The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3683-14T2
JOAN MERNICK and JOHN
MERNICK, APPROVED FOR PUBLICATION
September 3, 2015
Plaintiffs-Respondents,
APPELLATE DIVISION
WANDA MCCUTCHEN and HUDSON
NEWS DISTRIBUTORS, LLC,
Defendants-Appellants.
_________________________________________________________
Argued May 27, 2015 – Decided September 3, 2015
Before Judges Messano, Hayden and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-2117-14.
Edward J. Piasecki argued the cause for
appellants (Graziano, Piasecki & Whitelaw,
LLC, attorneys; James B. Graziano, on the
brief).
Leonard S. Miller argued the cause for
respondents.
The opinion of the court was delivered by
HAYDEN, J.A.D.
Defendants Wanda McCutchen and Hudson News Distributors, LLC
(Hudson) appeal from a March 13, 2015 Law Division order requiring
them to produce surveillance video taken of plaintiff Joan Mernick
before taking her deposition. Defendants filed a motion for leave
to appeal, which this court granted along with a stay pending
appeal. After considering the arguments in light of the applicable
legal principles, we reverse.
The record reveals that Mernick and McCutchen were involved
in an automobile accident on March 26, 2012. Mernick and her
husband filed a civil complaint alleging that McCutchen and Hudson,
her employer, caused the accident through their negligence and
requested compensatory damages and damages for loss of consortium.
Defendants denied any negligence, set forth several affirmative
defenses and answered the uniform interrogatories. In their
interrogatory answers, they reported that they had "possession of
surveillance video depicting plaintiff on nine separate occasions.
Copies of the video will be supplied."
As discovery proceeded, the defendants scheduled Mernick's
deposition, but she cancelled the first date. The parties
rescheduled the deposition for February 10, 2015. On the day
before the deposition, Mernick's attorney informed defendants'
counsel that Mernick would not attend until after the defendants
provided the surveillance video. Defendants replied that they
would produce the video after the deposition. As a result,
Mernick's counsel refused to produce her for the deposition.
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Defendants moved the trial court to extend discovery and
compel plaintiff to attend her deposition. Mernick cross-moved
to compel production of the surveillance video. The court extended
discovery, and ordered defendants to produce the video prior to
deposing Mernick. Finding that the video was work product covered
by Rule 4:10-2(c), the court determined that the unique evidence
could not be obtained by any other means. "As such, [p]laintiffs
have established undue hardship in acquiring a substantial
equivalent of the relevant surveillance recordings in
[d]efendants' possession." The court found that defendants had a
duty to produce the video, consistent with Jenkins v. Rainner, 69
N.J. 50 (1976). The court reasoned:
[T]wo conclusions may be drawn from the
opinion by the Jenkins court: first, the trial
court has absolute discretion in shaping and
prescribing discovery obligations, such as
production of surveillance or attendance of
parties sought to be deposed; and second, a
trial court may - but is not required to -
condition a demand for surveillance motion
pictures on a party's consent to be deposed
before said pictures are actually produced.
In this instance, since the surveillance
videos were conducted prior to the deposition
of [p]laintiffs, the [c]ourt, in its
discretion, is ordering [c]ounsel for
[d]efendants to produce and deliver the
surveillance videos of [p]laintiff(s) to their
[c]ounsel prior to their depositions.
Accordingly, the court ordered the tape to be produced immediately.
This appeal followed.
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We begin by considering the standard of review. We generally
defer to discovery decisions of trial judges and only review them
to determine whether the court abused its discretion. C.A. ex
rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (quoting
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371
(2011)). A reviewing court will not defer to a trial court if its
decision "'is based on a mistaken understanding of the applicable
law.'" Ibid.
We next consider the well-established legal principles that
inform our analysis. The public policies underpinning our
discovery rules include "expeditious handling of cases, avoiding
stale evidence, and providing uniformity, predictability and
security in the conduct of litigation." Zaccardi v. Becker, 88
N.J. 245, 252 (1982) (citations omitted). In furtherance of those
policies, "[t]he discovery rules were designed to eliminate, as
far as possible, concealment and surprise in the trial of law
suits to the end that judgments rest upon real merits of the causes
and not upon the skill and maneuvering of counsel." Oliviero v.
Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990). It
is well-established that neither party can control the timing of
discovery. See R. 4:10-4; Posta v. Chung-Loy, 306 N.J. Super.
182, 198-99 (App. Div. 1997) (citing Dick v. Atl. City Med. Ctr.,
173 N.J. Super. 561, 565 (Law Div. 1980)), certif. denied, 154
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N.J. 609 (1998); In re A., 277 N.J. Super. 454, 466 (App. Div.
1994) ("[T]he judge has control of discovery through the exercise
of the court's discretion[.]").
Further, when materials are relevant to the issues in an
action, there is "a presumption of discoverability[.]" Payton v.
