Is Video Surveillance Discoverable ESI or Privileged Work-Product?
We know that many stores employ video surveillance systems, and that the records would fall into the category of electronic storage information. A more complex question looks towards whether video surveillance, as ESI, can be considered protected work product. The court took up this issue in Sowell v. TARGET CORPORATION, No. 5: 14-cv-93-RS-GRJ (N.D. Fla. May 28, 2014).
In the case, Plaintiff alleged that she was injured as a result of a slip and fall in a Target Store. Part of routine plaintiff eDiscovery requests asked for Defendant to produce a copy of any video that would show where Plaintiff fell or the area in which Plaintiff fell. Defendant sought to protect the video as work product.
There are a few things to consider. First, Hickman v. Taylor, 329 U.S. 495 (1947) and Rule 26(b)(3) of the FDRC laid out that a party, generally, may not discover documents and tangible things that are prepared in anticipation of litigation or for trial. Secondly, the burden is on Defendant to show that the document or thing should be afforded work-product protection.
There seems to be no consensus among courts as to whether surveillance videos are prepared in anticipation of litigation and therefore subject to protection as work product. However, in Schulte v. NCL (Bahamas) Ltd., no. 10-23265-CIV, 2011 WL 256542 (S.D. Fla. Jan. 25, 2011) the court concluded that surveillance video of a slip and fall incident aboard a cruise ship was not protected work product even though it was copied and preserved at the request of counsel for the cruise line. The court here reasoned that, “It would be anomalous, to say the least, if by ordering a client to preserve evidence created in the ordinary course of business, in anticipation of litigation, counsel was able to shield that evidence from production based upon work product protection.” Id.
The court here concludes that the mere act of preserving a tape, as opposed to creating the original, is not sufficient to transform a document created in the ordinary course of business into work product that is protected from disclosure. The court expands its reasoning further when it states, “Indeed, if that was the law, literally every piece of electronically stored information (“ESI”) preserved by a defendant as part of a defendant’s duty of preservation would be off limits in discovery because it would be considered work product.”
However, there is more to the story. Defendant then sought to delay production of the video until after Plaintiff’s deposition, so as not to prejudice her recollection. Will the court agree? Part II to follow.