Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

February 1, 2019 by Jennifer Kennedy

Torts — Discovery — Surveillance video — Appeals — Certiorari — Petitioner failed to demonstrate that trial court departed from essential requirements of law resulting in material injury not correctable on post judgment appeal by requiring petitioner to produce, in advance of deposition of plaintiff, a surveillance video taken on the date of alleged incident on which personal injury lawsuit was based

44 Fla. L. Weekly D326a

Torts — Discovery — Surveillance video — Appeals — Certiorari — Petitioner failed to demonstrate that trial court departed from essential requirements of law resulting in material injury not correctable on post judgment appeal by requiring petitioner to produce, in advance of deposition of plaintiff, a surveillance video taken on the date of alleged incident on which personal injury lawsuit was based

BUSINESS TELECOMMUNICATIONS SERVICES, INC., Petitioner, v. ELENA MADRIGAL, Respondent. 3rd District. Case No. 3D18-2106. L.T. Case No. 18-12423. January 30, 2019. On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge. Counsel: GrayRobinson, P.A., and Jack R. Reiter and Jordan S. Kosches, for petitioner. Grossman Roth Yaffa Cohen, P.A., and Rachel W. Furst, for respondent.

(Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.)

(SALTER, J.) Business Telecommunications Services, Inc. (“BTI”), seeks a writ of certiorari quashing an order requiring the production of a surveillance video in advance of the deposition of the plaintiff in a personal injury case, Elena Madrigal. We deny the petition.

BTI’s reliance on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980), is misplaced. In Dodson, the Supreme Court of Florida considered surveillance “movies and photographs,” and held in part that “within the trial court’s discretion, the surveilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection.” Id. at 705. In that case, however, it is apparent that the surveillance information involved surveillance of the plaintiff after the accident, not surveillance of the accident scene at the date of the accident (or even the accident itself, as it occurred).

In the present case, the petition, response, reply, and appendices disclose that the surveillance video was taken on the date of the alleged incident (the date alleged in Ms. Madrigal’s complaint). BTI alleges that the first notice it received of Ms. Madrigal’s claim was the date BTI received the complaint, which was over five months after the date of the accident as alleged in the complaint. The videotape is not, in short, a surveillance video of a claimant taken well after an alleged injury to impeach the claimant’s testimony regarding the effect of the alleged injury on the claimant. See, e.g., Willie-Koonce v. Miami Sunshine Transfer & Tours Corp., 233 So. 3d 1271 (Fla. 3d DCA 2017).

Our sibling district court applied this distinction in Target Corp. v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010), finding no abuse of discretion in an order requiring production of accident scene photos before the plaintiff’s deposition. In a later opinion, however, that court denied certiorari review of an order denying a plaintiff’s motion to require the defendant to produce in-store security video of an incident prior to deposing the plaintiff. McClure v. Publix Super Markets, Inc., 124 So. 3d 998 (Fla. 4th DCA 2013). The dissent in that case argues that Target Corp. “properly treated the security camera issue as involving ordinary discovery requests and not any protected work product.” 124 So. 3d at 1001 (Warner, J., dissenting).

That dissent in McClure also addresses reported cases in other states and in federal courts and the circuit courts in Florida. Those cases reach varying results, although the dissent in McClure argues that “in Florida the vast weight of authority rejects the withholding of security video until after the plaintiff’s deposition is taken, unless specific factual circumstances in a particular case provide for a contrary result.” Id. at 1002-03 (original emphasis).

This category of date-of-accident videotape is distinguishable from post-accident surveillance videos of a plaintiff’s activities. Given our normal deference to trial court discretion in matters of pretrial discovery and the lack of a bright-line rule or controlling precedent on this question, we conclude that BTI has not satisfied its obligations under certiorari review: to demonstrate a departure from the essential requirements of law resulting in a material injury for the remainder of the case which cannot be corrected on postjudgment appeal. Racetrac Petroleum, Inc. v. Sewell, 150 So. 3d 1247, 1251 (Fla. 3d DCA 2014).

Petition denied.

* * *

Filed Under: Uncategorized

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982