Indiana Law Review


"A Picture Is Worth A Thousand Words"—
The Permissible Scope of Discovery of Videotape

in Civil Cases: A Bifurcation Approach

Patricia L. Ogden'

Introduction—The Discovery Dilemma
"[A] common law trial is and always should be an adversary proceeding.

Discovery was hardly intended to enable a learned profession to perform its

functions either without wits or on wits borrowed from the adversary."
1

This

quote from Justice Jackson's concurring opinion in Hickman v. Taylor eloquently

articulates the struggle in the discovery process between the right to access all

relevant information prior to trial in order to advance the goals of discovery
2
and

the need to preserve effective trial preparation.
3

This tension has been further heightened by the advent of modern camera and

video technology, whose effectiveness as a tool in civil litigation has been due

largely in part to its modest expense. Litigants use videotape evidence at trial to

impeach witnesses, to refute the extent of the plaintiffs injuries, and to

demonstrate the daily obstacles facing a personal injury victim as a result of the

disputed event.
4

In addition, defendants use the tapes to prepare for depositions
5

and to evaluate the extent of the plaintiffs injuries for settlement purposes.
6

This Note will discuss an opposing party's ability to gain discovery of

surveillance videotape. Specifically, it will address the implications of the work

product doctrine and explore the limitations that courts have imposed on the

discovery of surveillance videotape in civil cases. Emphasis will be placed on

differentiating between the rationale for and the uses of surveillance videotape that

is to be introduced at trial and non-evidentiary videotape. A bifurcation approach

* J.D. Candidate, 1996, Indiana University School of Law—Indianapolis; B.S.N., 1990,
Ball State University. The author would like to thank Professor William F. Harvey for his guidance

and support in writing this Note.

1. Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring).

2. The goals of discovery include a method of narrowing and clarifying the issues between

or among the parties and a way to ascertain the facts or information as to the existence or

whereabouts of such facts. Id. at 501. See also Martin v. Long Island R.R., 63 F.R.D. 53, 54

(E.D.N.Y. 1974); Snead v. American Export-lsbrandtsen Lines, Inc., 59 F.R.D. 148, 151 (E.D. Pa.

1973) (Goals of discovery include speedy and effective dispute resolution); Kane v. Her-Pet

Refrigeration, Inc., 587 N.Y.S.2d 339, 341 (N.Y. App. Div. 1992) (The goals include ascertainment

of truth); Camelback Contractors, Inc. v. Industrial Comm'n, 608 P.2d 782, 785 (Ariz. Ct. App.

1980); Crist v. Goody, 507 P.2d 478, 499 (Colo. Ct. App. 1972) (The goals include the elimination

of surprise and encouragement of settlements).

3. Jenkins v. Rainner, 350 A.2d 473, 476 (N.J. 1976); Martin, 63 F.R.D. at 54.

4. Tricia E. Habert, "Day in the Life" and Surveillance Videos: Discovery of Videotaped

Evidence in Personal Injury Suits, 97 DICK. L. REV. 305 (1993).

5. Denis P. Juge, Proper Use ofSurveillance Film, FOR THE DEF., June 1990, at 8-9.

6. Martin, 63 F.R.D. at 54.



442 INDIANA LAW REVIEW [Vol. 29:441

will be advanced to limit the pre-trial discovery of surveillance videotape to
include only material to be presented at trial, as outlined in Fisher v. National

Railroad Passenger Corp.
1

Further, potentially related areas under the new
federal discovery rules will be explored in relation to surveillance videotapes.

I. Overview

The issue of when surveillance videotape should be discoverable by the
opposing party has its roots in cases addressing the admissibility of videotape at

trial.
8
Courts addressing the discoverability issue have evaluated the admissibility

of videotape evidence as they would photographic evidence.
9

However,

difficulties with editorial manipulation, subtle jury bias, and the technical

limitations of videotape evidence have led to inconsistent results.
10

Similarly, courts addressing the issue of whether to allow discovery of

surveillance videotape to the opposing party prior to trial have yielded grossly

differing results.
11

Courts allowing discovery of the videotapes prior to trial

consistently cite the liberal discovery doctrine of the Federal Rules of Civil

Procedure.
12

Courts refusing discovery of surveillance videotapes base their

rulings on the availability of other sources to the plaintiff,
13

local rules prohibiting

7. 152 F.R.D. 145 (S.D. Ind. 1993).

8. See generally 3 WlGMORE ON EVIDENCE § 798 (Chadbourn rev. 1970); Wanda E.

Wakefield, Annotation, Discovery ofSurveillance Photographs, 19 A.L.R. 4th 1236 (1983 & Supp.
1994).

9. See Baird v. Campbell, 590 N.Y.S.2d 399, 400 (N.Y. Sup. Ct. 1992); Boyarsky v. G.A.

Zimmerman Corp., 270 N.Y.S. 134, 137 (N.Y. App. Div. 1934). See also Fed. R. Evid. 1001(2)

(stating that photographs include "still photographs, X-ray films, video tapes, and motion

pictures").

10. For a complete discussion of the problems associated with videotape evidence in

general, see Sharon Panian, Truth, Lies, and Videotape: Are Current Federal Rules ofEvidence

Adequate?, 21 Sw. U. L. REV. 1 199 (1992).

11. For a general discussion of different courts' views on the discovery of videotape

surveillance evidence, see 8 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure §2015 (1994).

12. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 151 (E.D. Pa.

1973) (noting that liberal discovery leads to the just and speedy determination of cases); Martin v.

Long Island R.R., 63 F.R.D. 53, 54 (E.D.N.Y. 1974) (noting that the doctrine permits effective

settlement discussions and effective trial preparation); Kane v. Her-Pet Refrigeration, Inc., 587

N.Y.S.2d 339, 341 (N.Y. App. Div. 1992) (stating that liberal discovery helps to ascertain truth and

accelerate the disposition of suits); Camelback Contractors, Inc. v. Industrial Comm'n, 608 P.2d

782, 785 (Ariz. Ct. App. 1980) (holding that the rules of discovery eliminate surprise and encourage

settlement); Crist v. Goody, 507 P.2d 478, 499 (Colo. Ct. App. 1972) (discussing the fact that

liberal discovery simplifies issues, eliminates surprises, and leads to the just settlement of disputes

without having to go to trial); Marigliano v. Krumholtz, 603 N.Y.S.2d 1020, 1023 (N.Y. Sup. Ct.

1993) (stating that liberal open discovery is favored in New York).

13. See Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145, 152 (S.D. Ind. 1993)



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 443

discovery of impeachment materials,
14
or work product protection.

15
Although

the majority of current decisions have held that videotapes to be used at trial must

be provided to the opposing party in advance,
16
few courts have addressed the

issue of whether non-evidentiary videotape
17

should be discoverable by the

opposing party in a civil case.
18
The majority of the courts that have addressed this

issue have allowed the discovery of all videotape, evidentiary and non-evidentiary,

without careful analysis of the differences in the two types.
19 Few courts have

considered the issue of the discoverability of non-evidentiary videotape in the

context of the work product doctrine.
20

The unpredictability of discovery and subsequent use of surveillance
videotapes can have a dramatic impact on the outcome of a case. For example, in

(refusing to allow discovery of non-evidentiary videotape, citing the fact that plaintiff had a readily

available source of information, i.e., his own knowledge); United States v. O.K. Tire & Rubber Co.,
71 F.R.D. 465, 467 (D. Idaho 1976) (discovery refused when the materials were available from

other sources which the adverse party had not explored); Hikel v. Abousy, 41 F.R.D. 152, 155 (D.

Md. 1966) (stating that the names of persons with knowledge of the facts were available to the

plaintiff through interrogatories, enabling her own investigation); Ranft v. Lyons, 471 N.W.2d 254,

262 (Wis. Ct. App. 1991) (requiring a strong showing to warrant disclosure of work product, and

noting that plaintiff was aware of her physical limitations and kept a diary of her activities after the

accident).

14. See Maclvor v. South Pac. Transp. Co., No. 87-6424-E, 1988 WL 156743, at *2 (D. Or.
June 9, 1988); Bogatay v. Montour R.R., 177 F. Supp. 269, 270 (W.D. Pa. 1959); Coyne v.

Monongahela Connecting R.R., 24 F.R.D. 357, 358 (W.D. Pa. 1959).

15. Ranft, 471 N.W.2d at 260 (holding that surveillance videos are work product and not

discoverable); Gay v. P.K. Lindsay Co., 666 F.2d 710, 713 (1st Cir. 1981) (reasoning that

statements of witnesses in attorney's work product are not discoverable when the effect would be

cumulative and deposition testimony was available); Fisher, 152 F.R.D. at 150 (holding that

surveillance videos are work product; those videos not to be used at trial are not discoverable).

16. Fisher, 152 F.R.D. at 150; Ward v. CSX Transp., Inc., 161 F.R.D. 38, 40 (E.D.N.C.
1995).

17. As used in Fisher, non-evidentiary videotapes are defined as those surveillance

videotapes, taken of the plaintiff by the defendant, which the defendant does not currently intend

to use at trial. Fisher, 152 F.R.D. at 150.

18. Id.

19. See Boyle v. CSX Transp., Inc., 142 F.R.D. 435 (S.D. W. Va. 1992); DiGiacobbe v.
National R.R. Passenger Corp., No. Civ. A. 86-534, 1987 WL 11227, at *3 (E.D. Pa. May 21,
1987); Daniels v. National R.R. Passenger Corp., 110 F.R.D. 160 (S.D.N.Y. 1986); Delvaux v.

Ford Motor Co., 518 F. Supp. 1249 (E.D. Wis. 1981); Martin v. Long Island R.R., 63 F.R.D. 53

(E.D.N.Y. 1974); Zimmerman v. Superior Ct., 402 P.2d 212 (Ariz. 1965) (en banc); Suezaki v.

Superior Ct., 373 P.2d 432 (Cal. 1962) (en banc) (cited in Fisher, 152 F.R.D. at 150); Olszewski

v. Howell, 253 A.2d 77 (Del. Super. Ct. 1969); Dodson v. Persell, 390 So. 2d 704 (Fla. 1980);

Jenkins v. Rainner, 350 A.2d 473 (N.J. 1976); Boulware v. Triborough Bridge & Tunnel Auth., 613
N.Y.S.2d 580 (N.Y. Sup. Ct. 1994); Marigliano v. Krumholtz, 603 N.Y.S.2d 1020 (N.Y. Sup. Ct.

