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Video Surveillance

If a party takes video surveillance of another party (for example to demonstrate that he is faking the extent of injuries claimed in a tort case) it may be considered work product. Upon receiving a request to produce or interrogatories on the issue, the party taking the video will have to disclose its existence, but may not have to produce the video unless it intends to introduce it as evidence at trial. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973). However if it does intend to use it at trial, the video taking party may be allowed to introduce the video to a witness at a deposition first, before production, in order to preserve the impeachment value of the video evidence.

However a static video made by a surveillance camera in a store may not be considered work product. See Target Corporation v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010). The Florida District Court of Appeal held that, "the video in this case was not protected work product, prepared 'to aid counsel in trying the case.' Id. Rather, it was a video of the accident itself, 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.2d 108, 111 (Fla.1970). Even if the photographs of the accident scene are characterized as work product, given the circuit court's broad discretion in overseeing discovery, we find no abuse of discretion in the order requiring their production before Vogel's deposition."

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