                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3683-14T2

JOAN MERNICK and JOHN
MERNICK,                                 APPROVED FOR PUBLICATION

                                            September 3, 2015
     Plaintiffs-Respondents,
                                           APPELLATE DIVISION

WANDA MCCUTCHEN and HUDSON
NEWS DISTRIBUTORS, LLC,

     Defendants-Appellants.

_________________________________________________________

          Argued May 27, 2015 – Decided September 3, 2015

          Before Judges Messano, Hayden and Sumners.

          On appeal from Superior Court of New Jersey,
          Law Division, Bergen County, Docket No.
          L-2117-14.

          Edward J. Piasecki argued the cause for
          appellants (Graziano, Piasecki & Whitelaw,
          LLC, attorneys; James B. Graziano, on the
          brief).

          Leonard S. Miller     argued     the   cause    for
          respondents.

     The opinion of the court was delivered by

HAYDEN, J.A.D.

     Defendants Wanda McCutchen and Hudson News Distributors, LLC

(Hudson) appeal from a March 13, 2015 Law Division order requiring

them to produce surveillance video taken of plaintiff Joan Mernick
before taking her deposition.     Defendants filed a motion for leave

to appeal, which this court granted along with a stay pending

appeal. After considering the arguments in light of the applicable

legal principles, we reverse.

     The record reveals that Mernick and McCutchen were involved

in an automobile accident on March 26, 2012.                Mernick and her

husband filed a civil complaint alleging that McCutchen and Hudson,

her employer, caused the accident through their negligence and

requested compensatory damages and damages for loss of consortium.

Defendants denied any negligence, set forth several affirmative

defenses and answered the uniform interrogatories.                     In their

interrogatory answers, they reported that they had "possession of

surveillance video depicting plaintiff on nine separate occasions.

Copies of the video will be supplied."

     As discovery proceeded, the defendants scheduled Mernick's

deposition,   but   she   cancelled       the   first   date.    The    parties

rescheduled the deposition for February 10, 2015.                 On the day

before the deposition, Mernick's attorney informed defendants'

counsel that Mernick would not attend until after the defendants

provided the surveillance video.            Defendants replied that they

would produce the video after the deposition.                   As a result,

Mernick's counsel refused to produce her for the deposition.




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       Defendants moved the trial court to extend discovery and

compel plaintiff to attend her deposition.           Mernick cross-moved

to compel production of the surveillance video. The court extended

discovery, and ordered defendants to produce the video prior to

deposing Mernick.     Finding that the video was work product covered

by Rule 4:10-2(c), the court determined that the unique evidence

could not be obtained by any other means.         "As such, [p]laintiffs

have   established    undue   hardship     in   acquiring    a   substantial

equivalent    of     the   relevant       surveillance      recordings     in

[d]efendants' possession."      The court found that defendants had a

duty to produce the video, consistent with Jenkins v. Rainner, 69

N.J. 50 (1976).      The court reasoned:

           [T]wo conclusions may be drawn from the
           opinion by the Jenkins court: first, the trial
           court has absolute discretion in shaping and
           prescribing discovery obligations, such as
           production of surveillance or attendance of
           parties sought to be deposed; and second, a
           trial court may - but is not required to -
           condition a demand for surveillance motion
           pictures on a party's consent to be deposed
           before said pictures are actually produced.

           In this instance, since the surveillance
           videos were conducted prior to the deposition
           of   [p]laintiffs,   the   [c]ourt,   in   its
           discretion,   is   ordering    [c]ounsel   for
           [d]efendants to produce and deliver the
           surveillance videos of [p]laintiff(s) to their
           [c]ounsel prior to their depositions.

Accordingly, the court ordered the tape to be produced immediately.

This appeal followed.

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     We begin by considering the standard of review.            We generally

defer to discovery decisions of trial judges and only review them

to determine whether the court abused its discretion.                C.A. ex

rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371

(2011)).    A reviewing court will not defer to a trial court if its

decision "'is based on a mistaken understanding of the applicable

law.'"    Ibid.

     We next consider the well-established legal principles that

inform    our   analysis.      The   public     policies   underpinning    our

discovery rules include "expeditious handling of cases, avoiding

stale    evidence,   and    providing       uniformity,   predictability   and

security in the conduct of litigation."              Zaccardi v. Becker, 88

N.J. 245, 252 (1982) (citations omitted).           In furtherance of those

policies, "[t]he discovery rules were designed to eliminate, as

far as possible, concealment and surprise in the trial of law

suits to the end that judgments rest upon real merits of the causes

and not upon the skill and maneuvering of counsel."              Oliviero v.

Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990).               It

is well-established that neither party can control the timing of

discovery.      See R. 4:10-4; Posta v. Chung-Loy, 306 N.J. Super.

182, 198-99 (App. Div. 1997) (citing Dick v. Atl. City Med. Ctr.,

173 N.J. Super. 561, 565 (Law Div. 1980)), certif. denied, 154


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N.J. 609 (1998); In re A., 277 N.J. Super. 454, 466 (App. Div.

1994) ("[T]he judge has control of discovery through the exercise

of the court's discretion[.]").