1993).

20. Fisher, 152 F.R.D. at 150.



444 INDIANA LAW REVIEW [Vol. 29:441

Chiasson v. Zapata GulfMarine Corp.,
21

the Fifth Circuit found reversible error
when the trial court permitted the defendant to show the jury a videotape without
prior disclosure to the plaintiff. The jury subsequently found the plaintiff ninety
percent liable for the injury based on contributory negligence. The surveillance
tape showed the plaintiff engaged in activities such as sweeping the carpet,
working under a car, and purchasing food. The appellate court, in reversing the
lower court's decision, held that the plaintiff had a right to the substantive

evidence prior to trial, and noted that such a preliminary viewing could have

produced an early settlement.
22

By contrast, in DiMichel v. South Buffalo Railway, 13 the New York Court of
Appeals reversed the trial court (in Poole v. Consolidated Rail Corp.

24
) using an

abuse of discretion standard. The plaintiff, who had accessed all the defendant's
surveillance videotapes (which were not subsequently used by the defendant)

during discovery, repeatedly referred to the tapes during trial and in closing

statements, inferring that the defendants did not produce the tapes because they

would have helped the plaintiffs case. The appellate court refused to allow the
plaintiff to utilize the discovery process in such an underhanded way. Thus,

consistency and predictability concerning the discovery of surveillance videotape

remains crucial to a fair resolution of the dispute.

A. Purposes and Uses ofSurveillance Films

In certain civil cases, especially personal injury or workers'

compensation cases, the use of surveillance videotape by the defendant,

taken without the knowledge of the plaintiff, can be an "extremely useful

tool."
25

Surveillance videotape serves two distinct purposes: it provides

impeachment evidence
26

against the plaintiff,
27

and it provides substantive

21. 988F.2d513(5thCir. 1993).

22. Id. at 516.

23. 604 N.E.2d 63, 69-70 (N.Y. 1992).

24. 579 N.Y.S.2d 772 (N.Y. App. Div. 1991).

25. Denis P. Juge, Proper Use ofSurveillance Film, FOR THE DEF., June 1990, at 8.

26. Impeachment evidence does not relate to the claim or defense, but to the credibility of

the witness. Paul C. Ney, Videotape Surveillance in Civil Cases, LlTIG., Summer 1991, at 1 1. See

also Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993) (stating that

"impeachment evidence ... is that which is offered to 'discredit a witness ... to reduce the

effectiveness of [her] testimony by bringing forth evidence which explains why the jury should not

put faith in [her] or [her] testimony'") (quoting John P. Frank, Pretrial Conferences and

Discovery—Disclosure or Surprise?, 1965 INS. L. J. 661, 664).
27. Juge, supra note 25, at 8. See generally 8 WRIGHT & MILLER, supra note 1 1 , § 201 5,

at 1 13-121 ; R. L. Martyn, Annotation, Discovery, in Civil Case, ofMaterial Which is or may be

Designed for Use in Impeachment, 18 A.L.R.3d 922 (1968 & Supp. 1994); Snead v. American
Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 (E.D. Pa. 1973) (stating that "[o]ne who has

described in elaborate detail his disabilities, their extent and duration, and the limitations they

impose may be shown by the camera to be a fraud").



1995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 445

evidence
28

which, by refuting the extent of the plaintiffs disability, may reduce
damages. Defendants typically resist the disclosure of impeachment evidence,

claiming nondisclosure will prevent plaintiffs from exaggerating their claims,

thereby keeping the testimony honest.
29

Moreover, the value of impeachment

testimony lies in preventing the plaintiff from viewing the tape prior to trial;

otherwise, plaintiffs will be able to shape or mold their testimony to conform to the

evidence on the tape.
30

Plaintiffs counter this argument with the need to

authenticate the tape prior to trial
31
and to prepare effective cross examination,

32

as well as the assertion that revealing all evidence prior to trial will promote

effective dispute resolution.
33 When the tape will be used for substantive evidence

to dispute the degree of the plaintiffs' injury, most courts will allow pre-trial

28. Juge, supra note 25, at 8. "Substantive evidence is that which is offered to establish the

truth of a matter to be determined by the trier of fact." Chiasson, 988 F.2d at 5 17 (citing John P.

Frank, Pretrial Conferences and Discovery—Discovery or Surprise?, 1965 INS. L.J. 661, 664).
29. See Kenneth E. Siemens, The Discoverability of Personal Injury Surveillance and

Missouri's Work Product Doctrine, 57 Mo. L. Rev. 871 (1992). See also Smith v. CSX Transp.,
Inc., No. 93-373-CIV-5-F, 1994 WL 762208, at *2 (E.D.N.C. 1994) (asserting that denial of
discovery would "discourage successful perjury"); Sneaa, 59 F.R.D. at 150 (stating the "possibility

that such pictures exist will often cause the most blatant liar to consider carefully the testimony he

plans to give under oath"); Hikel v. Abousy, 41 F.R.D. 152, 155 (D. Md. 1966) (noting that in those

cases where the plaintiff would be influenced by the possibility of the defendant's possession of the

videotape, it would probably tend to make the testimony more honest); Jenkins v. Rainner, 350

A.2d 473, 476 (N.J. 1976) (discussing defendant's claim that nondisclosure would keep plaintiff

from exaggerating claim, and striking the argument in favor of more liberal discovery).

30.

If every witness consistently told the truth, and none cut his cloth to the wind, little

possible harm and much good might come from maximum pretrial disclosure.

Experience indicates, however, that there are facile witnesses whose interest in

'knowing the truth before trial' is prompted primarily by a desire to find the most

plausible way to defeat the truth.

Margeson v. Boston & Me. R.R., 16 F.R.D. 200, 201 (D. Mass. 1954); see also Olszewski v.
Howell, 253 A.2d 77, 78 (Del. Super. Ct. 1969). But see DiMichel v. South Buffalo Ry., 604

N.E.2d 63, 68 (N.Y. 1992) (striking down defendant's motion on this basis); Jenkins, 350 A.2d at

473 (same).

31. Snead, 59 F.R.D. at 150; accord Martin v. Long Island R.R., 63 F.R.D. 53 (E.D.N.Y.

1974); Boldt v. Sanders, 1 1 1 N.W.2d 225 (Minn. 1961); Marte v. Hickok Mfg. Co., 552 N.Y.S.2d

297 (N.Y. App. Div. 1990).

32. Snead, 59 F.R.D. at 150; Jenkins, 350 A. 2d at 477 ("[T]he surprise which results from

distortion of misidentification is plainly unfair. If it is unleashed at the time of trial, the opportunity

for an adversary to protect against its damaging inference by attacking the integrity of the film and

developing counter-evidence is gone or at least greatly diminished."); Dodson v. Persell, 390 So.

2d 704, 706 (Fla. 1980) (asserting that if pre-trial disclosure is not required, "plaintiffs will be

without means to effectively challenge or prepare rebuttal evidence").

33. Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994); Smith, 1994

WL 762208, at *2; Martin, 63 F.R.D. at 54.



446 INDIANA LAW REVIEW [Vol. 29:441

disclosure to the plaintiffs
34

B. Background: Courts ' Approaches to Discoverability of Videotapes

1. Impeachment Evidence.—Historically, some courts have refused the
plaintiff discovery of videotape or other impeachment evidence prior to trial,
weighing the defendant's need to prevent disclosure more heavily than the
plaintiffs need to authenticate the evidence and prepare effective cross

examination.
35

Other courts have adopted the opposite position, allowing the

discovery of impeachment videotape.
36

In so doing, several courts have

emphasized the importance of validating the authenticity of the video prior to trial

to prevent fraud.
37

The case most cited relating to the need to authenticate the
videotape before trial is Snead v. American Export-Isbrandtsen Lines, Inc. , which

notes:

The main purpose for secret motion pictures of a plaintiff is to

34. See, e.g., Wegner, 153 F.R.D. at 159 (en banc); Camelback Contractors, Inc. v.

Industrial Comm'n, 608 P.2d 782 (Ariz. Ct. App. 1980); Crist v. Goody, 507 P.2d 478 (Colo. Ct.

App. 1972); Simons v. State Compensation Mut. Ins. Fund, 865 P.2d 1118 (Mo. 1993).

35. See Gay v. P.K. Lindsay Co., 666 F.2d 710, 713 (1st Cir. 1981) (refusing to allow

plaintiff to discover statements of defendant's witnesses prior to trial, citing plaintiff's knowledge

of the area and little additional value of statements); Maclvor v. Southern Pac. Transp. Co., No. 87-

6424-E, 1988 WL 156743, at *2 (D. Or. June 9, 1988) (holding that impeachment is not
discoverable, citing local rules of court). See also Fed. R. Civ. P. 26(b), advisory committee's note

(stating that impeachment materials are generally protected from discovery).

36. See Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W. Va. 1992); Forbes v.
Hawaiian Tug & Barge Corp., 125 F.R.D. 505, 508 (D. Haw. 1989) (allowing impeachment video
to be discovered provided impeaching character is preserved via deposition); Daniels v. National

R.R. Passenger Corp., 1 10 F.R.D. 160, 161 (S.D.N.Y. 1986); Boldt v. Sanders, 1 1 1 N.W.2d 225,

228 (Minn. 1961) (holding that the impeachment evidence does not prevent discovery of

information solely on that basis). See also 8 Wright & Miller, supra note 1 1, § 2015, at 1 15
(criticizing the approach that allows a party to select the purpose for which surveillance evidence

will be used and thus obtain immunity from discovery by selecting impeachment purposes).

37. In Boldt v. Sanders, the court noted:

Defendant's entire argument proceeds on the premise that defendant's evidence which

plaintiffs seek to elicit constitutes the unblemished truth which, if prematurely disclosed,

will prevent defendant from revealing to the jury the sham and perjury inherent in

plaintiffs' claims. While defendant disclaims such an assumption, it is implicit in his

position that witnesses whose testimony is designed to impeach invariably have a

monopoly on virtue and that evidence to which the attempted impeachment is directed

is, without exception, fraudulent.

