Wegner v. Cliff Viessman, Inc.

ORDER

JARVEY, Chief United States Magistrate Judge.

This matter comes before the court pursuant to plaintiffs’ December 13, 1993, motion to compel discovery (docket number 40). Defendant Cliff Viessman, Inc., resisted the motion on December 27,1993. The motion is granted in part and denied in part.

I. BACKGROUND

This lawsuit arose out of a motor vehicle collision on September 15, 1990, in which plaintiff Gene E. Wegner (Wegner) allegedly sustained serious and disabling personal injuries. The suit was brought by and on behalf of Gene Wegner and his family members (collectively “the Wegners”) against various defendants, including Cliff Viessman, Inc. (Viessman), the owner of the semi-tractor trader that struck the vehicle in which Weg-ner was riding, Wegner’s employer, the Chicago & North Western Transportation Co. (C & NW), which had hired the vehicle in which Wegner was riding, and Ed G. Kleinberg (Kleinberg), the owner of the vehicle in which Wegner was riding.

Wegner’s motion seeks to compel responses to Interrogatories Nos. 5 and 15, and responses to Requests for Production Nos. 8 and 15. These discovery requests seek information concerning Viessman’s possible surveillance of the plaintiff and information concerning Viessman’s remaining insurance coverage following settlement with other persons injured in the collision and various legal expenses. Viessman has objected to these discovery requests. The discovery requests and objections are presented in full in the margin.¹

II. CONCLUSIONS OF LAW

A Discovery Of Surveillance Information

The issue presented herein as to the dis-coverability of surveillance conducted by a defendant concerning a plaintiff in a personal injury action is both interesting and philosophically complicated. These films are obviously gathered in anticipation of litigation or for trial and therefore constitute work product that need not be disclosed absent a showing of substantial need and an inability to gather the substantial equivalent without undue hardship. If the purpose of discovery is simply to learn the truth, plaintiff has no need for this information because the plaintiff knows better than anyone the extent of his or her disability. However, if the purpose of discovery is to learn what evidence is possessed by one’s opponent, then surveillance films ought to be subject to discovery.

Very few published decisions, and no binding precedents, have addressed the discover-ability of surveillance information. The published decisions uniformly compel discovery of the information, albeit often with limitations on timing of the disclosures.² The seminal decision is Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Penn.1973), wherein a three-judge panel was confronted with the question of whether plaintiff could discover whether the defendant had conducted surveillance of the plaintiff. 59 F.R.D. 148, 149 (E.D.Penn.1973).

The Snead court found the surveillance films were “highly relevant — perhaps they will establish the most important facts in the entire case,” and further that they were not protected by any privilege. Id. at 150. The films thus fell within the scope of discovery of Fed.R.Civ.P. 26. Id. The court next considered whether the surveillance films would be protected as work product under Fed. R.Civ.P. 26(b)(3). Id. The court concluded that the plaintiff was unable without undue hardship to obtain the substantial equivalent of surveillance motion pictures by other means because such materials are not available except from the one who took them. Id. The court then considered the “substantial need” prong of the test to overcome work product protection.

The only time there mil be substantial need to know about surveillance pictures will be in those instances where there would be a major discrepancy between the testimony the plaintiff will give and that which the films would seem to portray. By the same token this would be the only instance where there is a substantial need to withhold that information from plaintiffs counsel. If the discrepancy would be the result of the plaintiffs untruthfulness, the substantial need for his counsel to know of the variance can hardly justify making the information available to him. On the other hand, if the discrepancy would result from misleading photography, the necessary background information should be made available to the plaintiffs attorney so the fraud can be exposed. It goes without saying that the means to impeach should not be the exclusive property of the defense. Any rule to be formulated, therefore, must balance the conflicting interests of the plaintiff against the conflicting interests of the defendant and protect both insofar as it is possible to do so. In addition, the objectives of the discovery rules must be kept in mind so that a just and speedy determination of cases can be obtained.

I conclude these purposes can best be achieved by requiring the defense to disclose the existence of surveillance films or be barred from showing them at trial. If the defense has films and decides it wants to use them, they should be exhibited to the plaintiff and his counsel. If filed, supplementary interrogatories should be answered giving full information as to the details surrounding the taking of these pictures.

Id. at 151 (emphasis added). The court, however, chose to protect the impeachment value of the surveillance films by ordering that defendant be allowed to depose the plaintiff about the plaintiff’s injuries, their effects, and the plaintiffs present disabilities before disclosure of the surveillance information. Id. The court ordered the disclosure to take place as close to the time of trial as possible, but before the final pre-trial conference. Id.

