40 Fla. L. Weekly D195a
essential requirements of law in permitting plaintiff to view a post-accident
surveillance video before her deposition — Fairness requires that a defendant
be permitted to depose plaintiff before turning over a surveillance video
Case No. 4D14-4207. January 7, 2015. Petition for writ of certiorari to the
Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily
Rodriguez-Powell, Judge; L.T. Case No. CACE 13-16053 03. Counsel: Kansas R.
Gooden of Boyd & Jenerette, P.A., Jacksonville, and Thomas A. Berger of Boyd
& Jenerette, P.A., Coconut Creek, for petitioner. Joseph Abdallah of Kanner
& Pintaluga, P.A., Delray Beach, for respondent.
below, seeks certiorari review of a trial court order which permits the
plaintiff to view a post-accident surveillance video before a deposition.
Because the benefit of the surveillance video may be irreparably lost if the
plaintiff is permitted to view the video before Hankerson has an opportunity to
question her, irreparable harm for certiorari jurisdiction has been shown, so we
grant the writ and quash the order of the circuit court.
Dodson v. Persell, 390 So. 2d 704 (Fla. 1980), fairness requires that a
defendant be permitted to depose the plaintiff before turning over a
surveillance video. The relevant portion of Dodson provides:
Fifth, we recognize that there is some merit in respondent’s
contention that surveillance can prevent fraudulent and overstated claims. In
this regard, 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. We note that under present procedural time
constraints, the surveilling party in a personal injury action ordinarily has
the opportunity to take discovery in this manner without any court order. In
our view, the trial court’s discretion to allow the discovery deposition before
disclosure is an appropriate middle road to ensure that all relevant evidence
reaches the trier of fact in a fair and accurate fashion. See Jenkins v.
Rainner, 69 N.J. 50, 350 A.2d 473 (1976).
the effect of establishing a bright line rule regarding work product,
post-accident surveillance videos in personal injury cases. Based upon
Dodson, the third district has granted second-tier certiorari review of a
county court order which required production of a surveillance video before a
deposition. State Farm Fire & Cas. Co. v. H Rehab, Inc., 56 So. 3d
55, 56 (Fla. 3d DCA 2011) (granting second-tier certiorari of a circuit court
order affirming trial court’s order requiring production of surveillance before
deposition); State Farm Mut. Auto. Ins. Co. v. H Rehab, Inc., 77 So. 3d
724, 725 (Fla. 3d DCA 2011) (granting second-tier certiorari for the second time
between these parties and remanding “with instructions that State Farm is not
required to produce the surveillance video/DVD prior to taking the deposition”).
The essence of the holding in the H Rehab cases is that a trial court
abuses its discretion where it permits a plaintiff to view a post-accident
surveillance video before allowing a defendant to depose the plaintiff. A bright
line rule is preferable in this area because it will impose uniformity and avoid
disparate rulings based primarily on the identity of the trial judge. (Warner
and Taylor, JJ., concur.)
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