Commercial Litigation and Arbitration

Surveillance Video — Work Product and the Scope of Implied Waiver

From Ward v. AT Sys., Inc., 2008 U.S. Dist. LEXIS 67990 (E.D. Pa. Sept. 9, 2008), a personal injury action in which the plaintiff sought surveillance tapes made by the defendants:

Because video surveillance of a plaintiff would tend to show a plaintiff's physical condition, movements and restrictions, courts generally consider such video to be highly relevant. See, e.g., Gibson by Gibson v. AMTRAK, 170 F.R.D. 408, 409 (E.D. Pa. 1997); Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 (E.D. Pa. 1973); Wegner by Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994); Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993). However, because such video is obtained in anticipation of litigation by a party or the party's representative, it must be regarded as work-product. See, e.g., Williams v. Picker Int'l, Inc., No. 99-3035, 1999 U.S. Dist. LEXIS 19107, at *6 (E.D. Pa. 1999); Gibson, 170 F.R.D. at 409-10.

Nevertheless, when a party intends to use surveillance evidence at trial, courts generally find that the work-product privilege is waived on account of plaintiff's "(1) substantial need for evidence that may prove critical at trial, and (2) inability to obtain the substantial equivalent of this record of plaintiff's condition at a particular time and place." Gibson, 170 F.R.D. at 410. When defendants intend to use surveillance video at trial but fail to produce the video during discovery, the defendants may be precluded from using the surveillance evidence at trial. Snead, 59 F.R.D. at 151. However, if a party does not intend to introduce any surveillance evidence at trial, it need not produce such evidence during discovery. Gibson, 170 F.R.D. at 410.

Here, as in Gibson, it can be presumed that the Defendants' decision not to use the surveillance evidence at trial indicates that the evidence either corroborates Plaintiffs' claims or is inconclusive. See Gibson 170 F.R.D. at 410. In either case, the work-product doctrine bars discovery because Plaintiffs have no substantial need of the evidence. See id. As the Snead court stated, "The only time there will be substantial need to know about surveillance pictures will be in those instances where there would be a major discrepancy between the testimony the plaintiff will give and that which the films would seem to portray." Snead, 59 F.R.D. at 151. Because Defendants have no intention of using the surveillance video at trial, there can be no such discrepancy here. Moreover, Plaintiffs may employ other means to prove that Mrs. Ward's injuries are as Plaintiffs claim without appropriating Defendants' work-product. See Gibson, 170 F.R.D. at 410; Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 153 (S.D. Ind. 1993). As the Fisher court explained, "[T]he information contained in the videotapes — facts about the extent and nature of Plaintiff's injuries — is readily attainable from the Plaintiff's own testimony. . . . [B]ecause Plaintiff has offered nothing to demonstrate that the evidence contained in the surveillance tapes is unique or of a higher quality than that which is available to him, intrusion into work product is not justified." Fisher, 152 F.R.D. at 153. Moreover, the use of surveillance has been shown to be an effective means of obtaining highly relevant information. See, e.g., Gibson, 170 F.R.D. at 409; Snead, 59 F.R.D. at 150; Wegner, 153 F.R.D. at 159; Chiasson, 988 F.2d at 517. Requiring a defendant to produce all surveillance evidence, regardless of whether such evidence will be introduced at trial, may cast an undesirable chilling effect on a defendant's decision to employ this important discovery tool.

The cases cited by Plaintiffs do not address the issue as to whether Defendants are required to provide surveillance video when defendants do not intend to use the video at trial.... Rather, the cases Plaintiffs cite stand for the proposition that failure to turn over the surveillance video may result in preclusion of its use at trial. See Mietelski v. Banks, 854 A.2d 579, 582 (Pa. Super. Ct. 2004); Duncan v. Mercy Catholic Med. Ctr., 813 A.2d 6, 8-9 (Pa. Super. Ct. 2002); Bindschusz v. Phillips, 771 A.2d 803, 811 (Pa. Super. Ct. 2001). These cases do not suggest that Defendants may be precluded from challenging the extent of Mrs. Ward's injuries when they refuse to produce surveillance that they have no intention of using at trial. The limited surveillance for which Defendants' investigator was budgeted ... does not conclusively establish Mrs. Ward's level of disability so as to bar Defendants from contesting the issue at trial. Finally, Defendants' expert, Dr. Toborowsky, has not discerned that Mrs. Ward suffers from any psychotic disorders.... Therefore, his noting of Mrs. Ward's belief that she is being "followed" and that her telephone is "bugged" has no bearing on the claims or defenses in this case. As such, I will not compel production of the surveillance video at this time.

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