Holzendorf v. Star Van Systems, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICHARD HOLZENDORF,

individually, and as Personal

Representative of the Estate of

Richard Lavon Holzendorf, deceased,

Plaintiff,

v. CASE NO. 3:21-cv-577-MCR

STAR VAN SYSTEMS, INC. and

ZELJKO RADOVIC,

Defendants.

__________________________________

STAR VAN SYSTEMS, INC.,

Counter-Plaintiff,

v.

ESTATE OF RICHARD LAVON

HOLZENDORF,

Counter-Defendant.

___________________________________/

ORDER

THIS CAUSE is before the Court on Plaintiff’s Motion to Compel

Defendant Star Van Systems to Produce Driver-Facing Dashcam Video

(“Motion”) (Doc. 33), Defendants’ Response thereto (Doc. 36), Plaintiff’s Reply

to Defendants’ Response (“Reply”) (Doc. 43), Defendants’ Sur-Reply to

Plaintiff’s Reply (“Sur-Reply”) (Doc. 45),1 Counter-Defendant’s Amended

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Motion to Compel Defendant, Star Van Systems, to Produce Driver-Facing

Dashcam Video (“Amended Motion”) (Doc. 47), and Counter-Plaintiff’s

Response thereto (Doc. 49). For the reasons stated herein, the Motion and

the Amended Motion are due to be GRANTED.

I. Background

On June 3, 2021, Richard Holzendorf (“Mr. Holzendorf”), individually,

and as Personal Representative of the Estate of his deceased son, Richard

Lavon Holzendorf (decedent), filed this wrongful death action in this Court.

(Doc. 1.) This action arises out of an incident that occurred in Nassau

County, Florida, on January 22, 2021, in which the decedent’s vehicle collided

with an 18-wheeler truck operated and/or maintained by Defendants, Zeljko

Radovic and Star Van Systems, Inc. (“SVS”). (Id.) On July 30, 2021,

Defendants filed their Answer and Affirmative Defenses to the Complaint, in

which they denied liability. (Doc. 7.) On November 8, 2021, SVS, as

Counter-Plaintiff, filed a Counterclaim against the Estate of Richard Lavon

Holzendorf, Counter-Defendant. (Doc. 28.) On December 21, 2021,

Counter-Defendant filed an Amended Answer and Affirmative Defenses to

the Counterclaim. (Doc. 32.)

1 The Reply and Sur-Reply were filed pursuant to the Court’s April 26, 2022

Order (Doc. 41).

The collision at issue in this action was recorded via a dual-facing

dashboard camera positioned above the interior dashboard of the 18-wheeler

truck, which simultaneously recorded both the roadway in front of the vehicle

and the driver inside the vehicle. (Doc. 33 at 2.) On July 26, 2021, Plaintiff

served his First Request for Production of Documents on SVS, which

encompassed “[a]ny photographs, movies, surveillance footage, security

footage, and/or videotapes taken by any electronic device or anyone related to

the Crash, that reflect the scene of the Crash, the vehicles involved or any of

the parties to the cause for the day of the Crash” as well as electronic device

“data that relates to the operation of the tractor or trailer for the (30) days

before, the date of the Crash and seven days after.” (Doc. 33 at 2-3; Doc. 33-

2 at 3-4.)

On September 13, 2021, Defendant produced some of the roadway-

facing dashcam video (up to the point of impact only), but none of the driver-

facing dashcam video. (Doc. 33 at 3.) On November 9, 2021, Plaintiff’s

counsel requested the post-collision footage of the roadway-facing video and

“the backward facing camera footage from before, during and after the

subject collision.” (Doc. 33-3 at 2.) On November 10, 2021, Defendant

produced additional roadway-facing video (from the point of impact to the

point of rest), but none of the driver-facing video. (Doc. 33 at 3.) On

November 11, 2021, defense counsel stated that the trailer did not have a

rear facing camera, and confirmed his position on November 15, 2021 after

consultation with his client. (Doc. 33-3 at 3.) On November 17, 2021,

Plaintiff’s counsel responded that the trailer had both a roadway facing

camera and a driver facing camera, and again requested the footage from the

driver-facing camera. (Id. at 4.) On November 29, 2021, a paralegal from

Plaintiff’s counsel’s office followed up with an email about the footage from

the driver facing camera. (Id. at 5.)

