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LEARNING OF THE
EXISTENCE OF SURVEILLANCE VIDEOTAPES
James A. Hall, IV practices
with O'Brien, Shafner, Stuart, Kelly & Morris, PC in
Groton.
Introduction
Video surveillance in a
personal injury case has come to be an expected tool in a
defendant's arsenal of discovery weapons. The prospective
evidence is gathered by clandestine individuals paid
exclusively by the defendant. They attempt to collect video
footage of the plaintiff performing life's daily activities by
hiding behind walls and peeping out of tinted car windows. As
plaintiffs attorneys, we must handle the fallout of such video
surveillance, often during the last moments before a trial
commences. Often it is too late to conduct further meaningful
discovery and we are faced with a daunting series of questions
about potentially damaging evidence-was the footage really of
the plaintiff, was the tape edited to conceal the plaintiff in
pain after some activity was attempted, did the videographer
pick and choose with selective bias the scenes that were
recorded?
Often, the first warning that
such footage exists will occur shortly before trial, as
exhibits are being marked, or potentially during trial, when
it is mentioned by defense counsel as rebuttal evidence. No
matter when the videotape is disclosed, the playing field is
clearly uneven and a "trial by ambush" is about to
commence unless both sides are able to view the evidence
before the jury is presented with evidence.
This trend is increasingly
common with the advent of newer and more portable
technologies; yet, Connecticut Appellate courts have not yet
grappled with the issue of whether a defendant must produce
video surveillance tapes prior to trial. Indeed, the standard
set of interrogatories served in virtually all automobile and
premises cases fails to specifically ask if such surveillance
tapes have been taken. In the balance rests a plaintiff's
right to a fair trial.
I. Learning of the Existence
of Surveillance Videotapes
Prior to compelling the
disclosure of video surveillance tapes, the plaintiff must
ascertain whether any such tapes exist. Plaintiffs who are
alerted to the possibility of being videotaped are often able
to recognize that this is occurring and should be encouraged
to report to their counsel any suspicious activities. One
example of such activity was observed by a plaintiff-delivery
person who noticed the same two vehicles following him around
his work route. That plaintiff then alerted his counsel and
the issue was brought before a judge to compel disclosure of
the surveillance footage.
More formal means of discovery
as to the existence of surveillance activity has been
complicated by Connecticut's standardization of
interrogatories limiting the written discovery in personal
injury actions involving automobile or premises claims1.
While these standardized interrogatories do not pose questions
directly about video tapes in the defendant's possession it
could be readily argued that the standard questions regarding
photographs in the defendant's possession apply to all images
of the plaintiff-regardless of whether the images are captured
chemically on photo paper or through electronic scanning on a
videotape.2
Where video surveillance is
suspected, a motion to file additional discovery for the
limited purpose of ascertaining whether video surveillance has
been conducted should be filed with the court.3
Counsel should file such a motion early on in the case with
the understanding that the defendant's duty to disclose is
ongoing until trial. The effect of filing such a motion early
in the case brings the issue of video surveillance to the
judge's attention at a time when the plaintiff can react to
the judge's position on the matter. If discovery is granted,
such a motion keeps the defendant honest in its video taping
endeavors by requiring that the plaintiff receive notice of
surveillance activity prior to trial.4
Such a motion was filed and
granted in the case of Labonte v. Grossman's Inc., 1995 WL
731756 (Conn. Super., 1995). In that case Judge Fasano,
reflected upon the underlying purposes served by such
additional discovery:
[i]n analyzing a discovery issue
of this nature, it is important to bear in mind the purposes
underlying the broad rules of discovery in this state; that
is, to encourage agreement and settlement, to avoid surprise
and "trial by ambush," to limit the issues for
trial, and to basically make a trial "less a game of
blindman's bluff and more a fair contest with the basic
issues and facts disclosed to the fullest practical
extent." Hartford v. Anderson Fairoaks, Inc., 7
Conn.App. 591, 600 (1986); Pool v. Bell, 209 Conn. 536, 541
(1989); Perry v. Hospital Of St. Raphael, .17 Conn.App. 121,
123 (1988); Tessmann v. Tiger Lee Construction Co., 228
Conn. 42, 50 (1993).
