The United States District Court for the Southern District of Florida in a common sense decision held that the defendant need not produce a videotape of the plaintiff taken at the time of an alleged accident until the plaintiff had been deposed. In Donna Parks v. NCI (Bahamas) LTD, 285 F.R.D. 674 (S.D. Fla. 2012) plaintiff filed a suit alleging that she had been injured in a fall on defendants’ cruise ship. Plaintiff filed a request to produce videotapes and pictures of the plaintiff. Defendant responded that after plaintiff reported her accident, it preserved the videotape and extracted photographs. Defendant contended this was done solely in anticipation of litigation and said that it would produce the videotape after plaintiff testified at her deposition. Defendant claimed that it was entitled to plaintiff’s sworn testimony based on “un-refreshed recollection” of the incident. Plaintiff responded that there was nothing to show that plaintiff would not testify to the truth.
The court agreed with the defendant that plaintiff should give her testimony based on her own independent recollection of the incident, without being refreshed in any way by the videotape. The court found that the plaintiff would not suffer any prejudice by delaying the production of the videotape and then ordered that the deposition proceed and that the videotape be produced immediately after the deposition.