[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
The time when a video of key events must be produced in discovery is often contentious. Requestors generally contend it must be produced, like other discovery, before their deposition. Producers often contend that the video is impeachment evidence that need not be produced until after the Requestor is deposed.
That tension was addressed in Frankhouse v. Jobe, 2026 WL 483201 (D. Md. Feb. 20, 2026)(Miller, J.). The Court stated that the cell extraction video in question had both substantive and impeachment value and the Court explained how it balanced the competing concerns.
In Frankhouse, plaintiff Frankhouse alleged that he sustained injuries during a cell extraction by defendant, Deputy Jobe. Plaintiff moved to compel production of video recordings showing the cell extraction that was the basis of his complaint and alleged injuries.
Defendant made two arguments.
- First, Deputy Jobe asserted that he had complied with his discovery obligations by allowing Frankhouse’s attorney to view the video and take notes.
- Second, Deputy Jobe asserted that “he is permitted to delay delivery of a copy of the video until after he takes Plaintiff’s deposition.”
The Frankhouse Court ordered “production of the video prior to Plaintiff’s deposition by defense counsel.” [emphasis in original].
Although Defendant produced the video for Plaintiff’s representative to inspect, he did not permit Plaintiff’s representative to copy it, as the Rule entitles Plaintiff to do.
Frankhouse v. Jobe, 2026 WL 483201 (D. Md. Feb. 20, 2026)(Miller, J.)(emphasis in original).
The Court rejected Deputy Jobe’s first argument. Its decision was based on the text of the Federal Rules of Civil Procedure. Rule 34(a)(1)(A) allows a requesting party “to inspect, copy, test, or sample” ESI. The Court wrote: “Although Defendant produced the video for Plaintiff’s representative to inspect, he did not permit Plaintiff’s representative to copy it, as the Rule entitles Plaintiff to do.” [emphasis in original].
The timing of production issue presented a closer call, with the Court writing:
Defendant’s second contention touches on an area in which the available authority is somewhat contradictory and not entirely grounded in the text of the Rules: whether audio and video recordings may be withheld until after a party’s deposition to preserve their impeachment value, when those recordings also have a substantive use. [emphasis added].
Frankhouse v. Jobe, 2026 WL 483201 (D. Md. Feb. 20, 2026)(Miller, J.).
The Frankhouse Court wrote:
While the rule is by no means absolute, courts appear more inclined to permit temporarily withholding evidence whose impeachment purpose predominates, and less likely to permit withholding evidence whose substantive purpose predominates. An example of the former would be investigative video of a plaintiff engaging in post-accident activities inconsistent with her claimed injuries; an example of the latter would be store security video showing the accident itself. [emphasis added].
Id.
Balancing the two values–substantive and impeachment—the Frankhouse Court found this video to be predominantly substantive because it showed most, if not all, of the relevant events and participants. The Court found the impeachment value to be minimal compared to the substantive value. It wrote that “whatever element of surprise” the video may have was outweighed by the valid discovery request.
Defendant was ordered to produce the video before deposing the Plaintiff.
Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.
