A Dangerous Game of Hide the Ball: District Court Grants Sanctions and Reopens Discovery for Failure to Disclose Photographs and Videos of Accident Scene
A recent decision from the District of New Jersey reminded attorneys and litigants of the importance of complying with discovery obligations under Federal Rule of Civil Procedure 26. Indeed, the court imposed sanctions, just short of dismissal, on the plaintiff and his counsel for failure to produce nearly 100 photographs and videos of the accident scene at the center of the litigation. In Reilly v. The Home Depot U.S.A., Inc., a product liability action, the defendants sought dismissal of the complaint as a discovery sanction for the plaintiff’s late production of 81 photos and three videos that the plaintiff’s counsel took in July 2020 of the house where the plaintiff fell and the ladder that was the subject of the lawsuit. Throughout discovery, the plaintiff did not produce the photos and videos and he did not include any reference to them in a privilege log. Moreover, the plaintiff implicitly represented in discovery responses that no such additional photos or videos even existed. The defendants did not learn of the photos and videos until the plaintiff’s counsel took the deposition of a fact witness and presented the witness with a photo – one that was not produced in discovery – of the interior of the home where the accident occurred, and the witness testified that the...