As technology advances, and as technology's cost declines, more and more businesses are adding sophisticated in-store or perimeter surveillance cameras to their comprehensive security systems. While these cameras can be a useful way to address potential crime, manage store safety, and monitor inventory, these cameras become very useful during the litigation of a premises liability case when they capture the manner in which an alleged incident occurred. It is no surprise then, that when a customer or business invitee is injured on a premises, he commonly seeks production of that in-store surveillance as part of the initial discovery in the eventual lawsuit.

Business owner defendants commonly respond to these discovery requests by agreeing to produce the surveillance video, but only after deposing the plaintiff. This procedure arguably preserves the defendant's ability to obtain the plaintiff's unfettered and independent recollection of the alleged incident, without that recollection being skewed by the video surveillance. In support of their position, premises owners commonly rely on Dodson v. Persell, 390 So. 2d 704, 705 (Fla. 1980), in which the Florida Supreme Court held that it is within the trial court's discretion to allow the surveilling party to take a deposition before being required to produce the contents of video surveillance in its possession. Critically, however, Dodson involved post-incident surveillance of the plaintiff and not surveillance of the incident itself.

Plaintiffs usually respond to Dodson, by citing a much more recent case, in which the Fourth District found that there was no abuse of discretion in ordering the production of accident scene photos to the plaintiff, prior to her deposition, see Target v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010). However only three years later, the Fourth District denied certiorari review of an order denying a plaintiff's motion seeking production of in-store video surveillance prior to taking the plaintiff's deposition, suggesting that this may simply be a discretionary call. See McClure v. Publix Super Markets, 124 So. 3d 998 (Fla. 4th DCA 2013).

Who is right? While earlier this year the Third District had an opportunity to clarify the matter, unfortunately that opinion does not bring us any closer to a definitive answer. In Business Telecommunications Services v. Madrigal, 265 So. 3d 676 (Fla. 3d DCA 2019), the plaintiff, Elena Madrigal, alleged that she was riding her bicycle on the public sidewalk adjacent to the subject premises, when a hose on the sidewalk caused her to fall. In her early discovery requests, Madrigal sought any and all video surveillance that would show herself or the scene of her accident. The defendant objected to the request under the work product doctrine, and also cited to Dodson and McClure, likely as an effort to argue an entitlement to withhold the requested video until after Madrigal's deposition. After considering the parties' positions, the trial court entered an order requiring the production of surveillance video in advance of Madrigal's deposition, and the defendant sought certiorari review.

The Third District noted that the surveillance video in question was not post-incident surveillance of Madrigal, but rather was surveillance of the area in which the incident occurred, that was captured by cameras on the defendant's premises. The court further noted that "date-of-accident" video is distinguishable from "post-accident" surveillance video of the plaintiff's activities and abilities.

The court found, however, that there is a lack of a bright-line rule or controlling precedent on this question, and ultimately concluded that the defendant had not met its burden under certiorari  review. Accordingly, the petition was denied and the order requiring the production of the surveillance video, before the plaintiff's deposition, remained intact.

The takeaway from Madrigal's case, is that although the Third District expressly recognized a distinction between surveillance of an incident that is taken as it occurs and post-incident surveillance of a plaintiff conducted by the defendant. The Third District acknowledged that there is no bright-line rule or controlling precedent in Florida regarding when the production of such video surveillance can be compelled in premises liability cases. Accordingly, at least for now, there is no clear answer to "who is right" as it relates to the production of video surveillance in premises liability cases, as the trial judge seems to have the discretion to make the call on a case-by-case basis.

Gabriel "Zach" Gonzalez, an associate with Haliczer Pettis & Schwamm, focuses his practice in the areas of personal injury, civil rights, employment litigation and business litigation.