     Further, when materials are relevant to the issues in an

action, there is "a presumption of discoverability[.]"    Payton v.

N.J. Tpk. Auth., 148 N.J. 524, 539 (1997).     However, a party can

overcome this presumption "by demonstrating the applicability of

an evidentiary privilege."   Ibid.

     One such privilege protects from discovery an attorney's work

product.   The United States Supreme Court recognized the need to

protect certain aspects of an attorney's work in Hickman v. Taylor,

329 U.S. 495, 511, 67 S. Ct. 385, 393, 91 L. Ed. 451, 462 (1947),

explaining that "[p]roper preparation of a client's case demands

that [lawyers] assemble information, sift   . . . the relevant from

the irrelevant facts, prepare . . . legal theories and plan . . .

strategy without undue and needless interference."

     In New Jersey, parties are generally permitted to obtain any

materials that are relevant to the subject matter of the action

so long as the materials are not privileged.    R. 4:10-2(a).   Even

inadmissible evidence is discoverable if such information "appears

reasonably calculated to lead to the discovery of admissible

evidence[.]"   Ibid.   A party cannot resist discovery of material




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on the basis that its adversary already has knowledge of the matter

on which it is seeking discovery.    Ibid.

     In contrast to the general presumption of discoverability,

if material was prepared in anticipation of litigation, Rule 4:10-

2(c) limits discovery.

          [A] party may obtain discovery of documents,
          electronically    stored   information,    and
          tangible things otherwise discoverable under
          R. 4:10-2(a) and prepared in anticipation of
          litigation or for trial by or for another
          party or by or for that other party's
          representative    (including   an    attorney,
          consultant, surety, indemnitor, insurer or
          agent) 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.

          [Ibid.]

In addition, the Rule exempts statements by parties and non-parties

from this protection, permitting each to retrieve statements they

made without demonstrating a substantial need.     Ibid.   However,

all other work product of an attorney receives protection unless

the other party shows both undue hardship and substantial need.

Ibid.

     The surveillance video in the present case clearly falls

within this category of material prepared for litigation.        Our

Supreme Court considered a strikingly similar discovery issue,

albeit in slightly different circumstances, in Jenkins.    In that

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case, the defendants placed the plaintiff under surveillance after

they had already deposed her.           Jenkins, supra, 69 N.J. at 53.

Although     the   defendants   informed     the   plaintiff   about   the

surveillance and produced the individuals who filmed her for a

deposition, the individuals refused to answer questions about the

circumstances of their investigation, claiming the work product

privilege.    Id. at 53.

     The Court rejected the defendants' assertion that, as work

product, the films were "cloaked with absolute immunity from

discovery[.]"      Id. at 54-55.   While acknowledging the films were

created in anticipation of litigation, the Court found that the

interest in full disclosure was more weighty than any interest in

surprising the plaintiff at trial.           Id. at 56-57.     The Court

explained that "essential justice is better achieved when there

has been full disclosure so that the parties are conversant with

all the available facts."       Id. at 56.

     The Court rejected defendants' argument that the plaintiff

did not show a substantial need for the films, noting that "[t]he

surprise which results from distortion of misidentification is

plainly unfair.      If it is unleashed at the time of trial, the

opportunity for an adversary to protect against its damaging

inference by attacking the integrity of the film and developing

counter-evidence is gone or at least greatly diminished."          Id. at


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54, 57-58.   The Court stressed the value to all parties, for both

settlement and trial purposes, to know if "the motion pictures

actually portray plaintiff engaged in some strenuous activity

which on deposition she had already testified is beyond her

capacity, then it is not probable that pretrial disclosure of that

kind of inconsistency will enable her to salvage the case[.]"               Id.

at 58.   Consequently, the Court directed that the films be turned

over after the plaintiff was deposed again concerning damages

only.    Id. at 60.     The Court also found that evidence such as

surveillance    films     was   "unique"     and   not    capable   of    being

replicated, and thus obtaining a substitute would create an undue

hardship.    Id. at 58.

     While     the   Court      ordered     defendants     to   produce    the

surveillance video after the second deposition in Jenkins, it

added guidance for the future.            Id. at 59-60.    It directed that

the party conducting the surveillance could depose the plaintiff

about the activities that it filmed her performing before turning

it over in order to preserve the evidentiary value of the video.

Id. at 60.   It added that "[a]s a general proposition, and always

subject to the discretion of the trial court, any demand for

surveillance motion pictures should be accompanied by a consent

to be deposed after the movies have been taken and before the

films must be presented for the adversary's examination."                 Ibid.


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While recognizing the possibility of a need for "deviation from

this general rule," the Court was "confident that a trial judge's

discretion is a sufficient source of protection when the particular

circumstances are presented."   Ibid.

     We find the reasoning in Jenkins unassailable and although

it was decided many years ago, its reasoning still serves the

beneficial purposes of discovery while honoring the work product

doctrine.   Although no New Jersey case has addressed this exact

issue since Jenkins, the Court's approach has considerable support

in federal rules decisions.   Generally, federal courts have found

that surveillance evidence obtained for impeachment purposes is

protected by the work product doctrine.   See, e.g., Marchello v.