1 1 1 N.W.2d at 227; cf. 4 James W. Moore et al., Federal Practice f 26.21 (2d ed. 1994);
accord Martin, 63 F.R.D. at 53 (reasoning if the videotape is to be used at trial, it is discoverable

to authenticate tape); Marte v. Hickok Mfg. Co., 552 N.Y.S.2d 297, 300 (N.Y. App. Div. 1990)

(holding that all videotape to be used at trial is discoverable). See generally Wanda E. Wakefield,

Annotation, Discovery ofSurveillance Photographs, 19 A.L.R.4th 1236 (1983 & Supp. 1994).



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 447

impeach his credibility. Films taken without the knowledge of the

subject often have a dramatic impact in court. One who has described
in elaborate detail his disabilities, their extent and duration, and the

limitations they impose may be shown by the camera to be a fraud. The
possibility that such pictures exist will often cause the most blatant liar

to consider carefully the testimony he plans to give under oath.

On the other hand, 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 .... Thus, that which purports to
be a means to reach the truth may be distorted, misleading, and false. 38

2. Local Rules on Impeachment Evidence.—In denying the discovery of
impeachment videotape, other courts cite their local rules of evidence prohibiting

discovery of impeachment evidence as an exception to the overall discovery

rules.
39

These courts often note that the Federal Rules of Civil Procedure
40

allow

each district court, upon a majority vote, to amend the rules governing practice,
as long as the local rules do not conflict with the federal rules.

41
However, the

only circuit court to speak on the issue rejected decisions that were based on local

rules prohibiting discovery of impeachment evidence as unlawfully narrowing the

scope of discovery under the federal rules.
42

3. Impeachment v. Substantive Evidence.—Recently, many courts have
ordered the discovery of impeachment videotape on the grounds that the tapes also

contain substantive evidence and should therefore be accessible to the plaintiff

before trial.
43

Indeed, it can generally be said that in the midst of all the confusion

38. Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 (E.D. Pa. 1973)

(citation omitted).

39. See Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145, 150 (S.D. Ind. 1993)

(noting that S.D. Ind. L.R. 16.1(f)(5) excludes impeachment evidence from pre-trial discovery and

provides that "[a] list of exhibits to be offered at trial [are to be disclosed at final pre-trial

conference] except those to be used solely for impeachment or rebuttal" (emphasis added));

Maclvor v. South Pac. Transp. Co., No. 87-6424-E, 1988 WL 156743, at *3 (D. Or. June 9, 1988);
Bogatay v. Montour R.R., 177 F. Supp. 269, 270 (W.D. Pa. 1959).

40.

Each district court by action of a majority of the judges thereof may from time to time,

after giving appropriate public notice and an opportunity to comment, make and amend

rules governing its practice not inconsistent with these rules .... In all cases not

provided for by rule, the district judges and magistrates may regulate their practice in

any manner not inconsistent with these rules or those of the district in which they act.

Fed. R.Crv. P. 83.

41. Id. See a/soChiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 515 (5th Cir. 1993).

42. Chiasson, 988 F.2d at 516-17.

43. See DiMichel v. South Buffalo R.R., 604 N.E.2d 63, 66 (N.Y. 1992); Zimmerman v.



448 INDIANA LAW REVIEW [Vol. 29:441

over what type of evidence surveillance materials represent, the weight of modern
authority allows the discovery of surveillance videotapes ifthey are to be used at
trial.

44
Still other courts have ruled that surveillance videotapes are primarily

substantive evidence, and therefore discoverable on those grounds.
45

4. Evidentiary v. Non-Evidentiary Surveillance Videotape.—Few courts have
analyzed the differences between evidentiary and non-evidentiary videotape.

46
In

fact, because most of the courts that have addressed the issue have allowed the
discovery of all videotape, they did not undertake further analysis.

47
Finally, few

Superior Ct., 402 P.2d 212, 217 (Ariz. 1965) (holding that surveillance evidence, although helpful

for impeachment, also contains substantive evidence relevant to the matter litigated, and is therefore

discoverable); Camelback Contractors, Inc. v. Industrial Comm'n, 608 P.2d 782, 785 (Ariz. Ct.

App. 1980).

44. See DiGiacobbe v. National R.R. Passenger Corp., No. Civ. A. 86-534, 1987 WL 1 1227,
at *3 (E.D. Pa. May 21, 1987) (holding that plaintiff had a right to know of the existence of video

regardless of whether it would be used at trial; plaintiff had a right to discover the actual video only

if defendant intended to use it at trial); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D.

148, 151 (E.D. Pa. 1973) (holding that surveillance video must be produced in advance if it is to

be used at trial); Dodson v. Persell, 390 So. 2d 704, 706 (Fla. 1980); Kane v. Her-Pet Refrigeration,

Inc., 587 N.Y.S.2d 339, 344 (N.Y. App. Div. 1992) (holding that plaintiff is entitled to the pre-trial

examination of all evidence that defendant intends to offer at trial); Spencer v. Beverly, 307 So. 2d

461, 462 (Fla. Dist. Ct. App. 1975), where the court reasoned:

Much confusion exists as a result of the attempt to differentiate between substantive

evidence and impeachment evidence. For example, here the movies are described by

petitioner as impeachment evidence and therefore not subject to discovery. However,

if they are at all effective will they not also be substantive evidence going directly to the

petitioners' injuries and damages? Thus, it seems to me it is time to articulate a rule

everyone can understand and use as a guide» namely: if a party possesses material he

expects to use as evidence at trial, that material is subject to discovery.

45. See Chiasson, 988 F.2d at 513 (finding the surveillance tape discoverable on substantive

grounds); Crist v. Goody, 507 P.2d 478, 480 (Colo. Ct. App. 1972) (holding that surveillance

movies were "primarily substantive evidence and not totally or even basically impeachment

evidence").

46. For cases that differentiate between the two types, see Fisher v. National R.R. Passenger

Corp., 152 F.R.D. 145, 150 (S.D. Ind. 1993) (allowing discovery of evidentiary videotape but

refusing to allow discovery of non-evidentiary video); Dodson, 390 So. 2d at 707 (allowing

discovery of evidentiary video and discovery of non-evidentiary video depending on whether the

evidence was unique and otherwise unavailable); Spencer, 307 So. 2d at 462 (allowing discovery

of evidentiary video and discovery of non-evidentiary video depending on work product privilege).

47. See Boyle v. CSX Transp., Inc., 142 F.R.D. 435 (S.D. W. Va. 1992); Daniels v. National

R.R. Passenger Corp., 1 10 F.R.D. 160 (S.D.N.Y. 1986); Delvaux v. Ford Motor Co., 518 F. Supp.

1249 (E.D. Wis. 1981); Martin v. Long Island R.R., 63 F.R.D. 53 (E.D.N.Y. 1974); Suezaki v.

Superior Ct., 373 P.2d 432 (Cal. 1962) (en banc); Olszewski v. Howell, 253 A.2d 77 (Del. Super.

Ct. 1969); Dodson, 390 So. 2d at 704; Collins v. Crosby Group, Inc., 551 So. 2d 42 (La. Ct. App.

1989); Boldt v. Sanders, 1 1 1 N.W.2d 225 (Minn. 1961); Jenkins v. Rainner, 350 A.2d 473 (N.J.

1976).



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 449

decisions have addressed this bifurcation in the context of the work product

doctrine.
48

II. The Work Product Doctrine

The work product doctrine, first described in Hickman v. Taylor,
49
remains a

viable restriction on the overall liberal discovery policy of the federal rules.
50

Although not within the absolute privilege afforded the attorney-client privilege,
51

work product receives a two-tiered protection. First, the mental impressions and

opinions of the attorney during trial preparation receive an absolute protection.
52

Second, basic work product, such as information or materials gathered in

anticipation of litigation, acquires a qualified immunity and is only discoverable

upon a showing of necessity for the materials in prosecuting the case.
53

A. The Beginning—Hickman v. Taylor
In the landmark case of Hickman v. Taylor,

SA
the Supreme Court adopted a

middle position between the federal district court and the court of appeals, by

holding that an attorney's "work product" should receive qualified immunity from

the normal discovery process.
55

The court stated that "until some rule or statute
definitely prescribes otherwise, we are not justified in permitting discovery in a

48. See Fisher, 152 F.R.D. at 150.

49. 329 U.S. 495 (1947).

50. The court in Hickman v. Taylor agreed with the general proposition that discovery rules

should be accorded a broad and liberal treatment. "No longer can the time-honored cry of 'fishing

expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case."

Id. at 507. However, the court still concluded that the attempts of the plaintiff, without justification

or necessity, to secure written statements, private memoranda, and personal recollections of the

defense attorney prepared in anticipation of litigation fell "outside the arena of discovery and

contravene[d] the public policy underlying the orderly prosecution and defense of legal claims."

Id. at 510. For general information and background on the work product doctrine, see also 8

Wright & Mhjjer, supra note 1 1, §§ 2022-28, at 183-240 and Edward H. Cooper, Work Product
of the Rulesmakers, 53 MINN. L. REV. 1269 (1969).

5 1

.

Hickman, 329 U.S. at 508.

52. Id. at 510 (stating "[n]ot even the most liberal of discovery theories can justify

unwarranted inquiries into the files and the mental impressions of an attorney"). See also FED. R.

Crv. P. 26 (b)(3) (stating that the "court shall protect against disclosure of the mental impressions,

conclusions, opinions or legal theories of an attorney or other representative of a party concerning

the litigation").

53. "Where relevant and non-privileged facts remain hidden in an attorney's file and where

production of those facts is essential to the preparation of one's case, discovery may properly be

had." Hickman, 329 U.S. at 51 1. See also Fed. R. Crv. P. 26 (b)(3) (stating "a party may obtain

discovery of documents and tangible things . . . only upon a showing . . . that the party is unable

without undue hardship to obtain the substantial equivalent of the materials by other means").

54. 329 U.S. 495(1947).

