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The Verdict, Wisconsin Academy of Trial Lawyers, 23:1, Spring 2000

Just before midnight on July 19, 1986, a drunk driver struck and injured a pedestrian, Valerie Ranft.  The driver was convicted of causing injury while intoxicated, and Mrs. Ranft and her husband sued the driver and his insurer as a result of their injuries.  In interrogatories to the defendants, the Ranfts asked whether they had taken surveillance photos or videos.  The defendants refused to answer claiming the information was undiscoverable work product. The trial court and appellate court in Ranft v. Lyons[1] agreed and in denying the Ranfts’ discovery requests, placed Wisconsin in a minority of jurisdictions, which deny pretrial access to surveillance materials.

The Ranft decision, however, was appropriately questioned in Martz v. Trecker[2].  In a concurring opinion, Judge Richard Brown, while acknowledging the Ranft precedent, criticized its outcome and encouraged the Wisconsin Supreme Court to reconsider the conclusions reached by the Ranft panel.  Unfortunately, the facts in Martz may not have been fitting for a reversal of Ranft, and review was denied, effectively prolonging the antiquated concept that litigation is a game and abandoning the essence of modern day discovery rules.

The purpose of this article is to encourage lawyers and the courts to revisit this issue and to permit all litigants[3] the right to pretrial discovery of surveillance material.  All trial lawyers know that surveillance material can be an effective tool at trial, but most also acknowledge that surveillance material has a high potential for abuse and manipulation, especially in this age of digital technology.  Substantial justice can only be achieved through a scrupulous pretrial examination of such material by counsel and their consultants, if necessary.  Although discovery of such material may eliminate its “shock” value, it does not abolish a party’s ability to impeach a litigant so long as discovery is permitted after the party’s deposition.  Moreover, if surveillance material is discoverable and genuine, it may lead to pretrial settlement.

Arguments for refusing discovery

Courts generally suggest two reasons for denying discovery of surveillance: 1) attorney work product ought to be protected,[4] and 2) the element of surprise is an effective means of discovering the truth.[5]

In Careccia, one New York appellate court found that surveillance tapes were analogous to an investigator’s reports and therefore, subject to work product protection.  The court concluded that only upon a showing of “substantial need and hardship” could a plaintiff overcome such protection, and that the authenticity of the materials could be determined at trial through voir dire and cross-examination of the person making the videotape.  In Hikel, a federal district court ruled that surveillance tapes were not subject to pretrial disclosure since such films are effective impeachment tools.  The court speculated that plaintiffs might alter their testimony at trial if they became aware of the existence of films showing their post-accident behavior, thus impeding the truth-finding process.

Arguments for allowing discovery

Courts allowing pretrial discovery of surveillance materials, on the other hand, offer at least one of four general reasons for doing so.[6]

First, the information gathered by surveillance is often the only extant record of a person’s actions on a particular day.  The party filmed does not know when the surveillance was conducted or the activities depicted.  Visual evidence of this type is extraordinary because it preserves a particular set of conditions within a certain context that can likely never be duplicated.[7] Thus, the need for this exclusive record vitiates the qualified protection due a defense attorney’s work product.  The Supreme Court of Florida has held that while protection of work product is a legitimate goal, modern litigation favors broad disclosure of all relevant materials and strongly disfavors “gamesmanship, surprise, or superior trial tactics,” all of which are discouraged by pretrial disclosure of surveillance materials.[8]

The second reason courts use to justify pretrial disclosure of surveillance materials is rooted in an understanding of modern technological sophistication, where there is great potential for abuse of surveillance materials.  As one federal district court put it:

The camera may be an instrument of deception.  It can be misused.  Distances may be minimized or exaggerated.  Lighting, focal lengths, and camera angles all make a difference. Action may be slowed down or speeded up.  The editing and splicing of films may change the chronology of events.  An emergency situation may be made to appear commonplace. That which has occurred once, can be described as an example of an event which recurs frequently. . . .  Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false.[9]

Without the opportunity to examine surveillance materials well before trial, parties might be severely prejudiced or the trial process severely hampered.[10] New York’s highest court called film and videotape “extraordinarily manipulable media,” and stated that because “authentication of surveillance films can be a slow and painstaking process,” pretrial discovery of surveillance materials, upon a showing of need, should be allowed.[11] Without the opportunity to review the surveillance prior to trial, the filmed party is “placed at a significant disadvantage by having to rebut the exhibit without sufficient time to prepare properly.”[12]

