*1 THIS CAUSE is before the Court upon Plaintiff Bradley Bennett's Motion to Overrule Defendant's Objections and Compel Production of Video Footage Capturing the Subject Incident. (ECF No. 17). Defendant Jetro Restaurant Depot, LLC d/b/a Restaurant Depot (“Restaurant Depot”) filed a Response. (ECF No. 18). Plaintiff did not file a reply and the time to do so has passed. The matter has been referred to the undersigned by the Honorable K. Michael Moore, United States District Judge, pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. (ECF No. 6). Having reviewed the Motion, Response, the docket as a whole, and being otherwise fully advised, Plaintiff's Motion (ECF No. 17) is GRANTED.

I. BACKGROUND

Plaintiff initially filed this action on March 19, 2023 in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. (ECF No. 1-1). On May 22, 2023, Defendant removed the case to this Court. Plaintiff alleges that he was a business invitee at Defendant's premises where he tripped and fell on a small object that was left on the floor. Plaintiff alleges that Defendant breached its duty owed to Plaintiff by negligently maintaining its premises. Plaintiff alleges that, as a result of this negligence, Plaintiff sustained permanent or continuing injuries that will cause Plaintiff losses in the future. Defendant filed its Answer on May 30, 2023. (ECF No. 7).

On July 30, 2023, Plaintiff propounded discovery requests on Defendant. Relevant to Plaintiff's Motion, Plaintiff's Request No. 10 seeks:

(ECF No. 17-1 at 3).

Defendant responded on October 13, 2023 that it objected to this Request on the grounds that “it seeks documents protected by the attorney client privilege and/or work product doctrine that were prepared in anticipation of litigation.” (Id.). Defendant also objected to the Request because it argues it is entitled to Plaintiff's unrefreshed recollection of the incident prior to viewing video footage of the incident. Defendant submitted a privilege log in tandem with its responses and asserts, with regard to this Request, that “attorney-client and work product privilege is asserted for a 27-second video from the date of incident and preserved in anticipation of litigation and as part of Restaurant Depot's investigation of Plaintiff's claim.” (ECF No. 17-2 at 2). Plaintiff now moves to overrule Defendant's assertion of privilege over the video footage and to compel Defendant's disclosure of the video footage prior to Plaintiff's deposition now scheduled for December 14, 2023. (ECF No. 22 at 2).

II. DISCUSSION

A. Defendant's Assertion of Work-Product Privilege[1]

*2 Plaintiff argues that the video footage capturing Plaintiff slipping and falling on the floor of Defendant's premises is not protected by the work-product doctrine. Plaintiff asserts that the footage was obtained from one of Defendant's store surveillance cameras and that this camera is kept in the ordinary course of business.

Defendant represents that it maintains security footage of various areas of its store. Defendant asserts that, should an incident occur on the premises in an area where surveillance is maintained, the footage is preserved as part of the investigation of the incident. Defendant represents that after Plaintiff reported the accident on October 27, 2022, Defendant reviewed and preserved the footage as part of the investigation of the incident. Defendant argues that because the video was preserved in anticipation of litigation that it is protected by the work-product privilege.

The work-product doctrine has been codified at Federal Rule of Civil Procedure 26(b)(3), which provides as follows:

Fed. R. Civ. P. 26(b)(3)(A)–(B). For the work-product doctrine to apply, the proponent of the privilege must “prove that it anticipated litigation at the time each document or communication was created.” Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Att'ys, P.A., 519 F. Supp. 3d 1184, 1200 (S.D. Fla. 2021) (citing Holladay v. Royal Caribbean Cruises, Ltd., 333 F.R.D. 588, 592 (S.D. Fla. 2019)). The inquiry focuses on when the documents and tangible things sought were created and why they were created. Id.; cf., e.g., Wyndham Vacation Ownership, Inc. v. Reed Hein & Assocs., LLC, No. 618CV2171ORL31DCI, 2019 WL 9091666, at *14 (M.D. Fla. Dec. 9, 2019) (“With regard to determining whether documents were prepared ‘in anticipation of litigation,’ the law is clear that if documents are prepared for a business purpose – or for some other non-litigation purpose – they fall outside the protection of the work product doctrine.”). Though, this determination is a highly fact-specific inquiry that depends on the circumstances of a given case. See Holladay v. Royal Caribbean Cruises, Ltd., 334 F.R.D. 628, 631–33 (S.D. Fla. 2020).

“[T]he burden is on the party withholding discovery to show that the documents should be afforded work-product immunity.” Milinazzo v. State Farm Ins., 247 F.R.D. 691, 698 (S.D. Fla. 2007). “The party claiming the privilege must provide the court with underlying facts demonstrating the existence of the privilege.” Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011).

*3 Defendant represents that it “maintains security footage of various areas of its store. Should an incident occur on the premise and in an area where surveillance is maintained, the footage is preserved as part of the investigation of the incident.” (ECF No. 18 at 2). Defendant admits that the footage sought here is part of its normal practice of maintaining security footage and was originally created for surveillance purposes. “[H]ence [it was] created in the ordinary course of business.” Holbourn v. NCL (Bahamas) Ltd., 305 F.R.D. 685, 687 (S.D. Fla. 2014).

Yet Defendant claims that the footage is protected by the work-product privilege because “[a]n act giving rise to the accrual of a cause of action occurred, namely the Plaintiff's slip and fall on October 27, 2022. As slip and fall accidents routinely lead to litigation, after the Plaintiff reported the accident, the video was reviewed and preserved.” (ECF No. 18 at 2). However, “once [Defendant] was aware that a claim might be made based upon the Plaintiff's slip and fall incident, [Defendant] had a duty to preserve that tape, and counsel had a duty to advise [Defendant] to do so.” Schulte v. NCL (Bahamas) Ltd., No. 10-23265-CIV, 2011 WL 256542, at *3 (S.D. Fla. Jan. 25, 2011). “It would be anomalous, to say the least,” if by preserving evidence created in the ordinary course of business, in anticipation of litigation, Defendant would be “able to shield that evidence from production based upon work product protection.” See id.