55. Id. at 5 1 0; 8 Wright & Miller, supra note 1 1 , § 2022, at 3 1 8.



450 INDIANA LAW REVIEW [Vol. 29:441

situation of this nature as a matter of unqualified right."
56

In Hickman, a tugboat named the J.M. Taylor sank, without explanation,
killing five of the nine crew members. Representatives of the deceased crew
members brought suit against the tug owners. The four surviving crew members
were examined at a public hearing within one month of the accident, and the
testimony was made available to all interested parties. Additionally, the tugboat
owner's counsel, after receiving notice of suit by two of the five parties,

interviewed the survivors and others connected with the accident and obtained

written statements. A year later the plaintiffs filed interrogatories for production
of any written statements and for exact provisions of any oral statements to be set

forth in detail. The defendant challenged the interrogatories as an attempt to gain
access to the attorney's files and thoughts of counsel.

57
Although the district court

held the material was not privileged, the Third Circuit reversed.
58

The Supreme Court laid out the qualified immunity of the doctrine. 59 Work
product would be discoverable only upon a substantial showing of necessity or
justification.

60 The Court drew a further distinction for any work product that may
reflect the mental impressions or opinions of counsel, stating that for all practical

purposes, these were immune from discovery.61

What constitutes work product is, however, limited. Even the Hickman Court
distinguished between documents prepared in anticipation of litigation andfacts

learned by counsel during the investigation process.
62

Since Hickman, an

overwhelming majority of courts have held that facts discovered during trial

preparation are not immune from discovery, and are not protected as work

56. Hickman, 329 U.S. at 5 14.

57. Id. at 499.

58. Id. at 499-500.

59. 8 Wright & Miller, supra note 1 1 , § 2022, at 3 1 8.
60. Hickman, 329 U.S. at 5 1 0.

61.

But as to oral statements made by witnesses . . . whether presently in the form of [the

attorney's] mental impressions or memoranda, we do not believe that any showing of

necessity can be made under the circumstances of this case so as to justify production.

Under ordinary conditions, forcing an attorney to repeat or write out all that witnesses

have told him and to deliver the account to his adversary gives rise to grave dangers of

inaccuracy and untrustworthiness. No legitimate purpose is served by such production.

Id. at 512-13.

62. "A party clearly cannot refuse to answer interrogatories on the ground that the

information sought is solely within the knowledge of his attorney." Id. at 504. For additional

discussion of this topic, see 8 WRIGHT MILLER, supra note 1 1, § 2023, at 326 ("The courts have

consistently held that the work product concept furnishes no shield against discovery, by

interrogatories or by deposition, of the facts that the adverse party's lawyer has learned, or the

persons from whom he has learned such facts, or the existence or nonexistence of documents, even

though the documents themselves may not be subject to discovery."); Cooper, supra note 50, at

1282.



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 45

1

product
63

B. Current Theory—Federal Rules of Civil Procedure—Rule 26
After the Hickman decision, courts struggled to solve the interpretive

problems left open by the Hickman holding.
64

The 1970 amendments to the

Federal Rules of Civil Procedure codified the Hickman holding in Rule 26(b)(3).
65

However, even after the codification of the rule, debate still continues as to the

interpretation of the language and whether there should be work product

protection at all.
66

63. See Milwaukee Concrete Studios v. Greely Ornamental Concrete Prod., 140 F.R.D. 373

(E.D. Wis. 1991); Protective Nat'l Ins. Co. v. Commonwealth, Ins. Co., 137 F.R.D. 267 (D. Neb.

1989); Dunn v. State Farm Ins., 122 F.R.D. 507 (N.D. Miss. 1988); Laxalt v. McClatchy, 116

F.R.D. 438 (D. Nev. 1987); DiGiacobbe v. National R.R. Corp., No. Civ. A. 86-534, 1987 WL
1 1227, at *3 (E.D. Pa. May 21, 1987); Eoppolo v. National R.R. Passenger Corp., 108 F.R.D. 292

(E.D. Pa. 1985); Ford v. Phillips Elecs. Instruments Co., 82 F.R.D. 359 (E.D. Pa. 1979); United

States v. Glaxo Group, Ltd., 302 F. Supp. 1 (D.D.C. 1969); Cedolia v. C.S. Hill Saw Mills, Inc.,

41 F.R.D. 524 (M.D.N.C. 1967); McCall v. Overseas Tankship Corp., 16 F.R.D. 467 (S.D.N.Y.

1954); Baltimore Transit Co. v. Mezzanotti, 174 A.2d 768 (Md. 1961); Jenkins v. Rainner, 350

A.2d 473 (N.J. 1976). See generally 8 WRIGHT & MILLER, supra note 1 1, § 2023, at 326-35.
64. See generally, 8 WRIGHT & MILLER, supra note 1 1 , § 2022, at 3 1 8-26.
65. The current version of Rule 26(b)(3) reads as follows:

Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery

of documents and tangible things otherwise discoverable under subdivision (b)(1) of this

rule and prepared in anticipation of litigation or for trial by or for another party or by

or for that other party's representative (including the other party's attorney, consultant,

surety, indemnitor, insurer, or agent) only upon a 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 ordering discovery of such materials when the required

showing has been made, the court shall protect against disclosure of the mental

impressions, conclusions, opinions, or legal theories of an attorney or other

representative of a party concerning litigation.

A party may obtain without the required showing a statement concerning the action or
its subject matter previously made by that party. Upon request, a person not a party may

obtain without the required showing a statement concerning the action or its subject

matter previously made by that person. If the request is refused, the person may move

for a court order.

Fed. R. Civ. P. 26(b)(3). Although the 1993 amendments made significant changes to other parts

of Rule 26, especially part (a), which broadens the scope of material that must be automatically

disclosed to the other party at the commencement of the suit, the section on work product did not

receive substantial revisions. See infra Part V.C. for an analysis of the significant changes to the

other parts of Rule 26.

66. For discussion in support of the work product doctrine, see generally Cooper, supra note



452 INDIANA LAW REVIEW [Vol. 29:441

According to Rule 26(b)(3), materials must meet three tests to fall within the
Rule's work product protection. The material must be a "document or tangible
thing,"

67
prepared in anticipation of litigation or trial,

68
and by or for another party

or by or for that party's representative.
69

C. Required Showing to Overcome Work Product Immunity

Documents that fall within work product protection are still discoverable upon
a showing of sufficient necessity.

70 The issue of whether the petitioner has
demonstrated such a showing has been hotly litigated.

71 To meet this burden, there

50. For a discussion opposing the work product protection, see Elizabeth G. Thornburg, Rethinking

Work Product, 11 Va. L. Rev., 1515 (1991). For additional discussion of the work product

doctrine, see Jeffrey F. Ghent, Annotation, Development Since Hickman v. Taylor ofAttorney's

"Work Product" Doctrine, 35 A.L.R.3d 412 (1971 & Supp. 1994).
67. "Documents or tangible things" set out the requirement under 26(b)(1) of those things

that fall within the scope of discovery. Fed. R. Civ. P. 26(b)(1); 8 Wright & Miller, supra note
11, §2024, at 196.

68. Work product protection only applies to documents prepared due to the prospect of

litigation, not to documents prepared in the normal course of business that may eventually be used

in the litigation. 8 Wright & Miller, supra note 11, § 2024, at 199. Cases that held the
documents were not prepared in anticipation of litigation, but during the regular course of business,

and therefore discoverable, include: Binks v. National Presto Indus., Inc., 709 F.2d 1 109 (7th Cir.

1983); Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968); Colten v. United States, 306 F.2d 633 (2d.

Cir. 1962); Henderson v. Zurn Indus., 131 F.R.D. 560 (S.D. Ind. 1990); Scott Paper Co. v. Ceilcote

Co., 103 F.R.D. 591 (D. Me. 1984); Technograph, Inc. v. Texas Instruments, Inc., 43 F.R.D. 416

(S.D.N.Y. 1967); Hogan v. Zletz, 43 F.R.D. 308 (N.D. Okla. 1967). Cases that held the documents

were prepared in anticipation of litigation, and therefore immune from discovery, include: Lett v.

State Farm Fire & Casualty Co., 115 F.R.D. 501 (N.D. Ga. 1987); Carver v. Allstate Ins. Co., 94
F.R.D. 131 (S.D. Ga. 1982). See generally, 8 WRIGHT & MILLER, supra note 1 1, § 2024, at 336-69.

69. Work product protection thus extends to things prepared by the attorney or his agent.

After the 1970 and 1993 amendments, the protection clearly includes the party's indemnitors,

insurance company's attorneys, and other consultants as long as the documents are being prepared

because of the prospect of litigation. Fed. R. Crv. P. 26(b)(3); 8 Wright & Miller, supra note 1 1

,

§ 2024, at 204-07; id. § 2023, at 196-97.

70. Fed. R. Crv. P. 26(b)(3); 8 Wright & Miller, supra note 1 1 , § 2025, at 21 1

.

71. For cases discussing the plaintiff's burden in establishing a sufficient showing of

necessity, see Republic Gear Co. v. Borg Warner Corp., 38 1 F.2d 55 1 , 558 (2d Cir. 1967) (showing

by plaintiff that disclosure would be helpful held insufficient); Fisher v. National R.R. Passenger

Corp., 152 F.R.D. 145, 152 (S.D. Ind. 1993) (sufficient showing not made); Henderson v. Zurn

Indus., 131 F.R.D. 560, 572 (S.D. Ind. 1990) (insufficient showing by plaintiff); Burlington Indus.

v. Exxon Corp., 65 F.R.D. 26, 43 (D. Md. 1974); Commonwealth Edison Co. v. Allis-Chalmers

Mfg. Co., 21 1 F. Supp. 736, 743 (N.D. Ill 1962) (no showing by plaintiff of sufficient necessity);

Newton v. Yates, 353 N.E.2d 485, 496-97 (Ind. Ct. App. 1976); DiMichel v. South Buffalo Ry.,

604 N.E.2d 63, 68 (N.Y. 1992) (substantial need shown). For additional cases and discussion, see

also 8 Wright & Miller, supra note 1 1, § 2025, at 21 1-28; Ghent, supra note 66.



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 453

must be a substantial need for the materials in the preparation of the case, and the

petitioner must show an inability, without undue hardship, to obtain the substantial

equivalent of the materials by other means.
72

Finally, even if this initial burden is

met, any portion of the document that reflects the mental impressions, opinions,

legal theories, or conclusions of the opposing counsel will still be protected.
73

in. Surveillance Videotape as Work Product v. Non-Work Product

When defendants have asserted the work product doctrine to prevent discovery
of surveillance videotapes prior to trial, the results have been mixed.