Third, the public policy goal of a disinterested search for truth is better served by open discovery.  Because the tactical objective of surprise “does not comport with the spirit” of modern discovery rules, Delaware has allowed pretrial discovery of surveillance materials for nearly three decades.[13] Though surveillance is prepared in anticipation of litigation, it certainly does not reveal any mental impressions, conclusions, opinions, or legal theories of the appellants’ attorney or representative since counsel is not choreographing the party’s actions.[14] Thus, disclosure should be favored since “a trial decision should result from a disinterested search for truth from all the available evidence rather than tactical maneuvers based on the calculated manipulation of evidence and its production.”[15] “The exponents of surprise testimony as the best weapon against a perjurious adversary become fewer and fewer as experience proves the contrary view.”[16]

Finally, courts recognized that allowing discovery of surveillance materials properly permits parties to accurately gauge the relative strength of their cases and thus, may promote settlement and avoid expensive trials.[17] The more information a party has the more likely a settlement will result, but this can only be accomplished with an open discovery policy.[18]

Wisconsin cases

In Ranft, the Court of Appeals acknowledged that the majority rule permits discovery of surveillance materials.  However, the panel sought to conduct its own review of the issue using a three-step analysis.  First, a party seeking discovery must show that the items are within the scope of Rule 804.01(2)(a), Stats.  Second, if the initial showing is successful, the party opposing discovery must demonstrate that the items were “prepared in anticipation of litigation or for trial.”  If so, the items are protected by the work product doctrine.  Third, if the items are work product, the party seeking discovery must demonstrate a “substantial need of the materials in the preparation of the case” and that the party “is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”  Based on this analysis, the Ranft Court said that surveillance materials go to the heart of the attorney work product doctrine and that discovery would only be permitted for compelling reasons or “good cause.”  According to Ranft, because the plaintiff was aware of her physical limitations and knew or should have known what she had done since the accident, there was no “good cause” for discovery.  Thus, the court held that the trial court did not abuse its discretion in denying discovery of the surveillance evidence.

The issue was again addressed in a different context by the Court of Appeals in Martz, another personal injury action.  In Martz, the plaintiff testified at trial that she was unable to place items on her left shoulder using her right arm and hand exclusively.  The defense introduced a film intending to rebut the plaintiff’s testimony.  The Court of Appeals affirmed the admission of the film where plaintiff had been given the opportunity to view the film the night prior to its showing to the jury.  Unlike the plaintiff in Ranft, however, the plaintiff in Martz never requested discovery of surveillance materials.  But of course, such a discovery request may have been fruitless following Ranft.

Judge Brown’s concurring opinion in Martz notes the Ranft decision’s failure to fully examine the logic courts use when allowing pretrial disclosure of surveillance materials. Specifically, Judge Brown recognized that “disclosure permits an accurate assessment of the strengths and weaknesses of a case,” thereby “fostering settlement and freeing the courts and parties of a costly trial.”  It is a legitimate goal of the defense to show “the jury that the plaintiff has been caught lying.”  But, this goal should not be deemed to be more important than open discovery and cost-effective settlement of the case.

With regard to surveillance materials, Wisconsin courts have failed to harmonize the competing public policy goals of the work product doctrine and broad discovery.  Although the Wisconsin Supreme Court has thus far denied review of the issue, the rule of Ranft ought to be challenged.  In light of the overwhelming support for pretrial discovery of surveillance, the courts should be asked to conduct a thoughtful reexamination of the issue.

Other jurisdictions

The vast majority of jurisdictions, which have addressed the issue, have held that surveillance materials should be subject to discovery prior to trial.[19]

In Forbes, for example, a federal district court relied on the need to test the authenticity of surveillance material, the benefit of encouraging settlement, and the ability to avoid unnecessary trial interruptions facilitating stipulations and admissions, in compelling the production of surveillance materials.[20] Similarly, in Wegner, the court balanced the competing interests at stake, and required the defense to disclose surveillance materials within a certain time period or be barred from using these at trial.[21] And in Ward, the court noted that the defense can preserve the impeaching quality of surveillance evidence by delaying production until the subject of the surveillance has been deposed.  Once deposed, there is no rational justification to deny discovery.[22] The court stated:

[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.  Defendant may insure the impeachment value of the surveillance by taking a video deposition prior to disclosure of the surveillance materials.  In that deposition, defendant may carefully examine plaintiff about his injuries and disabilities and even require him to demonstrate alleged limitations of motions on videotape.  Inconsistencies between that deposition and the surveillance materials can be used to impeach the plaintiff at trial.

Conclusion

Unlike most jurisdictions, Wisconsin has failed to strike a balance by permitting the discovery of surveillance materials once there has been an opportunity to depose the subject of the surveillance.  Although this may sacrifice some of the “shock value,” it clearly preserves the impeachment value of the evidence and fosters the goals of modern discovery: the elimination of surprise, fair and efficient trials, and the promotion of settlements.  Denying access to this critical evidence only promotes potential for abuse and gamesmanship, and discourages out-of-court settlement of claims.

