NJ Federal Court Thrusts Surveillance Evidence Back into the Shadows

As we have previously reported, even the best surveillance evidence of the plaintiff is only as good as its potential to contradict damages or impeach credibility. With that value in mind, the majority of jurisdictions hold that post-accident surveillance is only discoverable after the defendant has had the opportunity to depose the plaintiff and memorialize his independent account of both the incident and damages. However, at least one federal magistrate judge in New Jersey recently indulged a markedly different interpretation of the discovery rules, and held that post-accident surveillance must be disclosed immediately.

In the case of Gardner v. Norfolk Southern Corporation, the plaintiffs filed suit after their motor vehicle struck a deteriorated railroad crossing operated by Norfolk Southern. Shortly after joinder of issue, plaintiffs served Norfolk Southern with discovery demand seeking, among other things, “sound, photographic, motion picture film, personal sight or any other type of surveillance” evidence. Unsurprisingly, Norfolk Southern objected and later filed a motion for a protective order in the United States District Court for the District of New Jersey seeking staggered disclosure of surveillance it had conducted.

In analyzing the discovery issues, Magistrate Judge Ann Marie Donio traced precedent from around the nation revealing an overwhelming majority of federal courts that have delayed the production of post-accident surveillance until after the plaintiff’s deposition. In fact, in discussing the lead case in this respect, Snead v. American Exports, Inc., Judge Donio recognized that “the defense must be given an opportunity to depose the plaintiff fully” so as to preserve effective impeachment. Notwithstanding this majority, however, Judge Donio’s analysis pivoted to a consideration of the exception to the general rule as found in the case of Babyage.com, Inc. v. Toys R Us, Inc., where the Eastern District of Pennsylvania explained that recordings of the incident, transaction or occurrence giving rise to the suit must be disclosed immediately as “substantive” evidence.

Clinging to the phrase “substantive evidence”, Judge Donio reasoned that post-accident surveillance of the plaintiff may serve to substantively prove or disprove the extent of claimed injuries, and is therefore beyond the pale of the Snead rule. Specifically, Judge Donio tenuously interpreted Norfolk Southern’s surveillance as evidence “giving rise to the plaintiffs’ claims” rather than merely bearing the potential to discredit them or, in her own opinion, to intentionally manufacture inconsistencies in the litigation. Consequently, Judge Donio departed from Snead and ordered Norfolk Southern to disclose all of its surveillance well in advance of the plaintiffs’ depositions.

There is little doubt that Judge Donio’s ruling in Gardner stands in stark contrast to the majority of federal and state case law that considers the “substantive evidence” exception to reside only in clandestine recordings of the incident itself. As a matter of fact, New Jersey state case law has recognized as far back as 1976 that sub rosa surveillance need only be produced after plaintiff has been deposed. Nevertheless, absent clear precedent from the lower federal courts or the Third Circuit, Gardner appears to be one of the few cases in New Jersey federal court to confront the issue of surveillance discovery, and by extension, may serve to severely undermine its benefits in personal injury cases.

Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at