Mernick v. McCutchen, 442 N.J. Super. 196 (App. Div. 2015). This appeal presented a discovery issue in an auto accident case. Defendants had taken surveillance video of the injured plaintiff. Plaintiff demanded that the video be produced in discovery before she was deposed, but defendants sought to depose plaintiff first. The Law Division ruled that the video should be turned over by defendants before plaintiff was deposed. Defendants obtained leave to appeal, and the Appellate Division today reversed in an opinion by Judge Hayden.
The abuse of discretion standard applies to review of discovery decisions. Where, however, a trial court evidences “a mistaken understanding of the applicable law,” the appellate courts will not defer. That was what led to the reversal here.
The surveillance video was attorney work product, which was a counterweight to the “presumption of discoverability.” Citing both Jenkins v. Rainner, 69 N.J. 50 (1976), and federal cases, Judge Hayden concluded that “surveillance evidence obtained for impeachment purposes is protected by the work product doctrine.” That did not mean that the video evidence was not discoverable. Instead, Judge Hayden held that the proper “approach [was] delaying production of work product surveillance material until after the deposition of the subject of the surveillance.” That result “preserves the impeachment value of the evidence yet allows all facts to be known to all parties before the trial,” thus avoiding the “concealment and surprise” that the discovery rules are designed to reject.
Jenkins had announced “the general principle of turning over surveillance evidence after the deposition.” The Law Division did not “explain its departure” from that principle, and therefore abused its discretion.