Find Legal Information

SIXTH DIVISION
October 22, 2004

No. 1-03-2506

 

Richard Sikes, an attorney for Burlington Northern & SantaFe Railway Company, appeals from an order holding him in contemptfor refusing to respond to discovery concerning Burlington'ssurveillance of Percy Shields, the plaintiff in this personalinjury litigation. We hold that no privilege prevents discoveryof any videotape or film of plaintiff's activities taken duringsuch surveillance. We affirm the trial court's order directingBurlington to produce any such videotapes or films.

In his complaint plaintiff alleged that on August 17, 2000,while he worked for Burlington, he suffered injury in a caraccident near railroad yards. He sued Hammer Express, owner ofthe car that hit the one in which plaintiff rode, and Burlington. Plaintiff served interrogatories on Burlington asking Burlingtonto "[i]dentify all persons who have followed and in any wayconducted surveillance of plaintiff on behalf of the defendantsince the incident(s) described in plaintiff's Complaint." Plaintiff also sought production of "[a]ny and all reports,films, or other documents concerning any surveillance of plaintiff or investigation of plaintiff's activities."

Burlington objected that plaintiff, in the interrogatory anddocument request, sought privileged work product not subject todiscovery until Burlington decides to use it at trial. BecauseBurlington had not yet decided whether to use any such materialin its possession, Burlington argued that it had no duty toanswer the interrogatory or produce the material. Burlingtonadded, "if any surveillance material is to be used at trial, itwill be disclosed to plaintiff a sufficient time in advance oftrial to allow plaintiff to prepare for the admission of suchevidence."

Plaintiff moved to compel answers to the interrogatory andthe document request. The trial court granted the motion on June16, 2003. Sikes advised the court that Burlington refused torespond to the interrogatory and the document request. On July23, 2003, the court found Sikes in contempt of court and finedhim $100, with payment stayed pending appeal of the order. Burlington and Sikes filed this timely appeal.

"The circuit court retains great latitude in defining thescope of discovery. [Citation.] A discovery order will not bedisturbed absent abuse of discretion, although the court does nothave discretion to compel disclosure of privileged information orthat otherwise exempted by statute or common law." TTX Co. v.Whitley, 295 Ill. App. 3d 548, 553 (1998). Because Burlingtonclaimed that the work product privilege exempted from disclosurethe material sought, we review the court's order de novo. In reD.H., 319 Ill. App. 3d 771, 773 (2001); Midwesco-Paschen JointVenture for the Viking Projects v. Imo Industries, Inc., 265 Ill.App. 3d 654, 660 (1994). As the party asserting a privilege,Burlington bears the burden of proving facts that give rise tothe privilege. Mlynarski v. Rush-Presbyterian-St. Luke's MedicalCenter, 213 Ill. App. 3d 427, 431 (1991).

Burlington asserts that Supreme Court Rules 201(b)(2) and(b)(3) protect the material plaintiff seeks. Those rulesprovide:

"Material prepared by or for a party in preparation fortrial is subject to discovery only if it does notcontain or disclose the theories, mental impressions,or litigation plans of the party's attorney. ***

*** A consultant is a person who has been retainedor specially employed in anticipation of litigation orpreparation for trial but who is not to be called attrial. The identity, opinions, and work product of aconsultant are discoverable only upon a showing ofexceptional circumstances under which it isimpracticable for the party seeking discovery to obtainfacts or opinions on the same subject matter by othermeans." 166 Ill. 2d RS. 201(b)(2), (b)(3).

Burlington claims that any surveillance tapes or films preparedeither by Burlington or by any videographer working forBurlington count as "work product," "prepared by or for a partyin preparation for trial."

In Monier v. Chamberlain, 35 Ill. 2d 351, 359-60 (1966), oursupreme court held that the work product privilege protects

"only those memoranda, reports or documents whichreflect the employment of the attorney's legalexpertise, those 'which reveal the shaping process bywhich the attorney has arranged the available evidencefor use in trial as dictated by his training andexperience,' (Miller, Recent Discovery, 1963 U. of Ill.L.F. 666, 673[)] ***. Thus, memoranda made by counselof his impression of a prospective witness *** [are]exempt from discovery ***. Other material, notdisclosing such conceptual data but containing relevantand material evidentiary details must, under ourdiscovery rules, remain subject to the truth-seekingprocesses thereof."

Thus, "[a]s properly understood, *** [the work product] rule doesnot protect material and relevant evidentiary facts from thetruth-seeking processes of discovery." Stimpert v. Abdnour, 24Ill. 2d 26, 31 (1962).

