Does Video Surveillance Fall into the Category of Discoverable ESI or Privileged Work-Product?

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A complex question in the realm of eDiscovery looks towards whether video surveillance, as ESI, can be considered protected work product. The court took up the issue in Sowell v. TARGET CORPORATION, No. 5:14-cv-93-RS-GRJ (N.D. Fla. May 28, 2014).

Plaintiff alleged injuries resulting from a slip and fall in a Target Store. When Plaintiff submitted a routine discovery request seeking production of the video, Defendant sought to protect the video as work product.

There seems to be no consensus among courts as to whether surveillance videos are prepared in anticipation of litigation and therefore subject to protection as work product. However, in Schulte v. NCL (Bahamas) Ltd., No. 10-23265-CIV, 2011 WL 256542 (S.D. Fla. Jan. 25, 2011), the court concluded that surveillance video of a slip and fall accident aboard a cruise ship was not protected work product even though it was copied and preserved at the request of counsel for the cruise line.

The Court here concluded that the mere act of preserving a tape, as opposed to creating an original, is not sufficient to transform a document created in the ordinary course of business into work product that is protected from disclosure.

ILS – Plaintiff eDiscovery Experts