STARCEVICH v. CARNIVAL CORPORATION (2023)

ORDER FOLLOWING DISCOVERY HEARING

THIS CAUSE came before the Court on Plaintiff, John Starcevich's (“Plaintiff”), Discovery Memorandum, filed August 11, 2023 [ECF No. 23] (the “Memorandum”), and Plaintiff's Ore Tenus Motion to Compel Production of Defendant's CCTV Footage Showing the Subject Incident Before Plaintiff's Deposition [ECF No. 29].

THE COURT has considered the Memorandum, the Response thereto [ECF No. 24], and the pertinent portions of the record and is otherwise fully advised in the premises. The Court also heard from the parties, through their counsel, at a Discovery Hearing held August 24, 2023.

Plaintiff seeks to compel Defendant, Carnival Corporation (“Defendant”), to produce to Plaintiff, before Plaintiff is deposed, CCTV footage showing the subject incident. That is, Plaintiff wants to see the CCTV footage before he testifies at his deposition. Defendant opposed Plaintiff's request. According to Defendant, the CCTV footage of the alleged incident contradicts Plaintiff's allegations in the Amended Complaint regarding the incident, and, therefore, unique circumstances exist to justify withholding production of the CCTV footage until the conclusion of Plaintiff's direct deposition testimony.

At sidebar, the Court heard Defendant's proffer regarding the inconsistency between Plaintiff's allegations in the Amended Complaint and the CCTV footage of the subject incident, and the Court reviewed the CCTV footage at issue outside the presence of Plaintiff's counsel. Based on the review of the CCTV footage, the undersigned agrees there is an apparent inconsistency between Plaintiff's allegations in the Amended Complaint and the CCTV footage of the alleged incident that warrants the delayed production of the footage. Therefore, this Court agrees with Defendant that Plaintiff should be required to give his deposition testimony based on his own independent recollection of the incident, without being refreshed in any way by the video footage. Courts in this District “do not hesitate to temporarily delay the production of a surveillance video” when, as here, such “unique circumstances” are present. See, e.g., Brown v. NCL (Bah.) Ltd., No. 15-21732-CIV, 2015 WL 6673700, at *3 (S.D. Fla. Oct. 30, 2015) (Goodman, J.); Parks v. NCL (Bah.) Ltd., 285 F.R.D. 674, 675 (S.D. Fla. 2012) (Seltzer, J.).

Based on the foregoing, and for the reasons stated on the record at the hearing, it is hereby

ORDERED AND ADJUDGED that the relief sought in Plaintiff's Discovery Memorandum [ECF No. 23] and Plaintiff's Ore Tenus Motion to Compel Production of Defendant's CCTV Footage Showing the Subject Incident Before Plaintiff's Deposition [ECF No. 29] is DENIED. Defendant shall be prepared to show the CCTV footage at issue to Plaintiff immediately after Plaintiff's direct deposition testimony is concluded.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of August 2023.

MELISSA DAMIAN, UNITED STATES MAGISTRATE JUDGE