Day on Torts
Where surveillance videos of plaintiff were obtained in preparation for litigation and were thus work product, the Court of Appeals affirmed the trial court’s decision to require defendant to only produce those surveillance videos he intended to use at trial for impeachment purposes.
In Locke v. Aston, No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023), plaintiff filed an HCLA action against defendant doctor. After plaintiff nonsuited her first case and in anticipation of plaintiff re-filing, defendant’s counsel obtained surveillance videos of plaintiff. After plaintiff re-filed her case, a discovery dispute arose around the production of these surveillance videos. While the trial court originally ruled that the defendants should produce the videos without limitation, it subsequently amended its ruling and ultimately found that the surveillance videos were work product and that defendant was only required to produce those videos he intended to use at trial for impeachment purposes. On appeal, this ruling was affirmed.
Tenn. R. Civ. P. 26.02(3) governs when material that qualifies as work product is nonetheless discoverable by an opposing party. The Rule requires the person seeking discovery to show that they have a “substantial need of the materials in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means.” By ruling that only the videos that would be used for impeachment were discoverable, the trial court had agreed with defendant that plaintiff did not have a substantial need of surveillance video that corroborated her claim. Thus, substantial need was the primary issue in this appeal.
The Court of Appeals noted that there was “no serious doubt” that the surveillance videos were “ordinary or fact work product,” so it focused its analysis on whether plaintiff had met her burden of showing a substantial need for the production of all the videos including the “non-evidentiary videos.” Plaintiff argued that the non-evidentiary videos were needed for two reasons: (1) because the non-evidentiary videos “presumably undercut the value of the videos Defendants do intend to use at trial,” and (2) because the non-evidentiary videos could be used to determine whether the other videos were “incomplete or otherwise misleading.”
Addressing plaintiff’s first argument, the Court noted that there is conflicting case law from various jurisdictions, and that little of the case law interprets this issue from a work product perspective. Ultimately, however, the Court was most persuaded by case law stating that plaintiff already had “a readily available source of information regarding his injuries, his own knowledge and testimony, and thus has no need for the videotapes to prove his case.” (internal citation omitted). Because plaintiff had other evidence to support her claims, the Court stated that “the possibility of further information, which is essentially corroborative in nature, is not a basis for invading the Defendants’ work product.”
Turning to plaintiff’s argument that the non-evidentiary videos were needed to determine the completeness and accuracy of the impeachment videos, the Court again noted that there is conflicting case law. Because the Court was considering the issue from a work product perspective, however, it found:
Indeed, granting access to all the non-evidentiary videos based on speculative concerns about manipulation obliterates the work product doctrine as to surveillance videos. Furthermore, it seems rather harsh to express concerns about tampering with the evidentiary videos when one has not even viewed them yet. Presumably, during further discovery or at trial, Plaintiffs will be given the opportunity, if needed, to probe the authenticity of the evidentiary video. (internal citation omitted).
Noting that the standard here was abuse of discretion, the Court found that the trial judge’s limitation was “logical, based on the law” and that there was no injustice to plaintiff. The Court therefore affirmed the limitation that defendant was only required to produce the surveillance videos it intended to use for impeachment purposes.
This opinion was released 1.5 months after oral arguments in this case.