Is Video Surveillance a Form of ESI That Warrants Delayed Production?

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In Sowell v. TARGET CORPORATION, No. 5:14-cv-93-RS-GRJ (N.D. Fla. May 28, 2014), the court was presented with the difficult question of if and when video surveillance should warrant delayed production.

Plaintiff was injured as a result of a slip and fall in a Target Store. Plaintiff in requested that Defendant produce a copy of the video that would show where Plaintiff fell or the area that Plaintiff fell in.

Defendant initially sought to protect the video as work product, but the court found that the video tapes were made in the ordinary course of business, and not protected work product. Defendant alternatively sought to request that the court delay production of the surveillance videos until after Plaintiff’s deposition was completed.

The court, considering conflicting views, refused to delay disclosure of the surveillance videos. The court iterated that the video was being used as substantive evidence, which supported it not being delayed, as opposed to it being used as conjunctive means of recollection.


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