While personal injury litigation in Florida courts is not supposed to be a game of “gotcha,” or trial by ambush, Surf Drugs, Inc. v. Vermette, 236 So.108, 111 Fla.1970,” unless attorneys pay careful attention, it can happen in their cases. One of the ripest areas for this gamesmanship to occur is in the use of accident videotape.
Premise liability defendants often have videotape of the accident. Rarely is it produced presuit, even when doing so might head off a lawsuit. Proof that tried and true policies aren’t always the best. Even during suit, defendants resist turning over the tape. In the hope of catching Plaintiffs giving testimony inconsistent with the events captured on tape, even if the inconsistencies are based on a lack of clear memory or a lack of knowledge, rather than untruthfulness, they want to question plaintiffs before producing the accident footage.
The Florida law on the subject is that, if timely requested, the footage must be produced before the plaintiff must answer accident questions under oath. (Interrogatory answers and depositions are given under oath.) At the moment, Target Corp. v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010) is the only appellate level case to opine on the subject. Defendant wished to depose plaintiff before turning over the video (and accident scene photographs), contending that the “plaintiff was not accurately portraying the incident, citing medical records indicating that the plaintiff had told her doctor she fell flat on her back, a fact refuted by the video.” The plaintiff argued to the trial judge that she should be allowed to refresh her memory of the incident with the security video and photographs before being deposed. The trial judge agreed. The 4th DCA upheld the trial judge’s decision.
The 4th distinguished its circumstances from those in Dodson v. Persell, 390 So.2d 704 (Fla.1980), which involved surveillance videotape of the plaintiff captured by a private investigator after the accident. The Persell material fell under the work product privilege, unless intended for use at trial, Id. at 707, while the video and pictures in its case were “discoverable evidence under the Rules of Civil Procedure, which are designed ‘”to prevent the use of surprise, trickery, bluff and legal gymnastics.”‘ Surf Drugs, Inc. v. Vermette, 236 So.108, 111 Fla.1970.”
To avoid timing arguments, the plaintiff should propound a request for videotapes and photographs with the original service of process.
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