Opinion
CIVIL ACTION NO. 02-3413 SECTION "I" (2)
April 12, 2004
ORDER AND REASONS
Defendants filed a Motion to Compel Update Deposition of Plaintiff. Record Doc. No. 50. Defendants have already deposed plaintiff, Robert M. Karr, once previously on May 27, 2003. They seek to redepose him concerning "matters subsequent to May 3, 2003." Id. at p. 2. Defendants assert that Karr alleged for the first time on January 29, 2004 that he had been permanently disabled by the February 2002 incident at issue. They contend that they now need to redepose him concerning "manifest changes" in his medical condition since his deposition. Id.
Defendants also seek a protective order that they need not respond to plaintiff's written discovery requests, which were propounded in early February 2004, seeking information relative to whether they have conducted any surveillance and investigations of Karr, until after they have redeposed plaintiff. Neither side has provided the court with a copy of the discovery requests.
Trial is set for May 3, 2004 with a final pretrial conference scheduled for April 14, 2004. In arguing the instant motion, neither party contends that the discovery deadline has expired. The presiding district judge's most recent order, continuing the trial date for the second time, stated that "the parties shall cooperate in scheduling any additional discovery." Record Doc. No. 39. The order prior to that, continuing the trial for the first time, stated that all deadlines remained in effect in the absence of an agreement among the parties. Record Doc. No. 20. Apparently, the parties have mutually agreed to extend discovery, although no such written agreement appears in the record.
Plaintiff received leave to file an opposition memorandum one day late. Record Doc. Nos. 60, 61. Defendants received leave to file a reply memorandum, in which they state that they have neither confirmed nor denied to plaintiff (or to the court) whether any surveillance information exists because they have always insisted that they need not reveal even the existence of such information until they have redeposed Karr. Record Doc. Nos. ___, ___.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendants' motion is DENIED.
ANALYSIS
A. The Federal Rules Do Not Permit a Party to Withhold Impeachment Evidence from Its Discovery ResponsesDefendants contend that they should be able to encourage and/or test plaintiff's veracity at the requested redeposition by withholding information concerning the existence or contents of surveillance, which is admittedly responsive to his written discovery requests, until after they have redeposed him. Defendants' arguments are not supported by the law.
First, the Louisiana Supreme Court case cited by defendants in their memorandum does not apply in this action, in which discovery is governed by the Federal Rules of Civil Procedure.
Second, nothing in the Federal Rules permits a party to refuse to produce impeachment evidence that is responsive to an opponent'sdiscovery requests. The only basis for withholding such evidence is found in Rule 26(a)(1) and (3). However, Rule 26(a) governsdisclosures only, not discovery.
Disclosure and discovery are two distinct and different procedural mechanisms. Disclosure is the exchange of information required by the Federal Rules of Civil Procedure without request. Discovery is a means by which information may be obtained from others upon request. The Advisory Committee Notes to the 1993 Amendments to Rule 26 are crystal clear in providing that discovery devices, such as interrogatories, remain available as tools for discovering relevant information, even when the disclosure aspect of Rule 26(a) does not require that it be provided without awaiting a discovery request. Merely because evidence to be used solely for impeachment purposes is excluded from disclosure under Rule 26(a)(1) and (3) does not mean that it is protected from discovery under Rule 26(b) using the traditional discovery devices listed in Rule 26(a)(5). Accord Ward v. CSX Transp., Inc., 161 F.R.D. 38, 39 (E.D.N.C. 1995) (Denson, M.J.).
Furthermore, as the authoritative Wright and Miller treatise has stated, the intention of the party from whom discovery is sought to use materials for possible impeachment does not narrow discovery of items that are relevant. The initial disclosure requirements exclude items that the disclosing party may use "solely for impeachment," but no such limitation applies to material sought through discovery. Indeed, it may be true only rarely that materials that can be used for impeachment are otherwise irrelevant to the claims or defenses in the case. The fact that the party responding to discovery intends to use the material only for impeachment does not take it out of the realm of discoverable material if it is otherwise relevant.
