Race v. Wal-Mart Stores Inc.
A court can order the production of a surveillance tape of a slip and fall, prior to the plaintiff's deposition. In 2011, Frederick Race allegedly slipped and fell at a Wal-Mart. Race sought permission to file nonstandard discovery requests and asked that the court order Wal-Mart to immediately produce the tape of his slip and fall. Wal-Mart offered to produce the tape 30 days after the plaintiff's deposition. Practice Book §13-3 provides, "[A] party may obtain discovery of documents and tangible things otherwise discoverable under Section 13-2 and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Subsection (c) of Practice Book §13-3 adds, "A party may obtain information identifying any such recording and transcript, if one was created, prior to the deposition of the party who is the subject of the recording; but the person from whom discovery is sought shall not be required to produce the recording or transcript until thirty days after the completion of the deposition of the party who is the subject of the recording." The court found that if Wal-Mart recorded anyone who entered the store, the tape of the slip and fall does not qualify as a "recording of a party" that can be protected from disclosure, pursuant to Practice Book §13-3(c), before the plaintiff is deposed, because it was not prepared in contemplation of litigation. A strict construction of the Practice Book, which would permit Wal-Mart to withhold the tape until 30 days after the plaintiff's deposition, would not comport with the spirit of discovery. Practice Book rules should be construed liberally, if strict construction would result in surprise or injustice. The plaintiff established that a liberal construction is merited, because the standard production requests are not adequate. The court granted permission to file a nonstandard request for production of Wal-Mart's tape.