Similarly, in Daniels v. National Railroad Passenger Corp., 110 F.R.D. 160 (S.D.N.Y. 1986), the court followed the procedures first suggested in Snead, requiring disclosure of surveillance information and films, but “only after the depositions of the plaintiff or other witnesses to be impeached, so that their testimony may be frozen.” 110 F.R.D. 160, 161 (S.D.N.Y.1986). The court’s rationale was that

[djisclosure of any surveillance films or videotapes will not only allow plaintiff to review materials for authenticity and otherwise to prepare effectively for trial, but it may also encourage settlement of the suit, a legitimate function of pre-trial discovery. See Martin v. Long Island Railroad Co., 63 F.R.D. 53, 54-55 (E.D.N.Y. 1974) (collects authorities and marshals arguments concerning production of impeachment surveillance films).

Id.

The district court in Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505 (D.Haw. 1989), also ordered disclosure of surveillance information and material as long as “defendant [had] the opportunity to secure a plaintiffs post-film, pre-revelation deposition.” 125 F.R.D. 505, 508 (D.Haw.1989) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2015 (1970 & Supp.1988) and Snead, supra). The court in Forbes followed a similar rationale.

Generally, “materials that are primarily of an impeaching character” are protected from discovery. Fed.R.Civ.P. 26(b) advisory committee note; see also Rules of the United States District Court for the District of Hawaii 235-9(c). Nevertheless, while surveillance films made in connection with the defense of a personal injury action are ostensibly of an impeaching character, the weight of authority favors their discovery. See Daniels v. Nat’l RailRoad Passenger Corp., 110 F.R.D. 160 (S.D.N.Y. 1986); Martin v. Long Island Rail Road Co., 63 F.R.D. 53 (E.D.N.Y.1974); Crist v. Goody, 31 Colo.App. 496, 507 P.2d 478 (Colo.App.1972); Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (Ariz. 1965). Reasons cited manifest concerns for authenticity, encouraging settlement, avoiding unnecessary interruptions at trial, facilitating stipulations and admissions, and fairness. See, e.g., Daniels, 110 F.R.D. at 161; Martin, 63 F.R.D. at 54.

Id. at 507.³

The Fifth Circuit is the only United States Court of Appeals to address this question. In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir.1993), the plaintiff had asked the defendant by interrogatory whether the defendant had any still or motion pictures of the plaintiff taken before, on, or after the date of the occurrence of the alleged injury. Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 514 (5th Cir.1993). The defendant objected on the grounds of work-product protection, but nonetheless answered that there were no such tapes. Id. However, defendant did begin surveillance of plaintiff within two months of that response and never supplemented the discovery response. Id.

After reviewing the decisions discussed above, and other unpublished decisions, the United States Court of Appeals for the Fifth Circuit stated that

[i]n the context of a defendant’s surveillance of a personal injury plaintiff, the argument for non-disclosure is that the plaintiff seeks the disclosure of such evidence only when it will probably show that the injury is fabricated or exaggerated. In those cases, it has been said that the potential perjurer has “no cause to complain of surprise if defendants elect to disprove the case on trial instead of in the conference room.” Hikel v. Abousy, 41 F.R.D. 152, 154 n. 1 (D.Md.1966) (citing Thorne v. Good Humor Ice Cream Co., Daily Record (Sup.Ct. of Baltimore, March 26, 1964)). Although that argument has a certain logical appeal, we must recognize that it “proceeds on the premise 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.” Boldt v. Sanders, 261 Minn. 160, 111 N.W.2d 225, 227 (1961).

That premise may well be a faulty one, because it flies directly in the face of the very purpose of discovery. The federal rules promote broad discovery so that all relevant evidence is disclosed as early as possible, making a trial “less a game of blind man’s b[l]uff and 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 knowledgeably evaluate the strength of its evidence and chances of ultimate success.

Id. at 516-17. The court also rejected decisions based on local rules prohibiting discovery of impeachment evidence because such rules cannot narrow the scope of discovery under the Federal Rules of Civil Procedure. Id. at 517.