Videotapes of a plaintiff in a personal injury suit includerelevant, admissible substantive evidence concerning the extentof the plaintiff's injuries and continuing disability. As thefederal court held, in a case Burlington cites:

"[T]he weight of authority favors discoverabilityof surveillance information, principally because suchinformation is probative of a critical issue in apersonal injury case--the physical condition of theplaintiff. [Citations.] Disclosure of this information*** makes a trial 'less a game of blind man's b[l]uffand more a fair contest,' United States v. Procter &Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L.Ed. 2d 1077 (1958), where each party can knowledgeablyevaluate the strength of its evidence and chances ofultimate success. [Citation.] Discoverability ofsurveillance information will serve the collateralinterests identified by other courts, includingconcerns for authenticity, encouraging settlement, ***and fairness." Wegner v. Cliff Viessman, Inc., 153F.R.D. 154, 159 (N.D. Iowa 1994).

Thus, the majority of courts that have addressed the issue havepermitted discovery of surveillance films and videotapes. Annotation, W. Wakefield, Photographs of Civil Litigant Realizedby Opponent's Surveillance As Subject to Pretrial Discovery, 19A.L.R. 4th 1236 (1983).

Illinois law supports discovery of videotapes prepared byconsultants in preparation for litigation. In Neuswanger v.Ikegai America Corp., 221 Ill. App. 3d 280 (1991), an expert madea videotape showing his tests on the operation of the machinethat injured the plaintiff. The plaintiff sought the videotapein discovery, and the court entered a finding of contempt whenthe plaintiff did not receive the tape as ordered. The appellatecourt affirmed the order requiring production of the videotape,with appropriate deletions from the soundtrack for anything theexpert said that revealed his thought processes and theories. The court explained:

"[W]here the material gathered or produced by anattorney or expert is of a more concrete nature *** anddoes not expose the attorney's or expert's mentalprocesses, it serves the judicial process and is notunfair to require the parties to mutually share suchmaterial and analyze it prior to trial.

*** Atlantic Mutual argues that a videotapediscloses an expert's thought processes and caseevaluation by the movement, angle, distance andduration of focussing on various aspects of theexpert's field investigation. However, such subtletiesdo not convince us that the videotape is thustransmuted into 'core work product' or 'conceptualdata' in need of protection.

Moreover, to the extent that an expert's mentalprocesses would be exposed in the manner suggested, webelieve that the same could be said with respect to atape-recorded interview. *** [J]ustice is best servedby full and fair disclosure and *** any interest thatthe party recording a conversation, surreptitiously orotherwise, may have in denying production of adefendant's taped conversation must fall to theoverriding judicial interest in finding the truth. ***

In our opinion, the truth-seeking interest in acivil case is sufficiently compelling to requiredisclosure of [the] consulting expert's videotapedfield investigation without a showing of exceptionalcircumstances." Neuswanger, 221 Ill. App. 3d at 285-86.

That is, because the sound deletions would prevent the revelationof any protected conceptual data, the videotape did notconstitute "work product" within the meaning of discovery rules. "[T]he video tape, while possibly disclosing some of the experts'thought processes through angle or focus, was not the type ofopinion or theory that constitutes protected work product."Midwesco-Paschen, 265 Ill. App. 3d at 668. Insofar as thevideotape included substantial evidence concerning the operationof the machine at issue, our broad discovery rules demanded itsproduction.

Burlington contends that the decision in Wiker v. Pieprzyca-Berkes, 314 Ill. App. 3d 421 (2000), exempts its videotapes fromproduction. In Wiker the plaintiff sought to recover forinjuries she suffered in a car accident. She requested anyvideotape the defendant may have taken of her. The defendant didnot produce any videotape in response. Although the defendanthad made a surveillance videotape, the defendant did not use itat trial. The jury found the defendant not liable for the plaintiff's injuries.

The appellate court held that the failure to disclose thevideotape did not warrant reversal of the judgment, finding that"the person hired to make the surveillance video qualifies as aconsultant under this rule, so long as he or she and the videoare not presented at trial." Wiker, 314 Ill. App. 3d at 430. The court added that "the defendant would have been obligated todisclose the video in order to use it at trial, even for cross-examination." Wiker, 314 Ill. App. 3d at 430. Although thecourt reversed the judgment on other grounds, it did not addressthe question of whether the defendant would need to produce thevideotape in discovery on remand.

The court in Wiker did not overrule Neuswanger or Midwesco-Paschen. The court did not hold that the videotape constitutedprotected work product under the rule, nor did the court discusshow the surveillance videotape would reveal any protected "mentalimpressions, opinions, or trial strategy." Waste Management,Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d178, 196 (1991). Wiker does not compel reversal of the court'sorder for production of the surveillance videotapes here.

Burlington also asks us to adopt one federal case thatrejects the majority rule. In Fisher v. National R.R. PassengerCorp., 152 F.R.D. 145 (S.D. Ind. 1993), the plaintiff requestedsurveillance videotapes. After the defendant deposed the plaintiff, the defendant identified and produced one videotape itintended to use at trial, but the defendant "reserv[ed] the rightto designate other videotape[s] for use at trial" (Fisher, 152F.R.D. at 148), if it chose later to use any such tapes. The plaintiff sought production of all the videotapes.

