The Fact of Surveillance Discoverable Before A Plaintiff’s Deposition

By John Merriam

Many years ago in these pages the question was asked: “Are Surveillance Films Discoverable?” (Trial News July/Aug. 2000). The majority position of course was and is ‘yes’, but only after the plaintiff has been pinned down at deposition about what activities the plaintiff is or is not capable of. What about discovery, before plaintiff’s deposition, on whether the plaintiff has been placed under surveillance – yes or no? This practitioner’s standard Interrogatory #5, used in maritime personal injury cases, has asked that question for more than 30 years. The Interrogatory is routinely met with a work product objection. Is that objection sustainable when the surveillance film itself is not being asked for?

The author was not able to find any authority on point that was binding on either federal or state courts located in Washington. There was, however, persuasive authority from the Florida Supreme Court, Dodson v. Persell, 390 So.2d 704 (1980). A law review casenote analyzing the case, at 33 Univ. of Florida L. Rev. 448 (1980), is entitled “Do Surveillance Films Constitute Attorney Work Product?” The author of the casenote, Joblove, agreed with the Dodson majority and concluded that it did not: Whether or not surveillance films exist should be disclosed immediately, with the films themselves unconditionally discoverable after the plaintiff’s deposition. Id. In a case 20 years ago, federal Judge Zilly ruled that the defendant had to answer this practitioner’s Interrogatory #5 and disclose the existence of surveillance films before plaintiff’s deposition, overruling a work product objection. Gray v. Norquest, No. C98-5967 (W.D. Wash.). But Judge Zilly’s ruling was a one-line Minute Order, with no analysis, and was not reported. State appellate courts in Washington were asked to review a trial judge’s decision sustaining a work product objection to Interrogatory #5. The appeal involved an arbitration award. The appellate courts refused to decide the issue, though recognizing it as one of first impression, stating that it was moot and not properly before the courts. The parties had stipulated to the entry of judgment below, rather than taking trial de novo to verdict. Dean v, Fishing Company of Alaska, 116 Wn.App. 893 (2012), reversed on other grounds, 177 Wn.2d 399 (2013). There is still no binding authority on point for courts in this jurisdiction, state or federal.

A recent decision from the federal District of Alaska, however, provides a well-reasoned analysis of the surveillance issue. Myers v. Aleutian Endeavors et al., No. 3:18-cv-0033-HRH, 2018 U.S. Dist. LEXIS 93306 (D. Alaska 6/4/18), was originally filed in the Western District of Washington before being transferred to Alaska and assigned to long-time Judge H. Russell Holland. Defendants in that case, as usual, made a work product objection to plaintiff’s standard Interrogatory #5, which asks whether defendant(s) or anyone on their behalf conducted a surveillance of the plaintiff or engaged any person or firm to conduct a surveillance of the plaintiff or his or her activities? If the answer to the question is ‘yes’, please state the date(s) of each surveillance and the activities of the plaintiff at the time of each surveillance.

Plaintiff brought a motion to compel discovery responses, including an answer to Interrogatory #5. With no controlling authority, both parties relied on state court decisions from other states. Plaintiff asked the court to follow the Florida Supreme Court in the Dodson case, supra. Defendant urged Judge Holland to follow the Missouri Court of Appeals, which held that a lawyer’s decision to conduct surveillance is work-product. Ranft v. Lyons, 471 N.W.2d 254, 261 (1991). Defendants also cited Snead v. American Export-Isbrandtsen Lines, 59 F.R.D. 148 (E.D. Pa. 1973) which held that before making any disclosure as to the existence of surveillance, the defense should be allowed to depose the plaintiff. Judge Holland weighed these cases and chose to follow the Dodson case, quoting the Florida Supreme Court:

What we require is that a party must disclose the existence of material which is or may become relevant to the issues in the case whether as substantive, corroborative, or impeachment evidence. Relevant evidence cannot be allowed to remain hidden in a party’s or an attorney’s files. Knowledge of its existence is necessary before a judicial determination can be made as to whether the contents are privileged.

390 So.2d at 707.

Judge Holland also ruled that the decision of a defendant on whether or not to conduct surveillance is not privileged. After discussing some other cases he held: “based on these authorities, the court concludes that the existence of surveillance is not protected work product.” Myers v. Aleutian Endeavors , supra, Order of 6/4/18 at p. 5.

Defendants in the Myers case argued that the surveillance films themselves are not discoverable unless they are going to be used at trial. Defendants cited cases holding that surveillance films themselves are not relevant evidence if not to be used at trial, and hence questions about the existence of those films is also not relevant.

Defendants argue that if surveillance materials are not themselves discoverable unless they are going to be used at trial, then information about the existence of such materials would not lead to the discovery of admissible evidence and thus it is not relevant.

Id. at 5-6.

Judge Holland was not convinced. He concluded:

Defendants’ work product objection to Interrogatory No.#5 was not proper, and the existence of surveillance may be relevant to the claims and defenses in this case. Thus, defendants are compelled to provide an answer to Interrogatory No. 5 that complies with Rule 33(b)(3).

Id. at 6.

Readers of this publication should consider incorporating into their standard discovery requests an interrogatory similar to #5, quoted above.

Thomas Waller of Bauer Moynihan & Johnson represents defendants in the Myers v. Aleutian Endeavors case. Plaintiff is represented by the author.

Eagle John Merriam is a former merchant seaman, now a sole practitioner at Seattle’s Fishermen’s Terminal, who restricts his practice to the representation of claimants for maritime wages or injury.