Is a Vehicle’s “On Board” or “Dash Cam” Video Protected From Disclosure as “Work Product?”

Are “dash cam” videos protected from disclosure as work product?  That was one issue posed in Jones v. Burch, 2024 WL 4276109 (M.D. Fl. Sep. 24, 2024). It was presented in an oddly-named “Motion to Compel Better Responses to Plaintiff’s Request to Produce.”

Plaintiff sued for personal injuries arising out of a motor vehicle accident.

Plaintiff’s Request for Production No. 26 stated: “If the tractor was equipped with any on-board audio or video recording or monitoring device and/or any other driver or driver safety monitoring system, please produce everything that was retrieved or could be retrieved from such devices and systems.”  [emphasis added].

Defendant Hirschbach Motor Lines, Inc., responded to this Request as follows:

Hirschbach is in possession of Lytx videos which are protected from disclosure by the work product doctrine. See Hirschbach’s Privilege Log.  [emphasis added].

While not referenced in the Jones decision, Lytx videos are advertised generally as a safety and compliance feature: “Our video safety solutions offer a powerful way to help reduce unsafe driving and improve overall fleet performance. With Lytx® you can help drivers recognize their risky habits and change their behavior over time.”  Smart, connected fleet management solutions (lytx.com)(Oct. 2, 2024).  “Lytx compliance solutions help ensure drivers are abiding by company policies and mandated regulations while out on the road.”  Id.  “Along with state-of-the-art safety features, video can provide the critical context needed to truly understand what is happening within fleet operations, beyond just dots on a map.”  Id.

Defendant Hirschbach added the following to its work product objection:

Beyond this, Hirschbach objects to this request because it is overbroad, vague and ambiguous. Due to its overbreadth, vagueness, and ambiguity, Hirschbach cannot determine whether this request asks for information that is protected from disclosure by the work product doctrine, consulting expert privilege and attorney client privilege, and therefore, also objects on these grounds.

Plaintiff responded that the videos were not created in anticipation of litigation and therefore they are not protected work product.

Hirschbach retorted that it had admitted negligence and therefore the videos were not relevant to a claim or defense and were disproportionate to the needs of the case.

Plaintiff prevailed.

First, the Jones court held that Hirschbach had “not met its burden of establishing that the dash cam videos are protected by the work-product privilege.”  It explained that “there is nothing in the record to suggest that Defendant created the requested videos in anticipation of litigation. And most courts addressing the issue have determined that ‘videos of an accident captured by a defendant’s surveillance system are not protected by the work product doctrine because they are created in the ordinary course of business and not in anticipation of litigation.’”

Next, the court overruled the improper boilerplate objections.  “Objections that merely state ‘vague,’ ‘overly broad,’ or ‘unduly burdensome’ are improper without an accompanying explanation of the specific grounds for the objection.”[1]

Finally, the court also rejected defendant’s “post-hoc justification that the video is not relevant” for three reasons.

1. The Jones court wrote that “any video footage of the accident is not only relevant to any alleged negligence but likely also relevant to the issues of causation and damages.”
2. The Jones court added: “At the very least, [Plaintiff has] shown that the video is ‘relevant to the subject matter’ of this action[.]”
3. And, the court wrote that, under Fed.R.Civ.P. 26(b)(1), “[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

While the first reason is sound, in my opinion, the latter two are not.

The December 2015 amendments to Rule 26(b)(1) deleted the phrase “subject matter of the action” from the scope of discovery.  In fact, the 2015 Advisory Committee Note states: “The amendment deletes the former provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action.”

The same amendments deleted the “reasonably calculated” language.  The 2015 Advisory Committee Note states: “The former provision for discovery of relevant but inadmissible information that appears ‘reasonably calculated to lead to the discovery of admissible evidence’ is also deleted….  It is replaced by the direct statement that ‘Information within this scope of discovery need not be admissible in evidence to be discoverable.’”

In Jones, the oddly-named “Motion to Compel Better Responses to Plaintiff’s Request to Produce” was granted.[2]

For related privacy issues, please see Data Collection by Cars With Connectivity (Sep. 17, 2024), and “FTC finds ‘staggering’ level of user surveillance by social media, streaming services” (Sep. 26, 2024).

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[1] I will soon be posting an updated blog on boilerplate objections.  Compare E-Discovery 101 – – A Refresher on the Scope of Discovery + Boilerplate Objections Sustained (Sep. 16, 2024), with “Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses (Dec. 9, 2021).

[2] In a related case, the court granted a defense motion to compel plaintiff to provide “better” Rule 26 disclosures.  Jones v. Burch, 2024 WL 4275954, at *1 (M.D. Fla. Sept. 24, 2024).  It also ruled on a motion to compel “better” responses to interrogatories and document requests.  Jones v. Burch, 2024 WL 4275199, at *1 (M.D. Fla. Sept. 24, 2024).