II. Requiring Production of
Surveillance Videotapes
Once the plaintiff has
ascertained the existence of surveillance videotapes, the
question becomes whether the defendant must produce such tapes
of the plaintiff prior to trial. No Connecticut Appeals Court
has addressed this issue and the trial courts appear split as
to what is fair.5 However, the more recent, and
well reasoned, opinions engage in a King Solomon-styled
justice.6 The defendant is required to disclose the
videotapes prior to trial but the defendant is also allowed to
depose the plaintiff (even if already deposed previously) for
the limited purpose of questioning the plaintiff about the
activities found on the tape. Only after the plaintiff has
provided potentially impeachable testimony must the defendant
disclose the surveillance material. This compromise is fair
provided the defendant does not unduly delay the taking of the
plaintiff's deposition before trial. Additionally, timely
disclosure may well encourage settlement by the parties.
III. Surveillance Tapes Are
Discoverable Under The Connecticut Rules of Practice
Connecticut Practice Book
Sections 13-2.and 13-3 must be considered when demanding the
production of surveillance tapes.7 While the
individual sections are discussed below, the application of
any discovery rule must begin with the purpose behind the
creation of discovery rules: "[t]he driving force [behind
our rules of discovery] was the avoidance of surprise, in
belief that the path to judicial efficiency and fairness was
to be paved with knowledge".8
- Plaintiff Has
Substantial Need to Review Surveillance Footage
Section 13-2 requires
disclosure if the Judicial authority finds it
"reasonably probable" that the discovery
material sought will be required in either making or
defending against the claim and that material can be
provided to the other side with "substantially
greater facility than it could otherwise be obtained by
the party seeking disclosure." Section 12-3 further
considers "substantial need" when the defendant
raises the claim that the surveillance film was prepared
in anticipation of litigation. The trial court decision of
Labonte v. Grossman's9 deals squarely with this
section, noting that video surveillance footage
"might well constitute a defense to the action or, at
least, a strong tool for the purposes of impeachment of
the plaintiff or its witnesses". There is no question
that a review of the material would be of assistance to
the plaintiff (pursuant to section 13-2).10
Supreme Courts of other
states have considered the same issue and similarly found
that a personal injury plaintiff has a "substantial
need" to review surveillance footage prior to trial.
The New Jersey Supreme Court in Jenkins v. Rainner11
unhesitatingly held that it would pose an undue hardship
upon the plaintiff if the materials were not disclosed:
"[i]f the evidence is unique, such that a party
cannot copy or otherwise recreate it, then the hardship in
obtaining the substantial equivalent seems manifest".12
The Jenkins court further held that the potential damage
caused by such a tape should be considered when
determining substantial need:
The surprise which results
from distortion or misidentification is plainly unfair.
If it is unleashed at the time of trial, the opportunity
for an adversary to protect against its damaging
interference by attacking the integrity of the film and
developing counter-evidence is gone or at least greatly
diminished. The delay which would inevitably ensue from
an interruption of the trial to permit examination and
perhaps testing of the films should be avoided. If on
the other hand the motion pictures actually portray
plaintiff engaged in some strenuous activity which on
depositions she had already testified is beyond her
capacity, then it is not probable that pretrial
disclosure of that kind will enable her to salvage the
case; more likely it will hasten a settlement. If the
inconsistency is not glaring or is susceptible of
explanation, or if for other reasons settlement
opportunities are not enhanced, then the adversarial
system will be called upon to work; but now, in the
environment in which it works most effectively where the
parties are aware of all the evidence.13
Other state appeals courts
to find in favor of disclosure due to the substantial
hardship placed upon the plaintiff include the neighboring
states of Rhode Island14 and New York.15
- What Plaintiff
"Generally Does in Public Is not The Issue
The defendant's likely
argument: the tapes were taken in public and the plaintiff
should already know what he or she is doing in public has
been successfully raised by defense counsel in
Connecticut.16 However, "[t]his
observation fails to take into account authentication
problems presented by a surveillance film."17
In making this logical invalidation of the defendant's
argument, Judge Corradino further observed that:
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 or splicing of
films may change the chronology of events. An emergency
situation may be made to appear common place. That which
has occurred once can be described as an example of an
event which recurs frequently .... that which purports
to be a means to reach the truth may be distorted,
misleading and false.18
It is simply too much to
ask a plaintiff to remember the details surrounding every
public event in which he or she engages over the course of
a law suit.
