Dodson v. Persell, No. 56116

CourtUnited States State Supreme Court of Florida
Writing for the CourtOVERTON; SUNDBERG
Citation390 So.2d 704
PartiesJames E. DODSON and Lorraine L. Dodson, Petitioners, v. Charles L. PERSELL and United States Fidelity & Guaranty Company, Respondents.
Docket NumberNo. 56116
Decision Date20 November 1980

Page 704

390 So.2d 704
19 A.L.R.4th 1228
James E. DODSON and Lorraine L. Dodson, Petitioners,
v.
Charles L. PERSELL and United States Fidelity & Guaranty Company, Respondents.
No. 56116.
Supreme Court of Florida.
Nov. 20, 1980.

Bill Hoppe and Mary Friedman of Colson & Hicks, Miami, for petitioners.

Page 705

Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for respondents.

Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amici curiae.

Joseph P. Milton, Jacksonville, for Jacksonville Defense Lawyers Association, amici curiae.

James E. Tribble and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for The Florida Defense Lawyers Association, amici curiae.

OVERTON, Justice.

This is a petition for writ of certiorari to review the Third District Court of Appeal's decision reported at 365 So.2d 413 (Fla. 3d DCA 1979), and concerns the entitlement of a party to discover the existence and contents of surveillance films or photographs pursuant to the provisions of Florida Rule of Civil Procedure 1.280. There is clear conflict. The Third District Court of Appeal, both in the decision sought to be reviewed and in Collier v. McKesson, 121 So.2d 673 (Fla. 3d DCA 1960), has held that such films and photographs are protected from discovery by the "work product" privilege. The Fourth District, on the other hand, has held that the existence and contents of such materials are discoverable. Corack v. Travelers Ins. Co., 347 So.2d 641 (Fla. 4th DCA 1977); Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975). The First District Court has held that a party may discover the existence of surveillance films, but has not addressed the question of whether the films' contents are discoverable. Howard Johnson's Motor Lodges, Inc. v. Baranov, 379 So.2d 114 (Fla. 1st DCA 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (prior to April 1, 1980).

We resolve the conflict and hold, in summary, that (1) the existence of surveillance movies and photographs is discoverable in every instance; (2) the contents are discoverable if the materials will be used as evidence either substantively or for impeachment; (3) if the movies or photographs will not be used as evidence by the holder, the contents are discoverable only upon a showing of exceptional circumstances; (4) the party seeking discovery must be afforded a reasonable opportunity to observe the movies or photographs before their presentation as evidence; and (5) within the trial court's discretion, the surveilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection.

Petitioner Dodson's complaint alleges that respondent Persell negligently collided his automobile with the automobile of Dodson, causing Dodson serious injury. The record reflects that the petitioner, as plaintiff in the trial court, propounded interrogatories to discover whether surveillance of the petitioner had taken place, whether photographs or movies were taken, and, if so, the time and place taken, the substance of what the films purported to show, and the qualifications of the photographer. Additionally, petitioner properly requested production of any such photographs or films. Relying on the "work product" privilege, respondent objected to each of the interrogatories and the production request. The petitioner moved to compel production, but the trial court, after hearing, denied the motion and sustained respondent's objections. At trial, the respondent did in fact present both the testimony of its private investigator and surveillance materials which the court, over objection, admitted into evidence. The jury subsequently rendered its verdict for respondent, and the trial court entered judgment accordingly. On appeal, the Third District affirmed, holding that surveillance films may constitute work product and may be excluded from discovery on that basis. 365 So.2d at 413. We disagree and expressly disapprove this holding.

Petitioner contends that the existence and contents of surveillance films need to be disclosed prior to trial and must be treated like any other evidence in order to avoid misuse of the film. Petitioner cites Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa.1973), in which the court stated:

Page 706

(T)he camera may be an instrument of deception. It can be misused. Distances may be minimized or exaggerated. Lighting, focal lengths, and camera angles all make a difference. Action may be slowed down or speeded up. The editing and splicing of films may change the chronology of events. An emergency situation may be made to appear commonplace. That which has occurred once, can be described as an example of an event which recurs frequently. We are all familiar with Hollywood techniques which involve stuntmen and doubles. Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false.