N.J. Tpk. Auth., 148 N.J. 524, 539 (1997). However, a party can
overcome this presumption "by demonstrating the applicability of
an evidentiary privilege." Ibid.
One such privilege protects from discovery an attorney's work
product. The United States Supreme Court recognized the need to
protect certain aspects of an attorney's work in Hickman v. Taylor,
329 U.S. 495, 511, 67 S. Ct. 385, 393, 91 L. Ed. 451, 462 (1947),
explaining that "[p]roper preparation of a client's case demands
that [lawyers] assemble information, sift . . . the relevant from
the irrelevant facts, prepare . . . legal theories and plan . . .
strategy without undue and needless interference."
In New Jersey, parties are generally permitted to obtain any
materials that are relevant to the subject matter of the action
so long as the materials are not privileged. R. 4:10-2(a). Even
inadmissible evidence is discoverable if such information "appears
reasonably calculated to lead to the discovery of admissible
evidence[.]" Ibid. A party cannot resist discovery of material
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on the basis that its adversary already has knowledge of the matter
on which it is seeking discovery. Ibid.
In contrast to the general presumption of discoverability,
if material was prepared in anticipation of litigation, Rule 4:10-
2(c) limits discovery.
[A] party may obtain discovery of documents,
electronically stored information, and
tangible things otherwise discoverable under
R. 4:10-2(a) and prepared in anticipation of
litigation or for trial by or for another
party or by or for that other party's
representative (including an attorney,
consultant, surety, indemnitor, insurer or
agent) only upon a showing that the party
seeking discovery has substantial need of the
materials in the preparation of the case and
is unable without undue hardship to obtain the
substantial equivalent of the materials by
other means.
[Ibid.]
In addition, the Rule exempts statements by parties and non-parties
from this protection, permitting each to retrieve statements they
made without demonstrating a substantial need. Ibid. However,
all other work product of an attorney receives protection unless
the other party shows both undue hardship and substantial need.
Ibid.
The surveillance video in the present case clearly falls
within this category of material prepared for litigation. Our
Supreme Court considered a strikingly similar discovery issue,
albeit in slightly different circumstances, in Jenkins. In that
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case, the defendants placed the plaintiff under surveillance after
they had already deposed her. Jenkins, supra, 69 N.J. at 53.
Although the defendants informed the plaintiff about the
surveillance and produced the individuals who filmed her for a
deposition, the individuals refused to answer questions about the
circumstances of their investigation, claiming the work product
privilege. Id. at 53.
The Court rejected the defendants' assertion that, as work
product, the films were "cloaked with absolute immunity from
discovery[.]" Id. at 54-55. While acknowledging the films were
created in anticipation of litigation, the Court found that the
interest in full disclosure was more weighty than any interest in
surprising the plaintiff at trial. Id. at 56-57. The Court
explained that "essential justice is better achieved when there
has been full disclosure so that the parties are conversant with
all the available facts." Id. at 56.
The Court rejected defendants' argument that the plaintiff
did not show a substantial need for the films, noting that "[t]he
surprise which results from distortion of misidentification is
plainly unfair. If it is unleashed at the time of trial, the
opportunity for an adversary to protect against its damaging
inference by attacking the integrity of the film and developing
counter-evidence is gone or at least greatly diminished." Id. at
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54, 57-58. The Court stressed the value to all parties, for both
settlement and trial purposes, to know if "the motion pictures
actually portray plaintiff engaged in some strenuous activity
which on deposition she had already testified is beyond her
capacity, then it is not probable that pretrial disclosure of that
kind of inconsistency will enable her to salvage the case[.]" Id.
at 58. Consequently, the Court directed that the films be turned
over after the plaintiff was deposed again concerning damages
only. Id. at 60. The Court also found that evidence such as
surveillance films was "unique" and not capable of being
replicated, and thus obtaining a substitute would create an undue
hardship. Id. at 58.
While the Court ordered defendants to produce the
surveillance video after the second deposition in Jenkins, it
added guidance for the future. Id. at 59-60. It directed that
the party conducting the surveillance could depose the plaintiff
about the activities that it filmed her performing before turning
it over in order to preserve the evidentiary value of the video.
Id. at 60. It added that "[a]s a general proposition, and always
subject to the discretion of the trial court, any demand for
surveillance motion pictures should be accompanied by a consent
to be deposed after the movies have been taken and before the
films must be presented for the adversary's examination." Ibid.
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While recognizing the possibility of a need for "deviation from
this general rule," the Court was "confident that a trial judge's
discretion is a sufficient source of protection when the particular
circumstances are presented." Ibid.
We find the reasoning in Jenkins unassailable and although
it was decided many years ago, its reasoning still serves the
beneficial purposes of discovery while honoring the work product
doctrine. Although no New Jersey case has addressed this exact
issue since Jenkins, the Court's approach has considerable support
in federal rules decisions. Generally, federal courts have found
that surveillance evidence obtained for impeachment purposes is
protected by the work product doctrine. See, e.g., Marchello v.
