Courts generally allow you to withhold true impeachment evidence until after the deposition of a witness to whom the evidence pertains. If you're the party holding the evidence, that could allow you to set the adversary up for a devastating credibility blow. What key question do courts ask in deciding whether such evidence can be withheld until after deposition? And what remedies do you have, if you're the party seeking production of evidence, to persuade a court to force production before the deposition? Jim provides a succinct answer to these questions and more, and, as always, provides case cites on which the episode is based to get you started.

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SHOW NOTES:

Durrah v. Bowling Green Inn of Pensacola LLC, 2020 WL 8910886 (N. D. Fla., June 10, 2020) (allowing defendant to withhold video of alleged sidewalk accident until after plaintiff's position; "Plaintiff does not need the surveillance video to establish the substance of her claims. She obviously was present at her own accident and thus has personal knowledge of the relevant facts giving rise to her claims.")

Dehart v.  Wal-Mart Stores East LP, 2006 WL 83405 (W.D. Va. Jan. 6, 2006) (video of plaintiff who alleged injury when struck by items falling off a stock cart ordered produced prior to plaintiff's deposition, because video served both substantive and impeachment purposes)

Muzaffarr v. Ross Dress for Less, Inc. 941 F. Supp.2d 1373 (S. D. Florida April 25, 2013) (can slip and fall accident that allegedly occurred inside defendant store, judge held that "...the videotape at issue depicts the incident giving rise to the Plaintiff's complaint. It could be offered for impeachment value, the primary evidentiary value of such a tape is enough proof of the underlying facts surrounding the incident. Therefore, the videotape should be produced to the plaintiff prior to the deposition.")

Bachir v. Transoceanic Cable Ship Co., 1998 WL 901735 (S.D.N.Y. 1998) (court ruled that defendant could withhold videotape evidence until after plaintiff's deposition if its use of the videotapes will be limited to impeachment; otherwise, defendant must produce such evidence within 10 days of the date of the court's order, and before Plaintiff's deposition).

Pro Billiards Tour Association, Inc. v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229 (M.D. N.C. 1999) (court ordered plaintiff to produce tape recording of meeting with defendant's representatives prior to representatives depositions, finding that recording in question was chiefly substantive, as opposed to impeachment, evidence, which served to show oral contract between parties)