The Ethics Of Discovery Objections: Surveillance, Attorney-Client Privilege, and Work Product

This paper was originally written for and presented at the Atlanta Bar Association’s Advanced Workers’ Compensation seminar on Febuary 18, 2000.

Under O.C.G.A. § 34-9-102(d), discovery under the Workers’ Compensation Act is controlled by the Georgia Civil Practice Act. Therefore, discovery should be conducted in a worker’s compensation case the same as in any other civil lawsuit.

Georgia is a “notice” discovery state. The purpose of “notice” discovery is to provide all parties an opportunity to fully explore the facts and know the issues prior to the trial of the case.  Travis Meat & Seafood Co. v. Ashworth, 127 Ga. App. 284 (1972). It is intended to minimize instances of “trial by ambush.”  Hanna Creative Enters., Inc. v. Alterman Foods, Inc., 156 Ga. App. 376 (1980). 

We raise many objections in our responses to discovery but, more often than not, we provide the information requested subject to and without waiving the objections. However, it can be irritating if the opposition wants you to do their work for them through computer-generated discovery. Ultimately, when both sides are fully informed of the evidence in any given case, the issues can be narrowed and, often, disputes can be resolved.

My interest in this topic lies with the fact that we conduct discovery every day. The Civil Practice Act and the State Board Rules and Regulations establish the rules by which we conduct our practice. But rules cannot conceivably address all predicaments and we, as lawyers, must daily exercise our best professional judgment. It is hard to balance the intensity of advocacy with the objectivity of truth. However, it is not acceptable to use the discovery process to distort or thwart the fact finding process.

Discovery Objections

I. Attorney-Client Privilege

Attorney-client privilege is often confused with the work product objection. Communications between attorney and client are privileged, and only the client can waive the privilege. ( O.C.G.A. §§ 24-9-21, 24-9-24, and 24-9-25) See generally, Atlantic Coast Line RR Co. v. Daugherty, 111 Ga. App. 144 (1965). Since all attorneys believe that communications with their client are inviolate, there is little debate over the efficacy of a valid objection based upon the attorney-client privilege.

II. Work Product/Materials Prepared in Anticipation of Litigation

Certain information or material may not be subject to discovery if it constitutes work product of a party, their attorney or other representative. The definition of work product is codified at O.C.G.A. § 9-11-26(b)(3), which provides: “Trial preparation; materials. Subject to paragraph (4) of this subsection, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this subsection and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he 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.”

The Supreme Court, in Hickman v. Taylor, 329 U.S. 495 (1947), examined the foundation of the work product doctrine: “Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.”  Id. at 510. This is so that lawyers may “promote justice and protect their clients’ interests.” Id.

As the Georgia Court of Appeals stated, in Atlantic Coast Line Railroad Co. v. Daugherty, 111 Ga App. 144 (1965), “the purpose of that doctrine . . . is, simply stated, to protect the attorney’s preparation for trial from discovery.” However, unless the evidence sought was obtained in anticipation of litigation, it is discoverable.  Id. at 154.

If the facts do indicate that material sought was prepared in anticipation of litigation or for trial, then it is discoverable only upon a showing that the party seeking the discovery has substantial need of the materials in the preparation of his case and is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. O.C.G.A. § 9-11-26(b)(3); Lowe’s of Georgia, Inc. v. Webb, 180 Ga. App. 755 (1986).

There is a tension between the work product doctrine as defined above, and the broad scope of discovery as articulated in O.C.G.A. § 9-11-26(b)(1) and relevant case law. As noted in the introduction, the purpose of discovery in Georgia is essentially “notice”, i.e. “[t]he deposition-discovery procedure…is to be given a liberal construction in favor of supplying a party with the facts underlying his opponent’s case.”  Setzers Super Stores of Georgia, Inc. v. Higgins, 104 Ga. App. 116 (1961). 

Moreover, “the purpose of the . . . discovery procedure is not only for the ascertainment of facts, but also to determine what the adverse party contends they are, and what purpose they will serve, so that the issues may be narrowed, the trial simplified, and time and expenses conserved.”  Id. Narrowing the issues, facilitating trial preparation, and eliminating the tactical element of surprise are therefore the primary objectives of discovery.

This tension is at the heart of the surveillance issue, discussed below. The competing interests of full disclosure and a liberal interpretation of the discovery rules, in contrast with the need to protect trial preparation material, underlie the arguments presented on each side of the issue. 

