NOT FOR PUBLICATION WITHOUT THE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,

Plaintiffs-Respondents,

WANDA MCCUTCHEN and HUDSON

NEWS DISTRIBUTORS, LLC,

Defendants-Appellants.

_________________________________________________________

Argued May 27, 2015 – Decided

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 

APPROVED FOR PUBLICATION

September 3, 2015

APPELLATE DIVISION

September 3, 2015
A-3683-14T2

2

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.
A-3683-14T2

3

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.
A-3683-14T2

4

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 
A-3683-14T2

5

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 
A-3683-14T2

6

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
A-3683-14T2

7

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 
A-3683-14T2

8

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.
A-3683-14T2

9

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 
A-3683-14T2

10

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).
A-3683-14T2

11

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 
A-3683-14T2

12

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.