Video Of Slip-And-Fall Not Work Product

The Rhode Island Supreme Court held that a trial court erred in applying work product protection to a videotape of the accident which is the subject of the litigation

This case concerns the applicability of the work-product privilege to the video depicting Ms. Mile’s slip-and-fall incident, captured on Kirkbrae’s surveillance cameras on the date of the incident. We agree with Ms. Mile that the trial justice erroneously denied production of the video of the incident, which is actual evidence of the incident and not work product.

After quoting the applicable rule

The work-product privilege…protects photographs and films from disclosure when they are prepared in anticipation of litigation or for trial. See Cabral, 556 A.2d at 49 (holding that photographs and films are within the scope of Rule 26). Rule – 6 – 26(b)(3) triggers a requirement for the party seeking disclosure to demonstrate a “substantial need of the materials” and that they are unable to access the equivalent by other means. Super. R. Civ. P. 26(b)(3). Critically, however, the party who seeks to shield a document, photograph, video, or other thing from discovery bears the initial burden of establishing a right to nondisclosure by demonstrating that the privilege applies. Pastore, 900 A.2d at 1080; see North Kingstown School Committee v. Wagner, 176 A.3d 1097, 1100 (R.I. 2018) (noting that “the burden of persuasion rests upon the party seeking to assert the privilege”); see also Conoco Inc. v. United States Department of Justice, 687 F.2d 724, 730 (3d Cir. 1982) (“The burden of demonstrating that a document is protected as work-product rests with the party asserting the doctrine.”).

This Court explained in Cabral that where a lawyer creates, or causes to be created, surveillance materials solely for his or her own case-preparation purposes, such material is work product. Cabral, 556 A.2d at 50-51. The United States Court of Appeals for the First Circuit has likewise explained that, under the substantially similar federal rule, in order for material to be “prepared in anticipation of litigation” it must be “done for litigation” specifically, and not “in the ordinary course of business or [be material] that would have been created in essentially similar form irrespective of the litigation.” United States v. Textron Inc. and Subsidiaries, 577 F.3d 21, 29-30 (1st Cir. 2009) (emphasis omitted) (quoting Maine v. United States Department of Interior, 298 F.3d 60, 70 (1st Cir. 2002)). Here, it is undisputed that Kirkbrae’s surveillance cameras captured Ms. Mile’s slip-and-fall incident at the time it occurred, and not at the behest of counsel. In fact, Kirkbrae conceded at the hearing on plaintiff’s motion to compel that the video in its possession was taken at the time of the injury and was not recorded at the request of an attorney. As such, Kirkbrae sought the protection of the work-product privilege to shield the video from discovery but did not, and could not, meet its burden of establishing a right to nondisclosure in the first instance. See Henderson, 966 A.2d at 1248 (granting work-product protection to company report because an attorney told board to create the report after learning of alleged illegal conduct by employee); Cabral, 556 A.2d at 49-50 (granting work-product protection to surveillance photos taken by investigator hired by the defendant’s attorney after litigation commenced).

We acknowledge that, in some cases, a particular piece of evidence may require a searching review of the record and statements of the parties to determine why it was created and whether that purpose aligns with the policy of the work-product protection; however, where, as here, an attorney concedes that the material was made contemporaneously in the course of business rather than at the behest of an attorney after the fact, our job is much simpler.

Conclusion

We quash the order of the Superior Court denying the plaintiff’s motion to compel production of the video of the incident and remand the record with instruction that the Superior Court enter an order consistent with this opinion.

(Mike Frisch)