Herrick v. Wilson

59 A.3d 604, 429 N.J. Super. 402, 2012 WL 6757947, 2011 N.J. Super. LEXIS 239
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 27, 2011
StatusPublished
Cited by1 cases

This text of 59 A.3d 604 (Herrick v. Wilson) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herrick v. Wilson, 59 A.3d 604, 429 N.J. Super. 402, 2012 WL 6757947, 2011 N.J. Super. LEXIS 239 (N.J. Ct. App. 2011).

Opinion

MARCZYK, J.S.C.

I. FACTS AND PROCEDURAL HISTORY

The issue in this case is whether or not a defendant, in the context of a personal injury action, must produce a copy of video surveillance of the accident at issue in the law suit prior to the deposition of the plaintiff.

On May 6, 2009, plaintiffs Valerie and James Herrick (“plaintiffs”) were allegedly struck by a motor vehicle and injured while walking across a valet service road adjacent to the Trump Taj Mahal Casino (“defendant”) in Atlantic City, New Jersey. At the time of the incident, the motor vehicle, owned by Thomas Megoni-gle, was being operated by defendant Adrian L. Wilson (“Wilson”), an employee at defendant Trump Taj Mahal Casino. This event [404]*404was captured on security cameras owned and operated by defendant.

On August 18, 2010, plaintiffs served supplemental interrogatories and a notice to produce documents upon defendant, requesting that the videotape of the incident be produced. Defendant refused to produce the videotape and, on November 17, 2010, plaintiffs filed a motion to strike the answer and suppress the separate defenses of defendant for failure to provide discovery, specifically the videotape footage of the incident. In opposition to the instant motion, defendant asserts that plaintiffs’ review of the videotape prior to the taking of their depositions would preclude defendant from obtaining plaintiffs’ independent recollection of the accident. Rather, defendant argues that plaintiffs may unintentionally or intentionally adopt the video footage as their own recollection of the event. Relying on Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976), defendant maintains that it is entitled to obtain the plaintiffs’ independent, unfettered recollection of the events prior to production of the video at issue.

In contrast, plaintiffs submit that the New Jersey Court Rules expressly require the identification and production of video footage of the underlying incident. Specifically, plaintiffs note that Form C Uniform Interrogatory # 9 requires each defendant in a personal injury case to not only describe, but also to attach a copy of any photographs, videotapes, or other forms of electronic recordings made with respect to anything that is relevant to the subject matter of the complaint. Moreover, plaintiffs note that Rule 4:17-l(b)(4) provides, “[e]xeept as otherwise provided [e.g., where a claim of privilege is made or where the information is the subject of a protective order,] every question propounded by a uniform interrogatory must be answered unless the court has otherwise ordered.” As defendant has not asserted that the videotape is privileged, plaintiffs contend that, pursuant to the Rule 4:17—1(b)(4), it is entitled to production of the videotape prior to plaintiffs’ depositions.

[405]*405At this juncture the court must determine whether defendant is required to produce the videotape depicting the actual accident prior to plaintiffs’ depositions. This appears to be an area of first impression in the state of New Jersey.1

II. DISCUSSION

As a threshold matter, the videotape at issue is clearly discoverable pursuant to Rule 4:10-2. Defendant does not dispute that the video surveillance, which depicts the underlying incident, is relevant to the subject matter of this litigation. Moreover, defendant has not claimed that the videotape is privileged. Rather, defendant, relying on Jenkins, supra, 69 N.J. 50, 350 A.2d 473, seeks to postpone production of the videotape until plaintiffs have been deposed.

In Jenkins, the Supreme Court addressed whether the defendants, who had obtained post-accident surveillance of the plaintiff taken over two years after the underlying incident and three months after the plaintiff was deposed, could make the production of the surveillance contingent upon the plaintiff appearing for a second deposition. Id. at 53-55, 350 A.2d 473. The defendants, in that matter, resisted disclosing the video surveillance based on their claim that the video was prepared in anticipation of litigation and, therefore, was protected against disclosure pursuant to the work-product doctrine. Id. at 53, 350 A.2d 473. The Jenkins Court ultimately held that the video surveillance had to be produced by the defendant, but only after the plaintiff was deposed again. Id. at 60, 350 A.2d 473. The Court did not specifically consider the question at issue, that is, whether video surveillance of the incident giving rise to the lawsuit must be produced in the [406]*406normal course of discovery prior to plaintiffs’ depositions. In fact, the Court noted that “there may be circumstances which would compel deviation from the general rule” and left specific inquiries to the trial court’s discretion. Id. at 59, 350 A.2d 473.

This court finds that the holding in Jenkins is not controlling given the facts presented in this case. Specifically, the surveillance at issue in the Jenkins case was conducted well after the lawsuit was filed and after the plaintiffs deposition, whereas the videotape at issue in this matter is from the actual incident giving rise to this litigation. The court finds that there is a fundamental difference between video surveillance prepared during the course of litigation for the purpose of impeachment and routine surveillance conducted in the normal course of business, outside the context of litigation, which shows the actual incident. This court finds that the holding in Jenkins only applies to video surveillance specifically prepared in anticipation of litigation. As such, defendant has not provided any authority for the proposition that the video surveillance in this case should not be produced prior to plaintiffs’ depositions.

Analyzing the New Jersey Court Rules, the court finds that the video surveillance requested is discoverable pursuant to Rule 4:10-2, Rule 4:17, and Rule 4:18. The Court Rules do not allow parties to unilaterally pick and choose which discovery they will produce and in what order. A contrary interpretation would allow parties to manipulate the discovery process by withholding certain discovery in an effort to obtain a strategic advantage in the litigation. Our Court Rules do not provide for an exception for delaying the production of certain evidence that one party determines would be better produced after a party’s deposition. To allow defendant to withhold this discovery would fundamentally change how pretrial discovery is conducted and allow parties to delay production of certain discovery to gain an upper hand in the litigation. There is simply no sound reason to treat the video surveillance at issue differently from other routine discovery such as prior statements or admissions made by a party. If defendant [407]*407is permitted to withhold the video surveillance, it would open the floodgates of motion practice.

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Cite This Page — Counsel Stack

Bluebook (online)
59 A.3d 604, 429 N.J. Super. 402, 2012 WL 6757947, 2011 N.J. Super. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrick-v-wilson-njsuperctappdiv-2011.