In her recent opinion, U.S. District Court Judge Lynne A. Sitarski of the Eastern District of Pennsylvania distinguished between a surveillance video and a security video in the context of discovery in a personal injury case. Sitarski’s opinion builds on existing case law to address when a defendant must disclose and produce a surveillance video or a security video to a personal injury plaintiff.

Background

In Dietzel v. Costco Wholesale, the plaintiff allegedly tripped and fell on an uneven sidewalk when he attempted to enter the defendant’s retail store. During discovery, the plaintiff sought “any and all video surveillance” from the defendant on the date of his alleged injury. The plaintiff made that request prior to his deposition. The defendant objected to the request. According to the defendant, “‘even if there was video surveillance of the alleged incident,’ the defendant need not produce it until after the plaintiff’s depositions are completed.” The defendant argued that postponing disclosure until after the plaintiff’s deposition would ensure that the plaintiff’s testimony reflected his personal memory of the incident, rather than what he might see on video, and enable the defendant to impeach the plaintiff regarding any inconsistencies between his testimony and the video footage. The plaintiff filed a motion to compel the production of any surveillance video.

Surveillance Video or Security Video

The court reasoned that the resolution of the dispute turned on whether the video qualified as a surveillance video or a security video. In resolving the dispute, the court relied on Williams v. D.P. Fence-North.

According to the Williams court, surveillance videos depict a plaintiff after an alleged personal injury has already occurred. Surveillance videos are created in anticipation of litigation and are typically made for the purpose of impeaching a plaintiff’s testimony regarding the severity or extent of the plaintiff’s purported injuries. The Williams court explained that surveillance videos are discoverable, but a defendant need not produce such videos until after the plaintiff’s deposition.

By contrast, a security video depicts the incident that allegedly caused the plaintiff’s purported injuries. Unlike a surveillance video, a security video is not created in anticipation of litigation. A security video is made in the regular course of business. The court reasoned that the importance of a security video in assisting the parties in the search for truth outweighed any potential impeachment value to the defendant. Thus, the Williams court held that a security video must be produced in the normal course of discovery, prior to a plaintiff’s deposition, if so requested.

This reasoning is consistent with prior Pennsylvania case law, the lineage of which appears to originate with an opinion written by U.S. District Court Judge J. William Ditter Jr. of the Eastern District of Pennsylvania in 1973. In Snead v. American Export-Isbrandtsen Lines, a merchant seaman brought suit to recover damages resulting from an alleged injury suffered onboard a ship the defendant operated. The defendant refused to answer the plaintiff’s interrogatories regarding whether any secret videos were taken to reveal the true nature and extent of the plaintiff’s injuries. Therefore, the plaintiff sought an order compelling the defendant to answer. The court crafted a rule designed to balance the parties competing interests:

“I conclude these purposes can best be achieved by requiring the defense to disclose the existence of surveillance films or be barred from showing them at trial. If the defense has films and decides it wants to use them, they should be exhibited to the plaintiff and his counsel. If filed, supplementary interrogatories should be answered giving full information as to the details surrounding the taking of these pictures.”

Before any of these disclosures, however, the defense must be given an opportunity to depose the plaintiff fully as to his injuries, their effects and his present disabilities. Once his testimony is memorialized in deposition, any variation he may make at trial to conform to the surveillance films can be used to impeach his credibility, and his knowledge at deposition that the films may exist should have a salutary effect on any tendency to be expansive.

Courts outside of Pennsylvania have adopted similar rules with respect to the production of surveillance videos and security videos. In Dodson v. Persell, the Florida Supreme Court held that the existence of surveillance videos is discoverable in every instance; the contents of surveillance videos are discoverable if the videos will be used substantively or for impeachment; but within the trial court’s discretion, the surveilling party has the right to depose the party or witness filmed before producing the video. The Dodson court recognized that:

“There is some merit in the respondent’s contention that surveillance can prevent fraudulent and overstated claims. In this regard, fairness requires that we allow the use of surveillance materials to establish any inconsistency in a claim by allowing the surveilling party to depose the party surveilled after the movies have been taken or evidence acquired but before their contents are presented for the adversary’s pretrial examination.”

In our view, the trial court’s discretion to allow the discovery deposition before disclosure is an appropriate middle road to ensure that all relevant evidence reaches the trier of fact in a fair and accurate fashion.

New Jersey employs similar reasoning. In Herrick v. Wilson, the plaintiff was allegedly struck and injured by a motor vehicle. Security cameras owned and operated by the defendant recorded the incident. Thus, while the Herrick court described it as a “surveillance video,” it was, under the Dietzel court’s parlance, a “security video.” Identifying the issue as one of first impression in New Jersey, the Herrick court held that the plaintiff was entitled to production of the video prior to the plaintiff’s deposition. In doing so, the court emphasized a “fundamental difference between video surveillance prepared during the course of litigation for the purpose of impeachment and routine surveillance video conducted in the normal course of business, outside the context of litigation, which shows the actual incident.”

Conclusion

Although the terms “surveillance video” and “security video” may seem interchangeable in ordinary vernacular, Pennsylvania practitioners would be wise to recognize the terms’ substantive differences. A surveillance video—one created in anticipation of litigation, after the underlying incident at issue, and intended for impeachment purposes—is discoverable but, in Pennsylvania and other jurisdictions, need not be produced until after the plaintiff’s deposition. In contrast, a security video—one created in the normal course of business, depicting the incident at issue—is discoverable and should be produced in the normal course of discovery, prior to the plaintiff’s deposition if timely requested. The terms themselves—a surveillance video or a security video—are practically irrelevant. Irrespective of the name used to describe a video, the substance of the video and purpose for which it was created is ultimately what matters.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.