On December 1, 2021, Plaintiff sent further correspondence to

Defendant, requesting the driver-facing video by December 6, 2021. (Doc. 33

at 3; Doc. 33-3 at 6 (also mentioning Plaintiff’s spoliation letter dated

February 11, 20212).) In response to Plaintiff’s counsel’s correspondence, on

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December 2, 2021, defense counsel responded: “I previously provided all

known video of the accident. It’s my understanding that there is no driver

facing video. Why do you believe that there is?” (Doc. 33-3 at 7.) On the

same day, Plaintiff’s counsel responded with a picture of the dash camera and

a description of its capabilities, and again requested the driver-facing video.

(Doc. 33 at 4; Doc. 33-3 at 8.) Then, on December 13, 2021, defense counsel

emailed a privilege log, claiming that the driver-facing video is “[w]ork

[p]roduct and [c]onfidential [i]nformation,” thereby privileged from

2 The two spoliation letters, dated January 29, 2021 and February 11, 2021,

are attached to the Reply and to the Amended Motion. (Docs. 43-3, 47-5.)

disclosure. (Doc. 33 at 4; Doc. 33-3 at 11-12.)

II. The Parties’ Positions

In the Motion, Plaintiff seeks an order compelling Defendant to produce

its driver-facing dashcam video or, alternatively, permitting Plaintiff to

perform a data download of the camera, computer, or electronic device

containing the video. (Doc. 33 at 4, 11.) Plaintiff contends that the driver-

facing dashcam video could not have been created in anticipation of litigation

because the footage was captured before the crash occurred. (Id. at 5.)

According to Plaintiff, the video was created in the ordinary course of

business. (Id.)

Further, Plaintiff contends that the driver-facing dashcam video is the

best evidence of Defendant Radovic’s activities (action, inaction, level of

distraction, alertness, and physical condition) while inside the truck during

the moments leading up to the collision, and that Plaintiff is significantly

prejudiced in his trial preparation without it, because his accident

reconstructionist cannot accurately reconstruct the collision without the best

evidence regarding Defendant Radovic’s movements, reaction time, alertness,

and distraction inside the semi-truck.3 (Id. at 6, 10-11.)

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3 In support of the Motion, Plaintiff submits the Affidavit of Jonathan

Walter, Ph.D., P.E., who was retained to conduct an accident reconstruction and

biomechanical analysis of the subject accident. (Doc. 33-6 at 1.) Dr. Walter states

that the driver facing camera footage “is a critical component to [his] accident

Plaintiff asserts that “[t]he video recording has crucial value as

substantive evidence and could have substantial value as impeachment

evidence,” as there are no independent witnesses to the collision. (Id. at 6.)

Because Defendants deny liability and assert comparative negligence on

decedent’s part, Plaintiff asserts he has a substantial need for the driver-

facing video. (Id. at 6-7.) Plaintiff explains:

The roadway-facing dashcam video that was produced by

Defendant [SVS] shows that Defendant Radovic never slowed or

braked before colliding with the Holzendorf vehicle at

approximately 64 MPH. . . . It is anticipated that the driver-

facing video will show Defendant Radovic’s actions, inaction, level

of distraction, alertness, and physical condition during the

moments leading up to the crash. Plaintiff cannot obtain the

substantial equivalent of this driver-facing dashcam data by any

other means and without undue hardship because the data only

exists within the Defendants’ vehicle dashcam modules that

remain in the possession, custody, and control of the Defendants.

(Id. at 7.)

Plaintiff also argues that Defendant’s boilerplate, blanket privilege

reconstruction and analysis of the driver’s perception and reaction times.” (Id. at

1-2.) He explains:

The at-issue driver-facing footage will conclusively and independently

establish the identity of the driver, and show the driver’s attention,

focus and movements in the moments leading up to the collision. The

driver-facing video is a key piece of evidence that will provide a true

record of the truck driver’s actions leading up to this collision. . . .