The decision to mandate disclosure in Chi-asson was ultimately based on a ground different from other cases. The court found that surveillance materials were at least in part “substantive evidence,” or “[ejvidence which would tend to prove or disprove” losses and injuries, rather than “impeachment evidence,” which is “offered to ‘discredit a witness ... to reduce the effectiveness of [the witness’s] testimony by bringing forth evidence which explains why the jury should not put faith in [the witness] or [the witness’s] testimony.’” Id. at 517. The court concluded that

[b]eeause the tape is, at the very least in part substantive, it should have been disclosed prior to trial, regardless of its impeachment value.

Id. at 517-18.⁴

The court finds that the weight of authority favors discoverability of surveillance information, principally because such information is probative of a critical issue in a personal injury case — the physical condition of the plaintiff. Chiasson, supra, at 517-18; Snead, supra, at 151. Disclosure of this information is consistent with the broad discovery allowed under the Federal Rules of Civil Procedure that makes a trial “less a game of blind man’s b[l]uff and 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 knowledgeably evaluate the strength of its evidence and chances of ultimate success. Chiasson, supra, at 516-17. Discoverability of surveillance information will serve the collateral interests identified by other courts, including concerns for authenticity, encouraging settlement,⁵ avoiding unnecessary interruptions at trial, facilitating stipulations and admissions, and fairness. See, e.g., Forbes, supra, at 507; Daniels, supra, at 161; Martin, supra, at 54.

Having found that surveillance information is otherwise discoverable, the court must consider whether work-product protection should nonetheless bar discovery. Fed. R.Civ.P. 26(b)(3); Snead, supra, at 150. Work product protection was designed to prevent “unwarranted inquiries into the files and mental impressions of an attorney” and recognizes that it is “essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947); In re Chrysler Motors Corp. Overnight Evaluation, 860 F.2d 844, 846 (8th Cir.1988); Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir.), cert. denied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987). “Ordinary work product” is documents and tangible things prepared in anticipation of litigation or for trial by or for another party. Surveillance materials are certainly prepared in anticipation of litigation. The decision to conduct such surveillance and the manner in which it should be conducted, its targets, and its timing, says something about how a defense attorney investigates and prepares a case for trial. It is simply too great a stretch to say, however, that opinion work product is also thereby revealed.

Surveillance motion pictures are not available except from the one who took them. Snead,, supra, at 150. Such surveillance, by its nature, fixes information available at a particular time and place under particular conditions, and therefore cannot be duplicated. The “substantial need” of the plaintiff for the material has less to do, in this court’s opinion, with the need to address the potentially misleading elements of impeachment evidence, Snead, supra, at 151, and more to do with the right of the plaintiff to discover the evidence that exists within the defendant’s possession that will be available for use at trial.

As a practical matter, requiring discovery of surveillance by defendants in personal injury cases will not jeopardize the ability of defendants to impeach plaintiffs. Defendants are in control of when they choose to depose the plaintiff to “freeze” the plaintiff’s testimony concerning his or her physical condition. Defendants often argue for non-disclosure on the ground that plaintiffs seek the disclosure of such evidence only when it will probably show that the injury is fabricated or exaggerated. Chiasson, supra, at 516; Snead, supra, at 150-51. However, plaintiffs, aware of the possibility of surveillance at any point during the discovery period, will be less likely to exaggerate their injuries or disabilities. The purposes of just and speedy determination of matters on the merits will best be served by requiring disclosure of surveillance in response to discovery requests.

In the present case, to the extent Wegner seeks to compel responses to Interrogatory No. 5 and Request for Production No. 8, the motion is granted.

B. Discovery Of Insurance Coverage

Wegner argues that former Fed.R.Civ.P. 26(b)(2)⁶ allowed discovery of insurance coverage available, not simply of the existence and contents of any insurance agreement relevant to the case. Wegner asserts that Interrogatory No. 15 properly seeks the amounts of any available coverages that have already been expended. Without this information, he contends that the purpose of the rule will be thwarted because counsel will be unable to appraise the case realistically and will be less amenable to settlement. Wegner also argues that the amount of insurance coverage actually available is discoverable under Fed.R.Civ.P. 26(b)(1).

Viessman argues that it has already complied with Fed.R.Civ.P. 26 by producing information regarding the existence and limits of coverage and copies of the relevant insurance policies. Viessman argues that nothing in Fed.R.Civ.P. 26 requires discovery of the sort of “coverage” information Wegner is seeking. Counsel for Viessman has also reported to counsel for the Wegners that more than $3 million in insurance coverage remains available in response to a statement by counsel for the Wegners that counsel contemplated a settlement demand of $3 million.