The footage here was made in Defendant's normal course of surveillance of its premises. Thus, the video was not created in the work-product context for purposes of or in anticipation of litigation and is thus not covered work product. The act of preserving that non-privileged video did not then convert it to work product. See Cabezudo-Vazquez v. Ross Dress for Less, Inc., No. 18-80469-CV, 2018 WL 4908101, at *2 (S.D. Fla. July 27, 2018) (quoting Schulte, 2011 WL 256542, at *4).[2]

The undersigned additionally notes the “inherently inconsistent” position that Defendant makes in asserting the work-product privilege, but also asserting its willingness to waive said privilege and provide the footage after Plaintiff is deposed. See Brown v. Ncl (Bahamas), Ltd., No. 1521732CIV, 2015 WL 6673700, at *2 (S.D. Fla. Oct. 30, 2015) (“[Defendant] also took the position that the video is protected work product, but this is inherently inconsistent with its other position — of being willing to turn over the video immediately after [plaintiff] gives direct deposition testimony. Given this scenario, the Undersigned assumes that [defendant] has abandoned the work product argument. If it has not, then it has waived it by agreeing to produce a purported work product material.”). In sum, Defendant has failed to substantiate its objection on the basis that the video is protected from production as work product.

Accordingly, Defendant's objection based on the work-product doctrine is OVERRULED.

B. Video Footage Capturing the Subject Incident

*4 Defendant argues that, even if the video is not protected as work product, it should nevertheless be permitted to withhold production until after Plaintiff's deposition. Defendant asserts that “[a]llowing Plaintiff in this case to review the surveillance footage prior to his deposition would allow Plaintiff to tailor his testimony based on information obtained from the footage” and, as Plaintiff brought forth these claims, he should “be required to provide deposition testimony based on his own independent recollection of the incident, without being refreshed in any way.” (ECF No. 18 at 4).

“Although parties may use discovery methods in any sequence, the Court retains discretion to control the timing of discovery in the interests of justice, including allowing Defendant to withhold the surveillance video until after the direct examination takes place at [Plaintiff's] deposition.” Terman v. NCL (Bahamas), Ltd., No. 14-24727-CV, 2015 WL 3892508, at *1 (S.D. Fla. June 16, 2015) (citing Fed. R. Civ. P. 26(d)(2)); Cabezudo-Vazquez, 2018 WL 4908101, at *2 (S.D. Fla. July 27, 2018) (“There is no dispute that ‘Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery.’ ”). “However, Defendant needs to demonstrate it will be prejudiced by the earlier disclosure of the video.” Terman, 2015 WL 3892508, at *1. “If a defendant cites with particularity facts to suggest that disclosure of certain discovery prior to a plaintiff's deposition would lead [him] to improperly tailor or otherwise alter [his] deposition testimony, then a Court may exercise its discretion and order that the defendant need not disclose the sought-after discovery until after the [plaintiff's] deposition.” Jones-Graham v. Advance Stores Co., Inc., No. 14-81411-CIV, 2015 WL 4365317, at *2 (S.D. Fla. July 14, 2015).

Defendant asserts that it would be prejudiced by Plaintiff being able to tailor his testimony if Plaintiff were to obtain the footage prior to his deposition. Defendant, however, “has failed to point to any aspect of the video, and/or any action by Plaintiff that would cause this Court to find that disclosure of the video would lead Plaintiff to improperly tailor [his] testimony.” Cabezudo-Vazquez, 2018 WL 4908101, at *2 (quoting Schulte, 2011 WL 256542, at *4) (alterations omitted). Absent Defendant substantiating its assertion of prejudice, the Court “cannot justify stepping in and altering the manner and sequence in which discovery is produced in this case.” Jones-Graham, 2015 WL 4365317, at *2.

Defendant generically asserts that the footage is an important tool for impeachment. However, “the primary evidentiary value of the [footage] is proof of the facts surrounding the incident underlying this litigation and [its] impeachment value is secondary.” Holbourn, 305 F.R.D. at 689. Moreover, Defendant reported in its privilege log that it has in its possession a six-page accident investigation report that contains Plaintiff's statement of the accident created on the date the accident occurred. (ECF No. 17-2 at 1). Defendant still has an impeachment tool within its possession and would be able to compare Plaintiff's testimony to that report. Cf. Schulte, 2011 WL 256542, at *4.

Absent a specific reason to believe Plaintiff will tailor his testimony, the undersigned finds that Defendant's objection to production of the requested video is not justified.

III. CONCLUSION

Based on the foregoing, Plaintiff's Motion to Overrule Defendant's Objections and Compel Production of Video Footage Capturing the Subject Incident (ECF No. 17) is GRANTED. Defendant's assertion of work-product privilege is OVERRULED. Defendant is ORDERED to produce the footage in dispute within SEVEN (7) DAYS of this Order.

*5 An award of reasonable attorney's fees and costs is mandatory under Federal Rule of Civil Procedure 37(a)(5) if a motion to compel is granted, unless the court finds the objections to the discovery substantially justified, the motion was filed prior to making good faith efforts to resolve the dispute, or other circumstances would render such an award unjust. While the Court finds that Defendants’ objections were not substantially justified, Plaintiff neither requests nor advances an estimate of its costs incurred in bringing the Motion; accordingly, no costs will be shifted.

DONE AND ORDERED in Chambers at Miami, Florida, this 4th day of December, 2023.