Chase Manhattan Auto Fin. Corp., 219 F.R.D. 217, 219 (D. Conn.
2004). Some courts have extended this principle to hold that
surveillance evidence is not discoverable if the party decides
that it will not introduce the evidence at trial.1 Fletcher v.
1
Some federal courts treat discovery obligations differently based
on a party's intended use of surveillance evidence. These courts
frame the distinction as one between substantive evidence - - used
to prove a fact in issue - - and impeachment evidence - - offered
to discredit a witness or reduce the effectiveness of his or her
testimony. See Newsome v. Penske Truck Leasing Corp., 437 F.
Supp. 2d 431, 434-35 (D. Md. 2006). If a court finds that a piece
of evidence is substantive, it generally orders that the evidence
be produced immediately. Babyage.com, Inc. v. Toys "R" Us, Inc.,
458 F. Supp. 2d 263, 265-66 (E.D. Pa. 2006); Jerolimo v. Physicians
for Women, P.C., 238 F.R.D. 354, 357 (D. Conn. 2006). But see
Walls v. Int'l Paper Co., 192 F.R.D. 294, 299 (D. Kan. 2000). On
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Union Pac. R.R. Co., 194 F.R.D. 666, 668, 674 (S.D. Cal. 2000);
Bradley v. Wal-Mart Stores, Inc., 196 F.R.D. 557, 557-58 (E.D. Mo.
2000).
Additionally, the federal approach of delaying production of
work product surveillance material until after the deposition of
the subject of the surveillance is favored by leading commentators.
8 Charles Alan Wright, Arthur R. Miller, & Richard Marcus, Federal
Practice and Procedure, § 2015 at 307-08 (3d ed. 2010) (citing
Edward H. Cooper, Work Product of the Rulesmakers, 53 Minn. L.
Rev. 1269, 1318 (1969)). In delaying production rather than
denying production, the court preserves the impeachment value of
the evidence yet allows all facts to be known to all parties before
the trial. Donovan, supra, 252 F.R.D. at 82.
The trial court appeared to interpret the Jenkins Court's
directive that a request for surveillance films "should be
accompanied by a consent to be deposed after the movies have been
taken and before the films must be presented" as requiring only
that consent be given before the discovery is produced. Although
the other hand, if a court finds that a piece of evidence is
impeachment evidence, it will delay ordering production of the
evidence until after deposition. Donovan v. AXA Equitable Life
Ins. Co., 252 F.R.D. 82, 82-83 (D. Mass. 2008); Martino v. Baker,
179 F.R.D. 588, 590 (D. Colo. 1998); Ward v. CSX Transp., 161
F.R.D. 38, 40-41 (E.D.N.C. 1995); Corrigan v. Methodist Hosp., 158
F.R.D. 54, 59 (E.D. Pa. 1994).
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the phrase gives rise to some ambiguity, such an interpretation
is not consistent with the Jenkins Court explicit reasoning that
its "general rule" was intended to preserve the defendants' ability
to find inconsistencies between testimony and the film, and the
plaintiff's ability to challenge the accuracy of the film before
trial. The mere consent to a later deposition after the film has
been viewed by the plaintiff would not allow the benefit recognized
in Jenkins, that is, the impeachment value of the film. Moreover,
the Court required that the second deposition of the plaintiff be
held before the films were turned over, which strongly buttresses
this interpretation.
Of course, in Jenkins, the Court noted that the general rule
it set forth that a party was entitled to surveillance video after
it had been deposed was always subject to a trial court's
discretion. Id. at 60. Nevertheless, discretion is never absolute
but must be reasonable and not arbitrary or capricious. See Circus
Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1,
13 (2009). An abuse of discretion "arises when a decision is
'made without a rational explanation, inexplicably depart[s] from
established policies or rest[s] on an impermissible basis.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations
omitted). Put differently, "a functional approach to abuse of
discretion examines whether there are good reasons for an appellate
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court to defer to the particular decision at issue," which must
not be "arbitrary, capricious, whimsical or manifestly
unreasonable[.]" Ibid. (quoting Coletti v. Cudd Pressure Control,
165 F.3d 767, 777 (10th Cir. 1999)).
In the present case, the trial court failed to explain its
departure from the general principle of turning over surveillance
evidence after the deposition announced in Jenkins. Although in
Jenkins there had already been a deposition taken, the court
directed that the films be provided after a second deposition
limited to damages. Other than a slightly different procedural
posture, we find no facts in the record that distinguish this case
from Jenkins and would thus present a principled reason for a
deviation in the general rule announced in Jenkins. This rule
accommodated the needs of both parties to have all facts known
before trial. While we recognize, as did the Jenkins Court, that
there may be circumstances where that could not be accomplished
by the general rule, none are found in the record here.
Accordingly, we conclude that the trial court mistakenly exercised
its discretion in departing from the Jenkins general rule.
Reversed and remanded for proceedings consistent with this
opinion.
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