September 04, 2014 BY Whitney Lay Greene
To Catch a Plaintiff: Production of Surveillance Evidence Prior To Trial
The following is a common place scenario in a general liability claim. Plaintiff alleges personal injuries as a result of an accident on Defendant’s premises. Defendant hires an investigator to perform surveillance on Plaintiff. In discovery, Plaintiff requests any surveillance videos or photographs and the name of the investigator who obtained them. Defendant discloses the existence of surveillance but objects to its production on the grounds that such evidence is protected by the work-product privilege and/or is outside the scope of discovery because its sole potential use would be to impeach the Plaintiff’s testimony at trial. Plaintiff files a motion to compel production of the surveillance, and then comes the tricky part—what happens next?
The Georgia appellate courts have not addressed the issue of whether surveillance is discoverable under the Georgia Civil Practice Act. However, the issue has been addressed by trial courts in Georgia multiple times and the determinations reached by those courts vary significantly. Outside of Georgia, the issue has also been addressed by various federal and state jurisdictions. A number of those courts determined that surveillance is discoverable, but production is not required until after the defendant deposes the plaintiff. Nevertheless, other jurisdictions (and several Georgia lower courts) have determined that surveillance is not discoverable, and there are certainly sound policy considerations and rationales behind these decisions. At the root of the issue are three questions:
• Is surveillance protected by the work- product privilege?
• If so, can a plaintiff show substantial need and undue hardship such that the privilege is overcome?
• Aside from the work-product questions, can a defendant withhold surveillance, when its sole potential use is as impeachment evidence?
The Work-Product Privilege
O.C.G.A. § 9-11-26(b)(1) defines the scope of discovery in Georgia State Courts.
That statute provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[...]" (emphasis added). Over 40 years ago, the Georgia Supreme Court affirmed a trial court’s ruling that surveillance materials fall within the work-product privilege. InSmith v. Smith, 223 Ga. 551, 554 (1967), an action for divorce and alimony, the wife sought a copy of a private investigator’s report. Defense counsel hired the investigator to perform surveillance on the plaintiff wife after the suit was filed. On appeal from the trial court’s denial of the wife’s request, the Georgia Supreme Court focused on the fact that the surveillance was performed after suit was filed and after the creation of an attorney-client relationship; holding that what was done by the investigator at the attorney’s behest was no different than work done by the attorney himself. Id. at 554-556. The Smith Court’s rationale has also been cited positively in several subsequent cases in Georgia. See, e.g., McMillan v. Gen. Motors Corp., 122 Ga. App. 855 (1970); Jones v. Scarborough, 194 Ga. App. 468 (1990); Heyde v. Xtraman, Inc., 199 Ga. App. 303 (1991); Stinski v. State, 286 Ga. 839 (2010).
O.C.G.A. § 9-11-26(b)(3) addresses materials prepared in anticipation of trial and provides that: a party may obtain discovery of documents prepared in anticipation of litigation only upon a showing that the party seeking discovery has substantial need of the materials and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. (emphasis added). See also, Lowe's of Ga. v. Webb, 180 Ga. App. 755, 757 (1986). Thus, in order to compel production of work-product protected video footage, the plaintiff must demonstrate both prongs of the requirement.
Establishing Substantial Need and Undue Hardship
In order to meet the substantial need and undue hardship requirements, plaintiffs typically argue that they have an interest in reviewing the surveillance material in order to ensure that the material has not been altered and is not misleading. Plaintiffs also point to the fact that they cannot obtain the substantial equivalent of the tape because the material is not reproducible, does not exist elsewhere, and is in the sole custody of the defendant. In response, defendants typically argue that the plaintiff knows exactly what activities will be depicted on the surveillance because it is the plaintiff who is performing them. As such, the plaintiff’s direct, personal knowledge amounts to the “substantial equivalent” of the video surveillance.
As noted above, this issue has not been addressed by the Georgia appellate courts, and other state and federal courts addressing the issue have come to different conclusions. Courts holding that the surveillance is not discoverable focus on the importance of ensuring the honesty of plaintiffs. These courts also determined that the general trend in favor of access to all relevant material and the possibility that the surveillance materials may be misleading were not sufficient to warrant pre-trial disclosure of work product privileged materials. See, e.g.Fletcher v. Union Pac. R.R., 194 F.R.D. 66, 670 (S.D. Cal. 2000); Ward v. CSX Transp., Inc., 161 F.R.D. 38, 40 (E.D.N.C. 1995); Hikel v. Abousy, 41 F.R.D. 152 (D. Md. 1966); St. Louis Public Service Company v. McMillan, 351 S.W.2d 22 (Missouri Supreme Court, 1961); Ranft v. Lyons, 163 Wisc. 2d 282 (Wisc. App. 1991).