The at-issue video footage provides real-time evidence of how and why

the subject collision occurred. Without it, my analysis of causation is

significantly hampered.

(Id. at 2.)

objection is limited in scope and does not encompass the requested dashcam

video. (Id. at 8-9.) Plaintiff explains:

By adding the phrase “to the extent that such requested

information reflects the impressions, conclusions, opinions, legal

research or theories of defendant’s attorneys,” to its blanket

objection, Defendant [SVS] limited the scope of its objection to

information created by its attorneys. The subject dashcam video

was not created by an attorney, but instead by Defendant [SVS]

itself before lawyers were involved in this matter.

(Id. at 9 (emphasis in original).) Plaintiff adds that an objection based upon

work-product privilege must be specifically raised and demonstrated rather

than asserted in a blanket fashion. (Id. (citations omitted).) Here:

Defendant [SVS’s] privilege log is defective, as it does not provide

any description of the subject matter of the withheld dashcam

video, stating only that [the] video is “work-product and

confidential.” Defendant [SVS] provides no explanation of why

the recording is privileged or immune from discovery.

(Id. at 9-10.)

Defendants object to producing the driver-facing video, because “the

very purpose and creation of [this] video was done specifically for the purpose

of and in anticipation of litigation.” (Doc. 36 at 3.) Defendants explain:

9. The driver facing camera is constantly recording but only

activates a save function at the time of a “Trigger Event” where it

saves 1 minute prior and 1 minute after an event. A Trigger

Event is a collision, accident, sudden brake or similar safety

incident. Without the occurrence of a Trigger Event, video

footage is not saved and automatically deleted. . . .

10. As such, the driver facing video was created after the

occurrence of the accident, saved by [SVS] and sent to its

attorneys in anticipation of litigation related to the accident. . . .

. . .

12. Here, the difference between surveillance footage and the

driver video at issue is the occurrence of a Trigger Event.

Without a Trigger Event, video from the driver facing camera is

not saved and automatically deleted, whereas surveillance

footage can be accessed and saved at any time.

13. The occurrence of a Trigger Event was the only way that

the driver facing video was saved. Therefore, the video is

protected from production by the work product privilege because

[it] was created and saved after a specific type of occurrence and

[in] anticipation of litigation. . . .

(Id. at 3-4 (emphasis in original).)

Further, Defendants contend that if the Court finds the work product

privilege applies, Plaintiff cannot show substantial need for the driver-facing

video and undue hardship. (Id. at 4.) Defendants explain that Plaintiff

already has the roadway-facing video showing one minute before and one

minute after the accident, already has “the information through alternative

means, and can further explore the issue through interrogatories and

deposing the driver.” (Id. at 6.)

Defendants also argue that their privilege log is adequate, because

“identifying and labeling the subject footage as work product and confidential

is sufficient as it demonstrates that the driver facing video was purposefully

saved in anticipation of litigation.” (Id. at 7.)

As part of their Response, Defendants filed the Affidavit of Milan Prpa,

the Driver Training Manager for SVS. (Doc. 36-1.) The Affidavit states, in

relevant part:

3. [SVS’s] vehicles are typically equipped with forward facing

video cameras and driver facing cameras located within the

interior of vehicle driver compartments.

4. The purpose of forward facing and driver facing cameras is

for use in the event that litigation is brought against [SVS] by

capturing any accidents or “trigger events” that may occur with

the vehicle. The recorded video is also used by [SVS] for driver

instruction, safety and training.

5. Both the forward and driver facing cameras are constantly

recording but a video save function is only activated at the time

of a collision, accident, sudden brake or similar safety incident

called a “Trigger Event.”

6. When activated by a Trigger Event, video from 1 minute

prior and 1 minute after the event is automatically saved on a

server remote from the camera.

7. Without the occurrence of a Trigger Event, video is

automatically deleted.

