Race v. Wal-Mart Stores, Inc., HHDCV126030536S.

• Decision Date: 29 November 2012
• Docket Number: HHDCV126030536S.
• Parties: Frederick RACE v. WAL-MART STORES, INC.
• Court: Connecticut Superior Court

Frederick RACE v. WAL-MART STORES, INC.

No. HHDCV126030536S.

Superior Court of Connecticut, Judicial District of Hartford.

November 29, 2012

UNPUBLISHED OPINION

DAVID SHERIDAN, Judge.

This is a premises liability case seeking injuries for a slip and fall that allegedly occurred at the Newington Wal-Mart Store on August 7, 2011 at approximately 11:54 a.m. The plaintiff filed standard form interrogatories and requests for production and, in response to an interrogatory pertaining to " surveillance material discoverable under Practice Book § 13-3(c), " the defendant disclosed the existence of a " video tape believed to be of plaintiff taken on August 7, 2011." In response to the accompanying standard form request for production, the defendant responded that it would produce the videotape in accordance with Practice Book Section 13-3(c), i.e., thirty days after the completion of the deposition of the plaintiff.

Plaintiff now seeks permission to file non-standard discovery requests seeking the immediate production of the videotape identified in the interrogatory responses. The plaintiff represents in its motion (and the defendant has not contested this description) that the requested video " is a store surveillance video which documents the subject incident." The defendant objects to the motion, claiming that the video tape is a " recording of the requesting party" within the meaning of Practice Book § 13-3(c) to which appropriate discovery responses have been provided, and therefore the standard form production requests are appropriate and adequate for this action, and the plaintiff should be limited to those requests.

The court grants the motion for permission to file non-standard requests for production. The court agrees with the plaintiff that the subject video, as described, is not a " recording of a party" within the meaning of Practice Book § 13-3(c). In making this determination, the court recognizes that the language of Section 13-3(c) would appear on its face to encompass " any recording" of the plaintiff and, for that reason, the defendant's position is not without merit.

However the court takes note of the Official Commentary to the 2008 Amendments (Section 13-3(c) was added by amendment in 2008) and the various decisions from other jurisdictions that are cited therein. The emphasis of those cases and the concern of the drafters of Section 13-3(c) was the discoverability of " pre-trial surveillance material." Pre-trial surveillance materials are described in one of the cases cited by the drafters as follows: " Personal injury defendants secure surveillance materials in order to verify the extent of a plaintiff's purported injuries and introduce them because they are powerful and immediate images that cast doubt upon the plaintiff's claims. And indeed if accurate and authentic, a surveillance film that undercuts a plaintiff's claims of injury may be devastatingly probative." DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 193, 604 N.E.2d 63, 590 N.Y.S.2d 1 (1992). None of the cases cited by the drafters is concerned with video which, by fortuitous circumstances, happens to be taken of the incident itself as it occurs. All of the cases concern videos procured at some point after the incident which caused the injury and are intended to cast doubt upon the plaintiff's credibility as to the extent of his injuries and disabilities.

It seems evident to the court that the drafters of Section 13-3(c) intended it to apply narrowly to such " pre-trial surveillance materials, " despite the use of the broad and expansive phrase " any recordings." The court finds further evidence of this intent in the Official Practice Book Forms for interrogatories and requests for production for use in motor vehicle and premises liability personal injury cases (Forms 201 through 206). All of those forms include discovery...