III. Discovery of Videotape Surveillance

Georgia courts have yet to rule on the issue of whether videotape surveillance by a defendant of a plaintiff is subject to discovery under the Civil Practice Act. The majority of jurisdictions that have decided the issue, both state and federal, hold that it is discoverable. 19 ALR4th 1236. The majority of those jurisdictions place an important limit on disclosure; namely that actual production of the surveillance tape will not be required until after the defendant has had a reasonable opportunity to conduct a post-surveillance deposition of the plaintiff. In those instances where the plaintiff has already been deposed, the defendant may have an opportunity to conduct a second deposition prior to disclosure, limited to the issues arising from the surveillance. 

Rather than presenting a survey of the law regarding this issue, available in the ALR section cited above, this paper will examine the various approaches taken in other jurisdictions by analyzing representative cases, focusing mainly on the policy considerations and rationales advanced by the courts. 

Videotape Surveillance Not Discoverable

Generally, there are two primary bases for objecting to the discovery of videotape surveillance: first, that the surveillance is the work product of defendant’s attorney as defined under Federal Rule of Civil Procedure 26(b)(3) and corresponding state statutes; and second, that the surveillance is impeachment evidence not subject to discovery. The latter objection and decisions addressing it are generally based on local court rules regarding pre-trial disclosure.

1. Work Product

Two cases often cited for their holdings regarding non-disclosure of surveillance evidence based on the work product doctrine are Ranft v. Lyons, 163 Wis. 2d 282 (Wisc. App. 1991), and Hikel v. Abousy, 41 F.R.D. 152 (D. Md. 1966). The Ranft court prefaced its holding on the premise that its decision would have to balance the interests protected by the work product doctrine with the interests advanced by allowing discovery. It found that, “a lawyer’s strategic decision to invest a client’s resources on…video surveillance is protected work-product. The decision not only reflects the lawyer’s evaluation of the strengths or weaknesses of the opponent’s case but the lawyer’s instructions to the person or persons conducting the surveillance also reveals the lawyer’s analysis of potentially fruitful areas of investigation.”  Ranft, 163 Wis. 2d at 301.

The court further found that the issues relied upon by many other courts as constituting “substantial need” or “undue hardship” under the work product doctrine – the modern preference for access to all relevant material, and the possibility that the surveillance materials will be misleading – were not sufficient to compel pre-trial disclosure. The court rejected outright the compromise position of allowing a post-surveillance/pre-production deposition, referring to it as a “problematic safeguard”, and stating that “post-hoc explanations can always, at least partially, defuse damaging deposition testimony.”  Id. The court even went so far as to declare, “[a]s H.L. Mencken once observed: ‘Conscience is the inner voice which warns us that someone may be looking.'” Id. at 303.

The Hikel decision was based on the Maryland Court’s “balanc[ing ] of equities” in which it found that the surveillance video represented material prepared for cross-examination or impeachment, and declared that an interrogatory need not be answered when its only purpose is to prevent effective cross-exam.  Hikel, 41 F.R.D. at 155. 

In addition, the Maryland Court relied on the reasoning in Thorne v. Good Humor Ice Cream Co., a 1964 Superior Court of Baltimore City decision, in which the trial judge found no cause for allowing discovery of similar videotapes and pictures that he deemed to constitute work product. The judge in Thorne rejected the argument that discovery of such information would be instrumental in effecting settlement, since, “if the injuries are genuine, it is unlikely that plaintiffs would be concerned about pictures which confirm the claims presented.. On the other hand, if the injuries are simulated or exaggerated, as demonstrated by the pictures, then plaintiffs are less than candid with the court and have no cause to complain of surprise if defendants elect to disprove the case on trial instead of in the conference room.” Id. at 154.

Both of these cases adopt a very restrictive rule prohibiting discovery of even the existence of surveillance material, much less its production. The reason articulated by both courts for prohibiting discovery is the need to ensure the honesty of plaintiffs. Other courts have discredited this premise as faulty, suggesting that it explicitly or implicitly presumes that defendants have a monopoly on truth and virtue, and that concern for a defendant’s veracity is not of the same magnitude as that of a plaintiff’s. See Chiasson v. Zapata Gulf Marine Corp, below.

2. Impeachment Evidence Not Subject to Discovery

There are a number of additional cases holding that videotape surveillance of a plaintiff is not subject to discovery. Although work product objections were made by the defendants in these cases, the decisions ultimately rest not on the work product doctrine, but instead on local rules requiring disclosure of all evidence pre-trial, with exceptions for matters of impeachment and privilege. 