The time has come for the courts to reexamine Ranft and strike a balance between the competing goals of discovery and the attorney work product doctrine.  The right to discover surveillance materials should be fully recognized upon the closing of discovery.  Trial lawyers should insist on the disclosure of surveillance materials, and trial courts should exercise their discretion in favor of full disclosure.

Frank T. Pasternak of Murphy, Gillick, Wicht & Prachthauser is Chair of WATL’s New Lawyers Section.  He received his B.A. in 1990 from St. Norbert College and J.D., cum laude, in 1994 from The John Marshall Law School where he was on its Law Review and National Products Liability Moot Court team.  From 1990 to 1995, he was employed at Corboy & Demetrio in Chicago and since 1995, he has been an associate at Murphy, Gillick, Wicht & Prachthauser.  His practice is limited to plaintiffs’ personal injury.

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[1] 163 Wis. 2d 282, 471 N.W.2d 254 (Ct. App. 1991)

[2] 193 Wis. 2d 588, 535 N.W.2d 57 (Ct. App. 1995)

[3].  Not all litigants seeking surveillance materials are plaintiffs.  Based on Ranft, our firm has successfully defended an insurer’s attempted discovery of surveillance films taken by plaintiff’s worker’s compensation insurer.

[4].  See, e.g., Careccia v. Enstrom, 578 N.Y.S.2d 678 (App. Div. 1992); but see DiMichel v. South Buffalo R.R. Co., 590 N.Y.S.2d 1 (1992) and Boulware v. Triborough Bridge and Tunnel Authority, 613 N.Y.S.2d 580, 581 (1994) (balancing the competing interests of defendants and plaintiffs by finding that the qualified privilege of this work product can be overcome due to the unique nature of such evidence and ease of manipulation).

[5].  Hikel v. Abousy, 41 F.R.D. 152 (D.C. Md. 1966).

[6].  See, e.g., Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993); Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505 (D. Haw. 1989); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D 148 (E.D. Pa. 1973); Hoey v. Hawkins, 332 A.2d 403 (Del. 1975); and Olszewski v. Howell, 253 A.2d 77 (Del. 1969); and Dodson v Persell, 390 So.2d 704 (Fla. 1980).

[7].  DiMichel, 590 N.Y.S.2d at 6.

[8].  Dodson, 390 So. 2d at 707.

[9].  Snead, 59 F.R.D. at 150.

[10].  Indeed, in one case litigated by our firm, it turned out that the defendant’s investigator had taken films of someone other than the plaintiff.  Had that case been pending in Wisconsin, rather than federal court, we would not have confirmed prior to trial that the defendant’s alleged surveillance was a sham.

[11].  DiMichel, 590 N.Y.S.2d at 6; see also Simon v. Krueger Intn’l, Inc., 646 N.Y.S.2d 237, 238-39 (Sup. Ct. 1996).

[12].  Lascano v. Vowell, 940 P.2d 977, 981 (Colo. Ct. App. 1996).

[13].  Hoey, 332 A.2d at 406.

[14].  Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 16 (Ind. Ct. App. 1996).

[15].  Olszewski, 253 A.2d at 78.

[16].  Hoey, 332 A.2d at 406.

[17].  DiMichel, 590 N.Y.S.2d at 4; Forbes, 125 F.R.D. at 508; and Olszewski, 253 A.2d at 78.

[18]. Pioneer Lumber, 673 N.E.2d at 14.

[19].  Supra note 13; see also Wolford v. Joellen Smith Psychiatric Hosp., 693 So.2d 1164 (La. 1997); Ward v. CSX Transp., Inc., 161 F.R.D. 38 (E.D.N.C. 1995); Wegner v. Viessman, Inc., 153 F.R.D. 154 (N.D. Iowa 1994); Pettus v. Hurst, 882 S.W.2d 783 (Tenn. Ct. App. 1994); State v. Koehr, 853 S.W.2d 925 (Mo. 1993); Boyle v. CSX Transp., Inc., 142 F.R.D. 435 (S.D.W. Va. 1992); Daniels v. Nat’l R.R. Passenger Corp., 110 F.R.D. 160 (S.D.N.Y. 1986); and Wanda E. Wakefield, Annotation, Photographs of Civil Litigant Realized by Opponent’s Surveillance as Subject to Pretrial Discovery, 19 A.L.R.4th 1236 (1983).

[20].  Forbes, 125 F.R.D. at 508.

[21].  Wegner, 153 F.R.D. at 157.

[22].  Ward, 161 F.R.D. at 40.

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