The court characterized the request as one for "non-evidentiary surveillance films." Fisher, 152 F.R.D. at 150. Thecourt acknowledged that courts generally had

"allowed discovery of all surveillance films, includingthe non-evidentiary tapes, prior to trial. E.g., Boylev. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D.W.Va.1992); Daniels v. National R.R. Passenger Corp., 110F.R.D. 160, 161 (S.D.N.Y. 1986); Martin v. Long IslandR.R. Co., 63 F.R.D. 53 (E.D.N.Y. 1974); Dodson v.Persell, 390 So. 2d 704 (Fla. 1980); Jenkins v.Rainner, 69 N.J. 50, 350 A.2d 473 (1976); Olszewski v.Howell, 253 A.2d 77 (Del. 1969); Suezaki v. SuperiorCourt, 58 Cal. 2d 166, 23 Cal. Rptr. 368, 373 P.2d 432(1962)." Fisher, 152 F.R.D. at 150.

Because the defendant had prepared the videotapes in anticipationof litigation, the tapes constituted "work product" within thefederal rules. Under those rules, the plaintiff had the right toobtain the work product only on a showing of substantial need. Fisher, 152 F.R.D. at 151. According to the court, the plaintiffdid not need the videotapes as substantive evidence of hisinjuries or for impeaching the defendant's evidence, andtherefore the court held that the plaintiff did not carry hisburden of showing sufficient need.

We find Fisher unpersuasive. First, it applies a federaldefinition of "work product" that broadly protects all materialsprepared for trial, even if the materials do not reveal anymental processes or other such conceptual data. Our supremecourt expressly rejected the federal definition of "work product"and deliberately narrowed the scope of the protection the workproduct doctrine provides. Monier, 35 Ill. 2d at 361. Second,the court in Fisher analyzed the case as one involving "non-evidentiary surveillance films" even though the defendantexpressly "reserv[ed] the right" to use the films at trial. Thecourt's analysis treated the films as if the defendant had agreedto an order precluding it from using any of the purportedly "non-evidentiary" materials at trial. Unsurprisingly, Fisher standscontrary to the weight of authority, even the authority cited inFisher itself. We follow Neuswanger, an appropriate applicationof the principles announced in Monier, and not Fisher.

Finally, Burlington argues that it must conceal from plaintiff, at least through her deposition, whether it hasvideotapes and what the videotapes reveal because it might losethe impeachment value of the videotapes. Burlington posits that plaintiff will tailor her testimony to the abilities shown in thevideotapes.

We do not see any material distinction between surveillancevideotapes, with their substantive evidence of the plaintiff'sphysical limitations, and tape-recorded or transcribed statementsfrom witnesses, or data collected from attempts to recreate anaccident. All such evidence can have powerful impeaching effectif one party can conceal it from the other, at least through thedepositions of the parties and their principal witnesses. Whendefense witnesses learn of the statements of a plaintiff'switnesses concerning the manner in which an accident occurred,the defense witnesses can tailor their testimonies to explainwhat those witnesses saw in a manner that might exonerate the defendant. Concealing substantive evidence from the opposingparty always gives a tactical advantage, and it often permitsgreater impeachment of the opposite party's witnesses. Fulldiscovery, demanded by supreme court rules, allows each party'switnesses to tailor their testimony to the opposite party'sevidence. We see no reason to deviate from the policy of fulldisclosure here, as we see no need for special treatment of thesubstantive evidence in a surveillance videotape. Becausesurveillance videotapes constitute substantive evidence and notwork product within the meaning of discovery rules, we find thatthe trial court correctly ordered Burlington to produce anysurveillance videotapes of plaintiff.

However, we agree with the court in Wiker that thevideographer counts as a consultant within the meaning of Rule201(b)(3), as long as he is not to be called as a witness attrial. In the interrogatory plaintiff requested that Burlington"[i]dentify all persons who have followed and in any wayconducted surveillance of plaintiff on behalf of the defendantsince the incident(s) described in plaintiff's Complaint." Rule201 requires a showing of "exceptional circumstances" before thecourt orders disclosure of the identity of a consultant who isnot to testify. We find no argument in plaintiff's brief and noargument in the trial court that purports to show exceptionalcircumstances requiring disclosure of the videographer'sidentity. Therefore, we reverse the order directing Burlingtonto identify the videographer and we remand for furtherproceedings on the issue of the need for disclosure of thatidentity.

Surveillance videotapes contain substantive evidenceconcerning the extent of a plaintiff's injuries, and they do notreveal mental processes, opinions or other conceptual data. Thussurveillance videotapes do not count as work product, and thetrial court correctly ordered Burlington to produce itssurveillance videotapes in response to discovery. We affirm thatpart of the trial court's order. But the court also orderedBurlington to identify the videographer, without any discussionor evidence of exceptional circumstances needed to support suchan order. We reverse the order insofar as it requires revelationof that identity and remand for further proceedings on thatissue. We also reverse the imposition of the fine. The attorneycan purge himself of contempt by producing the videotapes. SeeNeuswanger, 221 Ill. App. 3d at 287.

Affirmed in part and reversed in part; cause remanded.

FITZGERALD SMITH, P.J. and TULLY, J., concur.