Opinion
HHDCV126030536S.
11-29-2012
Frederick RACE v. WAL-MART STORES, INC.
UNPUBLISHED OPINION
DAVID SHERIDAN, Judge.
This is a premises liability case seeking injuries for a slip and fall that allegedly occurred at the Newington Wal-Mart Store on August 7, 2011 at approximately 11:54 a.m. The plaintiff filed standard form interrogatories and requests for production and, in response to an interrogatory pertaining to " surveillance material discoverable under Practice Book § 13-3(c), " the defendant disclosed the existence of a " video tape believed to be of plaintiff taken on August 7, 2011." In response to the accompanying standard form request for production, the defendant responded that it would produce the videotape in accordance with Practice Book Section 13-3(c), i.e., thirty days after the completion of the deposition of the plaintiff.
Plaintiff now seeks permission to file non-standard discovery requests seeking the immediate production of the videotape identified in the interrogatory responses. The plaintiff represents in its motion (and the defendant has not contested this description) that the requested video " is a store surveillance video which documents the subject incident." The defendant objects to the motion, claiming that the video tape is a " recording of the requesting party" within the meaning of Practice Book § 13-3(c) to which appropriate discovery responses have been provided, and therefore the standard form production requests are appropriate and adequate for this action, and the plaintiff should be limited to those requests.
The court grants the motion for permission to file non-standard requests for production. The court agrees with the plaintiff that the subject video, as described, is not a " recording of a party" within the meaning of Practice Book § 13-3(c). In making this determination, the court recognizes that the language of Section 13-3(c) would appear on its face to encompass " any recording" of the plaintiff and, for that reason, the defendant's position is not without merit.
However, the court takes note of the Official Commentary to the 2008 Amendments (Section 13-3(c) was added by amendment in 2008) and the various decisions from other jurisdictions that are cited therein. The emphasis of those cases and the concern of the drafters of Section 13-3(c) was the discoverability of " pre-trial surveillance material." Pre-trial surveillance materials are described in one of the cases cited by the drafters as follows: " Personal injury defendants secure surveillance materials in order to verify the extent of a plaintiff's purported injuries and introduce them because they are powerful and immediate images that cast doubt upon the plaintiff's claims. And indeed, if accurate and authentic, a surveillance film that undercuts a plaintiff's claims of injury may be devastatingly probative." DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 193, 604 N.E.2d 63, 590 N.Y.S.2d 1 (1992). None of the cases cited by the drafters is concerned with video which, by fortuitous circumstances, happens to be taken of the incident itself as it occurs. All of the cases concern videos procured at some point after the incident which caused the injury and are intended to cast doubt upon the plaintiff's credibility as to the extent of his injuries and disabilities.
It seems evident to the court that the drafters of Section 13-3(c) intended it to apply narrowly to such " pre-trial surveillance materials, " despite the use of the broad and expansive phrase " any recordings." The court finds further evidence of this intent in the Official Practice Book Forms for interrogatories and requests for production for use in motor vehicle and premises liability personal injury cases (Forms 201 through 206). All of those forms include discovery requests explicitly referring to " surveillance material discoverable under Practice Book Section 13-3(c)."
This court's research did not reveal a Connecticut trial court or appellate decision on this point, and neither of the parties has directed the court to any such authority. However, in similar circumstances, Florida's Fourth District Court of Appeal highlighted the distinction for discovery purposes between a store security video and a covert investigator's video of a personal injury plaintiff. In Target Corporation v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010), the plaintiff Target challenged the trial court's order compelling production, prior to the defendant's deposition, of a store security video (taken by a mounted camera within the store) of the defendant's slip and fall. The court contrasted a routine store security video with the specially procured surveillance video of a purportedly injured plaintiff taken after the accident occurred. Such covert videos, usually taken by retained private investigators, are often granted qualified protection from discovery under the work product privilege. The Fourth District Court of Appeal held that the store security video was not work product prepared " to aid counsel in trying the case." Rather, it was a video of the specific incident in question, discoverable under Florida's Rules of Civil Procedure.
The court agrees with the Florida court's analysis and believes similar logic should be applied to Practice Book Section 13-3(c). If, as represented, the video in this case is from a fixed store security camera and depicts the plaintiff within the Newington Wal-Mart Store on August 7, 2011 at approximately 11:54 a.m., then it is not a recording exclusively of the plaintiff, but in fact a recording of a store interior and anyone or everyone— not just the plaintiff— within that view of that camera. For that reason it is not " a recording of a party" intended to be protected by Practice Book Section 13-3(c) from disclosure prior to the plaintiff's deposition because it is not prepared for the litigation and not the type of work product/pre-trial surveillance material which Practice Book Section 13-3(c) was intended to protect.
Although as previously mentioned, given the wording of Practice Book Section 13-3(c), the defendant's position is well-taken, the court believes that a strict interpretation of Section 13-3(c) to permit the withholding of " any recording" of the plaintiff until 60 days after the completion of the plaintiff's deposition would not harmonize with the spirit of the discovery rules that govern civil litigation in our state. " The discovery rules are designed to facilitate trial proceedings and to make a ‘ trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.’ " (Internal quotation marks omitted.) Perez v. Mount Sinai Hospital, 7 Conn. .App. 514, 519, 509 A.2d 552 (1986). The Rules of Practice are intended to be interpreted liberally in any case where it is manifest that strict adherence to the Rules would work surprise or injustice, See Practice Book Section 1-8. A departure from strict adherence is warranted in this case.
Accordingly, because the standard form production requests in Practice Book Form 206 do not encompass video recordings beyond those specifically discoverable under Practice Book Section 13-3(c), the plaintiff will be granted permission to file a non-standard request for production regarding the store security video in question.