C.A. Wright, A.R. Miller R.L. Marcus, Federal Practice and Procedure § 2015, Supp. at 49 (2d ed. 1997 Supp. 2003) (hereinafter "Wright Miller") (emphasis added) (footnotes omitted).
The Sixth Circuit in Varga v. Rockwell Int'l Corp., 242 F.3d 693 (6th Cir. 2001), forcefully addressed this issue after defendant had withheld documentary evidence that was responsive to plaintiffs1 pretrial discovery requests and had produced those documents for the first time at trial to discredit a witness for plaintiffs.
At oral argument, counsel for Rockwell was asked to explain the absence of cases supporting his rule that a party served with specific discovery requests may withhold otherwise relevant evidence if that party unilaterally concludes that the only useful purpose for the evidence at trial is impeachment. . . . The reason there are no cases to support Rockwell's evidentiary proposition is that it is patently wrong. We take this occasion to emphasize what Rule 26(b) makes perfectly clear: the recipient of a properly propounded document request must produce all responsive, non-privileged documents without regard to the recipient's view of how that information might be used at trial. A party may not, under any circumstances, hold back materials responsive to a proper discovery request because it prefers to use the evidence as surprise impeachment evidence at trial.Id. at 697. Thus, discovery parties are free to seek impeachment evidence in discovery, as Karr has done here, and parties responding to discovery are not entitled to withhold impeachment materials on that ground.
The only possible ground for withholding impeachment evidence in response to a discovery request, as opposed to as part of a mandatory disclosure requirement, is found in this court's standard pretrial notice, which was entered in this case. Record Doc. No. 10. In requiring that the parties exchange their trial exhibits before trial, that order provides: "If a party considers he has good cause not to disclose exhibits to be used solely for the purpose of impeachment, he may ex parte request a conference with the court and make his position known to the court in camera." Id. at ¶ 10(b) (emphasis added). Even this limited procedure for protecting impeachment exhibits from disclosure, however, has been criticized and effectively nullified by the Fifth Circuit in Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993).
Defendants in the instant case do not argue that their surveillance information (if any) is undiscoverable. Rather, they want to be allowed to reveal its existence and/or contents only after they have redeposed Karr. Rule 26(c)(2) authorizes a court to order "that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place." Fed.R.Civ.P. 26(c)(2). "Disputes involving the timing of specific depositions in relation to other discovery fall directly within the provisions of Rule 26(c)(2), . . . Protective orders sought under Rule 26(c)(2) which seek to regulate the terms, conditions, time or place of discovery are wholly within the court's discretion." Pro Billiards Tour Ass'n, Inc. v. R.J. Reynolds Tobacco. Co., 187 F.R.D. 229, 230 (M.D.N.C. 1999) (citation and footnotes omitted).
Thus, to obtain the protective order they apparently seek in this motion under Rule 26(c), defendants must show good cause for their request to withhold information about their surveillance of Karr until after his redeposition. In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998). "Rule 26(c)'s requirement of a showing of good cause to support the issuance of a protective order indicates that the burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements." Id. (emphasis added) (quotation omitted).
In this case, defendants have not made even a conclusory allegation, much less a particular and specific demonstration of fact, that withholding their surveillance evidence will either encourage a dishonest plaintiff to testify honestly or enable them to catch plaintiff in a lie. Civil discovery is not a game of ambush. To conclude that a witness would lie or would testify truthfully only because of the threat that a surveillance tape might exist is simply stereotyping, an exercise in speculation that was expressly discounted by the Fifth Circuit inChiasson.
In 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. 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.
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 bluff and more a fair contest, where each party can knowledgeably evaluate the strength of its evidence and chances of ultimate success.Chiasson, 988 F.2d at 516-17 (quotations, internal brackets and citations omitted).