74 Some
courts have flatly rejected the work product defense in this context, citing the

broad goals of the discovery process.
75

Others have allowed the videotape as work

product, but have held that plaintiffs met their burden per se as the film is unique

and not easily duplicated.
76

Still other courts that have recognized videotape as

72. Fed. R. Crv. P. 26(b)(3). What constitutes substantial need in case preparation and

substantial hardship in acquiring the materials from other sources has been frequently litigated. For

example, when a witness is no longer available, or has a faulty memory, courts have ruled the

deposition discoverable. 8 Wright & Miller, supra note 1 1, § 2025, at 216-17. By contrast, the
assertion by a plaintiff that he wishes to ensure that he has not overlooked anything, or that he

surmises that the document may be helpful for impeachment purposes is not strong enough to meet

this burden. Id. Additionally, courts have held that when the information is available from an

alternative source, the plaintiff has not demonstrated "substantial need." Fisher, 152 F.R.D. at 152.

For a complete discussion and cases on this issue, see 8 Wright & Miller, supra note 1 1 , § 2025,
at 21 1-28.

73. Fed. R. Civ. P. 26(b)(3). For a general discussion of the protection afforded the

attorney's mental impressions, see 8 WRIGHT & MILLER, supra note 1 1, § 2026, at 229-32. The
authors noted that the decision in Hickman v. Taylor was based primarily on protecting the thought

processes of attorneys. Id. at 230. In Hickman, the court noted that in performing their duties, it

was essential that attorneys "work with a certain degree of privacy, free from unnecessary intrusions

by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510 (1947).

74. See supra notes 15, 63 and accompanying text.

75. See Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102, 104 (E.D.N.C. 1993);
Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W. Va. 1992); Camelback Contractors, Inc.
v. Industrial Comm'n, 608 P.2d 782, 784 (Ariz. Ct. App. 1980); Spencer v. Beverly, 307 So. 2d

461, 462 (Fla. Ct. App. 1975) (noting that "[t]he weight of authority is that photographs and movies

are not considered work product and are discoverable"); Marte v. W. O. Hickok Mfg. Co., 552

N.Y.S.2d 297 (N.Y. App. Div. 1990); Marigliano v. Krumholtz, 603 N.Y.S.2d 1020 (N.Y. Sup. Ct.

1993).

76. Wegner v. Cliff Vessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994); Martin v. Long

Island R.R., 63 F.R.D. 53, 54 (E.D.N.Y. 1974); Olszewski v. Howell, 253 A.2d 77, 78 (Del. Super.

Ct. 1969); Jenkins v. Rainner, 350 A.2d 473, 477 (N.J. 1976); DiMichel v. South Buffalo Ry., 604

N.E.2d 63, 69 (N.Y. 1992) (holding visual evidence of this kind unique as it memorializes a set of

conditions and can never be replicated); Ancona v. Net Realty Holding Trust Co., 583 N.Y.S.2d

784, 788-89 (N.Y. Sup. Ct. 1992); Prewitt v. Beverly-50th Street Corp., 546 N.Y.S.2d 815, 816

(N.Y. Sup. Ct. 1989); Cabral v. Arruda, 556 A.2d 47, 50 (R.I. 1989).



454 INDIANA LAW REVIEW [Vol. 29:441

work product have employed more of a balancing approach, weighing the
plaintiffs need to authenticate the tape and prepare for trial against the

defendant's need to protect trial strategy and to preserve the impeachment value
of the tapes.

77

A. Current Debate on Discoverability of Videotape Generally

Since the dramatic increase in the use of videotape surveillance during the last

two decades, due to the availability of equipment, ease of use, and decreasing
costs,

78
court decisions regarding the discoverability of the videotape prior to trial

have divided roughly into four categories: 1) those allowing discovery of all

videotape regardless of the intended use,
79

2) those allowing discovery only of

videotape to be used at trial,
80

3) those allowing discovery of videotape only after

the deposition of the plaintiff,
81
and 4) those refusing the discovery of videotape.

82

77. Ward v. CSX Transp., Inc., 161 F.R.D. 38, 40 (E.D.N.C. 1995); Smith v. CSX
Transportation, Inc., No. 93-373-5-F, 1994 WL 762208, at * 3 (E.D.N.C. May 18, 1994); Fisher
v. National R.R. Passenger Corp., 152 F.R.D. 145, 151 (S.D. Ind. 1993) (explaining that the party

demonstrating a "substantial need" to justify discovery of the document "involves a balancing of

the value of broad discovery as an accurate method of arriving at a full resolution of each dispute

with the corresponding need to prevent undue intrusion into the attorney's preparation of her

case"); Milwaukee Concrete Studios Ltd. v. Greely Ornamental Concrete Prod., 140 F.R.D. 373,

376 (E.D. Wis. 1991); DiGiacobbe v. National R.R. Passenger Corp., No. Civ. A. 86-534, 1987 WL
1 1227, at * 2 (E.D. Pa. 1987); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148,

151 (E.D. Pa. 1973); DiMichel, 604 N.E.2d at 190 (stating that the court must fashion a rule that

"respects a defendant's qualified right to keep videotapes prepared in anticipation of litigation

private, but that at the same time advances the policy of liberal disclosure"); Kane v. Her-Pet

Refrigeration, Inc., 587 N.Y.S.2d 339, 344 (N.Y. App. Div. 1992); Carrecia v. Enstrom, 578

N.Y.S.2d 678, 680 (N.Y. App. Div. 1992) (holding the elements necessary for plaintiff to establish

her burden are not inherent in the nature of visual evidence; plaintiff bears burden to prove need);

Ranft v. Lyons, 471 N.W.2d 254, 261 (Wis. Ct. App. 1991).

78. See James P. Conners, Surveillance Video Discoverability—Are We Protecting the
Fraudulent Claimant?, FOR THE DEF., July 1994, at 22.

79. See Boyle, HI F.R.D. at 435; Daniels v. National R.R. Passenger Corp., 1 10 F.R.D.
160, 161 (S.D.N.Y. 1986); Delvaux v. Ford Motor Co., 518 F. Supp. 1249, 1252 (E.D. Wis. 1981);

Martin, 63 F.R.D. at 54; Zimmerman v. Superior Ct., 402 P.2d 212, 213 (Ariz. 1965); Suezaki v.

Superior Ct., 373 P.2d 432, 438-39 (Cal. 1962); Olszewski, 253 A.2d at 78; Dodson v. Persell, 390

So. 2d 704, 705 (Fla. 1980); Jenkins, 350 A.2d at 477.

80. See 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); Carlton v. National R.R. Passenger
Corp., No. Civ. A. 86-5215, 1987 WL 7607, at *2 (E.D. Pa. March 6, 1987); Snead, 59 F.R.D. at
148; Camelback Contractors, Inc. v. Industrial Comm'n, 608 P.2d 782 (Ariz. Ct. App. 1980); Crist

v. Goody, 507 P.2d 478 (Colo. Ct. App. 1972); Collins v. Crosby Group, Inc., 551 So. 2d 42 (La.

Ct. App. 1989); Shenk v. Berger, 587 A.2d 551 (Md. Ct. Spec. App. 1991); Williams v. Dixie Elec.

Power Ass'n, 514 So. 2d 332 (Miss. 1987); Kane, 587 N.Y.S.2d at 344.

81. See Forbes, 125 F.R.D. at 505; Martin, 63 F.R.D. at 53; Blyther v. Northern Lines, Inc.,



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 455

Courts that have differentiated their decision based on whether the videotape's

intended use was evidentiary or non-evidentiary have allowed the discovery of

non-evidentiary videotape only in exceptional circumstances,
83

or when the non-
evidentiary videotape did not fall within work product protection.

84

The majority of recent decisions regarding the discoverability of videotape
surveillance materials have dealt with videotapes that were either anticipated as

trial evidence or actually presented at trial.
85

However, even these opinions were

careful in their holdings to limit the applicability of discovery to videotape

materials the defendant intended to use at trial, thus implicitly identifying that a

difference existed between the two types of uses.
86

The courts that permit plaintiffs to discover all the videotape in the
defendant's possession, regardless of the intended purpose of the tapes, have

adopted a blanket approach by relying upon the liberal discovery policy of the

federal rules, without performing a careful analysis of the distinguishing,

underlying rationale for non-evidentiary videotape use.
87

For example, in Boyle

61 F.R.D. 610 (E.D. Pa. 1973); Snead, 59 F.R.D. at 151; Williams, 514 So. 2d at 332; Jenkins, 350

A.2d at 473; Kane, 587 N.Y.S.2d at 346.

82. Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145, 145 (S.D. Ind. 1993); Maclvor

v. Southern Pac. Transp. Co., No. 87-6424-E, 1988 WL 156743, at *2 (D. Or. June 9, 1988); Lett
v. State Farm Fire & Casualty Co., 115 F.R.D. 501 (N.D. Ga. 1987); Flynn v. Church of
Scientology Int'l, 116 F.R.D. 1 (D. Mass. 1986); United States v. O.K. Tire & Rubber Co., 71
F.R.D. 465 (D. Idaho 1976); Bird v. Penn Cent. Co., 61 F.R.D. 43 (E.D. Pa. 1973); Hikel v.

Abousy, 41 F.R.D. 152 (D. Md. 1966); Kriskey v. Chestnut Hill Bus Co., No. CV 87 0090900 S,
1990 WL 284343, at *2 (Conn. Super. Ct. May 9, 1990); Ranft v. Lyons, 471 N.W.2d 254 (Wis.
Ct. App. 1991).

