Rajmonda Mile v. Kirkbrae Country Club

Supreme Court

No. 2022-328-M.P.
(PC 20-8954)

Rajmonda Mile :

v. :

Kirkbrae Country Club. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2022-328-M.P.
(PC 20-8954)

Rajmonda Mile :

v. :

Kirkbrae Country Club. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Long, for the Court. The plaintiff, Rajmonda Mile (plaintiff or Ms.

Mile), seeks review on certiorari of an order of the Superior Court that denied her

motion to compel production of a videotape depicting her slip-and-fall accident

while on the premises of the defendant Kirkbrae Country Club (Kirkbrae). This

Court issued the writ and assigned the matter for full briefing. For the reasons set

forth in this opinion, we quash the order of the Superior Court and remand this matter

for further proceedings consistent with this opinion.

Facts and Travel

The instant matter arises from a slip-and-fall accident (incident) that allegedly

occurred on September 9, 2018, while Ms. Mile was at Kirkbrae for her daughter’s

wedding. Ms. Mile filed a complaint in Providence County Superior Court against

-1-
Kirkbrae; as part of the litigation, she served Kirkbrae with interrogatories seeking

to determine whether there “[w]ere any photographs or videotapes taken at any time

since the incident of the plaintiff and/or scene of the incident[,]” or whether

surveillance materials “ha[d] been obtained, produced or commissioned relative to

the plaintiff at any time subsequent to the subject accident * * *.” Kirkbrae objected

to the interrogatories “to the extent that [they] impinge[] on attorney work product

privilege[,]” but responded that it would produce responsive material “in accordance

with Cabral v. Arruda[, 556 A.2d 47 (R.I. 1989)].”1

Kirkbrae subsequently supplemented its answers, providing a privilege log to

indicate that it was “in possession of a surveillance video of the incident taken on

the date of the incident.” Ms. Mile sought production of a copy of the video

referenced in Kirkbrae’s supplemental answers. Kirkbrae again objected, citing

Cabral.

Ms. Mile then filed a motion to compel production of the video of the incident

referenced in Kirkbrae’s supplemental answers to interrogatories. She argued that

the video was “taken at the time of the incident” and “prepared in the regular course

of business prior to the onset of litigation.” Therefore, she asserted, it was not

1
In Cabral v. Arruda, 556 A.2d 47 (R.I. 1989), this Court held that surveillance
photographs of a personal-injury plaintiff taken after the date of the incident were
discoverable but, because those photos constituted attorney work product, they were
entitled to be withheld until after the plaintiff had been deposed. Cabral, 556 A.2d
at 50.
-2-
protected under Cabral and must be produced. Kirkbrae opposed Ms. Mile’s motion

to compel, indicating that it had identified a responsive video on its surveillance

cameras and would produce it after plaintiff’s deposition, consistent with this

Court’s conclusion in Cabral that surveillance materials are entitled to work-product

protection.

At a hearing on Ms. Mile’s motion to compel before a justice of the Superior

Court, Ms. Mile’s counsel distinguished Cabral from the instant case by pointing

out that, in Cabral, the disputed surveillance photographs were made “at the request

of [an] attorney to document the [p]laintiff’s alleged injuries” after the incident

giving rise to the litigation; but here, counsel noted, the video was prepared

contemporaneously with the incident and was not made in anticipation of litigation

or at the request of counsel. Counsel for Ms. Mile further argued that Kirkbrae’s

rationale for its objection—that it wanted to withhold the video so that she did not

tailor her deposition testimony to the video after seeing it—was unreasonable

because she had already provided a detailed written description of the incident in

response to Kirkbrae’s interrogatories; such interrogatory responses would provide

a basis to expose any change in her story at her deposition. Finally, Ms. Mile argued

that withholding the evidence from her until her deposition would cause undue

hardship.

-3-
Kirkbrae agreed that the video was subject to production but sought,

consistent with “the principles of Cabral, that [Kirkbrae] be allowed to depose the

[p]laintiff prior to producing the video.” Kirkbrae acknowledged, however, that the

video at issue was recorded at the time of the incident, that it captured the incident

itself, and that it was not created “at [counsel’s] behest.” Nevertheless, counsel for

Kirkbrae argued that post-deposition disclosure of the video would allow Kirkbrae

to “ask [plaintiff its] questions * * * prior to the answers being able to be tailored

* * * to what is or is not seen on the video.” Ms. Mile emphasized in rebuttal that

“Cabral only comes about” if the video is work product, which this video is not.

