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Kelley v. Smith's Food & Drug Ctrs., Inc.

United States District Court, D. Nevada

November 19, 2014

ANN KELLEY, Plaintiff,

For Ann Kelley, Plaintiff: Christopher D. Burk, Scott Poisson, LEAD ATTORNEYS, Bernstein & Poisson, Las Vegas, NV.

For Smith's Food & Drug Centers, Inc., Defendant: Jerry S. Busby, Cooper Levenson April Niedelman & Wagenheim, P.A., Las Vegas, NV.


C.W. Hoffman, Jr., United States Magistrate Judge.


This matter is before the Court on Plaintiff Ann Kelley's (" plaintiff") motion to compel (doc. # 25), filed October 7, 2014, Defendant Smith's Food & Drug Centers, Inc.'s (" defendant") response (doc. # 30), filed October 24, 2014, and plaintiff's reply (doc. # 32), filed October 31, 2014. Also before the Court is plaintiff's motion for protective order (doc. # 24), filed October 7, 2014, and defendant's response (doc. # 31), filed October 27, 2014. No reply was filed.


This is a slip-and-fall case removed from state court. Plaintiff alleges that on June 14, 2013, she slipped in a puddle of milk at defendant's store located at 1421 North Jones Boulevard, Las Vegas, Nevada, and sustained injuries. See Doc. # 1; Doc. # 25. Plaintiff sued defendant for negligence in state court, praying for general and special damages, along with fees, costs, interest, and any other appropriate relief. Id. The action was removed to this Court on June 2, 2014.

On August 8, 2014, the parties filed a proposed discovery plan and scheduling order, which this Court granted on August 11, 2014. See Doc. # 10; Doc. # 11. Then, on August 18, 2014, plaintiff filed a motion to compel the production of a video, following defense counsel's disclosure to plaintiff's counsel of the existence of a store video containing footage of plaintiff's slip-and-fall. See Doc. # 12. At a hearing held on September 30, 2014, the Court denied plaintiff's motion, holding that defendant was not required to provide a copy of the video as part of its initial disclosures, and noting that plaintiff could properly bring the same motion at a later stage of discovery. See Doc. # 22. Thereafter, plaintiff filed a motion to compel the production of the video, along with a motion for protective order to prevent plaintiff's deposition until the video was produced. See Doc. # 24; Doc. # 25. On November 7, 2014, the Court conducted a hearing on the motions, after which the motions were taken under submission. See Doc. # 33.


1. Motion to Compel Video

Plaintiff moves the Court to compel defendant to produce the store video containing footage of plaintiff's slip-and-fall. In support, plaintiff contends the video is " substantive" evidence that could help, among others, plaintiff defend herself against defendant's claim of comparative negligence. Plaintiff also contends that the video depicts " actual facts" of plaintiff's slip-and-fall, further demonstrating that it is " dispositive to th[is] case." Doc. # 25 at 6. Additionally, per plaintiff, although she requested the video in her Request for Production of Documents (" RFP") pursuant to Rule 34 of the Federal Rules of Civil Procedure (" FRCP"), defendant " refuse[d]" to surrender the video. See id. at 11 (defendant's response to plaintiff's RFP). Plaintiff maintains that defendant errs in withholding the video because the video is not " testimony" and therefore cannot be considered impeachment evidence. Id. at 6. Plaintiff further contends that defendant's refusal to produce the video amounts to an " ambush tactic" and ultimately " stymies settlement negotiations" because plaintiff " does not know the objective evidence surrounding the incident." Id. at 7.

Defendant, in response, concedes that the video contains substantive evidence but points out that it also contains impeachment evidence, contrary to plaintiff's assertion. Indeed, per defendant, plaintiff's argument " falls short by implying that character evidence or testimony is the only way to impeach a witness or party." Doc. # 30 at 5. Defendant also argues that any impeachment value of the video would be lost if plaintiff is allowed to view the video before her deposition because plaintiff " likely" would use her knowledge of the video not only to paint herself in the best light, but to " testify untruthfully" at her deposition. Id. at 6. Defendant further argues that plaintiff will not suffer prejudice if she fails to access the video before her deposition because the only way the video could be used to " ambush" plaintiff is if she lies about the circumstances surrounding her fall, and anyway defendant intends to produce a copy of the video following plaintiff's deposition. Defendant then argues that " varying levels of access to the video" [1] are justified in this case because plaintiff should have a clearer recollection of the events surrounding her fall, especially since the incident purportedly had a far-reaching effect on her life, whereas defendant's employees would view the incident as " just another day on the job." Id. at 9. In the spirit of fairness, however, defendant asserts that it is willing to withhold the video from its employees prior to their own depositions.

According to defendant, moreover, " temporarily withhold[ing]" the store video follows the decisions of other courts, although defendant admits that the cases are distinguishable because these cases involve " surveillance" videos--i.e., videos containing footage " captured or retained in anticipation of litigation." See Doc. # 30 at 7. Nevertheless, per defendant, the video in the instant case could be considered " sub rosa" evidence--i.e., evidence " recorded after the claim arises... to show that plaintiff's injuries are not as severe or disabling as [p]laintiff alleges." Id.

In reply, plaintiff contends that the cases defendant cites are distinguishable from the instant case because those cases involve sub rosa or surveillance videos, and the video at issue here is neither. Plaintiff then turns to cases in which courts ordered withholding parties to produce the recordings. For example, plaintiff relies upon Roberts v. Americable Int'l, 883 F.Supp. 499 (E.D. Cal. 1995), in which the court ordered plaintiff to produce the recordings prior to defendant's deposition so as to promote notions of fairness, and prevent plaintiff from harassing or annoying defendant. Plaintiff then turns to Wheeler v. Fiesta Palms, LLC, et al., No. 2:06-cv-01105-HDM-PAL, (D. Nev. Mar. 21, 2007) (Doc. # 22), in which the court ordered defendant to produce the recording, finding that defendant's reasons for withholding the ...

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