On September 3, 2015, the Appellate Court reversed the law decision judge who required the production of surveillance video to plaintiff’s counsel before plaintiff testified at a deposition. The Court acknowledges that in overruling a Trial Court’s discovery decision, it must utilize a difficult abuse of discretion standard. Such was the case here when reviewing a 1976 decision regarding surveillance video and the Trial Court failing to articulate a reason to deviate from same.

What can be a strengthening of the prior decision in Jenkins vs. Rainner, 69 N.J. 50 (1976), the Appellate Court in Joan Mernick and John Mernick v. Wanda McCutchen and Hudson News Distributors, LLC, Docket No.: A-3683-14T2, reaffirms that video surveillance of another individual is attorney’s work product. The Court rationalized that the proper preparation of a client’s case demands that the lawyer assemble information, sift relevant information from irrelevant facts and prepare legal theories and plan strategies without undue and needless interference. However, once the surveillance has been created, there is an interest in full disclosure finding it more weighty than any interest in surprising the plaintiff at trial. The Court in Jenkins had to balance these two important factors.

The Jenkins Court concluded that the trial judge has an absolute discretion in shaping and prescribing discovery obligations such as the production of surveillance with the attendance of the party sought to be deposed. The Court also acknowledged that this is purely within the Court’s discretion and no party can control the timing of discovery. In Jenkins, plaintiff had already been deposed and, the defendants obtained video surveillance apparently contradicting limitations testified to by plaintiff. In order to meet the two competing interests, the Jenkins Court ordered a second deposition of plaintiff on the issues of damages before production of the video surveillance.

The Trial Court in Mernick was faced with a different procedure that surveillance had been taken before plaintiff’s initial deposition. However, the Appellate Court found no reason to change the rationalization. In this instance, the Court in balancing the interest requires plaintiff to be deposed before turning over the video surveillance.

Surveillance can be a powerful tool at any time in the litigation. Its introduction into evidence must be done properly so as not to preclude it at the time of trial. The Rules of Evidence in New Jersey and many jurisdictions including Federal Courts preclude evidence when there is an unfair surprise. However, the Courts understand the value of surveillance and keeping it from plaintiffs before they testify.

In order to fully investigate this matter surveillance has become an exceptionally useful tool both for its visual acuity as well as jury preference. Seeing the plaintiff perform acts that plaintiff either denies being able to do or has informed physicians that he or she can no longer do, speaks volumes as to plaintiff’s case.

As part of this office’s services, many disputed matters are investigated and reviewed by attorneys before entering into litigation. Many clients refer accident cases for defense at the same time that there are settlement negotiations. Getting surveillance early in a litigation is an aggressive way of insuring documentation of plaintiff’s recovery. Producing that information after plaintiff’s deposition is an aggressive way of testing plaintiff’s veracity and true limitations without the unfair surprise at the time of trial.