• The Pros and Perils of Surveillance in the Pennsylvania Personal Injury Case
  • December 21, 2009 | Author: David S. Wolf
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Philadelphia Office
  • Surveillance as an investigative tool can be a dramatic means to weaken or destroy a plaintiff's claim and, sometimes, to expose outright fraud. In the cases where we get great "60-Minutes"-type footage, we willingly deliver the video to our opponent. Under prevailing case law, if surveillance materials are requested in discovery, defense counsel is permitted to wait until the plaintiff's deposition is concluded before turning over surveillance materials. The courts in Pennsylvania have followed the federal district court opinion of Snead v. American Export-Isbrandtsen lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973), where the court permitted the disclosure of surveillance materials and the answering of surveillance-related interrogatories after the plaintiff had been deposed as to his injuries. The purpose in permitting this delay is to preserve the impeachment value of surveillance and to permit inquiry into the claimed injuries, their effects and disabilities. If a plaintiff were to view the surveillance video prior to his deposition, he would be likely to tailor his testimony to conform to the video depictions.

    However, you cannot surprise your opponent by production at or close to trial. Plaintiff's counsel is permitted ample time to prepare a cross-examination of the videographer to test the completeness of the video, editing techniques, and the overall integrity of the impeachment evidence. The plaintiff is to be afforded an opportunity "to evaluate what may in his opinion be a misleading depiction necessitating the development of rebuttal evidence." Duncan v. Mercy Catholic Medical Center, 2002 Pa.Super. 373, 813 A.2d 6, 8 (2002). In Snead, Judge Ditter stated that "[i]t goes without saying that the means to impeach should not be the exclusive property of the defense." Failure to timely produce a surveillance video can result in the sanction of preclusion. As noted in Philadelphia Contributionship Insurance Co. v. Shapiro, 2002 Pa. Super. 139, 798 A.2d 781, 784 (2002), "[t]he decision whether to sanction a party for a discovery violation and the severity of such a sanction are matters vested in the sound discretion of the trial court." In Mietelski v. Banks, 2004 Pa.Super. 259, 854 A.2d 579 (2004), the Superior Court upheld the trial court's ruling to exclude a surveillance video, the existence of which was not revealed to plaintiff's counsel until shortly before the IME doctor was to testify concerning the tape and how it dramatically altered his prior reported opinion. The court in Duncan specifically prohibited the use of a surveillance video at trial which had not been properly disclosed in discovery and also ruled that references to the video during cross-examination of the plaintiff were prejudicial and inadmissible.

    Sometimes the best surveillance is no video at all. If the investigator views the plaintiff showing obvious physical limitations, it is better that he relay that information to defense counsel and the adjuster verbally, rather than creating a discoverable record of his observation. Also, if the investigation is spread out over a period of days or weeks, it is important that the investigator keep counsel apprised of his progress so that the attorney can retain an element of control over the investigator's activities.

    What about the situation where, through no fault of your own, a damaging video appears on your desk? Can you turn a blind eye to this piece of evidence, or are you required to turn it over to your opponent (and answer accompanying interrogatories), knowing doing so will tend to increase the value of the claim? This is indeed a troubling issue. As the court noted in Bindschusz v. Phillips 2001 PA Super 93, 771 A.2d 803 (2001), "We are cognizant of the complicated issues which may arise at trial where defense counsel has advised plaintiff's counsel of the existence of a surveillance video which defense counsel does not intend to introduce at trial. As this Court may not provide advisory opinions, we do not today address those issues certain to arise in future cases, such as: the right of defense counsel to obtain -as of right- a videotaped deposition of a plaintiff prior to answering any interrogatories concerning surveillance; the unavailability of an adverse inference charge where defense counsel elects not to present the videotape at trial; or the inadmissibility of testimony relating to the surveillance video where the defense does not use the videotape at trial" (citations omitted). The seminal case of Snead contains language which somewhat evades the issue of whether there is an obligation to turn over damaging surveillance: The court stated, "I am directing that the interrogatories need not be answered until plaintiff has been deposed as to his injuries and disabilities. Thereafter, the interrogatories are to be answered and the films, if they exist and will be used at trial, are to be exhibited to the plaintiff" (emphasis added).

    However, what if the video exists, and you do not want to use it at trial? The courts seem to be unanimous that interrogatories concerning the existence of surveillance materials must be answered, although not until at least the plaintiff has been deposed. I submit, however, that upon answering those interrogatories, the related surveillance video, if requested (as it assuredly will), must be produced, at least under the Pennsylvania Rules of Civil Procedure.

    An excellent analysis of this issue is contained in a case from the Court of Common Pleas of Allegheny County, Morganti v. Ace Tire and Parts. Inc., 2004 Pa.Dist. &Cnty. Dec. LEXIS 270, 70 Pa. D.&C. 4th 1 (2004). The court noted that nationwide there is a split of authority as to whether a defendant has to furnish information or produce materials concerning surveillance it does not intend to produce. The courts that do not require production base their reasoning on an analysis of work production protections that do not apply under the Pennsylvania Rules of Civil Procedure. Rule 26(b)(3) of The Federal Rules of Civil Procedure, by contrast, protects attorney work product, such as surveillance, from production, except "upon showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." In the federal system, surveillance materials are protected from production through a qualified privilege. In Snead, Judge Ditter struck a balance which requires a defendant to produce surveillance and respond to interrogatories after a plaintiff is deposed. Those courts, however, which do not require pretrial production find that a plaintiff cannot establish a hardship to overcome the work product privilege because a plaintiff can prove his claims of injury by other means, namely, his testimony.

    The court in Morganti noted that the Pennsylvania Rules of Civil Procedure do not contain the same work product protection as in the federal rules. To the contrary, Pa.R.C.P. 4003.3 specifically allows disclosure of any matters within the scope of discovery under Rule 4003.1 "even though prepared in anticipation of litigation or trial" with the exception of an attorney or party representative's "mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics." Therefore, the issue in Pennsylvania is not whether the plaintiff can establish a substantial need for the surveillance materials so as to overcome a qualified work product privilege but, rather, whether the surveillance materials fall within the scope of the subject matter of discovery under Rule 4003.1. Discoverability will depend upon whether the materials are "relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ... " The court held that "discovery regarding surveillance activity and surveillance material comes within the scope of this provision because it relates to the claims of the plaintiff."

    Based on the foregoing, it appears that surveillance materials, favorable or unfavorable, are subject to production in the Pennsylvania state courts with two caveats: (1) the plaintiff must request the information or materials by way of interrogatories or request for production of documents; and (2) the defendant is permitted to withhold the information and materials until after the plaintiff is deposed. It is not valid to argue that the materials constitute protected work product or, as it has been suggested, constitute impeachment or rebuttal evidence and are, thus, subject to some newly devised source of protection. Just as unfavorable statements or investigative reports are discoverable, so too is surveillance that confirms a plaintiff's claimed injuries. It is for this reason that it is critical that we monitor the investigator's activities to insure that the investigator has a good understanding of the scope of his assignment and to refrain from activities which may create an unfortunate record for our client. Good surveillance can be devastating tool which can reduce a once high-exposure case to rubbles; bad surveillance can have the opposite effect. It is imperative, therefore, to make sure that your case is appropriate for surveillance. The tactic of surveillance should be reserved for those cases in which the claimed injury is out of proportion to the nature of the claimed accident, where there are significant inconsistencies in the medical records, or where, perhaps, you have a lead that the plaintiff is engaging in activities which contradict the claim. Used wisely, surveillance can be a dramatic courtroom tool which will not only engage a jury, but will provide them with a strong, visual basis to reject a plaintiff's claims.