Other jurisdictions have adopted a more middle of the road approach, determining that surveillance is work product, but other considerations can warrant its production. These courts typically focus on the fact that the plaintiff’s previous activities can no longer be filmed so the plaintiff cannot obtain the substantial equivalent of the surveillance video, the uniquely persuasive and potentially prejudicial nature of video, and the importance of allowing the plaintiff an opportunity to ensure the video is not misleading and has not been altered. It should be noted, however, that all of these courts allowed for “pre-production” discovery, including depositions and interrogatories. In so doing, these courts reasoned that the defendant’s ability to obtain sworn testimony from the plaintiff before disclosing the contents of the surveillance would blunt the plaintiff’s ability to “tailor” her testimony around the activities revealed therein. See, e.g., Roa v. Tetrick, 2014 U.S. Dist. LEXIS 24619, 9-10 (S.D. Ohio Feb. 24, 2014); Martin v. Long Island R.R. Co., 63 F.R.D. 53 (E.D.N.Y. 1974); Cabral v. Arruda, 556 A.2d 47 (R.I. 1989); Pioneer Lumber v. Bartels, 673 N.E.2d 12, 18 (Ind. Ct. App. 1996).
Another argument against the disclosure of surveillance is that its sole potential use at trial is as impeachment evidence which is outside the scope of discovery under Georgia law. In Ballard v. Meyers, 275 Ga. 819 (2002), the Supreme Court of Georgia held that there was no requirement to disclose documents in a pre-trial order which may be used at trial to attack the credibility of the other side’s witnesses. Id. at 820. The Court reasoned that defense counsel was entitled to presume a plaintiff would testify truthfully up until he or she actually fails to do so. However, the Court noted that the presumption of veracity is only a reasonable, not an irrebuttable one and a good trial lawyer should be prepared to rebut contrary testimony or evidence that is false.Id. at 821-22. Although the Ballard decision specifically applied to the disclosure of impeachment evidence in the pre-trial order, arguably the same rationale applies to the disclosure of surveillance as well.
Other jurisdictions addressing the issue have taken identical approaches to those addressing work-product objections to the production of surveillance. Courts that allow a defendant to reveal surveillance materials for the first time at trial focus on the need to protect the impeachment value of the materials and the fact that the plaintiff already knows about his or her own condition. Courts requiring pre-trial disclosure of surveillance have found that the factors unique to a video, such as its highly persuasive nature and inability to be duplicated, as well as concerns that the materials presented may be misleading or incomplete, tip the balance in favor of disclosure. However, even under this approach, the defendant is entitled to depose the plaintiff prior to production and the defendant must only produce the surveillance if they intend to use it trial (either as substantive or impeachment evidence). These courts also note that post-deposition production facilitates effective settlement discussions because it allows the parties the opportunity to evaluate all possible evidence.See, e.g., Gibson v. National Railroad Passenger Corp., 170 F.R.D. 408, 410 (E.D. Pa. 1997); Bogatay v. Montour Railroad, 177 F. Supp. 269 (W.D. Pa. 1959); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (United States District Court, Pennsylvania, 1973); Smith v. AMTRAK, 22 Va. Cir. 348 (1991).
As Georgia law currently stands it is difficult to anticipate whether or not surveillance must be produced prior to trial, as the determination is left to the discretion of trial court judges and there are sound policy rationales which favor both production and non-production. These competing policy concerns also lend themselves to an alternative approach from either of the two discussed above. Under this alternative approach, a defendant would not be required to produce surveillance until after the Plaintiff testifies on direct at trial. Once produced, the plaintiff would have the opportunity to review the surveillance, ensure its authenticity, and that it has not been altered. Moreover, it protects the value of the surveillance as impeachment evidence, because the Plaintiff will have much less opportunity to shade or alter her testimony to “fit’ what is shown on the surveillance. Although this approach does not appear to have been utilized among other state or federal jurisdictions, inasmuch as Georgia courts currently have discretion to apply the approach which they deem most appropriate, it is certainly worth suggesting when arguing against a motion to compel production.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley