Must Surveillance Videos Be Disclosed Prior to Trial if Only Used For Impeachment Purposes?
There has been a longstanding dispute between defense and plaintiffs’ counsel regarding the admissibility at trial of video surveillance taken of a purportedly injured plaintiff but never disclosed or produced during discovery. Defense counsel claim that disclosure of such video evidence prior to trial would diminish its impact in impeaching the credibility of the plaintiff. If the plaintiff is aware of the existence of video surveillance of his activities, he is more likely to amend his testimony to counter the visual presentation of his injuries. Plaintiffs’ counsel claim that failure to disclose such video evidence prior to trial could result in prejudice to the claimant. Without the opportunity to examine the film itself and to investigate the integrity of the photographer and his method of filming, plaintiffs’ counsel feel deprived of the right to accurately cross-examine or seek rebuttal testimony on the issue. This dispute now seems fairly well resolved under both Pennsylvania federal and state law.
Historically, the federal courts have required a party to disclose the existence of surveillance tapes during discovery, even if they were not going to be used by the defense at time of trial. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973); DiGiacobbe v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-534, 1987 U.S. Dist. LEXIS 4029 (E.D. Pa. 1987); Carlton v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-5215, 1987 U.S. Dist. LEXIS 1675 (E.D. Pa. 1987); Gibson v. The Nat’l Railroad Passenger Corp., 170 F.R.D. 408 (E.D. Pa. 1997); Williams v. Picker Internat’l, Inc., No. 99-3035, 1999 U.S. Dist. LEXIS 19107 (E.D. Pa. 1999). Furthermore, the federal courts historically have required defense counsel to provide a copy of the surveillance video to opposing counsel if defense counsel intends to use the surveillance video at trial. Failure to turn over the surveillance video results in preclusion of its use at trial. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973); DiGiacobbe v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-534, 1987 U.S. Dist. LEXIS 4029 (E.D. Pa. 1987); Carlton v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-5215, 1987 U.S. Dist. LEXIS 1675 (E.D. Pa. 1987); Gibson v. The Nat’l Railroad Passenger Corp., 170 F.R.D. 408 (E.D. Pa. 1997); Williams v. Picker Internat’l, Inc., No. 99-3035, 1999 U.S. Dist. LEXIS 19107 (E.D. Pa. 1999). However, disclosure and production are not required until after the defense has the opportunity to depose the plaintiff regarding his injuries and disabilities. See, e.g., Snead, 59 F.R.D. 148.
In Snead, defense counsel in a personal injury action refused to answer plaintiff’s interrogatories regarding the existence and nature of motion pictures taken of the plaintiff and information about the date, time and recorder. Snead, 59 F.R.D. at 149. In addressing whether defense counsel should be compelled to respond to the surveillance interrogatories, the court turned to the Federal Rules of Civil Procedure. Specifically, the court examined whether video surveillance would be privileged under Federal Rule of Civil Procedure 26(b)(3), which provides, in pertinent part:
- a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
F.R.C.P. 26(b)(3). The court, in summary fashion, noted that “of course, surveillance motion pictures are not available except from the one who took them”. Id. at 150. Thus, surveillance video would only be privileged from discovery if there is substantial need for its disclosure. On this issue, the court found that while there is a substantial need for plaintiff’s counsel to know about the surveillance in cases where there would be discrepancy between the plaintiff’s testimony and what the images portray, there is also a substantial need, under those circumstances, for defense counsel to withhold that information. Id. at 151. To balance the equities, the court fashioned the rule that the defense is required to disclose the existence of surveillance films whether or not it intends to use the evidence at trial, and to turn over such films if it intends to use them at trial. However, before any such disclosure, the court ruled that the defense should be given the opportunity to depose the plaintiff regarding his injuries, thus preserving the impeachment value of the surveillance evidence. Id. In this regard, the court stated:
I conclude these purposes can best be achieved by requiring the defense to disclose the existence of surveillance films or be barred from showing them at trial. If the defense has films and decides it wants to use them, they should be exhibited to the plaintiff and his counsel. If filed, supplementary interrogatories should be answered giving full information as to the details surrounding the taking of these pictures.
Before any of these disclosures, however, the defense must be given an opportunity to depose the plaintiff fully as to his injuries, their effects and his present disabilities. Once his testimony is memorialized in deposition, any variation he may make at trial to conform to the surveillance films can be used to impeach his credibility, and his knowledge at deposition that the films may exist should have a salutary effect on any tendency to be expansive. At the same time, if the plaintiff believes that the films seem to give a false impression, he can then obtain the necessary data to serve as a basis for cross-examination. Id. The court further ruled that such disclosures should be made “as close to the time of trial as possible, but before the final pre-trial conference”. Id. The Eastern District has further interpreted the Snead rule as not requiring a second deposition as a condition for production of surveillance video where the defense already has had the opportunity to depose the plaintiff regarding his injuries. See Carlton v. National Railroad, Memorandum Opinion, No. 86-5215, 1987 U.S. Dist. LEXIS 1675 at *4.