- Surveillance Tapes
Are not Privileged Mental Impressions
Where the defendant asserts
the additional claim that the materials are prepared in
anticipation of litigation, section 13-3 of the practice
book requires the defendant bears the burden of proving
that the surveillance tape contains "mental
impressions, conclusions, opinions, or legal theories . .
." However, no court in the state of Connecticut has
yet been able to articulate what mental impressions might
be lurking within unedited surveillance footage of the
plaintiff. Judge Corradino, in his Torre decision notes:
"[t]o say that disclosure of surveillance films would
unfairly reveal to the other side that the defense
contemplates an attack on the plaintiff's damage claim
says nothing more than what has already been said in the
case"19 Indeed:
[t]he defense has a right to
and more often than not explicitly contests all of the
plaintiffs claims including claims for damages. If that
wasn't so, why would the defense counsel have a
surveillance film made in the first place. The fact that
a surveillance film has been made makes clear that the
defense contests the injuries-to then preclude discovery
of the surveillance film on that ground would go beyond
any further interest the defendant would have a right to
protect.20
It is sufficient to state
that the burden of proving a privilege that outweighs the
plaintiff's need for discovery truly rests upon the
defendant.21
CONCLUSION
The Connecticut Supreme Court
has long followed the lead of the United States Supreme Court
in fashioning rules of discovery designed to "make a
trial less a game of blindman's buff and more a fair contest
with the basic issues and facts disclosed to the fullest
practicable extent."22 It is indeed
"practicable," and, more importantly
"fair," to require disclosure of all surveillance
material prior to trial. Already many Connecticut trial courts
and many appellate courts across the country recognize this
natural extension of the discovery rules.23 They
compel disclosure of the surveillance material in exchange for
allowing the defendant a very limited opportunity to depose
the plaintiff prior to turning over the surveillance material.24
Whether the defendant claims the evidence is substantive or
for impeachment purposes, this balance of interests levels the
playing field and promotes the possibility of settlement.
Footnotes
1. Connecticut Practice Book
Sec. 13-6 (requiring the use of standard interrogatories)
and Sec. 13-9 (requiring the use of standard requests for
production) neither of which references videos or
surveillance activities.
2.See, Rullo v. General
Motors Corp., 208 Conn. 74, 543 A.2d 279, 1988; State v.
Deleon, 230 Conn. 351, 645 A.2d 518, 1994 (applying the same
standard of admissibility to both photographs and videotapes
in both civil and criminal cases).
3.Pursuant to Conn. P.B. Sec.
13-6(b).
4.Arguably, this is Why the
defendant is required to disclose photographs as part of the
standard set of "Form" interrogatories. In
comparison, the Federal Rules of Procedure, Rule 34 allows
any party to request disclosure of "Writings, drawings,
graphs, charts, photographs, phonorecords, and other data
compilations from which information can be obtained."
Expanding Connecticut's standard "Form"
interrogatories in this manner to include video surveillance
would level the playing field in a similar manner.
5.Superior Court decisions
refusing to compel discovery include Dzurenda v. Burdo, 9
Conn. L. Rptr. 60 (1993); Spooner v. Champney, 7 Conn. L.
Rptr. 25 (1992); Kriskey v. Chestnut Hill Bus Company, I
Conn. L Rptr. 610(1990)
6.Superior Court decisions
compelling discovery include Torre v. New Haven Orthopedic
Group, P.C., et al., 1996 WL 222391 (April 11, 1996) (Corradino,
J.); Labonte v. Grossman's, Inc., 15 Conn. L. Rptr. 445
(Nov. 22, 1995) (Fasano, J.); Pappalardo v. Pellicci, 14
Conn. L. Rptr 320 (April 28, 1995) (Nadeau, J.); Jiser v.
