Jeffrey P. Gale, P.A. // Obtain Accident Video Before Plaintiff’s Deposition in Florida Premises Liability Cases

In this day and age of surveillance cameras everywhere, it is not uncommon for premises accidents to be captured on video. For various reasons it is critically important for the plaintiff’s attorney to secure a copy of all videos as soon as possible. One of the most important reasons is to enable the victim to recount the accident before giving sworn testimony wholly on memory. Even truthful witnesses can have a shaky grasp of the facts. Time, excitement, injury, uncertainty, nervousness — all can work against an accurate account of a traumatic event.

Once a lawsuit is filed and served, the parties to a premises liability action typically engage in what is known as Discovery. Interrogatories, which are questions answered under oath, and live testimony by deposition are two of the most common discovery vehicles. The mechanism of injury is usually at issue in premises liability cases. How and why did the accident happen?

In Business Telecommunications Services, Inc. v. Elena Madrigal, Case No. 3D18-2106, (Fla. 3rd DCA 2019), the appellant Business Telecommunications Services, Inc. was ordered by the trial court to turn over a surveillance video in advance of the deposition of the plaintiff in a personal injury case. The defendant appealed the court order, relying on cases such as Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). The 3rd DCA decided that such reliance was misplaced, and thus refused to reverse the trial court’s order.

Defendants often hire investigators to follow claimants in hopes of capturing video of them engaging in physical activities beyond what has been claimed. Dodson involved surveillance of the plaintiff after the accident, not surveillance of the accident scene on the date of the accident (or even the accident itself, as it occurred). The court distinguished this type of surveillance from the type of surveillance video involved in the subject case, which was taken on the date of the incident. As the court explained, the former is “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,” while the latter was not gathered for impeachment purposes. (The opinion does not indicate if the same day video shows the accident.)

The Fourth DCA, a sister court of the 3rd DCA — which issued Madrigal, has ruled both ways on this issue. In a 2010 case, Target Corp. v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010), the appeals court upheld a trial court 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).

While discovery opinions abound, the Florida Supreme Court has yet to rule on this particular issue. Since trial judges are given wide latitude on discovery issues and this particular issue tends to be very case specific, we may never get a blanket ruling from the Supreme Court on this issue.