United States District Court, S.D. Georgia, Brunswick Division
JAMES E. GRAHAM, Magistrate Judge.
Plaintiff has filed a Motion for Order Compelling Disclosure of Photographs, Surveillance Video, and Incident Report. (Doc. II). Defendant has filed a Response (doc. 12), and Plaintiff has filed a Reply (doc. 16). The Court rules as follows:
1. Photographs - Plaintiff moves the Court to order Defendant to produce "all photographs depicting the area where Ethel subject incident occurred." (Doc. 11, p. 11). Plaintiff cites Defendant's response to interrogatory that "photographs were taken at the time of [the] investigation" of the incident. (Id. at Exh. D, p. 38). Defendant asserts that there are no photographs of the incident scene itself and that after Plaintiff filed the instant Motion, Defendant provided to Plaintiff all previously undisclosed photographs in Defendant's possession. (Doc. 12, pp. 7-8).
Based on Defendant's representations, it appears that this portion of Plaintiff's Motion is moot. This portion of Plaintiffs Motion is DISMISSED.
2. Surveillance Video - Plaintiff also seeks production of "all surveillance videotapes in any way depicting [the] subject incident prior to depositions" of Plaintiff and eyewitness Mr. Tim Overstreet. (Doc. II, p. 11). Plaintiff emphasizes that production of such video will allow Plaintiff to refresh her recollection and will eliminate an otherwise unfair advantage for Defendant during the depositions. (Id. at pp. 7-8). Defendant maintains that the surveillance video is not discoverable, because the video is work product for which Plaintiff has not shown a substantial need. (Doc. 12, pp. 2-3). Alternatively, Defendant seeks to withhold production of the surveillance video until after deposing both Plaintiff and Mr. Overstreet. (Id. at 3-5).
Federal Rule of Civil Procedure 26(b)(3)(A) sets forth the parameters of the work product doctrine:
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Work product thus encompasses not only materials that an attorney has prepared but also materials prepared "by or for a party or any representative acting on his behalf." Fed.R.Civ.P. 26 advisory committee's note. A party invoking work-product protection must show that the material was "prepared for litigation purposes and not merely in the ordinary course of business." Jackson v. Deen, No. CV412-139 , 2013 WL 1911445, at *10 n.21 (S.D. Ga. May 8, 2013) ("A party must anticipate litigation at the time the documents were drafted.... Materials or documents drafted in the ordinary course of business are not protected."). The focus, then, in assessing whether the work product doctrine applies is when and why the material was created. Id.
Defendant recorded the video of the incident during the routine recording of its store surveillance system. (Doc. 12, p. 2). Defendant does not allege that it maintains the surveillance system in anticipation of litigation. See Sowell v. Target Corp., No. 5:14-cv-93, 2014 WL 2208058, at *2 (N.D. Fla. May 28, 2014) ("Indeed, common sense dictates that store surveillance videos are utilized by stores to prevent and detect theft by customers or by store employees."). It therefore appears that the video of the incident was recorded in the ordinary course of Defendant's business and is not protected work product.
Defendant's act of preserving the footage of the incident beyond the time when the system normally deletes videos, though done for the purposes of litigation, is not sufficient to transform the video into work product. At that time, Defendant had a duty to preserve the video to avoid spoliation of evidence. See Schulte v. NCL (Bahamas) Ltd., No. 10-23265-dy, 2011 WL 256542, at *3 (S.D. Fla. Jan. 25, 2011) ("It would be anomalous, to say the least, if by ordering a client to preserve evidence created in the ordinary of business, in anticipation of litigation, counsel was able to shield that evidence from production based upon work product protection.").
While the surveillance video is subject to discovery, the Court retains the discretion to determine the timing of such discovery. See Fed.R.Civ.P. 26(d). Consistent with this Court's recent decision in Pate v. Winn-Dixie Stores, Inc., No. CV213-166, 2014 U.S. Dist. LEXIS 25494, at *3 (S.D. Ga Feb. 20, 2014), the Court finds that Defendant should have an opportunity to depose Plaintiff and Mr. Overstreet based on their own independent, unrefreshed recollections of the incident, prior to producing the surveillance video. Plaintiff will not suffer any prejudice from delaying production of the surveillance video. If either deponent has limited recollection as to any details of the incident, he or she may testify to that.
This portion of Plaintiffs Motion is GRANTED in part. Defendant shall produce the surveillance video but need not do so until after ...