The trial justice denied Ms. Mile’s motion to compel. Ms. Mile thereafter

sought review of the trial justice’s order by filing a petition for writ of certiorari in

this Court. She argued that the trial justice erroneously denied production of the

video, which is actual evidence of the incident and not work product. This Court

granted the petition and issued the writ on June 2, 2023.

We consider whether the trial justice committed an error of law in denying

plaintiff’s motion to compel production of the video of the incident taken on

September 9, 2018, the date of the incident.

Standard of Review

“It is well settled that this Court limits its review on certiorari to examining

the record to determine if an error of law has been committed.” Noonan v.

-4-
Sambandam, 296 A.3d 670, 673 (R.I. 2023) (quoting Nickerson v. Reitsma, 853 A.2d

1202, 1205 (R.I. 2004)). While we review the scope of Rule 26 of the Superior

Court Rules of Civil Procedure de novo, a trial justice has “broad discretion” in

granting or denying discovery motions, and “this Court will not disturb [that

discretion] * * * save for an abuse” of it. State v. Lead Industries Association, Inc.,

64 A.3d 1183, 1191 (R.I. 2013) (quoting Colvin v. Lekas, 731 A.2d 718, 720 (R.I.

1999)). “If legally competent evidence exists to support [the trial justice’s]

determination, we will affirm it” unless errors have so “infected the validity of the

proceedings as to warrant reversal.” Pastore v. Samson, 900 A.2d 1067, 1073-74

(R.I. 2006) (quoting Cullen v. Town Council of Lincoln, 850 A.2d 900, 903 (R.I.

2004)).

Discussion

The philosophy underlying modern discovery is to “promote broad discovery

among parties during the pretrial phase of litigation.” Henderson v. Newport County

Regional Young Men’s Christian Association, 966 A.2d 1242, 1246 (R.I. 2009); see

Hickman v. Taylor, 329 U.S. 495, 501 (1947) (“[C]onsistent with recognized

privileges, [discovery allows] the parties to obtain the fullest possible knowledge of

the issues and facts before trial.”). To that end, our rules promote the disclosure of

-5-
“all data relevant to the pending controversy * * * unless the data is privileged[,]”

so that controversies can be decided on their merits. Cabral, 556 A.2d at 48.

This case concerns the applicability of the work-product privilege to the video

depicting Ms. Mile’s slip-and-fall incident, captured on Kirkbrae’s surveillance

cameras on the date of the incident. We agree with Ms. Mile that the trial justice

erroneously denied production of the video of the incident, which is actual evidence

of the incident and not work product.

Rule 26(b)(3) of the Superior Court Rules of Civil Procedure codifies the

work-product privilege, providing that

“a party may obtain discovery of documents and tangible
things otherwise discoverable * * * and prepared in
anticipation of litigation or for trial by or for another party
or by or for that other party’s representative (including the
other party’s 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 party’s case and that the party is
unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering
discovery of such materials when the required showing
has been made, the court shall protect against disclosure
of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party
concerning the litigation.”

The work-product privilege thus protects photographs and films from disclosure

when they are prepared in anticipation of litigation or for trial. See Cabral, 556 A.2d

at 49 (holding that photographs and films are within the scope of Rule 26). Rule

-6-
26(b)(3) triggers a requirement for the party seeking disclosure to demonstrate a

“substantial need of the materials” and that they are unable to access the equivalent

by other means. Super. R. Civ. P. 26(b)(3). Critically, however, the party who seeks

to shield a document, photograph, video, or other thing from discovery bears the

initial burden of establishing a right to nondisclosure by demonstrating that the

privilege applies. Pastore, 900 A.2d at 1080; see North Kingstown School

Committee v. Wagner, 176 A.3d 1097, 1100 (R.I. 2018) (noting that “the burden of

persuasion rests upon the party seeking to assert the privilege”); see also Conoco

Inc. v. United States Department of Justice, 687 F.2d 724, 730 (3d Cir. 1982) (“The

burden of demonstrating that a document is protected as work-product rests with the

party asserting the doctrine.”).

