Are Surveillance Films Discoverable?

By John Merriam

This story starts during the so-called El Nino heat wave a couple years ago. Even after sunset the mercury hovered in the nineties on the Fahrenheit scale one evening in Anacortes. Kurt Gray was at home in his grandmother’s house and got the feeling he was being watched.

Kurt was born in Anacortes thirty-odd years before those dog days of 1998. He stood 6'6" and weighed in at 300 pounds. Kurt had worked as a martial arts instructor, professional kick boxer, construction worker, logger and commercial fisherman. He also had a felony conviction for growing pot in a rented house.

Two summers before, in 1996, Kurt worked as assistant engineer aboard the salmon-processing vessel Sea Legend in Alaskan waters. In September of that year he slipped on oily decking and fell about four feet into the engine room bilge, complaining of shoulder and back pain.

Kurt got $15/day in maintenance for about a year, undergoing shoulder surgery and various other courses of treatment while living at his grandmother's house. He sought a lawyer in Seattle when the insurance adjuster refused to pay any more medical bills, claiming Kurt was a shady character who didn't deserve compensation. The adjuster also claimed Kurt could go back to work. The adjuster assumed Kurt was illegally augmenting his income because he wasn’t working and never complained about the $15 per day rate of maintenance, a rate the insurance adjuster refused to increase once Kurt was represented by counsel.

The insurance adjuster's offer to settle the claim was zero. Counsel for the plaintiff filed suit in federal court. The case was assigned to Judge Zilly.

Stars were out that August night; the moon half full. Kurt walked out onto his grandmother's front lawn in the sweltering heat. He wore light-gathering night goggles once used by officers in the former army of East Germany, procured in trade for items of uncertain description. Through the night goggles Kurt could see someone looking at him from behind bushes a block away. He casually strolled in that direction, pretending to concentrate on the stars.

"Come here. I want to talk to you." Kurt stood next to the bushes where the other man thought he was invisible.

"Oh shit!" A six-foot male with brown hair wearing a T-shirt and blue jeans burst out of the bushes and ran away as fast as he could. Kurt calmly plucked a wool shirt from a branch, deciding not to give chase to its owner. Instead, he walked home and left a message on the answering machine of his lawyer.

Kurt's lawyer had already served his standard interrogatory about whether any surveillance of the plaintiff had been conducted, without a request for production of surveillance films---yet. Defense counsel responded with his standard work-product objection. After getting Kurt's message, his lawyer filed a motion to compel an answer to the interrogatory and to compel production of the surveillance films themselves after plaintiff was deposed. Defense counsel opposed the motion by claiming there were no surveillance films, and if there were they were protected from discovery by the work-product doctrine.

Kurt’s lawyer had not been able to locate any controlling authority on the issue for this jurisdiction---state or federal---and looked elsewhere. 33 Univ. of Florida Law Review (1981) included a casenote at page 448 by one Joblove, "Do Surveillance Films Constitute Attorney Work Product?" The author was commenting on and agreeing with a then-recent decision by the Florida Supreme Court, Dodson v. Persell, 390 So.2d 704(1980). That state's Supreme Court ruled that whether or not surveillance films exist should be disclosed immediately, with the films themselves unconditionally discoverable after the plaintiff's deposition. Id. The Florida court reasoned that before defendants are required to hand over such surveillance film they should be given an opportunity to pin down a personal injury plaintiff at deposition as to what he or she is and is not able to do, before producing presumably damning films showing the contrary. Plaintiff requested that Judge Zilly follow the common law rule described by the Florida casenote.

Before Judge Zilly ruled on the motion Kurt called his lawyer again. "They put another tail on me."

"How do you know?"

"I was driving my grandmother's Toyota toward the water yesterday and saw a dark Ford van in the rearview. When I sped up the van did too. I went even faster, and so did the van. I jerked on the parking brake lever and twisted the steering wheel. After doing a 180 I let go the parking brake and floored it toward the van. That weenie following me lost his nerve and went off the road. He drove through a field to get to the highway out of town."

"What makes you think he wasn't D.E.A.?"

"I can smell a narc, and I know all the cops around here---they'd tip me off. This all started when you filed my lawsuit."

"Did you get a good look at the driver?"

"No, but I could tell that he was smaller than the guy who left his shirt in the bushes."

"Did you get the license plate?"

"Yeah." Kurt rattled off seven numbers and letters.

"Most Washington plates only have six figures. Are you sure?"

"I'm sure. I've seen that van before. I wrote down the license once when it was parked."

Kurt's lawyer called his favorite private detective but couldn't get a make on the plate. It appeared Kurt would have to await Judge Zilly's decision.

Many insurance defense counsel realize that work-product objections may not be made on a blanket basis in good faith. Instead they take the position that surveillance films are discoverable, after the plaintiff has been deposed, only if the films are to be used at trial. If not used at trial the films are work, e.g., Corrigan v. Methodist Hospital, 158 F.R.D. 54, 58 (E.D. Pa. 1994).

At the other end of the spectrum is James Beard. Speaking at a legal education seminar recently, Mr. Beard stated that surveillance films are discoverable regardless of the plaintiff's deposition and regardless of whether they are to be used at trial. He reasoned that surveillance film is impeachment evidence and impeachment evidence is discoverable without qualification. As an example, he described a situation where he had documents demonstrating that a defense witness was lying. "Under the discovery rules, would I be allowed to not produce the documents until after deposing the witness," he asked rhetorically. "Surveillance film should be treated like any other evidence."

Of the various views on surveillance film, Mr. Beard's seems the better reasoned to this practitioner. When asked in private if there were any cases supporting his interpretation of the discovery rules, he responded: "God is on my side!" or words to that effect. The only authority other than Natural Law supporting Mr. Beard on the issue is the New York State Assembly ---perhaps by accident. See, Rotundi v. Massachusetts Mut. Life Ins. Co., 702 N.Y.S.2d 150 (App. Div. 2000).

Judge Zilly decided the motion as requested by Kurt's lawyer, following the holding of the Florida Supreme Court discussed earlier. The fishing company and defense counsel were ordered to answer the interrogatory about the whether surveillance had been conducted, within ten days. The films themselves were to be produced later, within ten days after Kurt's deposition.

In response to Judge Zilly's order, defense counsel sent a fax to Kurt's lawyer: "We do not have any surveillance tapes in our custody or control as of this date." Kurt's lawyer wrote back that the interrogatory asked about the existence of surveillance and demanded an answer.

Defense counsel never answered the interrogatory. Instead he produced a videotape that showed a date after Judge Zilly's surveillance order. Kurt was filmed through the window of a small store in Anacortes shopping for tennis shoes. He wasn't doing cartwheels or back flips at the time. The film was innocuous and, if anything, supported Kurt's claims of pain. Kurt's lawyer was quite sure there were more videotapes but didn't pursue the matter further, as the discovery deadline approached, deciding that defense counsel would be risking contempt with surprise film if the case went to trial.

The case did go to trial. No surveillance films were offered as evidence. Judge Zilly awarded Kurt $25,000 plus a few thousand dollars in pre-judgment interest. The case is Gray v. Norquest et al., No. C98-596Z (W.D. Wash.). John Merriam represented Kurt. Dennis Moran of LeGros Buchanan & Paul represented the fishing company.

Kurt still has the shirt from the man in the bushes.

John Merriam is a sole practitioner in Seattle representing seamen on wage and injury claims, and thanks Jim Beard and Eric McVittie for assistance in the preparation of this article.

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