|
|
This article is an overview of some of the more important aspects of Minnesota law on this subject. It is general and educational, and is not intended as – nor should it be used as a substitute for – legal advice about any particular situation.
====================================================================================
For more information on handling Litigation issues, contact Kenneth A. Kimber, kak@hanftlaw.com or 218-722-4766.
====================================================================================
Picture this: you are involved in a personal injury action, nearing resolution of an extremely contentious matter. You find yourself a small dollar amount away from settlement when you get a call from an obviously agitated opposing counsel questioning whether you hired someone to follow and videotape plaintiff. After making a few telephone calls, you find out that someone else hired a private investigator to conduct surveillance of plaintiff without your knowledge. Worse yet, after you obtain and review the surveillance films, you find they show nothing that helps your negotiating position. Regardless of whether you or someone else hired the private investigator, you are caught in a tough position. Instead of being close to settlement, your settlement discussions have been temporarily derailed and you now find yourself with your efforts focused on the issues arising from this surveillance. What do you do now?
PRELIMINARY ISSUES
Typically, plaintiffs' attorneys will serve interrogatories and requests for production of documents specifically requesting information about any surveillance and production of any videotapes, audiotapes, pictures, documents or other tangible matter related to the surveillance of plaintiff. If there is no specific request for these films in the original discovery requests and the discovery period has passed such that plaintiff is unable to craft a second set of discovery requests, discovery of the surveillance films will be more difficult. If you do not willingly produce the surveillance films, opposing counsel will probably threaten to bring a motion to compel. Putting aside the issues of admissibility of this evidence, this article focuses only on the discoverability of the surveillance films.
In an effort to force production of the surveillance films, plaintiffs are likely to argue that they are entitled to the surveillance materials, including any videotape shot during the surveillance, because the surveillance could be misleading and could be doctored to paint the plaintiff in an unfavorable light. Furthermore, a plaintiff will argue that without the surveillance films, he or she is unable to effectively prepare for trial for rebuttal and cross-examination of the witness presenting this evidence. Defendants, on the other hand, will contend that these documents are solely for impeachment purposes and are intended to keep the plaintiff honest when giving testimony about the extent and nature of his or her asserted injuries. Defendants will also seek protection under Minn. R. Civ. P 26.02(c).
THE PLAIN LANGUAGE OF THE MINNESOTA RULES OF CIVIL PROCEDURE REQUIRES PLAINTIFF TO DEMONSTRATE A "SUBSTANTIAL NEED" FOR THE SURVEILLANCE FILMS
Examining the Minnesota Rules of Civil Procedure, plaintiff must demonstrate a "substantial need" for the surveillance films under Minn. R. Civ. P 26.02(c). This Rule states, in relevant part:
A party may obtain discovery of documents and tangible things otherwise discoverable pursuant to Rule 26.02(a) 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 for 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 such materials by other means.
Minn. R. Civ. P 26.02(c). Using the plain language of Rule 26.02(c), defendants could argue that a party subject to surveillance cannot obtain the surveillance films because they were (1) prepared in anticipation of litigation; (2) prepared by the party's representative; (3) there is no "substantial need" for the films; and (4) plaintiff can obtain the equivalent of the films by other means. In fact, plaintiff, as the subject of the videotape, possesses direct knowledge of his or her own actions and thus does not need to view the surveillance films to determine his or her past actions because there is no "undue hardship" that would result from the failure to disclose.
REGARDLESS OF THE PLAIN LANGUAGE OF MINN. R. CIV. P. 26.02(c), OTHER JURISDICTIONS PROVIDE AN ARRAY OF METHODS FOR ADDRESSING THE DISCOVERABILITY OF SURVEILLANCE FILMS
There are many jurisdictions outside of Minnesota which have decided cases regarding the discoverability of surveillance films. There are generally three variations found: (1) surveillance films are not discoverable; (2) surveillance films are discoverable after certain conditions are met; and (3) surveillance films are always discoverable.
Some courts have held that surveillance information and data is protected by the work-product doctrine and thus is not discoverable. See Ranft v. Lyons, 471 N.W.2d 254 (Wis. Ct. App. 1991); State ex. Rel. Missouri Pac. R..R.. v. McMillan, 351 S.W.2d 22 (Mo. 1961); and Bogatay v. Maunder R..R.., 177 F.Supp. 269 (W.D. Pa. 1959). In Ranft, the Wisconsin Court of Appeals found that surveillance film constituted work-product because "a lawyer's strategic decision to invest a client's resources on photographic or video surveillance. . . reflects his evaluation of the strengths or weaknesses of the opponent's case. . . and reveals the lawyer's analysis of potentially fruitful areas of investigation." Ranft, 471 N.W.2d at 261. Additionally, in Hikel v. Abousy, the plaintiff did not seek to discover any surveillance films but instead sought to determine if surveillance occurred. 41 F.R.D. 152, 154 (D. Md. 1966). The court balanced the plaintiff's need to know versus the defendant's potential uses of the surveillance and concluded that the plaintiff could not find out if surveillance had been conducted because he or she should not be allowed to have free rein to testify without fear of impeachment. Id. at 154-55. The Hikel decision leaves the door open for future discovery of surveillance films if the plaintiff has already testified.
According to other courts, surveillance information is not protected by the work-product doctrine. See Zimmerman v. Superior Court, 402 P.2d 212 (Ariz. 1965); and Olszewski v. Howell, 253 A.2d 77 (Del. 1969). The Zimmerman court acknowledged that it interpreted the work-product protections much more narrowly than other states and included only "memoranda, briefs and writings prepared by counsel for his own use, as well as related writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories." Zimmerman, 402 P.2d at 214. Zimmerman takes a much different approach because of the narrow nature of the work-product doctrine under Arizona Rules of Civil Procedure, especially when compared with the Minn. R. Civ. P. 26.02(c).
In Olszewski, the court found that the surveillance documents were discoverable because (1) the surveillance was unique and unable to be duplicated; (2) there was a potential for misleading surveillance; (3) pretrial discovery was based on a search for truth and justice; and (4) disclosure might expedite settlement. Olszewski, 253 A.2d at 78. Other courts have acknowledged the potential unfairness of enabling a party to use surveillance films at trial without prior discovery of those films. Jenkins v. Rainner, 350 A.2d 473 (N.J. 1976) (dismissing defendant's argument that plaintiff, as the subject of the video, possessed direct knowledge of her own injuries and activities following those injuries).
Another approach to allowing surveillance films to be discovered focuses on the broad nature of the Rules of Civil Procedure and the liberal nature of the discovery process. Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W.Va. 1992). This liberal discovery argument is similar to O1szewski's third component: pretrial discovery is based on a search for truth and justice and that search is furthered by a broad interpretation of the applicable Rules of Civil Procedure. The Boyle court qualified the requirement of disclosure stating that plaintiff must be deposed prior to defendant's production of the surveillance films. Id.
The most used "middle-ground" approach of requiring certain conditions be met prior to disclosure is found in Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973). Patricia L. Ogden, Note, "A Picture is Worth a Thousand Words"-The Permissible Scope of Discovery of Videotape in Civil Cases: A Bifurcation Approach, 29 Ind. L. Rev. 441, 446 (1995) (stating that Snead is the most cited case discussing discoverability of surveillance information). The Snead plaintiff alleged injuries arising from an accident on board a ship. The defendant was suspicious of plaintiff's allegations and secretly filmed plaintiff to expose the nature and extent of plaintiff's injuries. When the plaintiff learned of this surveillance, he requested the films and supporting documentation. The defendant refused to produce the requested information. Citing Rule 26, the Snead court balanced plaintiff's need to obtain the information with defendant's need to withhold the information. 59 F.R.D. at 151. The court recognized these surveillance films would be used primarily for impeachment purposes and held that defendant must produce the films at some point prior to trial if defendant planned on using the films at trial. Id.
At the least, the Snead court provided a strong basis for asserting that production of surveillance films is improper prior to taking plaintiff's deposition:
Before any of these disclosures. . . the defense must be given an opportunity to depose the plaintiff fully as to his injuries, their effects, and his present disabilities. One (sic) his testimony is memorialized in deposition, any variation he may make at trial to conform to the surveillance films can be used to impeach. . . and his knowledge at deposition that the films may exist should have a salutary effect on any tendency to be expansive.
Id., 59 F.R.D. at 151. Requiring disclosure only after the plaintiff's deposition allows the defendant an opportunity to "lock in" the plaintiff's testimony before being able to view the surveillance films and prevents a party from being tempted to alter his or her testimony. Other jurisdictions agree with the Eastern District of Pennsylvania's analysis of the disclosure requirements for surveillance information. See Wolford v. JoEllen Smith Psych. Hosp., 693 So.2d 1164 (La. 1997); Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154 (N.D. Iowa 1994); Shenk v. Berger, 587 A.2d 551 (Md. App. 1991); Daniels v. National R..R.. Passenger Corp., 110 F.R.D. 160 (S.D. N.Y. 1986); Dodson v. Persell, 390 So.2d 704, 708 (Fla. 1980); and Martin v. Long Island R..R.. Co., 63 F.R.D. 53 (E.D. N.Y. 1974). Waiting to require disclosure of surveillance films until after a plaintiff's deposition again promotes "serious settlement negotiations and avoids disruptions during the trial." Romero v. Chiles Offshore Corp., 140 F.R.D. 336,337 (WD. La. 1992).
Another "middle-ground" approach is found in Cabral v. Arruda, 556 A.2d 47 (R.I. 1989). The Cabral court focused its inquiry on whether the defendant planned on using the surveillance films at trial. The court stated that discovery of surveillance films is "qualifiedly immune" meaning that "such material is discoverable with a showing of injustice or undue hardship." Id. at 49. The court found that if a party plans on using the surveillance films at trial, then nondisclosure of those films constitutes an undue hardship and the films must be produced. Id. at 50. The court further found that the existence of surveillance films as well as whether these films will be used at trial was discoverable, but if a lawyer creates surveillance films for his own use, the films are not discoverable. Id. at 50-51. See also Dodson, 390 So.2d 704 (Fla. 1980).