The United States District Court for the Middle District of Pennsylvania recently voiced its opinion on the discoverability of surveillance videos under the Federal Rules of Civil Procedure. Evan v. Estell, No. 3:99-1986, 2001 U.S. Dist. LEXIS 14949 (E.D. Pa. Sept. 18, 2001). The court precluded the defendant in a personal injury action from introducing surveillance video of the plaintiff as substantive evidence at time of trial since defense counsel failed to produce the video prior to trial. In Evans v. Estell, the court imposed discovery deadline was September 30, 2000. Nearly one year later, on September 5, 2001, the defendant advised the plaintiff of the existence of the surveillance video, but refused to produce same until given a second opportunity to depose the plaintiff regarding any intervening changes in plaintiff’s physical status since the completion of the initial discovery deposition. Evan v. Estell, Memorandum Opinion, No. 3:99-1986, 2001 U.S. Dist. LEXIS 14949 at *2. In this regard, the defendant argued that since he only intended to use the video, which was taken some time subsequent to the initial deposition, for impeachment purposes, precluding him from taking a second deposition as to intervening physical changes would diminish the film’s impeachment value. Id. at *2-3. The court disagreed.
In accordance with Snead, the Western District found that video surveillance films are discoverable under F.R.C.P. 26(b)(3) and are not protected by the work-product doctrine. The court further held that even if the defense only intends to use the surveillance video for impeachment purposes, it is not entitled to a second deposition since it already had the opportunity to depose the plaintiff and “solidify the information and evidence relating to the plaintiff’s disability and . . . . in theory . . . tie down the plaintiff with regard to her physical condition.” Id. at *8. The court, in dicta, seemed to suggest that a second deposition might be in order if the defense could show an intervening change in the plaintiff’s condition since the initial deposition. However, the defendant did not indicate to the court when the surveillance film was taken relative to the initial deposition, and accordingly, the court found that it could not sufficiently determine whether there was any change in plaintiff’s condition that would warrant a second deposition. Id. at *10-11. Accordingly, the court compelled the production of the surveillance tape if the defense intended to use it at trial. However, the court precluded its use as substantive evidence since the defendant failed to previously produce the surveillance video. Id. at *11-12.
The Pennsylvania state courts have similarly held that video surveillance is discoverable under the Pennsylvania Rules of Civil Procedure. See Bindschusz v. Phillips, 771 A.2d 803 (Pa. Super. March 27, 2001); Dominick v. Hanson, 753 A.2d 824 (Pa. Super. 2000). In Dominick, the Pennsylvania Superior Court addressed this issue in the context of determining the admissibility at trial of a surveillance video where the defense had previously objected to interrogatories seeking information about surveillance conducted and had never turned over the surveillance tapes. In that case, the plaintiff directed interrogatories toward one of two defendants regarding whether any video surveillance had been taken of her. That defendant objected to the interrogatories as violating the work product doctrine. The plaintiff failed to request a ruling on the objection. At trial, the defendant revealed for the first time his intention to present the surveillance video as substantive evidence in his case-in-chief. The trial court ruled, on plaintiff’s objection, that the video was admissible. A verdict was rendered for the defendants.
On appeal, the court, as did the federal courts addressing this issue, held that video surveillance is discoverable under the Pennsylvania Rules of Civil Procedure, specifically since the work product doctrine of Pennsylvania Rule 4003.3 is a more relaxed standard than its federal counterpart. Dominick, 753 A.2d 824. However, the court ruled that the video surveillance tape was correctly deemed admissible by the trial court since the plaintiff failed to seek a response to the objection raised by the defendant to information regarding surveillance. Thus, defendants in state court do have the chancy tactical option, under Dominick, of objecting to surveillance interrogatories in the hopes that plaintiff will not have such objections ruled upon.
There appears to be a unanimity in the federal and state courts with respect to the discoverability of video surveillance materials. Regardless of whether a defendant intends to use the surveillance tapes as substantive evidence, for impeachment purposes, or for no purpose at all, he is required to disclose the existence of such materials to opposing counsel. He is furthermore required to provide a copy of the surveillance materials if he actually intends to use the materials as either substantive or impeachment evidence at time of trial. However, before any disclosure or production is required, the defense must be given the opportunity to fully depose the plaintiff regarding his injuries. If defense counsel has not had the opportunity to explore damages by deposition, it is still questionable whether a second discovery deposition limited to damages will be required before disclosure. As a general rule, disclosure is advisable once damages have been explored through deposition.