This Court explained in Cabral that where a lawyer creates, or causes to be

created, surveillance materials solely for his or her own case-preparation purposes,

such material is work product. Cabral, 556 A.2d at 50-51. The United States Court

of Appeals for the First Circuit has likewise explained that, under the substantially

similar federal rule, in order for material to be “prepared in anticipation of litigation”

it must be “done for litigation” specifically, and not “in the ordinary course of

business or [be material] that would have been created in essentially similar form

irrespective of the litigation.” United States v. Textron Inc. and Subsidiaries, 577

F.3d 21, 29-30 (1st Cir. 2009) (emphasis omitted) (quoting Maine v. United States

-7-
Department of Interior, 298 F.3d 60, 70 (1st Cir. 2002)). Here, it is undisputed that

Kirkbrae’s surveillance cameras captured Ms. Mile’s slip-and-fall incident at the

time it occurred, and not at the behest of counsel. In fact, Kirkbrae conceded at the

hearing on plaintiff’s motion to compel that the video in its possession was taken at

the time of the injury and was not recorded at the request of an attorney. As such,

Kirkbrae sought the protection of the work-product privilege to shield the video from

discovery but did not, and could not, meet its burden of establishing a right to

nondisclosure in the first instance. See Henderson, 966 A.2d at 1248 (granting work-

product protection to company report because an attorney told board to create the

report after learning of alleged illegal conduct by employee); Cabral, 556 A.2d at

49-50 (granting work-product protection to surveillance photos taken by investigator

hired by the defendant’s attorney after litigation commenced).

We acknowledge that, in some cases, a particular piece of evidence may

require a searching review of the record and statements of the parties to determine

why it was created and whether that purpose aligns with the policy of the

work-product protection; however, where, as here, an attorney concedes that the

material was made contemporaneously in the course of business rather than at the

behest of an attorney after the fact, our job is much simpler. See Hickman, 329 U.S.

at 510-11 (explaining contours of the work-product protection to protect an

attorney’s “interviews, statements, memoranda, correspondence, briefs, [and]

-8-
mental impressions” but not “relevant and non-privileged facts” contained within an

attorney’s files); Cabral, 556 A.2d at 49 (providing examples of uses of surveillance

material that can establish that they were made in anticipation of litigation). Our

analysis of the application of the work-product privilege begins and ends with

Kirkbrae’s failure to meet its initial burden of establishing a right to nondisclosure

of the video by demonstrating that the work-product privilege applies. North

Kingstown School Committee, 176 A.3d at 1100.

Kirkbrae’s attempt to invoke the “principles of Cabral” and assert that the

video is entitled to a post-deposition disclosure procedure is novel but ultimately

unavailing. Although Kirkbrae has not clearly explained what the “principles” are,

we observe that Kirkbrae has conceded from the outset that the instant matter differs

from Cabral because Cabral evaluated “surveillance materials created after-the-

fact” and at the direction of a lawyer. To the extent that we read Cabral as evincing

any “principles” with regard to a post-deposition disclosure procedure, they are

triggered only after a party from whom discovery is sought carries its initial burden

of establishing that the material is work product in the first instance, most typically

shown when a document or thing has been prepared at the request of an attorney.

See Cabral, 556 A.2d at 49.

Finally, Kirkbrae urges this Court to affirm the trial justice’s decision to deny

Ms. Mile’s motion to compel as an exercise of his inherent authority over discovery

-9-
found in Rule 26(d). However, Kirkbrae did not raise Rule 26(d) as a basis for its

objection in the trial court; Kirkbrae’s sole objection to Ms. Mile’s request for

production was that the video was work product under Cabral. As such, this

argument is waived. See Cronan v. Cronan, 307 A.3d 183, 192 (R.I. 2024).

Based on our examination of the record, we conclude that the trial justice erred

in denying Ms. Mile’s motion to compel production of the video of the incident taken

on September 9, 2018, the date of the incident.

Conclusion

We quash the order of the Superior Court denying the plaintiff’s motion to

compel production of the video of the incident and remand the record with

instruction that the Superior Court enter an order consistent with this opinion.

- 10 -
(STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Rajmonda Mile v. Kirkbrae Country Club.

No. 2022-328-M.P.
Case Number
(PC 20-8954)

Date Opinion Filed March 24, 2025

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Melissa A. Long

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Kevin F. McHugh

For Plaintiff:

Ryan C. Hurley, Esq.
Attorney(s) on Appeal
For Defendant:

Krista J. Schmitz, Esq.