SAMPLES v. MITCHELL
11/3/1997
itchell's defense. If the tape related to the claim, Mitchell
Although the specific question of the discovery of surveillance videos has never been raised in South Carolina, it has been dealt with elsewhere. Professor Moore comments:
This question seems to arise most often when the
defendant in a
6 James Wm. Moore et. al., Moore's Federal Practice, § 26.41 (3d ed. 1997).
Many states that have wrestled with the question have held at least the existence of the video tape must be revealed in response to discovery requests. Florida has held "upon request a party must reveal the existence of any surveillance information he possesses whether or not it is intended to be presented at trial." Dodsen v. Persell, 390 So.2d 704 (Fla. 1980). Similarly, the Supreme Court of Appeals of West Virginia reasoned, " nowledge of the mere existence of this tape would have substantially contributed to the quality of the plaintiffs' trial strategy and their specific preparation of their star witness . . . ." McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788, 796 n.9 (1995).
Given the broad interpretation of relevancy by our courts, a defendant's surveillance video of the plaintiff was clearly relevant to a
Some states have discussed whether or not surveillance tapes which will not be introduced at trial constitute work product. 6 James Wm. Moore et. al., Moore's Federal Practice, § 26.41 (3d ed. 1997). The tape in this case, however, was admitted into evidence, and Mitchell has never claimed protection under the work product rule.
Furthermore, the work product rule would not excuse the failure to disclose the existence of the video tape here. If Mitchell's attorney believed Samples had no right to this evidence, either because of relevancy or because of the work product rule, she should have either objected to the interrogatory or disclosed the existence, but not the content, of the evidence and moved for a protective order. Rule 33 (a), SCRCP; Rule 26 (c), SCRCP.
Having determined Mitchell's conduct was sanctionable, we must now decide if the trial judge abused his discretion in choosing a sanction. Jackson v. H. & S. Oil Co., Inc., 263 S.C. 407, 211 S.E.2d 223 (1975); Laney v. Hefley, 262 S.C. 54, 202 S.E.2d 12 (1974); Downey v. Dixon, 294 S.C. 42, 362 S.E.2d 317 (Ct.App. 1987).
In deciding what sanction to impose for failure to disclose evidence during the discovery process, the trial court should weigh the nature of the interrogatories, the discovery posture of the case, willfulness, and the degree of prejudice. Laney, 262 S.C. at 60, 202 S.E.2d at 15; Moran v. Jones, 281 S.C. 270, 276, 315 S.E.2d 136, 139-40 (Ct.App. 1984).
Although the trial judge in this case correctly framed the issue as discovery abuse, he did not weigh the required factors. A failure to exercise discretion amounts to an abuse of that discretion. Fontaine v. Peitz, 291 S.C. 536, 538, 354 S.E.2d 565, 566 (1987) ("When the trial judge is vested with discretion, but his ruling reveals no discretion was, in fact, exercised, an error of law has occurred."); Balloon Plantation v. Head Balloons, 303 S.C. 152, 155, 399 S.E.2d 439, 441 (Ct.App. 1990) (quoting State v. Smith, 276 S.C. 494, 498, 280 S.E.2d 200, 202 (1981) ("It is an equal abuse of discretion to refuse to exercise discretionary authority when it is warranted as it is to exercise the discretion improperly.")).
Mitchell argues the trial judge's decision to limit the testimony of the investigator evidences discretion. This decision in and of itself does not show the judge exercised discretion, especially where the Supreme Court has articulated the legal analysis w
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