For example, in Bogatay v Montour Railroad Co., 177 F.Supp. 269 (W.D. Pa. 1959), the court acknowledged that the purpose of discovery was to enable both sides to gain the information necessary to fairly prepare their case; however, the court did not see why it was necessary for the plaintiff to discover whether defendant had observed any of plaintiff’s own activities in order to do so. See also MacIvor v. Southern Pacific Transportation Co., 1988 U.S.Dist Lexis 5495 (D. Ore. 1988) (denying plaintiff’s motion to compel discovery of surveillance materials, based on local rule protecting impeaching matter from disclosure; but requiring such production if offered as substantive evidence).

Although we do not have a comparable uniform local rule, this objection could arise in Georgia courts and, therefore, it is worth addressing the case law in which such objections were made. The Fifth Circuit addressed the impeachment issue extensively in Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993). There, the Louisiana District Court had a pre-trial rule providing: “if a party considers he has good cause not to disclose exhibits to be used solely for the purpose of impeachment, he may ex-parte request a conference with the Court and make his position known to the Court in camera.” Although the court ultimately concluded that the video surveillance at issue was substantive and thus outside the purview of this rule, it first analyzed the impeachment issue.

In examining the relevant law, the Chiasson court found that of the few cases addressing the discoverability of impeachment evidence, those permitting it relied on a policy of broad discovery, the need of the party seeking disclosure to evaluate the authenticity of such evidence, and the reality that allowing such discovery will likely promote settlement. Id. at 516. It discounted defendant’s argument that plaintiffs only seek such evidence when it will likely show that the injury is fabricated or exaggerated. It found instead that the very premise of that argument is likely faulty, as it assumes that, “…witnesses whose testimony is designed to impeach invariably have a monopoly on virtue…” Id.

These “superior truth” and settlement arguments are addressed in nearly every case deciding the surveillance issue, whether on the basis of work product or impeachment. Although this particular objection may not form the crux of the issue in Georgia, these arguments help to frame our discussion of the policy issues nonetheless. 

[One interesting question that arises is whether such local rules (or ones similar) are inconsistent with the liberality of the Federal Rules of Civil Procedure and their state counterparts. The Chiasson court was able to decide the case without determining whether the local rule at issue violated the broad scope of discovery required under the FRCP. It did, however, quote 8 Wright & Miller, Federal Practice and Procedure: Civil § 2015 n. 45 (1970) (referring to Bogatay), “[i]t is wholly clear that the scope of discovery provided by the Civil Rules cannot be narrowed by local rule.” The Bogatay court itself found no conflict, since the plaintiff has the burden of proof and “the least he should be required to do is to state whether he can carry on work. He should state this honestly and not make such answer depend on whether the defendant has or has not observed his activities.”  Id. at 270.]

Videotape Surveillance Discoverable

There are two bases as well for allowing discovery of the videotape surveillance of a plaintiff, despite a work product objection by the defendant. Initially, a court may determine that the surveillance does not fall within the work product doctrine itself. More common (and well-reasoned), however, is the finding that surveillance tapes do in fact constitute work product, but that the qualified immunity provided by such a finding is either waived, or overcome by a showing of “substantial need”. The prevailing view by these courts is that production of the videotape surveillance must be preceded by a reasonable opportunity for the defense to take the plaintiff’s deposition.

1. Surveillance Material Not Considered Work Product

The Supreme Court of Arizona, in Zimmerman v. Superior Court of State, 98 Ariz. 85 (1965), held that surveillance evidence taken by the defendant was not work product under that state’s definition, and therefore any such material was readily discoverable. This case is unique and easily distinguishable, however, as the court there noted. Initially, Arizona’s work product doctrine affords absoluteimmunity to any materials found to fall within its definition. In line with this, the Arizona courts construe that definition narrowly, more narrowly than other jurisdictions the court examined. As a result, the court found the cases of St. Louis Public Service Co. v. McMillian, 351 S.W.2d 22 (Mo. 1961), and Suezaki v. Superior Court of Santa Clara County, 58 Cal.2d 166 (1962), to be neither persuasive or applicable, based on the broader definitions of work product in those jurisdictions. Zimmerman, 98 Ariz. at 89-90.

2. Surveillance Material Considered Work Product, But Still Discoverable

The most thorough and well-reasoned cases dealing with the issue of surveillance discovery generally hold that surveillance material does constitute attorney work product, but that other considerations in the work product analysis can allow for its discovery. These cases vary somewhat in their reasoning and rationale, alternately describing either a “showing of undue hardship”, a “lifting of the work product barrier”, or “waiver”; the arguments and issues however, remain consistent throughout each of these cases. Because of this, three of the cases, two state and one federal, are presented in detail below.