8. In my position as Driver Training Manager, I am familiar

with a January 22, 2021 accident involving [an SVS’s] vehicle on

Interstate 95 in the State of Florida (the “accident”).

9. The accident was a Trigger Event that caused both the

forward facing and driver facing cameras to save video 1 minute

before and 1 minute after the accident.

10. After learning of the accident and reviewing the video from

the forward facing and driver facing cameras, those recordings

were sent to [SVS’s] attorneys in the event that a lawsuit was

brought against the company related to the accident.

(Id. at 2-3.)

In the Reply, Plaintiff asserts, based on Defendant’s corporate

representative’s recent deposition, that the primary motivating purpose for

the dashcams in Defendant’s vehicles was employee surveillance and

training, not litigation.4 (Doc. 43 at 1-2.) Mr. Prpa’s deposition testimony

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also indicates that through its Omnitracs monitoring service, Defendant

remotely monitors driver activity via dashcams in addition to monitoring

speed, idle time, fuel consumption, engine, and hard braking. (Id. at 2.)

Plaintiff explains:

Regardless of a “trigger event,” the dashcams continuously

recorded and transmitted video the entire day of the subject

incident.

Within thirty days of recording video, SVS can submit a request

for an entire day of driving activity. A trigger event merely

provides instant access to a two-minute copy of the recorded video

without having to submit a request to Omnitracs for the video.

After thirty (30) days, the video is no longer available. Despite

receipt of Plaintiff’s spoliation letter that was mailed within 30

days of the subject accident, Defendants failed to preserve all of

the video transmitted to Omnitracs from the date of the subject

collision.

(Id. at 2-3 (internal citations omitted).)

In addition, Plaintiff states that Defendants’ trigger event argument

fails because “hard braking” was the only trigger event that SVS tracked.

(Id. at 3.) As such:

If the Court accepts Defendants’ argument that a “trigger event”

caused the creation of the dashcam video, then it follows that the

4 Milan Prpa’s deposition transcript from February 17, 2022 is attached to

Plaintiff’s Reply (Doc. 43-2) and to the Amended Motion (Doc. 47-4). Mr. Prpa

testified, in relevant part, that the “only” or “major” reason for installing dashcams

SVS’s trucks was for training purposes. (Prpa Dep. 24:16-25; see also id. at 165:4-

12.)

video was created before the instant accident. No litigation

could have reasonably been anticipated based upon a hard brake

as hard braking could occur for a deer in the road, a mechanical

issue, traffic, or by mistake. The apprehension of litigation must

be subjectively and objectively reasonable in the circumstances.

Defendants’ work product assertion of anticipation of litigation

based upon braking data is objectively unreasonable.

(Id. (emphasis in original) (internal citations omitted).)

Further, according to Plaintiff, “the question is not why or when the

video was saved, but why and when it was created in the first place.” (Id. at

4 (emphasis in original).) Plaintiff asserts that the video here was created as

a usual business practice for driver surveillance and training and not due to

anticipated litigation and “its primary evidentiary value is proof of the

underlying facts surrounding the incident.” (Id. at 5.)

Finally, Plaintiff states that according to the recent expert report of

Robert Knudsen, CISSP, CCE, “Defendant Radovic was on his cell phone for

almost an hour within two seconds of the impact.”5 (Id.) Thus, Plaintiff

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5 Mr. Knudsen’s April 29, 2022 expert report is attached to Plaintiff’s Reply

(Doc. 43-5) and to the Amended Motion (Doc. 47-8). Mr. Knudsen’s report states, in

relevant part: “Based on a review of the AT&T phone records, the Samsung Device

Extraction, and the BlackVue Dashcam Video, it is my expert opinion, within a

reasonable degree of certainty, that a call was in progress seconds before the

accident occurred.” (Doc. 43-5 at 11; Doc. 47-8 at 11.)

The transcript from Zeljko Radovic’s February 16, 2022 deposition is also

attached to Plaintiff’s Reply (Doc. 43-4) and to the Amended Motion (Doc. 47-6).

