At the trial, Judge Kenneth Kovalcik, exercising his judicial discretion, barred the use of the video as evidence. The court relied upon NJAC 12:235-3.11(a)(4)(i) that requires a pretrial memorandum must reflect that a party intends to utilize videos or other electronic media prior to trial. The defense argued that it was unable to comply with the administrative requirement because the video did not exist at the time the pretrial memorandum was submitted and that it was necessary to rebut the petitioner's testimony.
In affirming the trial judge, the appellate court reasoned that it was not an abuse of discretion to bar the use of the video. It reasoned that the belated surveillance tapes could not be admitted unless the employer could show that it was unaware, and could not have become aware, of the circumstances warranting the surveillance video before the hearing.
Marra v. Ryder Transportation Resources & Second Injury Fund, Docket No. A-5274-10T4, 2012 WL 2505731 (N.J.Super.A.D.), decided July 2, 2012.