In Cabral v. Arruda, 556 A.2d 47 (R.I. 1989), the Supreme Court of Rhode Island surveyed the work product doctrine as it has evolved from Hickman through the enactment of 26(b)(3). The threshold question as it pertains to the discovery of surveillance is whether it does constitute work product? The court found that possible purposes of surveillance included: 1) aiding an attorney in understanding the plaintiff’s injury because of a possible law suit; 2) impeaching the plaintiff’s version of his or her injuries, or 3) offering the surveillance material as substantive evidence. It held that in all three instances, the surveillance material constituted work product and was thus qualifiedly immune from discovery.  Id. at 49.

In keeping with the work product analysis, the Cabralcourt held that because the material was qualifiedly immune, it would only be discoverable upon a showing of injustice, undue hardship, or substantial need. This court, and those discussed below, went on to analyze a variety of factors that will constitute such a showing:

a. Martin v. Long Island RR Co., 63 F.R.D. 53 (1974)

The District Court for the Eastern District of New York held that discovery of surveillance videos is governed by the work product rule; however, the “barrier of the work product rule” is lifted by the fact that the plaintiff’s past activities could no longer be filmed. A plaintiff in that situation is thus unable to obtain the substantial equivalent of the materials by other means. 

The court, in its analysis, looked at three key policy considerations: 1) facilitating effective settlement discussions by allowing parties to evaluate all possible evidence; 2) allowing for effective authentication of the film; and 3) encouraging effective trial preparation. Regarding the last factor, the court stated, “[e]xperience suggests that while surprise has a healthy prophylactic effect against possible perjury, on balance, cases are more likely to be decided fairly on their merits if the parties are aware of all the evidence.” 

Relevant to this decision, and key to the outcome, was the fact that the plaintiff had already committed to his position by deposition and interrogatory. The court explicitly held that, were this not the case, then its order allowing discovery would be conditioned on allowing defendant this very opportunity, in order to “blunt” the argument that surprise may discourage successful perjury. 

b.  Jenkins v. Rainner, 69 N.J. 50 (1976)

The Supreme Court of New Jersey followed essentially the same reasoning as Martin, holding that surveillance material constitutes the work product of the attorney, but is nonetheless discoverable. There, the court found that certain considerations established the “substantial need” for the plaintiff to see the video. Among these was the faulty premise of defendant’s argument that his evidence was “the exclusive repository of truth and virtue…” The court, in part quoting Snead v. American Export-Isbrandtsen Lines Inc., 59 F.R.D. 148 (E.D. Pa. 1973), stated that, “the camera may be an instrument of deception, capable of being misused….hence, that which purports to be a means to reach the truth may be distorted, misleading, and false.” It further warned against the surprise resulting from distorted information unleashed at trial and the delay that would result from the subsequent need for examination. Id. at 57, 58.

Moreover, the court found that if “the motion pictures actually portray the plaintiff engaged in some strenuous activity which on deposition she had already testified is beyond her capacity, then it is not probable that pretrial disclosure of that kind of inconsistency will enable her to salvage the case; more likely it will hasten a settlement. If the inconsistency is not glaring or is susceptible of explanation, or if for other reasons settlement opportunities are not enhanced, then the adversarial system will be called upon to work, but now in the environment in which it works most efficiently – where the parties are aware of all the evidence.” Id at 58. The court also indicated that the hardship in obtaining a substantial equivalent seemed manifest.  Id.

c.  Cabral v. Arruda, 556 A.2d 47 (R.I. 1989)

As stated above, The Supreme Court of Rhode Island held that surveillance material is work product and therefore qualifiedly immune from discovery. The court went on to determine that there was a showing of undue hardship in that case, in part because, “the introduction of surveillance photographs and films at trial presents the problem of possible exaggeration, distortion, and even fraud by the defendant….” The court also cited the camera as a possible instrument of deception.  Id. at 50.

The court ultimately held that allowing such material to be “sprung” on a plaintiff at trial created undue hardship, and the surveillance was therefore discoverable. The opportunity for the pre-production deposition was again essential in refuting the argument regarding the plaintiff’s possible tailoring of testimony.

Conclusion

In serving on the State Board’s Rules & Mediation Committee, I have participated in many debates regarding the discoverability of surveillance evidence. The moderate view is to allow discovery of surveillance evidence, subject to the employer and insurer being afforded a reasonable opportunity to take the claimant’s deposition. The right to commit the claimant to sworn testimony prior to disclosure of the surveillance evidence, is the lynchpin of this compromise position.

We must remember that no evidence is sacrosanct and that the purpose of our role in the system is to determine the truth, not create it. In this era of alternate dispute resolution, we should be more willing to share relevant information and less concerned with how we can avoid disclosure. The Rules and Mediation Committee provides those of us who practice in the worker’s compensation arena a vehicle to establish reasonable ground rules for the discoverability of work product such as surveillance evidence.