83. Dodson, 390 So. 2d at 707.

84. Spencer v. Beverly, 307 So. 2d 46 1 , 462 (Fla. Ct. App. 1 975).

85. See Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 5 1 3 (5th Cir. 1 993); Forbes, 1 25

F.R.D. at 506; DiGiacobbe v. National R.R. Passenger Corp., No. Civ. A. 86-534, 1987 WL 1 1227,
at *3 (E.D. Pa. May 21, 1987); Carlton v. National R.R. Passenger Corp., Civ. A. No. 86-5215,

1987 WL 7607, at* 2 (E.D. Pa. Mar. 6, 1987); Snead, 59 F.R.D. at 148; Camelback Contractors,
Inc. v. Industrial Comm'n, 608 P.2d 782 (Ariz. Ct. App. 1980); Crist v. Goody, 507 P.2d 478

(Colo. Ct. App. 1973); Dodson, 390 So. 2d at 704; Collins v. Crosby Group, Inc., 551 So. 2d 42

(La. Ct. App. 1989); Shenk v. Berger, 587 A.2d 551, 555 (Md. Ct. Spec. App. 1991) (admitting if

for substantive evidence); Williams, 514 So. 2d at 332; Kane, 587 N.Y.S.2d at 346; Cabral v.

Arruda, 556 A.2d 47 (R.I. 1989).

86. See, e.g., Snead, 59 F.R.D. at 151 (concluding that the defendant must disclose tapes to

plaintiff if he desires to use them at trial).

87. See Boyle v. CSX Transp., Inc., 142 F.R.D. 435 (S.D. W. Va. 1992); Daniels v. National
R.R., 1 10 F.R.D. 160 (S.D.N.Y. 1986); Delvaux v. Ford Motor Co., 518 F. Supp. 1249 (E.D. Wis.

1981); Martin v. Long Island R.R., 63 F.R.D. 53 (E.D.N.Y. 1974); Zimmerman v. Superior Ct., 402

P.2d 212 (Ariz. 1965) (en banc); Suezaki v. Superior Ct., 373 P.2d 432 (Cal. 1962) (en banc);

Olszewski v. Howell, 253 A.2d 77 (Del. Super. Ct. 1969); Dodson, 390 So. 2d at 704; Johnson v.

Archdiocese of New Orleans, 649 So. 2d 12 (La. Ct. App. 1995); Collins, 551 So. 2d at 42; Jenkins
v. Rainner, 350 A.2d 473 (N.J. 1976).



456 INDIANA LAW REVIEW [Vol. 29:441

v. CSX Transportation, Inc.,™ the court, after discussing the advantages of
complete disclosure and early discovery, held that the defendant, "after the passage

of sufficient time for deposing those surveilled, [shall] make available for
inspection and copying all films and tapes taken in connection with the

surveillance."
89

Further, the court did not discuss any fact pattern that would
warrant such broad disclosure; instead, it limited its comments to a general policy
discussion and decided the case on that basis.

90

Similarly, in Daniels v. National Railroad,
91

the district court ordered the

production, for the plaintiffs inspection, of "not only those portions of film or tape

which it intends to introduce at trial, but all films or tapes of the defendant in its
possession."

92
The court's rationale was again the broad and liberal discovery

policy of the rules.
93

Finally, in Olszewski v. Howell,
94

the court resorted to a very

similar approach, discussing the plaintiffs need to authenticate the technique of

filming and editing the moving pictures taken of the plaintiff as good cause for
disclosure of all the tape.

95

To summarize, none of the courts that adopted the blanket discovery approach
considered the different policy considerations that accompany an attempt to
discover non-evidentiary videotape.

96 As discussed in Fisher v. National R.R.
Passenger Corp.,

91
most of the factors that weigh heavily in favor of the plaintiff

when the film is used in evidence drop out when the defendant does not intend to
use the tape at trial.

98

B. Work Product Doctrine and the Non-evidentiary Videotape

1. The Fisher Case.—The most recent case to explore the differences between
evidentiary and non-evidentiary videotape in relation to discovery needs under the

work product doctrine was Fisher v. National Railroad Passenger Corp.
99 The

district court in Fisher held that the plaintiffs failed to meet their burden of

establishing substantial need necessary to overcome the protection afforded the

88. 142 F.R.D. 435 (S.D. W. Va. 1992).

89. Id. at 437.

90. Id.

91

.

110 F.R.D. 160 (S.D.N.Y. 1986).

92. Id. at 161.

93. Id.

94. 253 A.2d 77 (Del. Super. Ct. 1969).

95. The court noted that "moving picture evidence is subject to misuse by splicing, angle

of shooting, misleading condensation, selective lighting, either natural or artificial, and many other

variables." Id. at 78.

96. For a discussion of these policy issues, see Fisher v. National R.R. Passenger Corp. , 1 52

F.R.D. 145 (S.D. Ind. 1993).

97. Id.

98. These reasons include the need to authenticate the tape for accuracy, prepare an effective

cross examination, and prevent unfair surprise and lengthy delays. Id. at 152-54.

99. 152 F.R.D. 145 (S.D. Ind. 1993).



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 457

non-evidentiary videotape by the work product doctrine. In Fisher, employees

sued their employer under the Federal Employer's Liability Act (FELA) for
injuries suffered during employment. The employer secretly videotaped the
employees to obtain impeachment evidence at trial. When the plaintiffs submitted
interrogatories regarding the existence of videotape or pictures and requests for

production of all tapes in the employer's possession, the defendant agreed to and

did produce, after deposing the plaintiffs, the single videotape it intended to use

as impeachment evidence at trial. When the plaintiffs made subsequent demands
for all videotape taken, the defendant objected, based on the work product doctrine

as well as the local rule protecting impeachment evidence from discovery.
100

In a well reasoned opinion, the district court balanced the plaintiff's need to

discover the non-evidentiary videotape with the employer's need to protect its trial

preparation materials.
101

After noting and accepting the reasoning in Snead v.

American Export-hbrandtsen Lines, Inc.,
102

allowing discovery of videotape to be

used at trial, the court examined whether the plaintiff had met the burden of

"substantial need" required to overcome the employer's work product protection

for the non-evidentiary videotapes.
103

2. Plaintiff's Rationale.—The plaintiff offered three distinct reasons why he
had a "substantial need" for the non-evidentiary tapes.

104
First, the tapes may have

contained substantive evidence that could be necessary in trial preparation.
105 The

court rejected this argument, stating that the plaintiff had another readily available

source of information regarding his injuries, i.e., his own knowledge and
testimony, and it noted that the "[ejxistence of a viable alternative to invading

work product, will, in most situations—and in this case—negate any substantial

need."
106

The plaintiff's second argument focused on the need to ensure proper use of
the video by the defendant, such as preventing the showing of the tapes to

potential witnesses to "taint" their testimony.
107 The court similarly rejected this

reason, stating that "[cjompelling production of the tapes will not alleviate this risk

because Defendant could still show the videos to witnesses."
108

Finally, the plaintiff asserted a "substantial need" to view the non-evidentiary

videotape in order to assist in investigation and potentially impeach the producer

of the film.
109

The court, in rejecting this argument, differentiated between the
plaintiff's need to examine any evidentiary tape to be used at trial for

100. Id. at 148.

101. Id. at 151.

102. 59F.R.D. 148 (E.D. Pa. 1973)

103. Fisher, 152 F.R.D. at 151-52.

104. Id. at 152.

105. Id.

106. Id.

107. Id. at 153-54.

108. Id. at 154.

109. Id.



458 INDIANA LAW REVIEW [Vol. 29:441

discrepancies,
110

thus decreasing the possibility of surprise at trial, and the lack of

a similar basis for non-evidentiary tapes. The district court further noted that
"mere surmise, on Plaintiffs part, that the non-evidentiary tapes may prove some
assistance in impeaching the evidentiary tape is insufficient to breach attorney

work product."
111

Thus, in assessing the plaintiffs stated needs for the non-

evidentiary tapes, the court held that denying access to the tapes would not unduly
prejudice the preparation of plaintiffs case or cause him any hardship or
injustice,

112
as required to overcome work product immunity. 113

C. Other Courts Distinguishing Evidentiary and Non-evidentiary Videotape

Although no other opinion has explored in detail the bifurcation approach

outlined in Fisher, several courts have identified the issue of balancing the

different needs present in evidentiary versus non-evidentiary videotape

discovery.
114

In DiMichel v. South Buffalo Railway]
15

the New York Court of
Appeals upheld the appellate court's decision, which had reversed the trial court's

order for discovery of all the tapes, and allowed the plaintiff to discover only the

tape to be used at trial.
116

In addition, the same court reversed the lower court's
ruling of harmless error in Poole v. Consolidated Rail Corp.,

111
in which the

defendant had been required to disclose all videotapes taken of the plaintiff prior

to trial, even though the defendant did not subsequently use all the tapes at trial.

The New York Court of Appeals noted the particularly egregious conduct of the
plaintiffs attorney who referred to the existence of the tapes several times during
the trial itself, further prejudicing the defendant to the jury.

118
The Court of

Appeals carefully pointed out, however, that it did not address the specific issue

of whether non-evidentiary videotape should be discoverable by the plaintiff prior

to trial or at all.
119

1 10. Id. The court in Fisher noted that authentication of evidentiary videotape was the

predominant reason that courts allow discovery needs to override the work product protection of

the tapes. Id. at 154 (citing Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150-

51 (E.D. Pa. 1973) and Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505, 508 (D. Haw.
1989)).

111. Id. at 155.

112. Id. This was the language used by the court in Hickman to explain the burden the

plaintiff must overcome to negate work product protection. Hickman v. Taylor, 329 U.S. 495, 508

(1947).

113. Fisher, 152 F.R.D. at 155-56.

1 14. See Spencer v. Beverly, 307 So. 2d 461 (Fla. Dist. Ct. App. 1975); DiMichel v. South

Buffalo Ry., 604 N.E.2d 63 (N.Y. 1992).

115. 604 N.E.2d 63 (N.Y. 1992).

116. Id. at 69.

117. 579 N.Y.S.2d 772, 773 (N.Y. App. Div. 1991), rev'd, DiMichel v. South Buffalo Ry.,

604 N.E.2d 63 (N.Y. 1992) (consolidated action including Poole v. Consolidated Rail Corp.).

1 1 8. DiMichel, 604 N.E.2d at 69.

119. Id. at 65-66.



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 459

Similarly, in Spencer v. Beverly,
120

the Florida appellate court distinguished

between evidentiary videotape to be used at trial, and non-evidentiary tape,
121

summarizing its position as follows:

Thus, it seems to me it is time to articulate a rule everyone can
understand and use as a guide, namely: if a party possesses material he

expects to use as evidence at trial, that material is subject to discovery .

