One of the major issues that comes up in personal injury cases is the production of property damage photos. Amazingly, the insurance carriers are all to happy to provide them when our clients are involved in low property damage cases but, for mysterious reasons, seem to stonewall every time I try to get photos when the case involves moderate to severe property damage. Below, please find a recent memo of law on the issue that I hope you all find helpful.
Sincerely,
Bruce Kleinberg
THE LAW OF THE CASE
There are three main cases that provide the foundation for resolving the issues at Bar. The first is the case of Dodson v. Persell, 390 So. 2d 704 (Fla. 1980). In this case, the Florida Supreme Court addressed the issues involving disclosure and production of surveillance film and photographs (at 704). In Dodson the issue involved the denial by the Trial Court of Plaintiff’s motion to compel production of surveillance film (at 705). The defense was thereafter able to introduce surveillance film of the Plaintiff for the first time at trial with the inevitable result of a defense verdict (at 705). The Third District Court of Appeal affirmed the holding.
In its reversal of the Third District Court of Appeal, the Court, quoting from its decision in Surf Drugs Inc. v. Vermette, 236 S0.2d (Fla. 1970) stated that the primary purpose of our rules:
is (sic) to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate results. (Id., at 111)
The Court further recognized and affirmed, that their prior decision in Surf was premised on the sound reasoning of the United States Supreme Court in the case of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L.Ed. 2d 451 (1947). The Court, quoting from Hickman, stated as follows:
A search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. These relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics. We caution that discovery was never intended to be used and should not be allowed as a tactic to harass, intimidate, or cause litigation delay and excessive costs.
The Court then stated that in limited instances the contents of surveillance materials that are not intended to be submitted as evidence (i.e., work product type material) are subject to discovery if they are unique and otherwise unavailable, and materially relevant to the cause’s issues. The Court cited as an example of this type of discovery the production of a photograph of a scene which had been changed or could not be reproduced (at 707).
With respect to this issue, the controlling case in our jurisdiction is Wackenhut Corporation v. Crant-Heisz Enterprises, Inc., 451 So. 2d 900 (Fla. 2 DCA, 1984). In this case, the issue involved whether photographs taken by a fire investigator hired by one of the parties could be obtained by the other party even when the expert was not going to be presented at trial (at 901).
The Court, relying on Dodson v. Persall, 390 So. 2d 704 (Fla. 1980), Surf Drugs, Inc., 403 So. 2d 1087 (Fla. 1st DCA 1981) and Hickman v. Taylor, 329 U.S. 495, 511, 67 S. Ct. 385, 394, 91 L.Ed. 451, 462 (1947) ruled that the photographs taken by the non-testifying expert were discoverable since the warehouse had been replaced and the scene could not be reproduced (at 902, 903).
In reaching its decision, the Court noted that depositions had taken place and therefore the petitioner possessed sufficient facts to support a determination of exceptional circumstances regarding discovery of the photographs.
The Second District Court of Appeal reviewed this issue again in the case of Florida Power Corporation v. Dunn, 850 So. 2d 655 (Fla. 2 DCA 2003). In this case, the Court was presented with a situation where photographs existed of the scene of the accident that was no longer reproducible (at 655). Because it was impossible to obtain the substantial equivalent of the photographs by other means, the Court, as in Wackenhut, overruled the trial court and ordered that the photographs be produced (at 655).
The Third District Court of Appeal also examined this issue in the case of Kmart Corporation v. Sundmacher, 997 So. 2d 1158 (3 DCA 2008). In this case, the Plaintiff slipped and fell on the floor in the garden center (at 997). The Plaintiff took photographs of the scene (at 997). The Defendant attempted to obtain copies of the photographs but the Plaintiff claimed that they were work product (at 997). Kmart moved to compel production of the photos but the trial court denied their motion (at 997).
In reversing, the Court noted that Kmart supported its motion with an affidavit signed by the head of the disaster loss prevention department. In the affidavit the department head swore that Kmart had no photographs of the subject area depicting the condition of the floor when the incident allegedly occurred and could not duplicate the condition of the floor portrayed in the photographs (at 998).
Further, the Court noted that Kmart had demonstrated that the photographs in the Plaintiff’s possession were relevant and material and that there were no other means to obtain the requested discovery (at 999). The Court also noted that these photographs would be the best evidence of the condition of the floor at the time the alleged fall.