APPELLATE COURT DECISIONS REGARDING PROPRIETY OF COURT RULINGS ON DISCLOSURE OF SURVEILLANCE FILMS
Two cases aptly outline additional issues surrounding a party's difficult decision whether to disclose surveillance films. In Chiasson v. Zapata Gulf Marine Corp., the Fifth Circuit Court of Appeals reversed the trial court's decision to permit the defendant to show surveillance video at trial without prior disclosure. 988 F.2d 513, 516 (5th Cir. 1993). After the defendant surprised the plaintiff with a surveillance video at trial and the jury found that the plaintiff was 90% liable for the injury based on contributory negligence, the appellate court reversed the decision because the plaintiff had a substantive right to view the evidence prior to trial and if the other side would have had an opportunity to view the surveillance video, the production would have doubtlessly produced an earlier settlement. Id.
In DiMichel v. South Buffalo Railway, the court directly attacked the plaintiff's use of the surveillance films at trial. 604 N.E.2d 63, 69-70 (N.Y. 1992). Although the DiMichel defendant conducted surveillance, disclosed videotapes from the surveillance and did not use that surveillance at trial, the plaintiff continually referred to the defendant's surveillance efforts throughout trial and implied in his closing argument that the defendant did not use the tapes at trial because the surveillance tapes would have helped the plaintiff and hindered the defendant's case. Id. The appellate court held that the trial court abused its discretion in allowing the plaintiff to use evidence of the surveillance videotapes in such an underhanded manner. Id. Curiously, the New York State Legislature enacted N.Y. C.P.L.R. 3101(i) in response to the DiMichel decision which requires disclosure of "all portions of such material, including out-takes, rather than only those portions a party intends to use." Zegarelli v. Hughes, 2004 WL 1472621, *2 (N.Y. 2004). Post-DiMichel decisions also state that N.Y. C.P.L.R. 3101(i) overruled the ability of parties to withhold surveillance tapes until the plaintiff is deposed. Id. (citing Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 387-88 (N.Y. 2003)). DiMichel could still be used to demonstrate that safeguards are proper and necessary prior to disclosing videotape surveillance. A review of the state statutes revealed no other statute, regulation or rule similar to N.Y. C.P.L.R. 3101(i).
WHAT WOULD MINNESOTA DO?
Minnesota courts have not addressed whether a party must disclose surveillance films and documents. In light of a review of cases decided in other jurisdictions, the Snead approach provides the most practical method for discovery of surveillance films. Furthermore, Minnesota Practice's citation of Snead in the materials on Minn. R. Civ. P 26.02(c) may provide additional support for using the Snead approach in Minnesota.
A party who receives a request for all surveillance films is entitled to withhold the films until after the plaintiff's deposition to ensure the plaintiff's testimony is not altered, is not overly expansive and remains truthful. Snead, 59 F.R.D. at 151. Taking the plaintiff's deposition prior to disclosing the surveillance films will also "lock" the plaintiff in on a specific story. Second, if the defendant does not plan to use the surveillance films at trial, the plaintiff will likely be unable to demonstrate a "substantial need" for the films or a resulting "undue hardship." If the defendant will use the films at trial, then the films are discoverable. Importantly, discovery of those presumably favorable surveillance films will likely facilitate settlement. Allowing the plaintiff to examine the favorable surveillance films prior to trial also prevents a later reversal by an appellate court. Furthermore, there are safeguards in place, as found in the DiMichel decision, eliminating the possibility of the plaintiff using defendant's failure to disclose or produce as a weapon at trial.
CONCLUSION
Despite the availability of arguments combating production of surveillance films, a prudent attorney will still conduct a cost-benefit analysis. The attorney must weigh the financial and negotiating costs of continuing to defend a Motion to Compel versus the potential likelihood of a favorable Order suppressing disclosure of all surveillance films. Furthermore, disclosure of damaging impeachment films might promote settlement, as many courts have stated. Overall, the Snead case and the Minn. R. Civ. P. 26.02(c) demonstrate that plaintiff is not automatically entitled to unlimited and unfettered access to surveillance films in a personal injury action. To date this specific issue has not been addressed in Minnesota; Minnesota appellate courts may choose to adopt a different approach from Snead regarding the discovery of surveillance films, as is readily evident in the variety of decisions in other jurisdictions. In the meantime, the Snead court provides a workable "middle-ground" approach that should ensure the parties do not spend a disproportionate amount of time on a secondary issue and lose focus of the more central issues of the case.
====================================================================================
For more information on handling Litigation issues, contact Kenneth A. Kimber, kak@hanftlaw.com or 218-722-4766.
====================================================================================
The information provided in this article is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this article.
====================================================================================
Copyright 2004 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218-722-4766; fax 218-529-2401.
|