Former Fed.R.Civ.P. 26(b)(2) stated that “[a] party may obtain discovery of the existence and contents of any insurance agreement” under which the party’s insurer might be required to satisfy part of a judgment. The court notes that amended Fed.R.Civ.P. 26 now addresses the disclosure of insurance agreements under the mandatory initial disclosures of Fed.R.Civ.P. 26(a)(1)(D). That new rule, in pertinent part, now reads

... a party shall, without awaiting a discovery request, provide to other parties: (D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Under the plain language of the former Rule, the plaintiff is entitled to discover the “existence and contents” of the insurance policy. Henderson v. Zurn Indus., Inc., 131 F.R.D. 560, 563 (S.D.Ind.1990). “The rule allows discovery of the ... contents of an insurance agreement and is not confined to the policy limits.” Id. (quoting 8 C. Wright and A. Miller, Federal Practice and Procedure § 2010 at 94 (1984)). The plain language of the amended rule makes it clear that it is a copy of the insurance agreement itself that defendants must produce. Hence the issue between the parties in Zurn, about whether the defendant could simply identify its policy limits while refusing to produce a copy of the insurance agreement, Id., would not arise under the new rule.

The reason for the addition of Rule 26(b)(2) was to provide for discovery of insurance information because it was not generally considered relevant or discoverable within the scope of Rule 26(b)(1). Oppenheimer Fund v. Sanders, 437 U.S. 340, 352 & n. 16, 98 S.Ct. 2380, 2390 & n. 16, 57 L.Ed.2d 253 (1978). This subsection was adopted in order to “enable counsel for both sides to make the same realistic appraisal of the ease, so that settlement and litigation strategy are based on knowledge and not speculation.” Advisory Committee Note to Fed.R.Civ.P. 26(b)(2), 1970 Amendment. The subsection is conducive to settlement and will ordinarily help avoid protracted litigation. Id.

Wegner argues that, without information regarding the amount of insurance coverage remaining, he cannot make such a realistic appraisal of the case with an eye toward settlement. The court is not persuaded that the purposes of the rule have not already been served. Counsel for Wegner advised counsel for Viessman that Wegner was contemplating a settlement demand of $3 million and was advised that more than that amount of coverage remains. Wegner has already received all the information on insurance required by either the former or amended versions of Fed.R.Civ.P. 26. Nothing more need be produced.

Wegner also argues that discovery of insurance information may be allowed under the broad relevance standard of Fed.R.Civ.P. 26(b)(1). Wegner cites Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir.), cert. denied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987), for the proposition that insurance documents that are not discoverable under Rule 26(b)(2) remain discoverable under Rule 26(b)(1). However, G.D. Searle properly stands for the proposition that corporate risk management documents disclosing aggregate case reserve information were relevant on the issues of notice, defect, and punitive damages under Fed.R.Civ.P. 26(b)(1), and were not precluded by the limitation of Rule 26(b)(2) to discovery of insurance documents. Id. at 404.⁷ The court has found no authority, and has been directed to none, which would require Viessman to produce more than it has already produced regarding its insurance. Wegner’s motion to compel will be denied as to Interrogatory No. 15 and Request for Production of Documents No. 15.

Upon the foregoing,

IT IS ORDERED

That plaintiffs’ December 13, 1993, motion to compel discovery (docket number 40) is granted as to Interrogatory No. 5 and Request for Production No. 8, and denied as to Interrogatory No. 15 and Request for Production No. 15.

1 . Interrogatory No. 5 and Request for Production No. 8 related to surveillance of Wegner by Viessman. The discovery requests and objections are as follows:

Interrogatory No. 5: Identify any person or agency employed by Defendant conducting personal or photographic surveillance of Plaintiff, specifying the date, time, place, duration and method of surveillance.

Answer: Counsel for defendant Cliff Viess-man, Inc. objects to this interrogatory for the reason it improperly requests disclosure of the investigations, preparations and strategy and/or work product of this defendant and its counsel and requests discovery with respect to matters developed in anticipation of litigation or for trial. Moreover, the interrogatory is premature in that it seeks information for the purpose of aiding plaintiffs in avoiding impeachment. Defendants should not be required to provide plaintiffs an account of any surveillance activities because plaintiffs can testify accurately about their activities without needing information concerning surveillance.