Courts and commentators have recognized the danger of manipulation or selective editing of surveillance videotapes, which can, for example, compress hours of uneventful surveillance into a short tape that shows a misleading period of physical activity or omits a plaintiff's reactions of pain during or extended rest after an activity. Thus, an honest plaintiff has just as compelling a need as a malingerer to obtain surveillance videotapes before trial so that he can test their accuracy and completeness. Furthermore, the full extent of such surveillance might actually corroborate, rather than impeach, a plaintiff's testimony of injury.
[A] truthful plaintiff may well be surprised by the content of a surveillance tape, given the photographer's ability to manipulate surveillance evidence, for example, by filming only the plaintiff's lifting of a heavy bag of groceries, but not the plaintiff's pain-riddled grimace. Thus, truthful plaintiff's, and not just potential perjurers, have a legitimate reason to inquire about the existence of such evidence.Smith v. Diamond Offshore Drilling. Inc., 168 F.R.D. 582, 586 (S.D. Tex. 1996); see also Chiasson, 988 F.2d at 517 (`The tape shows [plaintiff] carrying on daily activities. It was taken at some distance and has no sound component. It requires quite a leap to conclude that because she engages in routine activities, ergo, she does so without pain. In short, we question whether the proffered videotape discredits her testimony at all."); Donna Denham Richard Bales, The Discoverability of Surveillance Videotapes Under the Federal Rules, 52 Baylor L.Rev. 753, 768 (Fall 2000) (Generally, plaintiff's want to see videotape surveillance because it may create intentional and/or unintentional distortions and may not tell the complete story. In addition, when a surveillance film surreptitiously taken by an adversary corroborates plaintiff's claims, it is especially powerful substantive evidence for plaintiff).
Moreover, it is rare that so-called impeachment evidence issolely of that character.
"If a party plans to testify to one version of the facts, and the opponent has evidence supporting a different version of the facts, the opponent's evidence will tend to impeach the party by contradiction, but if discovery of this kind of evidence is not permitted the discovery rules might as well be repealed. Even those who have been most concerned about protecting impeachment material recognize that substantive evidence must be subject to discovery even though it also tends to contradict evidence of the discovering party."Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (quoting 8 Wright Miller, § 2015, at 212).
The Fifth Circuit in Chiasson (which, like the instant case, was a Jones Act personal injury case) explained how surveillance videotape can contain both substantive and impeachment evidence.
Substantive evidence is that which is offered to establish the truth of a matter to be determined by the trier of fact. Chiasson claims that she has suffered "great physical and mental pain and anguish" and seeks damages for "loss of enjoyment from the activities of her normal life". Certainly, then, the severity of her pain and the extent to which she has lost the enjoyment of normal activity are among the key issues a jury must decide in calculating her damages. Evidence which would tend to prove or disprove such losses must be considered "substantive".
Impeachment evidence, on the other hand, 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. Chiasson testified at trial that her injuries have interfered with her daily activities because she "can't do anything for too long of a period of time. If [she does], then it starts acting up." She reiterated that activity "starts to aggravate [her] problem." Zapata contends that the videotape of Chiasson shopping and working under her car contradicts these statements and, therefore, discredits her testimony. As such, it labels the tape impeachment evidence.Chiasson, 988 F.2d at 517 (quotations and citations omitted). The Fifth Circuit held that, regardless whether a surveillance video has some impeachment value, it must be produced if it is at all substantive.
