Attached is a Memorandum of Law that I recently submitted in a slip and fall case in an attempt to secure the security video evidence of the fall before my client’s deposition. The defense argued that it should not be produced prior to the plaintiff’s deposition because of its impeachment value. The court focused on the word “solely” in Rule 26 and ordered the production before the plaintiff’s deposition.
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMIE E. MASSUNG,
Plaintiff,
vs.
DOLGENCORP, LLC t/d/b/a DOLLAR GENERAL and DOLLAR GENERAL,
Defendants.
CASE NO. 2:19-CV-01081-PLD
PLAINTIFF’S MEMORANDUM IN SUPPORT OF PRODUCTION OF SECURITY ACCIDENT SCENE VIDEO WITHOUT DELAY
Plaintiff slipped and fell in the direct view of a Dollar General Security video camera. Plaintiff seeks the production of the entirety of that day’s video of the accident scene prior to and after the slip and fall of the plaintiff. Defendant has stated that it will defer the production of this video until after the deposition of plaintiff. Plaintiff needs the security video to aid in the establishment of liability and to prepare for a scheduled mediation conference. Delay of production of the video will result in less than a two week window between the December 4, 2019 deposition of plaintiff and the scheduled mediation on December 18, 2019. Plaintiff contends that there is a difference between the instant security video and a post-accident surveillance video.
Rule 26. Duty to Disclose; General Provisions Governing Discovery provides as follows:
(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
The Third Circuit has not reviewed this issue. Viola v. Costco Wholesale Corporation, No. 18-cv-4661 (E.D. Pa. 2019) ordered the production of the security
video: “the entirety of the video footage Defendants have in their possession which allegedly records the events on the day plaintiff…fell inside Defendants’ store within seven (7) days of the date of this Order. Only thereafter may Plaintiffs’ depositions be taken.” (Order attached hereto.)
Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018) held that it was error for the defendant not to disclose a surveillance video pursuant to Rule 26.
In Williams v. D.P. Fence-North, LLC, No. S=1344-10 (Schuykill County 2011) illustrates that a Pennsylvania Common Pleas court held that a security video tape was not a surveillance tape made in anticipation of litigation and acts as an eyewitness to the event which must be produced before any depositions take place. (Opinion attached hereto.)
The two Circuit courts that have ruled on this issue focus on the meaning of the word “solely.” In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the court held that a post-accident surveillance tape was discoverable because it contained both substantive evidence and impeachment evidence. The court defined substantive evidence as that offered to establish the truth of a matter as opposed to impeachment evidence designed to discredit a witness. Klonoski v. Mahlab, 156 F.3d 255 (1st Cir. 1998), cited Chiasson in characterizing letters kept for impeachment as both substantive and impeachment evidence, therefore discoverable under Rule 26.
In Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018), that court reviewed the issue with respect to a security video taken at the scene of an arrest. That court noted that Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) had ruled that even in a secret video taken for post-accident injury evaluation that the term “solely” in Rule 26 was limited to evidence that has no potential utility other than impeachment; if the video had substantive value, it must be produced.
The relevant excerpt from Mulero:
(2) Exclusion of the Surveillance Video:
Next, Defendant Sheposh argues he is owed a new trial because I erroneously prohibited admission of a surveillance video. Federal Rule of Civil Procedure 26 requires the disclosure of certain information at the start of discovery. Specifically, this Rule requires parties to disclose, without request, “a copy—or a description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” FED. R. CIV. P. 26(a)(1)(A)(ii). This disclosure must occur within fourteen (14) days following the parties case management conference. FED. R. CIV. P. 26(a)(1)(C). The Rules explicitly provide for sanctions if the mandates of Rule 26 are ignored. FED. R. CIV. P. 37(c)(1). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at a trial, Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018) unless the failure was substantially justified or is harmless.” Id. The burden of establishing that a failure to disclose was either substantially justified or harmless rests on the party facing a request for exclusion. See R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010); Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D. Pa 2002) (Vanaskie, J.).
Notably, information used “solely for impeachment need not be disclosed pursuant to Rule 26(a)(1)(A), (C).[10] But, this exception to the broad rule favoring disclosure is quite limited. In fact, a number of courts have held that the impeachment exception is limited to evidence that has no potential utility other than impeachment. See, e.g., Standley v. Edmonds-Leach, 783 F.3d 1276, 1283 (5th Cir. 2015) (explaining that the term “solely” modifying the word “impeachment” is to be interpreted strictly); Chiasson, 988 F.2d at 517-18 (holding that a video tape, “regardless of its impeachment value,” must be disclosed because it is a the very least partially substantive); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (same).
Defendants were required by Rule 26(a) to produce the surveillance video within 14 days of the case management conference. The parties participated in a Rule 26(f) case management conference on April 14, 2016. (Docs. 13, 17.) This means that disclosures required by Rule 26(a) were to be provided to opposing counsel no later than April 28, 2016. On August 18, 2017-the day of the final pre-trial conference-Defendants provided Plaintiff with a surveillance video that purported to document the events giving rise to the instant dispute. I decided, like the majority of courts confronted with this issue, that the video was both substantive and impeaching in nature.[11] Thus, the video should have been produced by the end of April 2016. Because Defendant failed to comply with the mandates of Rule 26(a),
Defendant was sanctioned in accord with Rule 37(c)(1): I prohibited the use of the video at trial for substantive and impeachment purposes.
Defendant relies upon Snead v. Am. Export-Isbrandsen Line, 59 F.R.D. 148 (E.D Pa. 1973), Machi v. Metro. Life. Ins. Co., No. 07-1754, 2008 WL 2412947, at *1-2 (W.D. Pa. June 10, 2008, and Delacruz v. Walmart Store 5103, Walmart Associates, Inc., No. 10-5932 (E.D. Pa) cases.
It is important to note the distinction between a security video recording of an accident scene and a surreptitious/secret surveillance video recording of a plaintiff performing physical acts inconsistent with their claims of injury. The accident scene security video has predominantly substantive value as evidence of the underlying facts surrounding this accident. The secret surveillance video of inconsistent claimed disabilities, restrictions and limitations are limited in use by the defendant solely for impeachment.
Both Snead and Machi, supra. involved the secret types of videos created solely for impeachment purposes, or surveillance videos, and have a plausible argument that they were created solely for the impeachment purpose of disputing a claim of disability and did not contain substantive evidence. Delacruz, supra., involved an accident scene security video as does the instant case. That court cited Snead and Machi, without discussing the security video v. surveillance video difference of the two videos or why it did not feel compelled to follow Rule 26 (a) (1) (A) (ii). As noted above, the same Eastern District court reached an opposite and more recent decision, compelling production of the security video in Viola v. Costco Wholesale Corporation.
As noted above, Rule 26 compels production of this video as it does statements of eye witnesses and other evidence that plaintiff could use for trial. The primary value of this video is to ascertain substantive evidence exists to prove facts relevant to liability of defendant. The video is relevant to proof of facts surrounding the incident at issue in this case. Denial of production will only serve to delay and limit plaintiff’s preparation of this case and impair the value of the scheduled mediation.