... Of course, the converse of that is not necessarily true. If a party
possesses matter that is relevant or material to the case but does not

intend to use it at trial, it may or may not be the subject of discovery,
depending upon whether it is privileged as work product. 122

At least two state courts, discussing surveillance videotape materials in the

context of the work product doctrine, have recognized an inherent difference in the

discoverability of evidentiary and non-evidentiary videotape.
123

In Cabral v.

Arruda,
m

the court distinguished evidentiary surveillance materials in which the

plaintiffs burden of proving "substantial burden" and "undue hardship" was

inherently established by the need to authenticate the tape to be used from the

situation where the defendant's intended use of the video was only to aid in trial

preparation or to examine the extent of the plaintiffs injuries.
125

In the latter

situation, the court ruled the plaintiffs burden of proof had not been established

per se and would require a higher showing to overcome the work product
protection afforded the non-evidentiary videotape.

126

Similarly, in Dodson v. Persell} 11 the court held that any material to be used
as evidence at trial ceases to have work product protection and is discoverable. 128

However, the court further held that the content of surveillance materials not

intended to be submitted as evidence was subject to discovery only if they were

"unique and otherwise unavailable, and materially relevant to the cause's

issues."
129

120. 307 So. 2d 461 (Fla. Dist. Ct. App. 1975).

121. Id. at 462.

122. Id. (citation omitted).

123. See Dodson v. Persell, 390 So. 2d 704 (Fla. 1980); Cabral v. Arruda, 556 A.2d 47 (R.I.

1989).

124. Cabral, 556 A.2d at 47.

125. Id. at 50.

126. Id. The court stated:

However, in circumstances where a lawyer creates or causes to have created surveillance

materials solely for his or her own use, such material is work product and thus

qualifiedly immune from discovery. The mere existence of such materials alone does

not constitute a showing of undue hardship to overcome qualified immunity under Rule

26(b)(2).

Id. at 50-51.

127. 390 So. 2d 704 (Fla. 1980).

128. Id. at 707.

1 29. The court gave the example of a photograph of a scene that had changed or could not



460 INDIANA LAW REVIEW [Vol. 29:441

These decisions touched upon the basic policy differences required between
the two types of videotape evidence, but did not discuss non-evidentiary tapes in
detail. Where the videotape is to be used by the defendant only for trial
preparation, the rationale for early discovery by the plaintiff simply does not apply
(i.e., the need for authentication, and the need to prepare effective cross

examination), and the defendant's need for privacy regarding trial preparation

materials outweighs the plaintiff's need.

D. "Substantial Need " Rationale for Evidentiary and Non-evidentiary
Videotape

As the court in Fisher correctly concluded, basic differences exist between
evidentiary and non-evidentiary videos regarding the requirements the plaintiff

must demonstrate in order to establish a substantial need strong enough to

overcome the work product immunity afforded by Rule 26(b)(3).
130 When dealing

with a videotape to be used against the plaintiff at trial, the plaintiff's need to

authenticate the tape and to prepare effective cross examination and the broad

discovery policy of preventing unfair surprise, preventing costly delays, and

effecting a speedy resolution to the dispute weigh in the plaintiffs favor.
131

These

reasons fail, however, when the defendant does not intend to use the video at trial.
The need for authentication and the need to prepare cross examination based on
the content of the tapes becomes minimal if the jury will not view the tapes.

132

The plaintiff's desire to find helpful impeachment or substantive evidence from
the tapes is precisely the type of discovery the Hickman decision opposed as an
invasion of the attorney's work product.

133
Additionally, the defendant has a

stronger need with non-evidentiary video to prevent the plaintiff from unjustly

benefiting from the defendant's investigatory efforts, and revealing his trial

strategy.

IV. Standards for Analysis—Policy Considerations

The spectrum of analysis for the discoverability of evidentiary and non-
evidentiary videotape ranges from refusing to acknowledge the tapes as work

be reproduced as a unique circumstance where work product protection would be overcome. Id.

To support this position, the court used a broad interpretation of a passage from Hickman v. Taylor,

329 U.S. 495 (1947), equating facts remaining hidden in an attorney's file in Hickman with the

surveillance evidence in the instant case. Dodson, 390 So. 2d at 708 (citing Hickman, 329 U.S. at

511).

130. Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145, 155 (S.D. Ind. 1993).

131. See supra note 2.

132. See Fisher, 152 F.R.D. at 155.

133. "[DJiscovery, like all matters of procedure, has ultimate and necessary boundaries."

Hickman v. Taylor, 329 U.S. 495, 507 (1947). "Petitioner's counsel frankly admits that he wants

the oral statements only to help prepare himself to examine witnesses and to make sure he has

overlooked nothing. That is insufficient under the circumstances to permit him an exception to the

policy underlying the privacy of [the attorney's] professional activities." Id. at 513.



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 46

1

product,
134

to recognizing the tapes as work product but using a per se approach

in analyzing the plaintiffs burden for showing a substantial need for the tapes,
135

to a balancing of the plaintiff's and defendant's needs in determining if work

product protection has been overcome.
136

Because court approaches have

encompassed a broad spectrum, ranging from a blanket policy to be applied in all

cases
137

to a careful analysis based on the facts of each case,
138

it is little wonder

that, in the quagmire of approaches employed, few courts have differentiated the

varying factors present between evidentiary and non-evidentiary videotapes.

The overall policy underlying the discovery issue is the intent of the federal
rules to facilitate a liberal discovery process in which adversaries share essential

facts to eliminate surprise and foster speedy dispute resolution.
139

This goal must

always be tempered with the right of the parties to a certain amount of privacy in

trial preparation, as delineated by the work product doctrine.
140

This balancing of

interests implies a need for careful, fact sensitive analysis by the courts in

evaluating whether plaintiffs, in a given fact situation, have met their burden of

demonstrating substantial need for the tapes in preparation of the case. As noted
in Fisher,

Ul
the plaintiff who attempts to access non-evidentiary videotape bears

a higher burden to overcome the defendant's right to work product protection.
142

This directly correlates to the decreased need for the tapes when they will not be
used at trial, absent exceptional circumstances.

143
Therefore, the most effective

approach in these cases results from the balancing approach employed by many
recent court decisions, looking at the facts of the case and weighing the relative

needs of the plaintiff against those of the defendant.

Decisions such as Fisher v. National Railroad Passenger Corp.,
144

DiMichel

v. South Buffalo Railway,
145

Spencer v. Beverly?
46

and Dodson v. Persell)41

weighed the intended use of the videotape evidence against the opposing counsel's

need to access the film and arrived at well-reasoned bases to allow or disallow

discovery. Their careful approach avoided the pitfalls encountered by the trial

courts in Chiasson v. Zapata GulfMarine Corp.
148

and Poole v. Consolidated Rail

134. See supra note 75.

135. See supra note 76.

136. See supra note 77.

137. See supra note 79.

138. Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145 (S.D. Ind. 1993).

1 39. See supra note 2.

140. Hickman v. Taylor, 329 U.S. 495, 510 (1947).

141. Fisher, 152 F.R.D. at 145.

142. Id. at 151-52.

143. See supra note 83 and accompanying text.

144. 152 F.R.D. 145 (S.D. Ind. 1993).

145. 604 N.E.2d 63 (N.Y. 1992).

146. 307 So. 2d 461 (Fla. Dist. Ct. App. 1975).

147. 390 So. 2d 704 (Fla. 1980).

148. 988 F.2d 513 (5th Cir. 1993).



462 INDIANA LAW REVIEW [Vol. 29:441

Corp.,
U9

where a blanket approach resulted in reversible error and significant

additional expense and delays in dispute resolution. Skillful analysis of the

relevant factors in the case results in the proper application of the work product
doctrine as intended when first identified by the Supreme Court in Hickman.

V. Other Discovery Issues Relating to Surveillance Videotapes

A. State Statutes and Surveillance Videotapes—A Different Wrinkle
In addition to the issue of discovery of surveillance videotapes under the work

product doctrine, at least one state has enacted a civil statute requiring the full

disclosure of "any films, photographs, video tapes or audio tapes, including

transcripts or memoranda thereof . . . including out-takes, rather than only those
portions a party intends to use."

150
In Marigliano v. Krumholtz,

151
the first case to

deal with the discovery of tapes and memoranda after the statute was passed, the
court held that the tapes and memoranda were discoverable by the plaintiff, after
the memos had been redacted so as not to reflect the thoughts of the defendant's
attorney.

152 The court, in arriving at this decision, cited the "open far-reaching

disclosure policy" of New York and the liberal interpretation of the statute. 153 In
two subsequent cases interpreting the statute, state courts have upheld the

discovery of all videotapes, regardless of their planned use,
154

while at the same

time refusing to expand the discovery rule to include materials used in preparation

of the surveillance.
155 The Defense Bar has predicted a chilling effect on the

defendant's use of surveillance film where uncertainty exists as to the extent to

which the materials will be discoverable.
156

Further, the issue of whether the discovered materials can subsequently be

used by the plaintiff in its prima facie case remains unanswered.
157 The only case

to address the issue was decided prior to the enactment of the statute.
158

In Baird

v. Campbell,
159

the court refused to allow the plaintiff to use the defendant's

videotape in the prima facie case, holding that the tapes were not "material and

149. 579 N.Y.S.2d 772 (N.Y. App. Div. 1991).

150. N.Y. Crv. PRAC. L. &R. § 3101(a)(i) (McKinney 1991 & amended 1993); see Conners,
supra note 78, at 22.

151. 603 N.Y.S.2d 1020 (N.Y. Sup. Ct. 1993).

152. Id. at 1022.

153. Id. at 1023.

154. Boulware v. Triborough Bridge & Tunnel Auth., 613 N.Y.S.2d 580 (N.Y. Sup. Ct.
1994).

1 55. Grossman v. Emergency Cesspool & Sewer Cleaners, Inc., 617 N.Y.S.2d 422 (N.Y. Sup.
Ct. 1994); Weinhold v. Witte Heavy Lift, Inc., No. 90 Civ. 2096 (PKL), 1994 WL 132392, at * 3
(S.D.N.Y. April 11, 1994).

1 56. See Conners, supra note 78, at 24.