Chase Manhattan Auto Fin. Corp., 219 F.R.D. 217, 219 (D. Conn.

2004).   Some courts have extended this principle to hold that

surveillance evidence is not discoverable if the party decides

that it will not introduce the evidence at trial.1     Fletcher v.


1
 Some federal courts treat discovery obligations differently based
on a party's intended use of surveillance evidence. These courts
frame the distinction as one between substantive evidence - - used
to prove a fact in issue - - and impeachment evidence - - offered
to discredit a witness or reduce the effectiveness of his or her
testimony.   See Newsome v. Penske Truck Leasing Corp., 437 F.
Supp. 2d 431, 434-35 (D. Md. 2006). If a court finds that a piece
of evidence is substantive, it generally orders that the evidence
be produced immediately. Babyage.com, Inc. v. Toys "R" Us, Inc.,
458 F. Supp. 2d 263, 265-66 (E.D. Pa. 2006); Jerolimo v. Physicians
for Women, P.C., 238 F.R.D. 354, 357 (D. Conn. 2006).       But see
Walls v. Int'l Paper Co., 192 F.R.D. 294, 299 (D. Kan. 2000). On


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                                                           A-3683-14T2
Union Pac. R.R. Co., 194 F.R.D. 666, 668, 674 (S.D. Cal. 2000);

Bradley v. Wal-Mart Stores, Inc., 196 F.R.D. 557, 557-58 (E.D. Mo.

2000).

     Additionally, the federal approach of delaying production of

work product surveillance material until after the deposition of

the subject of the surveillance is favored by leading commentators.

8 Charles Alan Wright, Arthur R. Miller, & Richard Marcus, Federal

Practice and Procedure, § 2015 at 307-08 (3d ed. 2010) (citing

Edward H. Cooper, Work Product of the Rulesmakers, 53 Minn. L.

Rev. 1269, 1318 (1969)).          In delaying production rather than

denying production, the court preserves the impeachment value of

the evidence yet allows all facts to be known to all parties before

the trial.    Donovan, supra, 252 F.R.D. at 82.

     The trial court appeared to interpret the Jenkins Court's

directive    that   a   request   for    surveillance   films   "should    be

accompanied by a consent to be deposed after the movies have been

taken and before the films must be presented" as requiring only

that consent be given before the discovery is produced.           Although




the other hand, if a court finds that a piece of evidence is
impeachment evidence, it will delay ordering production of the
evidence until after deposition. Donovan v. AXA Equitable Life
Ins. Co., 252 F.R.D. 82, 82-83 (D. Mass. 2008); Martino v. Baker,
179 F.R.D. 588, 590 (D. Colo. 1998); Ward v. CSX Transp., 161
F.R.D. 38, 40-41 (E.D.N.C. 1995); Corrigan v. Methodist Hosp., 158
F.R.D. 54, 59 (E.D. Pa. 1994).


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                                                                   A-3683-14T2
the phrase gives rise to some ambiguity, such an interpretation

is not consistent with the Jenkins Court explicit reasoning that

its "general rule" was intended to preserve the defendants' ability

to find inconsistencies between testimony and the film, and the

plaintiff's ability to challenge the accuracy of the film before

trial.     The mere consent to a later deposition after the film has

been viewed by the plaintiff would not allow the benefit recognized

in Jenkins, that is, the impeachment value of the film.            Moreover,

the Court required that the second deposition of the plaintiff be

held before the films were turned over, which strongly buttresses

this interpretation.

      Of course, in Jenkins, the Court noted that the general rule

it set forth that a party was entitled to surveillance video after

it   had   been    deposed   was   always   subject   to   a   trial   court's

discretion. Id. at 60. Nevertheless, discretion is never absolute

but must be reasonable and not arbitrary or capricious. See Circus

Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1,

13 (2009).        An abuse of discretion "arises when a decision is

'made without a rational explanation, inexplicably depart[s] from

established policies or rest[s] on an impermissible basis.'" Flagg

v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citations

omitted).     Put differently, "a functional approach to abuse of

discretion examines whether there are good reasons for an appellate


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court to defer to the particular decision at issue," which must

not    be    "arbitrary,      capricious,     whimsical        or    manifestly

unreasonable[.]"      Ibid. (quoting Coletti v. Cudd Pressure Control,

165 F.3d 767, 777 (10th Cir. 1999)).

       In the present case, the trial court failed to explain its

departure from the general principle of turning over surveillance

evidence after the deposition announced in Jenkins.                 Although in

Jenkins there had already been a deposition taken, the court

directed that the films be provided after a second deposition

limited to damages.        Other than a slightly different procedural

posture, we find no facts in the record that distinguish this case

from Jenkins and would thus present a principled reason for a

deviation in the general rule announced in Jenkins.                  This rule

accommodated the needs of both parties to have all facts known

before trial.    While we recognize, as did the Jenkins Court, that

there may be circumstances where that could not be accomplished

by    the   general   rule,   none   are    found   in   the    record    here.

Accordingly, we conclude that the trial court mistakenly exercised

its discretion in departing from the Jenkins general rule.

       Reversed and remanded for proceedings consistent with this

opinion.




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