Mr. Radovic testified that he was talking to a colleague on his cell phone, with his

head phones on, prior to the accident. (Radovic Dep. 36:22-25, 50:17-20, 54:11-18;

see also id. at 54:19-23 (“Q. . . . At the time that the collision occurred were you

on a phone call? . . . A. . . . I don’t remember.”).)

asks the Court to either compel production of the driver-facing dashcam video

or, alternatively, conduct an in-camera review of the video to determine

whether its production serves the ends of justice. (Id. at 5-6.)

In the Sur-Reply, Defendants contend that Plaintiff’s Reply raises

several arguments that were not presented in the Motion or in the Response,

and, as such, should not be considered by the Court. (Doc. 45.) However,

the Court finds that these purportedly new arguments are actually responses

to Defendants’ argument about work product privilege and, therefore, will be

considered in deciding the Motion. Moreover, these arguments were raised

in the Amended Motion, filed by the Estate, seeking to compel SVS to

produce the driver-facing dashcam video. (Doc. 47.) As the arguments

raised in the Amended Motion and the Response thereto overlap with the

arguments presented in connection with the Motion filed by Mr. Holzendorf,

they will not be restated here.

III. Standard

Claims of work product immunity are governed by Rule 26(b)(3) of the

Federal Rules of Civil Procedure, which states in pertinent part:

(A) Documents and Tangible Things. Ordinarily, a party may

not discover documents and tangible things that are

prepared in anticipation of litigation or for trial by or for

another party or its representative (including the other

party’s attorney, consultant, surety, indemnitor, insurer, or

agent). But, subject to Rule 26(b)(4), those materials may

be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1);

and

(ii) the party shows that it has substantial need for the

materials to prepare its case and cannot, without undue

hardship, obtain their substantial equivalent by other

means.

(B) Protection Against Disclosure. If the court orders

discovery of those materials, it must protect against

disclosure of the mental impressions, conclusions, opinions,

or legal theories of a party’s attorney or other

representative concerning the litigation.

Fed.R.Civ.P. 26(b)(3).6

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The work product protections of Rule 26(b)(3), typically apply “only to

documents prepared principally or exclusively to assist in anticipated or

ongoing litigation.” Bowne of New York City, Inc. v. AmBase Corp., 150

F.R.D. 465, 471 (S.D.N.Y. 1993) (internal citations omitted). “[I]n order for

the work product doctrine to apply, the party asserting the doctrine must

demonstrate that at the time the materials were created or drafted, the

entity must have anticipated litigation.” Schulte v. NCL (Bahamas) Ltd.,

No. 10-23265-CIV, 2011 WL 256542, *2 (S.D. Fla. Jan. 25, 2011) (citing CSK

Transp., Inc. v. Admiral Ins. Co., No. 93-132-CIV-J-10, 1995 WL 855421, *2

6 “Unlike the attorney-client privilege, the scope of protection provided by the

work product doctrine is a procedural question and thus governed by federal, as

opposed to state law in a diversity action.” Sowell v. Target Corp., No. 5:14-cv-93-

RS-GRJ, 2014 WL 2208058, *1 (N.D. Fla. May 28, 2014) (citation omitted); see also

Stern v. O’Quinn, 253 F.R.D. 663, 674 (S.D. Fla. 2008) (“Regardless of the item or

information sought or the stage of the litigation at which it is requested, . . . federal

law governs application of the work-product protection, even in diversity cases.”).

However, “Florida law regarding the work product privilege is largely consistent

with federal law.” Sowell, 2014 WL 2208058 at *3 n.2.

(M.D. Fla. July 20, 1995)).7 “Thus, materials or documents drafted or

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created in the ordinary course of business are not protected.” Id.

“The Court must thus determine when the contested documents were

created, and why the documents were created in assessing the applicability of

the work product doctrine.” Spirit Master Funding, LLC v. Pike Nurseries

Acquisition, LLC, 287 F.R.D. 680, 685 (N.D. Ga. 2012). “[I]t is now well

recognized that documents that serve a dual purpose are covered by the work

product protection if they were produced ‘with the ‘motivating purpose’ for or

‘because of’ anticipated litigation.’” Id. Also, “ordinarily, the work product

doctrine does not shield from discovery documents created by third-parties.”

