Using Surveillance Materials in Discovery: How, When and Why. Kate Stimeling Schiff Hardin LLP San Francisco

Transcription

1 Using Surveillance Materials in Discovery: How, When and Why Kate Stimeling Schiff Hardin LLP San Francisco

2 Purpose Discoverability Procedure Timing Best Practices OVERVIEW

3 Purpose of Surveillance Attack credibility in personal injury case Ø Expose plaintiff as a fraud Ø Expose plaintiff as an exaggerator Drive down value Dispose of case altogether Attack damages at trial Ø Easily understood Ø Entertaining

4 Case Study No. 1 Fell in the workplace in 2008 Testified at 2011 deposition: Cannot drive Cannot dress himself (no use of arms) Cannot stand up Needs cane or wheelchair to get around

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6 Case Study No. 1 Confronted Plaintiff at deposition Dumped by lawyer Plaintiff dropped the case No-show at trial

7 Discoverable? Is the surveillance discoverable? Look to state law determination California. Suezaski v. Superior Court, 58 Cal.2d 166 (1962) (surveillance footage is potentially discoverable) Not expressly addressed in California

8 Discoverable (cont.) Whether surveillance is protected by workproduct depends on whether defendant intends to use at trial. Courts balance competing interests by holding surveillance not protected by workproduct so long as there is a chance to depose Plaintiff first. E.D. PA. Snead v. American Export, 59 F.R.D. 148 (E.D.Pa. 1973) Maryland. Shenk v. Berger, 587 A.2d 551 (Md.App. 1991) Florida. Dodson v. Persell, 390 So.2d 704 9Fla. 1980)

9 Discoverable? (cont.) General Rule: No work-product protection if surveillance is to be used at trial. Plaintiff has substantial need to see surveillance in order to avoid surprise and unfair prejudice. Missouri. Hughes v. Groves, 47 F.R.D. 52 (W.D. Mo. 1969). If defendant intends to use, good cause exists and necessary for Plaintiff s trial preparation. New York. Kane v. Her-Pet Refrigeration, 181 A.D.2d 257 (N.Y.A.D. 1992). Unfair disadvantage to Plaintiff to see video surveillance for first time at trial.

10 Discoverable? (cont.) Iowa. Wegner v. Cliff-Viessman, 153 F.R.D. 154 (N.D. Iowa 1994). Video of Plaintiff by its nature could not be duplicated and was therefore discoverable. New Jersey. Jenkins v. Rainner, 350 A.2d 473 (N.J. 1976). Camera may be an instrument of deception.

11 Procedure General rule regarding discoverability informs procedural considerations Ø Surveillance: get the goods Ø Respond: Object to request to produce Ø Deposition: trap the plaintiff Ø Determination: use at trial Ø Disclosure: produce to plaintiff

12 Procedure (cont.) Snead: 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.

13 Procedure (cont.) Snead followed by several states and federal jurisdictions. In California, trial court followed Snead in an unpublished trial court order. Zaccaglin v. Starbucks Coffee, 2010 WL Pointer: Serve written objections to producing surveillance and assert privileges. Did Plaintiff move to compel?

14 Timing When should a defendant use the surveillance? Early in the case At deposition At mediation Just before trial

15 Case Study No. 2 Explosion on freeway, collision between chemical and gas tankers Plaintiff, driver of gas tanker, claimed neck and back injuries, PTSD Life would not be the same again Good days and bad days

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17 Case Study No. 2 Initial demand $5 million Video s existence disclosed at mediation (not shown) Demand dropped to $300,000 Settled for $100,00

18 Case Study No. 3 Liability clear rear end collision Fight on damages Youth pastor and soccer coach Active, surfing, soccer Major surgery and life never the same again Could not play soccer or engage with youth

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20 Case Study No. 3 Attacked general credibility at mediation Stuck at seven figures until 6:00 p.m. Surveillance shown to mediator: Oh, shit. After video demand dropped down into lower six figures

21 Guidelines and Best Practices What type of Case? There are no Perry Mason moments. Review rules of evidence in the state. Object to request to produce surveillance. Obtain surveillance. Licensed P.I. All potentially discoverable even not used at trial. Take deposition. Prepare for use at mediation. Don t edit the video.