. Fla. Jan. 25, 2011) [22 Fla. L. Weekly Fed. D574a]). “Thus, materials or documents drafted or created in the ordinary course of business are not protected.” Id. (quoting Schulte, 2011 WL 256542, at *2).

Here, Defendant admits that it “routinely records certain areas of its facility for various reasons,” and that the surveillance videos sought by Plaintiff were recorded as part of such practice. (DE 18 at 2-3); Holbourn, 305 F.R.D. at 687 (“[T]he Videos were obtained from surveillance cameras, hence created in the ordinary course of business.”). To support its argument, Defendant cites to a case decided in this district, Bolitho v. Home Depot, USA, Inc., No. 10-60053, 2010 WL 2639590 (S.D. Fla. June 29, 2010) where the court affirmed a magistrate judge’s report as not clearly erroneous after suggesting that it may have decided the case differently on a de novo review. Id. at *2. Moreover, in Bolitho, the court’s affirmance that surveillance video could be considered work product in that case was not relevant to the ultimate outcome, as the defendant was still required to turn over the tape after plaintiffs deposition. Id. Contrary to Defendant’s arguments, I am persuaded by the reasoning in the many courts in this district that have disagreed with Bolitho and held that where video consists of routinely-recorded surveillance, “the act of preserving the tape does not convert the tape into work product protected from disclosure.” Schulte, 2011 WL 256542, at *3; Holbourn, 305 F.R.D. at 687-88. The videos are clearly relevant, as they purportedly depict Defendant’s premises on the day of the slip-and-fall, including the incident that forms the basis of Plaintiff’s suit. Accordingly, Defendant’s objection based on the work-product doctrine is overruled.

C. Delayed Production of Videos until after Plaintiff’s Deposition

Notwithstanding its assertion that the videos are work product, Defendant is willing to produce the videos after Plaintiffs deposition. Defendant argues that it should be permitted to depose Plaintiff based on Plaintiff’s “unadulterated and independent recollection of the incident” without Plaintiff having the benefit of watching the requested videos. (DE 21 at 2-5).

There is no dispute that “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.” Crawford-El v. Britton, 523 U.S. 574, 598 (1998). Here, as in Schulte, “Defendant has failed to point to any aspect of the video, and/or any action by Plaintiff[ ] that would cause this Court to find that disclosure of the video would lead Plaintiff to improperly tailor her testimony. As such, there appears to be little, if any, prejudice to the Defendant if the Plaintiff is permitted to view the video to refresh her recollection prior to her deposition.” Schulte, 2011 WL 256542, at *4; Jones-Graham v. Advance Stores Co., Inc., No. 14-81411, 2015 WL 4365317, at *2 (S.D. Fla. July 14, 2015).

Moreover, where, as here, “the primary evidentiary value of the [v]ideos is proof of the facts surrounding the incident underlying this litigation[,] and their impeachment value is secondary,” courts have routinely denied any attempts to delay disclosure until after a plaintiff’s deposition. Holbourn, 305 F.R.D. at 689; Muzaffarr v. Ross Dress for Less, Inc., 941 F. Supp. 2d 1373, 1375 (S.D. Fla. 2013) [24 Fla. L. Weekly Fed. D44b] (“Where the substantive value of the evidence predominates, courts have held that production should not be delayed until after deposition.” (citation and internal quotations omitted)). The videos requested here document (1) the subject incident, and (2) Plaintiff at Defendant’s store and the specific area where the incident took place on the date of the slip-and-fall. As such, the videos’ primary evidentiary value goes to the heart of Plaintiff’s claim. Absent a specific reason to believe Plaintiff may tailor her testimony, I see no reason to delay Defendant’s production of the requested videos until after Plaintiff’s deposition.

D. Attorney’s Fees and Costs

Plaintiff also requests attorney’s fees and costs associated with filling the instant Motion pursuant to Fed. R. Civ. P. 37(a)(5). Rule 37(a)(5) provides that if a motion to compel discovery is granted, “the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” However, a court must not order this payment under certain circumstances, including whether “the opposing party’s nondisclosure, response, or objection was substantially justified.” Fed. R. Civ. P. 37(a)(5)(A)(ii). “Substantially justified means that reasonable people could differ as to the appropriateness of the contested action.” Maddow v. Procter & Gamble Co., 107 F.3d 846, 853 (11th Cir. 1997).

Here, although Defendant’s counsel devotes little space to its argument that the videos are work product in its response, its primary objection to Plaintiff’s discovery request was based on the work-product doctrine, save for the last sentence where it agreed to produce the videos only after Plaintiff’s deposition. Defendant’s counsel’s attempt to paint the picture that reasonable minds could differ as to whether routinely-recorded surveillance videos are work product is unavailing; they clearly are not. Thus, Defendant’s counsel’s objection based on the work-product doctrine is not substantially justified. Moreover, Defendant’s counsel was not substantially justified in refusing to produce the videos until after Plaintiff’s deposition, especially given the manner in which it objected. Defendant was required to respond to Plaintiff’s request within thirty days, and after Plaintiff generously agreed to a brief extension, Defendant objected to the production of videos until after Plaintiff’s deposition, which was just one week away at the time. Defendant’s counsel’s conduct has resulted in unnecessary litigation expenses related to this discovery dispute and to rescheduling Plaintiffs deposition. Accordingly, it is hereby

ORDERED AND ADJUDGED that:

(1) Plaintiffs Motion to Compel (DE 18) is GRANTED. Defendant must produce the requested videos at least one week before Plaintiffs deposition and in any case no later than three days from the entry of this Order.

(2) Plaintiff is awarded reasonable attorney’s fees and costs incurred in filing this motion from Defendant’s counsel, and may file an appropriate motion setting forth the same. Before doing so, Plaintiff must strictly comply with S.D. Fla. Local Rule 7.3 and engage in a good faith effort to resolve the motion before filing.

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¹The Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).