Video surveillance footage taken of a plaintiff performing activities which they claim they can no longer do as a result of their accident is a critical tool in combating fraudulent claims.  But a number of states, including New York, require that video surveillance must be provided to a plaintiff prior to depositions.  Although there is an obvious risk of tailored testimony after viewing such a video, these states favor full and timely disclosure and an interest in preventing “sandbagging.”

This issue was recently addressed by an appellate court in New Jersey.  The plaintiff in Mernick v. McCutchen was injured in a motor vehicle accident.  During written discovery, the defendant disclosed that it had taken surveillance footage, but withheld it, claiming the material was privileged attorney work product prepared in anticipation of litigation. In response, the plaintiff did not appear for her scheduled deposition and filed a motion to compel the surveillance material. The motion was granted by the trial court, finding that it was within the Court’s discretion to order disclosure of the video prior to plaintiff’s deposition.

On interlocutory appeal, the Appellate Division acknowledged the evidentiary value of the footage but relied upon the nearly 40-year old decision in Jenkins v. Rainner which entitled the defendant to delve into the activities documented on the footage without having previously provided the plaintiff with the video.  The Court found that while plaintiff was entitled to a copy of the video prior to trial, allowing the defendants to withhold the video until after the deposition preserved the defendants’ ability to find inconsistencies between testimony and the film while still upholding the disclosure principles of discovery.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.