Contemporaneous Business Surveillance Footage Exempt from Work-Product Privilege: Mile v. Kirkbrae Country Club

Introduction

In Rajmonda Mile v. Kirkbrae Country Club, 2025 RI 24 (R.I. 2025), the Rhode Island Supreme Court clarified the scope of the work-product privilege under Rule 26(b)(3) of the Superior Court Rules of Civil Procedure. Ms. Mile slipped and fell at a wedding held at Kirkbrae Country Club on September 9, 2018. During discovery she requested the surveillance video of the accident, which Kirkbrae withheld on work-product grounds, citing Cabral v. Arruda, 556 A.2d 47 (R.I. 1989). The Superior Court denied her motion to compel production of the tape. Ms. Mile then sought certiorari review. The Supreme Court granted the writ, quashed the Superior Court order, and remanded with instructions to produce the video.

Summary of the Judgment

The Court held that surveillance footage recorded at the time of an incident in the ordinary course of business is not “prepared in anticipation of litigation” and therefore is not protected by the work-product privilege. Because Kirkbrae conceded its surveillance system automatically recorded the fall—without any request by counsel—it failed to carry the initial burden of showing the privilege applied. The Supreme Court reversed the discovery ruling, ordered production of the tape, and clarified that post-deposition disclosure procedures (as in Cabral) only apply when material is truly “prepared in anticipation of litigation.”

Analysis

Precedents Cited

Cabral v. Arruda (1989): Held that surveillance photographs taken at the direction of defense counsel after litigation commenced are work product and may be withheld until after the plaintiff’s deposition.
Federal analogues:
- United States v. Textron, Inc., 577 F.3d 21 (1st Cir. 2009): “Prepared in anticipation of litigation” must mean “done for litigation” and not created in the ordinary course of business.
- Maine v. United States Dept. of Interior, 298 F.3d 60 (1st Cir. 2002): Clarified that routine business documents are not work product absent a specific litigation purpose.

These precedents guided the Court’s understanding that only materials created because of actual or reasonably anticipated litigation qualify for work-product protection.

Legal Reasoning

Rule 26(b)(3) protects “documents and tangible things … prepared in anticipation of litigation or for trial.” The party asserting the privilege must first demonstrate that the material meets that standard. Once invoked, the seeking party can overcome it only by showing substantial need and undue hardship. Here:

Kirkbrae admitted the surveillance system recorded the event automatically and not at counsel’s request.
By conceding that the video was created contemporaneously and for ordinary security—rather than for case preparation—Kirkbrae failed to show it was “prepared in anticipation of litigation.”
Therefore, no work-product protection attached and no showing of need or hardship was required; production was mandatory.

Impact

This decision:

Reaffirms that routine business records and security recordings are not work product merely because litigation later ensues.
Limits Cabral’s post-deposition disclosure rule to materials genuinely created at counsel’s behest.
Encourages transparency in pretrial discovery by narrowing the scope of privileged surveillance evidence.

Future litigants and trial courts in Rhode Island must now distinguish sharply between surveillance or investigative materials gathered for case preparation and those generated in the ordinary course of business.

Complex Concepts Simplified

Work-product privilege: A rule that shields from disclosure documents or things created “because of” litigation. It does not cover routine business records made without a litigation purpose.
Initial burden: The party claiming the privilege must first show the item was prepared in anticipation of litigation.
Substantial need/undue hardship: If work-product privilege is established, the opponent must prove they cannot get the information elsewhere and really need it for trial.
Ordinary course of business: Activities a company carries out regardless of any lawsuit—like running security cameras at all times.

Conclusion

Mile v. Kirkbrae Country Club significantly limits the application of the work-product privilege to surveillance footage. It makes clear that only materials created because litigation was anticipated qualify for protection. Security videos captured automatically at the time of an event are ordinary business records and must be produced in discovery upon request. This ruling promotes full and fair pretrial disclosure and will guide future courts in balancing legitimate privilege claims against the broad discovery principles enshrined in Rule 26.