Boraway, 13 Conn. L. Rptr. No. 2, 75 (1995) (Maiocco, J.);
Gall v. Ergmann, 7 Conn. L. Rptr. 227 (1992) ((Moraghan,
J.); Davis v. Dadonna, 1 Conn. L. Rptr. 445 (1990) (Lewis,
J.); Woodward v. City of New London, CV-99-0552336S
(12-02-00) (Robaina, J.) (following Torre).
7.A thorough trial court
analysis of the issue is found in Judge Corradino's Torre v.
New Haven Orthopedic Group, P.C., et al., Supra.
8.Pappalardo v. Pellicci,
Supra, (favoring the disclosure of surveillance footage as a
means to further both settlements and a fair trial).
9.Supra.
10.Supra. See also, Davis V.
Dadonna, Supra.
11.350 A.2d 473 (N.J. 1976)
12.Id. at 477.
13.Id.
14.Cabral v. Arruda, 56 A.2d
47 (R.I. 1989) (finding that "the presentation of
surveillance materials places at issue whether and to what
extent the plaintiff is injured. As the existence and extent
of injury is the very essence of plaintiff's claim,
surveillance materials need to be scrutinized carefully. To
allow surreptitiously obtained photographs or films to be
sprung on the plaintiff at trial creates undue
hardship.")
15.DiMichael v. So. Buffalo
Railway Co., 80 N.Y.2d 184 (1992). As of 1993, the New York
discovery rules were amended to make all surveillance tapes
discoverable, even those not offered into evidence.
16.See Spooner v. Champney,
Supra.
17.Torre v. New Haven
Orthopedic, Supra.
18.Id.
19.Id.
20.Id.
21.0f note, Practice Book
Section 13-3(b) allows complete access to a "party's
own statement" regardless of whether that statement is
otherwise privileged. While it has yet to be raised, the
argument that an individuals bodily movements represent his
own "statement" is not so far fetched in light of
the Supreme Courts freedom of expression cases involving
bodily movements.
22.Tessmann v. Tiger Lee
Construction Co., 228 Conn. 42, 50, 634 A.2d 870 (1993);
Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993);
Picketts v. International Playtex, Inc., 215 Conn. 490, 508,
576 A.2d 518 (1990); United States v. Proctor & Gamble,
356 U.S. 677, 682, 78 S.Ct. 983, 986-87, 2 L.Ed 2d 1077
(1958); (emphasis added).
23.For additional national
cases not cited in the above article allowing pre-trial
discovery of video surveillance tapes see, Golumbus v.
Consolidated Freightways Corp., 64 G.T.F. 468 (N.D. Inc.
1974); Snead v. American Export-Isbrandisen Lines, Inc., 59
F.R.D. 148 (E.D. Pa. 1973); Chiasson v. Zapata Gulf Marine
Corp., 988 F.2d 513 (5th Cir. 1993), cert denied 114 S. Ct
1536 (1994); Zimmerman v. Superior Court, 402 P.2d 212
(Ariz. 1965) (en banc); Crist v. Goody, 507 P.2d 478 (Colo.Ct.
App. 1972) (holding surveillance films are primarily
substantive evidence and discoverable at the pre-trial
phase); Olszewski v. Howell, 253 A.2d 77 (Del.Super.Ct.
1969); Dodson v. Persell, 390 So.2d 704 (Fla. 1980); Ross v.
West, 543 So.2d 307 (Fla. Dist.Ct.App. 1989); Shenk v.
Berger, 587 A.2d 551 (Md. 1991); Boldt v. Sanders, 111
N.W.2d 225(Minn. 1961); Williams v. Dixie Elec. Power Ass'n,
514 So.2d 332 (Miss. 1987).
24.For further comment on the
national trends of surveillance film discovery see Discovery
of Surveillance Materials, Steven H. Schafer, Esq., JOURNAL
OF MASSACHUSETTS ACAD. OF TRIAL ATTORNEYS, Vol. 2, #2 (Oct.
1994).
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