A few years ago, Publix retrofit its stores with video surveillance practically in every aisle. Odds are that if you have an incident in the store, it will be captured on video. Publix will not provide you with a copy of the video before a lawsuit is filed; however, you should ask Publix to preserve the video at the time of the incident. This is one of my tips for all people injured because of a trip, slip and fall.
The dispute regarding business video surveillance is whether the business, like Publix, has to provide a copy of the video and the timing of the production. In a case against Target stores (handled by my friend and colleague Jeffrey Rollins) a few years ago, the Fourth District Court of Appeal said that the video surveillance of the incident is discoverable, which means the store has to give it up. In Target, the store took the position that the surveillance was similar to video surveillance, when Target or Publix or any other defendant, would hire a private investigator to follow an injured person around a take video so it only had to produce the video if it was going to use the video at trial. The Fourth District said no – you have to provide injured person with a copy of the video.
In a recent case decided by the Fourth District, the issue decided was when Publix had to produce the video. The injured person’s lawyer wanted the video before her deposition and Publix wanted to give the video after the deposition. Of course Publix wanted the give the video over after the deposition because if the injured person’s testimony was not supported by the video, Publix could use the video to impeach the injured person’s credibility.
Anyway, the injured person’s lawyer went to the trial court and asked the judge to tell Publix to provide the video before the deposition. The trial judge said no. The injured person asked the court of appeal to look at the issue, and the court of appeal let the trial judge’s order stand. So, the injured person has to give her deposition before she can see the video.
Now defendants like Publix are going to take the position that they don’t have to give the video surveillance of the incident before an injured person’s deposition. However, this is not what this case stands for. What the court of appeal said was that a trial judge has wide discretion and latitude to handle the timing of issues within his court, and it could not overturn the order because the judge did not abuse his/her discretion.
Injured folks all over the state are going to have to deal with this issue because of the recent opinion. The defense bar is going to hand it to trial judges and argue that the law says they don’t have to turn over the video to after the injured person’s deposition – but that is not what the opinion says. The ripple effect of this case will now impact every injured person who files a lawsuit when video surveillance captures the incident.