Hunter’s Ridge Golf Co. v. Georgia-Pacific Corp., 233 F.R.D. 678, 681 (M.D.

Fla. 2006).

“The work product privilege provides only a qualified immunity from

discovery.” Atlantic Recording Corp. v. Spinrilla, LLC, No. 1:17-cv-00431-

AT, 2018 WL 6362660, *21 (N.D. Ga. Sept. 28, 2018). “It protects only

documents and tangible things. It does not protect facts learned from the

documents or things.” Id. (citations omitted). Although mere facts “are not

protected by the work-product doctrine,” when “the facts are so intertwined

7 The “anticipation of litigation” inquiry is both subjective and objective. In

re: Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (stating “the lawyer must at

least have had a subjective belief that litigation was a real possibility, and that

belief must have been objectively reasonable”).

with the mental impressions of the attorney or other work product protected

materials, other methods exist for obtaining the factual information without

disturbing the work-product protection,” such as through depositions and

interrogatories. Spirit Master, 287 F.R.D. at 687. “As work product is a

‘qualified privilege,’ it can thus be waived ‘when the covered materials are

used in a manner that is inconsistent with the protection.’” Spinrilla, 2018

WL 6362660 at *21 (citations omitted).

“The work product privilege ‘must be specifically raised and

demonstrated rather than asserted in a blanket fashion.’” Spirit Master, 287

F.R.D. at 684 (internal citations omitted). “This burden may be satisfied

through a detailed privilege log and affidavits from counsel, the party, or the

expert, and also by any of the traditional ways in which proof is produced in

pretrial proceedings.” Id. “A privilege log’s description of each document

and its contents must provide sufficient information to permit courts and the

parties to test the merits of the privilege claim.” Elite Mitigation Servs.,

LLC v. Westchester Surplus Lines Ins. Co., Case No. 5:19-cv-381-TKW/MJF,

2020 WL 6126886, *6 (N.D. Fla. Apr. 16, 2020); see also Carnes v. Crete

Carrier Corp., 244 F.R.D. 694, 698 (N.D. Ga. 2007) (stating the “burden is

met when the party produces a detailed privilege log stating the basis of the

claimed privilege for each document in question, together with an

accompanying explanatory affidavit from counsel”). “Once [the party who

asserts the claim of privilege] has shown the application of the work product

privilege, the burden shifts to [the other side] to demonstrate the existence of

exceptional circumstances for the discovery of otherwise privileged

documents.” Spirit Master, 287 F.R.D. at 684.

IV. Analysis

Here, Defendants have not shown that the work product privilege

applies to the driver facing dashcam video. As an initial matter, Defendants’

boilerplate, blanket privilege objection does not even seem to encompass the

requested video, because SVS limited the scope of its objection to information

created by its attorneys. Also, Defendants’ privilege log is deficient in that it

merely states the video is “[w]ork [p]roduct and [c]onfidential [i]nformation”

without any additional explanation. (Doc. 33 at 4; Doc. 33-3 at 11-12.)

More importantly, even ignoring these deficiencies, Defendants have not

shown that at the time the video was created, they anticipated litigation.

While Defendants initially state that the video was created “specifically

for the purpose of and in anticipation of litigation” (Doc. 36 at 3), they later

explain that “the driver facing video was purposefully saved in anticipation of

litigation” (id. at 7 (emphasis added)). According to Mr. Prpa’s Affidavit, the

purpose of both “forward facing and driver facing cameras is for use in the

event that litigation is brought against [SVS]” (Doc. 36-1 at ¶ 4); however, the

forward-facing video was produced without objection, but the driver facing

video was not.8 Even ignoring this inconsistency, Mr. Prpa testified at his

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deposition that the primary purpose for the dashcams in SVS’s trucks was

employee training and surveillance, not litigation. (See Prpa Dep. 24:16-25,

165:4-12; cf. Doc. 36-1 at ¶ 4 (stating that one of the purposes of the video

was “for driver instruction, safety and training”).)