Id. at 150. Petitioner further asserts that if pretrial disclosure of surveillance films is not required, plaintiffs will be without means to effectively challenge or prepare rebuttal evidence against surveillance materials, citing the following statement by the Supreme Court of New Jersey in Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976):

The surprise which results from distortion of misidentification is plainly unfair. If it is unleashed at the time of trial, the opportunity for an adversary to protect against its damaging inference by attacking the integrity of the film and developing counter-evidence is gone or at least greatly diminished.

Id. at 57, 350 A.2d at 477. In short, the petitioner urges that we should side with the weight of authority by holding that surveillance movies must be treated as any other evidence which will be presented at trial. 1

The respondents on the other...

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84 practice notes
  • Iowa Ins. Inst. v. Core Grp. of the Iowa Ass'n for Justice, No. 13–1627.
    • United States
    • United States State Supreme Court of Iowa
    • June 12, 2015
    ...that surveillance, if it will be used at trial, must be produced in discovery once the plaintiff has been deposed); Dodson v. Persell, 390 So.2d 704, 707–08 (Fla.1980) (finding the contents of surveillance films and materials are subject to discovery where they are to be presented at trial ......
  • Smith v. State, Nos. 67772
    • United States
    • United States State Supreme Court of Florida
    • December 24, 1986
    ...rules were never intended to furnish a defendant with a procedural device to delay litigation or escape justice. Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980); Richardson, 246 So.2d at 774; Sykes v. State, 329 So.2d 356, 358 (Fla. 1st DCA 1976). As courts have noted in the past, the purp......
  • Kane v. Her-Pet Refrigeration, Inc., HER-PET
    • United States
    • New York Supreme Court — Appellate Division
    • July 27, 1992
    ...examine the materials prior to trial overrides any legitimate [181 A.D.2d 268] interest in preventing disclosure (see, Dodson v. Persell, 390 So.2d 704 [Sup.Ct.Fla.]; Cabral v. Arruda, supra Finally, we address the defense's legitimate concern about the injured plaintiff tailoring his testi......
  • Scipio v. State, No. SC04-647.
    • United States
    • United States State Supreme Court of Florida
    • February 16, 2006
    ...should be the determining factor rather than gamesmanship, surprise, or superior trial tactics." Id. at 1313 (quoting Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980)). Moreover, in Binger, this Court The argument that the possibility of being ambushed by an unlisted impeachment witness enc......
  • Request a trial to view additional results
84 cases
  • Iowa Ins. Inst. v. Core Grp. of the Iowa Ass'n for Justice, No. 13–1627.
    • United States
    • United States State Supreme Court of Iowa
    • June 12, 2015
    ...that surveillance, if it will be used at trial, must be produced in discovery once the plaintiff has been deposed); Dodson v. Persell, 390 So.2d 704, 707–08 (Fla.1980) (finding the contents of surveillance films and materials are subject to discovery where they are to be presented at trial ......
  • Smith v. State, Nos. 67772
    • United States
    • United States State Supreme Court of Florida
    • December 24, 1986
    ...rules were never intended to furnish a defendant with a procedural device to delay litigation or escape justice. Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980); Richardson, 246 So.2d at 774; Sykes v. State, 329 So.2d 356, 358 (Fla. 1st DCA 1976). As courts have noted in the past, the purp......
  • Kane v. Her-Pet Refrigeration, Inc., HER-PET
    • United States
    • New York Supreme Court — Appellate Division
    • July 27, 1992
    ...examine the materials prior to trial overrides any legitimate [181 A.D.2d 268] interest in preventing disclosure (see, Dodson v. Persell, 390 So.2d 704 [Sup.Ct.Fla.]; Cabral v. Arruda, supra Finally, we address the defense's legitimate concern about the injured plaintiff tailoring his testi......
  • Scipio v. State, No. SC04-647.
    • United States
    • United States State Supreme Court of Florida
    • February 16, 2006
    ...should be the determining factor rather than gamesmanship, surprise, or superior trial tactics." Id. at 1313 (quoting Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980)). Moreover, in Binger, this Court The argument that the possibility of being ambushed by an unlisted impeachment witness enc......
  • Request a trial to view additional results

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