157. Id.

158. Baird v. Campbell, 590 N.Y.S.2d 399 (N.Y. Sup. Ct. 1992).

159. Id.



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 463

necessary" to the plaintiffs case, but refusing to carve out another exception to the

liberal discovery doctrine.
160

While the future impact of the New York statute is unknown, the statute
clearly restricts work product protection for materials such as memoranda or
transcripts that would have certainly been included under Rule 26(b)(3). Thus, the

Hickman doctrine has been substantially diluted in New York.

B. FRCP, Discovery and The Expert Witness Rule—Does the Investigator
Qualify?

Another possibility exists that would impact the discoverability of surveillance

videotape evidence. Under Rule 26(a)(2),
161

if the investigator who conducted the
surveillance is utilized as an expert, the rule would compel full disclosure of what

the expert knows prior to trial.
162 An expert is a witness who is qualified by

knowledge, experience, skill, training, or education, and therefore is qualified to

give an opinion.
163

Although there are no cases dealing with this issue directly, a

recent Pennsylvania case addressed what information, given to an expert to form

160. Mat 402.
161. Fed. R. Civ. P. 26(a)(2).

162. The rule directs:

Except as otherwise stipulated or directed by the court, the disclosure shall, with respect

to a witness who is retained or specially employed to provide expert testimony in the

case or whose duties as an employee of the party regularly involve giving expert

testimony, be accompanied by a written report prepared and signed by the witness. The

report shall contain a complete statement of all opinions to be expressed and the basis

and reasons therefor; the data or other information considered by the witness informing

the opinions; any exhibits to be used as a summary of or support for the

opinions ....

Id. (emphasis added). For general background on the expert witness rule, see Thomas R. Trenkner,

Annotation, Pretrial Discovery ofFacts Known and Opinions Held by Opponent's Experts Under

Rule 26(b)(4) ofFederal Rules of Civil Procedure, 33 A.L.R. FED. 403 (1977 & Supp. 1994).
163. According to Fed. R. Evid. 702, the expert testimony rule reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may testify thereto in the form

of an opinion or otherwise.

Fed. R. Evid. 702. (emphasis added). Additionally, the advisory committee's notes stated:

The fields of knowledge which may be drawn upon are not limited merely to the

"scientific" and "technical" but extend to all "specialized" knowledge. Similarly, the

expert is viewed, not in a narrow sense, but as a person qualified by "knowledge, skill,

experience, training or education." Thus within the scope of the rule are not only

experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but

also the large group sometimes called "skilled" witnesses, such as bankers or

landowners testifying to land values.

Fed. R. Evid. 702 (advisory committee's note on 1972 proposed rules).



464 INDIANA LAW REVIEW [Vol. 29:441

an opinion, would be discoverable by the plaintiff. In Corrigan v. Methodist
Hospital}

6* the court ruled that the defendant doctor had to disclose to the plaintiff

patient all materials that had been provided to the expert for consideration, not
merely the reports relied upon.

165

By contrast, in an earlier case, Gay v. Lindsay, Inc.,m the First Circuit reached
a different result on the same issue. The court held that certain correspondence
documents provided to the expert witness by the defendant before trial were work
product and not discoverable.

167
The rationale cited by the court referred to the

minimal additional impeachment value the statements would have made, and that
work product should remain protected when the person was available to be
deposed.

168

While the issue of what an expert private investigator would be required to
disclose on the basis of the expert witness rule remains unanswered, the possibility

exists that a court could order discovery of all surveillance materials within the

investigator's knowledge, based on Rule 26(a)(2). The new rule goes even further
to require automatic disclosure of all relevant material experts have utilized in

forming the basis of their opinions. In the midst of this uncertainty, the most

prudent course for defendants would be to avoid utilizing their investigators as

expert witnesses.

C. Impact of the New Federal Discovery Rule

The most recent revision to the discovery rules under Rule 26 significantly
changed the method of discovery, requiring early and automatic disclosure of the

types of information felt to be basic to the case,
169

and thus preventing undue

164. 158 F.R.D. 54 (E.D. Pa. 1994).

165. Id. at 58.

166. 666 F.2d 710 (1st Cir. 1981).

167. Mat 713.
168. Id.

1 69. Rule 26(a)( 1 ) requires:

Except to the extent otherwise stipulated or directed by order or local rule, a party shall,

without waiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely

to have discoverable information relevant to disputed facts alleged with particularity in

the pleadings, identifying the subjects of the information;

(B) a copy of, or a description by category and location of, all documents, data

compilations, and tangible things in the possession, custody, or control of the party that

are relevant to disputed facts alleged with particularity in the pleadings;

(C) a computation of any category of damages claimed by the disclosing party, making

available for inspection and copying as under Rule 34 the documents or other

evidentiary material, not privileged or protected from disclosure, on which is based,

including materials bearing on the nature and extent of injuries suffered.

Fed. R.Crv. P. 26(a)(1).



1 995] NON-EVIDENTIARY VIDEOTAPE SURVEILLANCE 465

delays in the discovery process.
170 The new rule provides for three types of self-

executing disclosure: initial disclosure,
171

expert disclosure,
172

and pre-trial

disclosure.
173

Although court interpretations of this new section remain uncertain,

it would appear that the rule requires a party to disclose without request any

documents or tangible things relating to the facts of the case in the party's

possession within ten days after the initial meeting of the parties.
174

If taken

literally by the courts, this provision could limit the scope of work product

protection as it is known today. The uncertainty of the extent of mandatory
disclosure under the new rule will challenge defendants and the courts in outlining
the limits of the materials to be included under this provision.

175

Conclusion

Inconsistencies in federal and state decisions relating to the discoverability of

videotapes by the plaintiff prior to trial have resulted from the multitude of

1 70. The advisory committee for the 1 993 amendments cited this rationale as the basis for the

automatic disclosure provision, noting that many local rules already required such disclosure. Fed.

R. Civ. P. 26(a)(1) (advisory committee's note for 1993 amendments). The new mandatory

disclosure rules have also generated significant criticism. See, e.g., Carol Cure, Discovery Reform

and the Impending Death ofthe Adversary System, FOR THE Def., September 1995, at 21-26; Fred

S. Souk, No Disclosure!-No Discovery!-No Nonsense! Faster, Cheaper, Better Civil Justice, FOR

the Def., September 1995, at 28-31 (recommending complete change to the civil justice system and

abolition of the discovery process).

171. Initial disclosure includes information in the following categories: the names, addresses,

and telephone numbers of all persons likely to have discoverable information relevant to disputed

facts alleged with particularity in the pleadings; a copy or description by category and location of

all documents, data compilations, and tangible things in the party's possession relevant to the

disputed facts; computation of damages claimed, with supporting documentation to be available for

copying and inspection; and insurance policies which could satisfy the judgment. FED. R. Crv. P.

26(a)(1).

172. Experts who may testify at trial must be disclosed, along with a written report prepared

and signed by the expert, including: a statement of the opinions to be expressed by the expert with

the bases for the opinions; the data or information considered by the expert in forming the opinions;

exhibits to be used to support or summarize the opinions; qualifications of the expert; compensation

to be paid; and a list of cases in which the expert has testified at trial or by deposition in the last

four years. Fed. R. Crv. P. 26(a)(2).

1 73. The party must provide the following information about evidence it may present at trial

(except impeachment evidence): name, address, and phone number of each witness, separating

those the party will call from those they may call; a list of the witnesses whose testimony will be

presented by deposition, and a transcript of the applicable portions; and a list of exhibits, including

a summary of evidence, separating those that will be offered from those it will offer if necessary.

Fed. R. Crv. P. 26(a)(3).

174. Fed. R. Crv. P. 26(a)(1).

1 75. Interestingly, to date at least 42 of the federal districts have opted out of or altered the

mandatory initial disclosure requirements of Fed. R. Crv. P. 26(a)(1).



466 INDIANA LAW REVIEW [Vol. 29:441

analytical approaches employed by the various district courts and their varying

interpretations of the federal rules. As the use of videotape surveillance continues
to increase, the need for a consistent approach in dealing with this issue will

become paramount. Given the nature of the material and the potential impact on
the jury, the issue of whether the tapes are discoverable before trial will sometimes

have a dramatic impact on the outcome of the trial.

Although the federal rules were enacted to provide a more uniform
implementation of court procedure in the federal courts, this goal has been

frustrated by the inconsistent application of the discovery rule to surveillance

cases. The Hickman doctrine correctly identified that there are necessary limits to
the materials a plaintiff should rightfully be able to discover, based on

demonstrating a substantial need for the defendant attorney's work product. Many
recent court decisions have reflected the belief that each case must be decided

through the utilization of a balancing approach between the plaintiffs need to

effectively prepare his case, and the defendant's need to protect his work product,
and thus, trial strategy.

The balancing approach produces the most consistently fair results by
addressing the parties' needs relative to the facts of the case. The bifurcation
approach outlined in Fisher v. National R.R. Passenger Corp. reflects the most

well-reasoned way to analyze the need for videotape discovery. When the tape has
an intended evidentiary use, the plaintiff has a heightened need to authenticate the

film before trial and to prepare an effective cross examination strategy. This also

facilitates the discovery goals of speedy resolution of disputes. The defendant's

need to preserve the impeachment value of the tape is safeguarded, as outlined in

the Snead v. American Export-Isbrandtsen Lines, Inc. decision, by requiring the

plaintiff to submit to a full deposition before being informed of the existence of

the tape or being given the tape.

However, when the videotape is intended for non-evidentiary use, such as case
preparation and evaluation of the extent of the plaintiff's injuries, the plaintiff's

need to discover such material is greatly diminished, because the jury will not be

exposed to the tape. This type of investigation falls within the work product
protection as envisioned by the court in Hickman v. Taylor. To allow the plaintiff
to invade the defendant's work product, absent unusual circumstances, would be
to ignore the requirement of establishing substantial need. As discussed in Fisher,
the plaintiff has an alternate source of information, i.e., his own knowledge and
testimony, that would preclude discovery of this type of work product.

Although good policy reasons exist for allowing the plaintiff to discover

evidentiary video prior to trial, these reasons are not present when dealing with
non-evidentiary videotape. The plaintiff should be required to meet a higher
burden to access this type of work product. Any rule which adopts a blanket
policy approach without looking to the relative needs in the case runs the risk of

inequitable decisions. That is not, and has never been, the intent of the federal

rules.