Commercial Litigation and Arbitration

Work Product Protection Waived By Creating It in Plain Sight of Opponent

From Pahl v. Robinson, 2009 U.S. Dist. LEXIS 34668 (M.D. Ga. April 22, 2009):

On January 14, 2008, Defendant was driving his Crown Victoria on Georgia 137 when he struck Plaintiff Paul Pahl, who was riding a bicycle. Defendant's counsel hired videographers and photographers to videotape and photograph the collision scene on January 13 and 14, 2009 at the approximate time and under similar weather conditions as the 2008 collision. The videographers and photographers worked at the direction of Defendant's counsel. Among other things, the videographers and photographers documented a re-enactment of the 2008 collision using Defendant's Crown Victoria, based on input from Defendant regarding what he saw and did on the day of the collision. According to Plaintiffs, Defendant revealed in his deposition that at least one video was shot from his own personal perspective by a camera placed inside his car next to his head. Also, as part of the re-enactment, two bicycles were parked on the side of the road in approximately the location of impact, and Defendant struck one of those bicycles with his car during the re-enactment.

On both January 13 and 14, 2009, Plaintiffs' counsel arrived at the scene intending to get a look at and document the roadway and sunlight under similar conditions as existed the day and time of the 2008 collision, but they arrived after Defendant's representatives had already set up their equipment. Plaintiffs' counsel was able to see everything that happened and where Defendant's cameras were placed, but Plaintiffs' counsel did not have access to the input Defendant provided regarding the collision. Plaintiffs' representatives did not take photographs or video of the scene either day. Plaintiffs argue that Defendant "commandeered" the roadway, making it impossible for Plaintiffs to take their own photographs and video. Defendant contends that Plaintiffs' counsel never asked for access to the roadway and that Plaintiffs could have obtained the substantial equivalent of Defendant's photographs and video of the collision scene under conditions similar to those in 2008 if they had tried to do so on January 15, 2009, after Defendant's representatives were finished documenting the scene.

As part of their Requests for Production, Plaintiffs seek production of the video and photographs…, as well as testimony from Defendant and the four photographers/videographers who participated in the re-enactment.… Defendant agrees that Plaintiffs are entitled to review any materials considered by Defendant's experts in forming their opinions to be provided at trial and asserts that such materials will be made available to Plaintiffs…. However, Defendant contends that everything else Plaintiffs seek is privileged work product made for the purpose of developing Defendant's trial strategy because Defendant's counsel instructed the photographers and videographers on what to record and document; in other words, Defendant argues, the photographs and video are the fruit of Defendant's counsel's "investigative and analytical effort." Defendant argues that any testimony regarding the re-enactment from the videographers and photographers should be prohibited because they were working under the direction of Defendant's counsel and are thus privy to counsel's mental impressions, conclusions, opinions and legal theories regarding the case….

Plaintiffs argue that any work product privilege that may have existed in the photographs and video has been waived because the substance of the photographs and video were effectively disclosed to Plaintiffs' counsel when Plaintiffs' counsel was able to see everything that Defendant's representatives did on January 13 and 14, 2009. ***

***Voluntary disclosure of information to an adversary waives work product protection as to that information. See, e.g., Stern v. O'Quinn, 253 F.R.D. 663, 681 (S.D. Fla. 2008).

Here, Plaintiffs contend that Defendant's counsel voluntarily disclosed his otherwise privileged thought processes by allowing Plaintiffs' counsel to see everything Defendant's counsel instructed his client, photographers and videographers to do on January 13 and 14, 2009, effectively disclosing the contents of the photographs and video to Plaintiffs' counsel. Defendant argues that there was no waiver here because, although Plaintiffs' counsel saw everything that was recorded and photographed on January 13 and 14, 2009, Plaintiffs' counsel did not see the resulting photographs and video and did not know what was actually recorded.

The Court finds that the actions of Defendant, his counsel and representatives are inconsistent with maintaining secrecy of the re-enactment from Plaintiffs. In recording the re-enactment in plain view of Plaintiffs' counsel, Defendant's counsel and representatives opened their thoughts and mental processes to Plaintiffs and essentially allowed Plaintiffs' counsel to observe their on-the-scene interview of Defendant. Defendant and his counsel and representatives did not maintain any secrecy about the re-enactment, the camera placement, the bicycle placement, or the results of any instructions given to Defendant about where, when and how to drive his car. For all of these reasons, though the Court is generally reluctant to find a waiver of the work product privilege, the Court finds that under the unusual circumstances of this case Defendant and his counsel waived the work product privilege with regard to the video and photographs of the re-enactment taken on January 13 and 14, 2009.

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