550 F.Supp.3d 136
S.D.N.Y.2021Background
- Incident: On Dec. 19, 2019, Ampong alleges she tripped on a rolled-up rug near Costco’s entrance and was injured; she signed a store incident report describing the trip.
- Medical/pleading: Her October 2020 medical record and her Verified Bill of Particulars both describe a trip and fall caused by a rug at the entrance.
- Procedural posture: Ampong sued in state court; Costco removed to federal court. Discovery and depositions were scheduled under the Court’s Case Management Plan.
- Discovery dispute: Costco sought a protective order to withhold store surveillance video of the incident until after Ampong’s deposition, arguing the video contradicts her accounts and has impeachment value.
- Opposing positions and court action: Ampong opposed the protective order and requested an in‑camera preview if the Court considered Costco’s application; the Court ordered and conducted an in‑camera review of the video.
- Ruling: After reviewing the footage, the Court granted Costco’s motion, ordering production of the video within seven days after Ampong’s deposition and sealing Costco’s July 21 letter until the deposition was completed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant may delay production of surveillance video until after plaintiff’s deposition | Ampong: Defendant has not shown good cause to withhold the video; if court considers the motion, allow in‑camera review first | Costco: Video contradicts plaintiff’s statements and medical records; delaying preserves impeachment value and prevents tailoring of testimony | Granted. Court’s in‑camera review found a discrepancy between video and plaintiff’s accounts, and Second Circuit courts routinely permit delay to preserve impeachment value; video to be produced within 7 days after plaintiff’s deposition |
| Whether the court should review materials in camera and seal defendant’s submission | Ampong: Objected to defendant’s accompanying letter and asked court to disregard it | Costco: Submitted a letter with timestamps and invited in‑camera review | Court reviewed the video in camera, gave no weight to defendant’s assessment, sealed defendant’s letter until plaintiff’s deposition, then ordered it unsealed after deposition |
Key Cases Cited
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (Rule 26(c) confers broad discretion to issue protective orders)
- Brown v. Astoria Fed. Sav. & Loan Ass'n, [citation="444 F. App'x 504"] (2d Cir. 2011) (burden of showing good cause lies with movant)
- Jerolimo v. Physicians for Women, P.C., 238 F.R.D. 354 (D. Conn. 2006) (good cause requires particularized factual showing)
- Gordon v. Target Corp., 318 F.R.D. 242 (E.D.N.Y. 2016) (independent factual basis can justify delaying production to preserve impeachment value)
- In re Speer, [citation="754 F. App'x 62"] (2d Cir. 2019) (trial courts have wide discretion over sequencing and timing of discovery)