As such, by Defendant’s corporate representative’s own admission, the

driver facing video was created in the ordinary course of business. See

Sowell, 2014 WL 2208058 at *2 (stating that the video was “taken and

recorded in the routine and ordinary course of business of [defendant]” and

there is no evidence that the video “was implemented or created because of

the prospect of litigation”); see also Schulte, 2011 WL 256542 at *4 (“In this

matter, there is no question that the video tape was made as part of the

normal course of surveillance videos made by NCL. Thus, the video was not

created in the work product context for purposes of or in anticipation of

litigation.”). Also, the primary evidentiary value of the video is proof of the

underlying facts surrounding the collision. See Sowell, 2014 WL 2208058 at

8 It also seems questionable that the driver facing video was created after the

occurrence of the accident. In his Affidavit, Mr. Prpa stated that the “cameras are

constantly recording but a video save function is only activated at the time of a

collision, accident, sudden brake or similar safety incident called a ‘Trigger Event,’”

and that “[t]he accident was a Trigger Event that caused both the forward facing

and driver facing cameras to save video 1 minute before and 1 minute after the

accident.” (Doc. 36-1 at ¶¶ 5, 9.) However, in his deposition, Mr. Prpa testified

that “hard braking” was the only Trigger Event that SVS tracked. (Prpa Dep.

189:3-6; see also id. at 25:5-8, 66:2, 66:18-19.)

*4 (“Because the tape here depicts the incident giving rise to Plaintiff’s

claim[,] its primary evidentiary value is proof of the underlying facts

surrounding the incident and not primarily for impeachment purposes.”).

Even accepting Defendants’ position that the video was saved in

anticipation of litigation, “the mere act of preserving the tape―as opposed to

creating the original recording―is not sufficient to transform a document

created in the ordinary course of business into work product protected from

disclosure.” Sowell, 2014 WL 2208058 at *3; see also Schulte, 2011 WL

256542 at *4 (finding that “the act of preserving [the] non-privileged video

did not then convert it to work product” and declining “to follow Bolitho to the

extent that it holds that a surveillance video made in the regular course of an

entity’s business, which captures an accident at the time it occurs, becomes

work product when counsel orders its preservation”). “Indeed, if that was

the law literally ever[y] piece of electronically stored information (“ESI”)

preserved by a defendant as part of a defendant’s duty of preservation would

be off limits in discovery because it would be considered work product.”

Sowell, 2014 WL 2208058 at *3; see also Schulte, 2011 WL 256542 at *3 (“It

would be anomalous, to say the least, if by ordering a client to preserve

evidence created in the ordinary course of business, in anticipation of

litigation, counsel was able to shield that evidence from production based

upon work product protection.”).

Here, a full day of the video from the date of the collision was available

from Omnitracs for 30 days after the collision. (Prpa Dep. 56:19-23.) Yet,

Defendants apparently failed to preserve the full video despite Plaintiff’s

counsel’s timely anti-spoliation letters, dated January 29, 2021 and February

11, 2021. (Prpa Dep. 56:24-57:5, 59:12-16, 61:20-62:20, 70:24; Docs. 43-3, 47-

5.) Also, to the extent the video was preserved for 30 days as part of a

general policy of preserving videos, “the practice would be more akin to a

routine business practice rather than an action taken by the defendant in

anticipation of litigation.” Sowell, 2014 WL 2208058 at *3.

Based on the foregoing, the Court finds that the driver-facing dashcam

video was created in the ordinary course of business and, therefore, is not

entitled to work product immunity under Rule 26(b)(3). Thus, the Court

does not address the arguments about Plaintiff’s substantial need for the

video and undue hardship to obtain its substantial equivalent by other

means.

Accordingly, it is ORDERED:

The Motion (Doc. 33) and the Amended Motion (Doc. 47) are

GRANTED. Defendant SVS shall produce the driver-facing dashcam video

within three (3) days of the date of this Order.

DONE AND ORDERED at Jacksonville, Florida, on June 8, 2022.

; MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

Counsel of Record

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