In many personal injury cases, a decision is made to retain an investigator to conduct surveillance to ascertain whether the plaintiff is truly as injured as claimed. In order to weigh the risks and benefits of this decision, the defense lawyer and carrier should know the discovery impact under Pennsylvania law.
Under the case law, there is no question that the surveillance is highly relevant information on the claim of damages in a personal injury case as it relates to the physical condition, disability and credibility of the plaintiff. The courts have had to weigh the competing issues of avoiding unfair surprise with protecting the defendant’s impeachment material.
Discovery in the Pennsylvania federal courts is governed by Fed. R. Civ. P. 26 (b)(3) which allows discovery of trial preparation material where a party can show that there is a “substantial need” for the material and the party is unable, without undue hardship, to obtain the “substantial equivalent of the material” by other means. While surveillance video is regarded as work-product since it was obtained in anticipation of litigation, federal courts have generally found that the privilege is waived on account of the plaintiff’s substantial need for the evidence combined with the inability to obtain a substantial equivalent since the surveillance was taken at a particular time and place that can never be replicated. Snead v. American Export – Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973).
However, the prevailing view in the federal courts is that there is no duty to turn over the actual surveillance to the plaintiff unless it will be introduced into evidence at trial. Gibson v. National R.R. Passenger Corp., 170 F.R.D. 408, 410 (E.D. Pa. 1997). In order to preserve the impeachment value of surveillance, the disclosure is permitted to be made after the plaintiff’s deposition. Snead, supra. If the surveillance will be used at trial, the plaintiff’s counsel must be given sufficient time to prepare a cross-examination, if desired, of the investigator with regard to the accuracy and completeness of the evidence.
In the majority of times, the surveillance evidence will be inconclusive, or worse, will corroborate the plaintiff’s claims. Where this occurs, the issue becomes whether the material must still be disclosed and/or produced to opposing counsel. In either case, the federal work-product doctrine bars discovery. Gibson , 170 F.R.D. at 410. As stated by the Court in Snead, “The only time there will be substantial need to know about surveillance pictures will be in those instances where there would be a major discrepancy between the testimony the plaintiff will give and that which the films would seem to portray.” Snead, 59 F.R.D. at 151. The information contained in the surveillance – facts about the extent of plaintiff’s medical condition and abilities – is readily attainable from the plaintiff’s own testimony. Accordingly, where the surveillance will not be played at trial, the intrusion into work product is not upheld by the federal courts.
In contrast to these well-developed federal court standards, the Pennsylvania state court decisions on the discoverability of surveillance evidence remains unsettled. Pa.R.C.P. 4003.3 is a more relaxed standard than the federal rule, and generally provides that work product is discoverable, with some exceptions not applicable to surveillance video. Therefore, while the federal court decisions focused on the “substantial need” of the plaintiff to obtain the surveillance, the question in Pennsylvania state court is merely whether the surveillance is discoverable. Under the broad standard of Pa.R.C.P. 4003.1, surveillance in a personal injury case is discoverable. Morganti v. Ace Tire & Parts, Inc., 2004 W.L. 3304656 (Pa. C.P. Allegheny Dec. 28, 2004).
In Pennsylvania courts, before surveillance evidence is admitted into evidence at trial, the existence of the surveillance must be disclosed in response to interrogatories on the subject, and the production is required only after the plaintiff’s deposition. Id.; Bindschultz v. Phillips, 771 A.2d 803 (Pa. Super. 2004). The failure to turn over the surveillance in a timely matter after the plaintiff’s deposition will result in preclusion of the evidence at trial. However, there have been no cases ruling on whether the surveillance must be produced, even if there is no intent to use the material at trial.
In sum, there is consensus in the state and federal precedent that if the surveillance will be used at trial, a copy must be timely supplied to opposing counsel, but it does not need to be disclosed in discovery until after the plaintiff’s deposition. Defense counsel is permitted to fully depose the plaintiff regarding his or her limitations and injuries prior to the disclosure and/or production of any surveillance materials. The discovery obligations are not yet clear at the state court level where there is no intent to use the surveillance at trial. For that reason, especially at the state court level, defense counsel and their carriers, should ensure that the case is appropriate for surveillance and should carefully monitor and supervise the investigator’s activities to ensure that a record is not created which will have to be produced in discovery.