The Plaintiff Joan Mernick was involved in an automobile accident and sued the defendants Wanda McCutchen and Hudson News Distributors for her injuries. The defendants conducted surveillance of the plaintiff on 9 separate occasions and so advised the plaintiff in answers to interrogatories. In Mernick v. McCutchen, 2015 N.J. Super. LEXIS 143 (App. Div. Sept. 3, 2015), the plaintiff’s attorney insisted on viewing the videotapes before he would produce the plaintiff for a deposition.
Surveillance videos can be powerful tools used to impeach a plaintiff in a personal injury action. Defendants typically do not want to produce the videos before the plaintiff is deposed.
Because the plaintiff refused to be deposed before the videos were produced, the defendants moved to the trial court to compel her deposition. The plaintiff cross-moved to require the production of the surveillance videos. The trial court found the videos to be work product. However, the trial court ordered their production on the basis that they were unique evidence that could not be obtained by other means. Thus, the plaintiff established undue hardship in acquiring a substantial equivalent of the relevant surveillance recordings and the defendants were ordered to produce the tapes immediately.
The defendants sought leave to appeal on an interlocutory basis and the Appellate Division granted leave, along with a stay. After considering the arguments, the Appellate Division reversed the trial court decision.
The court found that this issue was governed by the New Jersey Supreme Court case of Jenkins v. Rainner, 69 N.J. 50 (1976). Jenkins made it clear that the defendants with a surveillance video were permitted to depose the plaintiff about the activities it had filmed before turning it over in order to preserve the evidentiary value of the video.
The Appellate Division found that Jenkins was still good law, even though decided many years ago. Since Jenkins, no other New Jersey cases have addressed this exact issue. Although in Jenkins, the video was taken after the plaintiff’s deposition had been conducted, the court directed that the films be provided after a second deposition limited to damages. The Appellate Division could find no facts that distinguished this case from Jenkins. Hence, it concluded that the trial court mistakenly exercised its discretion in departing from the Jenkins general rule and found that the videos did not need to be produced until after the plaintiff was deposed.
