Opinion
Civil Action No.: L-99-1478 (Magistrate Judge Beth P. Gesner)
February 8, 2000
MEMORANDUM AND ORDER
This case has been referred to the undersigned for all proceedings by consent of the parties pursuant to 28 U.S.C. § 636(c) and Local Rule 301. This personal injury case arises out of a boating accident. Plaintiff has filed a Motion to Compel defendant to produce surveillance videotapes obtained by defendant during the course of his investigation of plaintiff's claims depicting plaintiff carrying out various public activities. Defendant disclosed the existence of these surveillance videotapes in response to an interrogatory propounded by plaintiff. No hearing is deemed necessary. Local Rule 105.6.
Courts have expressed a diversity of views as to how to resolve the issue presented by the pending motion. In the Court's judgment, the various conflicting interests presented are best reconciled by requiring a defendant to disclose the existence of the surveillance materials (as defendant has done in this case) and requiring the production of the materials prior to trial, but permitting defendant to defer production of the materials until after plaintiff's deposition has been taken. This approach prevents unfair surprise while serving the truth-seeking interests of the litigation process. See, e.g., Martino v. Baker, 179 F.R.D. 588, 590 (D.Colo. 1998) (balancing of conflicting interests of parties best achieved by requiring defendant to produce surveillance tapes once plaintiff has been deposed); Ward v. CSX Transportation, Inc., 161 F.R.D. 38, 41 (E.D.N.C. 1995) ("[A]llowing discovery of surveillance materials after the deposition of the plaintiff, but before trial, best meets the ends of justice and the spirit of the discovery rules to avoid surprise at trial."); Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D.Iowa 1994) (disclosure of surveillance materials is "consistent with the broad discovery allowed under the Federal Rules of Civil Procedure that makes a trial `less a game of blind man's b[l]uff and more a fair contest.' "); Boyle v. CSX Transportation, Inc., 142 F.R.D. 435, 437 (S.D.W.Va. 1992) (to protect interests of parties, surveilling party, after having had opportunity to depose those surveilled, must make all surveillance materials available for inspection and copying). The Court has considered the arguments raised by defendant in opposition to plaintiff's motion but believes that the approach set forth above best serves the interests in this case. Therefore, since the deposition of the plaintiff has already taken place, the surveillance materials should be produced.
Defendant argues that (1) the surveillance videotapes are privileged under the work product doctrine, and (2) production of the videotapes is not required if defendant does not intend to introduce the videotapes at trial or intends to introduce them for impeachment purposes only. (Paper No. 17 at 2-5).
The surveillance tapes are clearly work product since they were gathered in anticipation of litigation by a party or the party's representative. See, e.g., Gibson v. National R.R. Passenger Corp., 170 F.R.D. 408, 409 (E.D.Pa. 1997); Ward, 161 F.R.D. at 40; Wegner, 153 F.R.D. at 156. Where that party intends to use the films at trial, however, courts generally find that the work product privilege is waived given the 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. On the other hand, where surveillance materials will not be used at trial, the work product doctrine bars discovery because plaintiffs have no substantial need for the evidence. Id.
Defendant maintains that he has not yet decided whether he will use the videotapes at trial. (Paper No. 17 at 5). If defendant commits in writing within five days of this Order that he will not use the videotapes at trial for any purpose, defendant will not be compelled to produce the videotapes. Otherwise, defendant shall be bound by the terms of this Order.
For the foregoing reasons, it is, this ___ day of February, 2000, HEREBY ORDERED that:
(1) Plaintiff's motion to compel discovery is GRANTED (Paper No. 14); and
(2) Defendant is required to produce to plaintiff the surveillance materials in his possession within ten (10) days of the latter of: (a) the date of this Order, or (b) plaintiff's review and signature of the transcript of his deposition or waiver of his right to do so.