Request for Production No. 8: If Defendant made or caused to be made any investigation of Plaintiff's background, activities, credit, character, reputation or the like since the date of the accident, attach a copy of any written report of such an investigation which was made; if photographic surveillance was involved, attach copies of any still photographs or motion pictures that were taken, or in lieu of supplying this response, state whether Defendant will permit Plaintiff to inspect these items.

Response: Counsel for defendant Cliff Viess-man, Inc. objects to this request for the reason it improperly requests disclosure of the investigations, preparations and strategy and/or work product of this Defendant and its counsel and requests discovery with respect to matters developed in anticipation of litigation or for trial. Moreover, the request is premature in that it seeks information for the purpose of aiding plaintiffs in avoiding impeachment. Defendants should not be required to provide Plaintiffs with information of investigation or surveillance activities concerning Plaintiffs because Plaintiff can testify accurately about their activities without needing information concerning investigation or surveillance. The following discovery requests pertain to insurance information.

Interrogatory No. 15: Identify each policy of insurance affording you coverage for any portion of the damages claimed by Plaintiffs in this case, including the limits of all such coverages available to pay Plaintiffs' damages, and the amounts of any available coverages which have already been expended.

Answer: Counsel for defendant Cliff Viess-man, Inc. objects to this interrogatory for the reason it improperly requests disclosure of privileged and confidential information and for the further reason it exceeds the scope of discovery permitted by the Federal Rules of Civil Procedure. Without waiving the foregoing objections, defendant Cliff Viessman, Inc. answers this interrogatory, in part, by stating: At the time of the accident in question, Cliff Viess-man, Inc. had a motor vehicle policy with a combined single limit of $1 million for any one accident or loss. In addition, Cliff Viessman, Inc. had a commercial excess liability policy with a combined single limit for any one motor vehicle incident of $4 million.

Request for Production No. 15: A true and correct copy of any other insurance policy, including excess liability policy, or off track vehicle agreement, or indemnification agreement with any other person, which could or would give Defendant coverage for any part of the claims made by Plaintiffs in this case, and for each such policy or agreement attach a copy of the declaration sheet and all endorsements effective at the time of the accident which is the subject matter of this litigation.

Response: See this Defendant's answer to your Interrogatory No. 15.

2 . The court is aware of unpublished decisions from the federal district courts of Louisiana, Oregon, and New York which barred discovery of surveillance information on the ground that local rules prevented discovery of impeachment evidence. The court does not find these decisions persuasive or applicable.

Local Rule 18(b) for the Northern and Southern Districts of Iowa exempts exhibits essential to rebuttal or impeachment from the requirements of listing exhibits in the Final Pre-Trial Order and allowing opposing counsel to examine exhibits prior to trial. This local rule says nothing about the discoverability of surveillance information when a discovery request has been made before filing of the Final Pre-Trial Order.

3 . This court does not find any such general prohibition on discovery of material ''primarily of an impeaching character.” Rather, the court finds that the advisory committee’s notes to the 1970 amendments to Rule 26(b) state that

the courts have in appropriate circumstances protected materials that are primarily of an impeaching character. These two types of materials [the other being income tax returns that are not privileged but often protected] merely illustrate the many situations, not capable of governance by precise rule, in which courts must exercise judgment.

4 . In its brief in resistance to the motion to compel, Viessman attempts to distinguish Chiasson on the ground that it "did not even involve a discovery dispute,” but a motion for new trial based on admission of evidence that should have been disclosed prior to trial. Resistance of Defendant Cliff Viessman, Inc. to Motion to Compel, p. 6. This characterization of the decision in Chiasson is against the clear import of the language of the decision and the subsequent per curiam opinion denying rehearing in which the court said

[w]e simply hold that the surveillance evidence should have been disclosed during discovery because it was not used solely for impeachment as the local rule requires. The impeaching value of the evidence was minimal, whereas the evidence was probative on a central substantive issue in the case — plaintiff’s physical condition.

Chiasson v. Zapata Gulf Marine Corp., 3 F.3d 123, 124 (5th Cir. 1993). Chiasson therefore stands for the proposition that surveillance material is discoverable substantive evidence in a personal injury case.

5 . The encouragement of settlement is an important consideration. This court is not persuaded that it is a consideration that should ordinarily be weighed in determining the discoverability of evidence, however.

6 . Fed.R.Civ.P. 26’s provisions concerning discovery of insurance agreements has been amended effective December 1, 1993.

7 . The court of appeals doubted whether this case reserve information even constituted "insurance” mformation.