Judges in this court, following the directives of Chiasson, have reviewed surveillance videotapes taken of personal injury plaintiff's and have routinely found that the tapes contain substantive evidence, not impeachment evidence only. E.g., Smith v. Surjaamadja, No. 02-2994, 2003 WL 21790196, at *1 (E.D. La. July 31, 2003) (Duval, J.); Fortenberry v. Atwood Oceanics, Inc., No. 00-528, 2001 WL 121902, at *3 (E.D. La. Feb. 9, 2001) (Clement, J.); Menges v. Cliffs Drilling Co., No. 99-2159, 2000 WL 765083, at *2 (E.D. La. June 12, 2000) (Vance, J.);Fortier v. State Farm Mut. Ins. Co., No. 99-2136, 2000 WL 1059772, at *2 (E.D. La. July 31, 2000) (Vance, J.); see Klonoski, 156 F.3d at 270 ("Although some district courts have found video surveillance tapes to be `solely' impeachment evidence, the weight of authority seems to be that such evidence is both impeaching and substantive and should be disclosed.").
As in Chiasson and the other cases cited above, I cannot conclude based on the present record that the surveillance information requested in plaintiff's discovery requests is limited exclusively to impeachment with no other relevance to the case. Defendants havenot submitted any surveillance materials for in camera review. Under Chiasson, it appears unlikely that any such materials are solely for impeachment.
Defendants rely on Tennessee Gas Pipeline v. Rowan Cos., No. 94-3863, 1996 WL 592736, at * 1 (E.D. La. Oct. 11, 1996) (Fallon, J.), which affirmed an order of then-Magistrate Judge Africk, who is now the presiding district judge in the instant case. That order allowed the defendant to reveal only the existence, date and nature of surveillance before redeposing some personal injury claimants, and required the defendant to turn over the materials to the claimants only after they were redeposed.
Tennessee Gas Pipeline is distinguishable from the instant case. In that limitation of liability case, the claimants had previously been deposed solely on the issue of maintenance and cure, rather than on all aspects of defendant's liability and plaintiff's' damages, as in the instant case. Similarly, in the three cases cited by Judge Fallon in support of his ruling (two of which were written by the same Magistrate Judge), the plaintiff's had not yet been deposed. Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 587 (S.D. Tex. 1996) (Kent, J.); Ward, 161 F.R.D. at 41: Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102, 104 (E.D.N.C. 1993) (Denson, ML).
Moreover, even if those cases were not distinguishable because of the lack of prior full depositions of the plaintiff's, I disagree with the rationale that defendant's interest in preserving the element of surprise and any impeachment value in its surveillance (which may be minimal) essentially outweighs plaintiff's interest in seeing defendant's substantive evidence and being able to test the accuracy and completeness of surveillance films before being deposed, when neither the Federal Rules nor any Fifth Circuit case law supports such a ruling. Thus, defendants must respond to Karr's written discovery requests seeking information about surveillance, regardless of the timing of plaintiff's deposition, or in this case, the requested redeposition. Fed.R.Civ.P. 26(e)(2).
B. Defendants May Not Redepose Plaintiff
Fed.R.Civ.P. 30(a)(2)(B) provides that a "party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2) . . . if, without the written stipulation of the parties[,] . . . the person to be examined already has been deposed in the case."
Rule 26(b)(2) allows the court to limit the use of any discovery device, including the redeposition of a witness,
if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit. . . .
In the instant case, defendants have already deposed Karr and have had ample opportunity by discovery to obtain the information now being sought. They have not provided any evidence that the information sought is not obtainable from some other source that is more convenient, less burdensome or less expensive. Karr points out in his opposition memorandum that defendants received his medical reports, recently deposed his treating physician and had him examined by their own expert physician in February 2004. Plaintiff also notes that defendants have stated their intent to question him during his redeposition concerning liability issues, which were already covered in his deposition and which certainly have not changed since then. Plaintiff's Exh. A, letter from defendant's counsel dated March 24, 2004.
Accordingly, IT IS ORDERED that defendants' motion to redepose plaintiff is denied. IT IS FURTHER ORDERED that defendants must respond to plaintiff's discovery requests fully and in writing, in accordance with Fed.R.Civ.P. 33 and 34, and make all responsive documents and other tangible items, including surveillance videotapes, available to plaintiff's counsel, within ten (10) days of entry of this order.