The Work Product Doctrine Protects, and Should Continue to Protect, Pretrial Photographic and Video Surveillance from Discovery in a Wisconsin Civil Action
Post-accident surveillance is a valuable tool that helps attorneys, insurance companies, and other corporate entities to investigate suspicious claims of permanent impairment or disability. Surveillance is not conducted routinely in bodily injury cases and is employed generally when something becomes suspicious about the genuineness or validity of the alleged claims. Many of these claims become suspicious when they involve soft tissue injuries with unverifiable subjective complaints; health care providers perform unnecessary or unreasonable treatment or modalities; and the claimants seek compensation for future health care expenses, loss of earning capacity, as well as future pain, suffering and disability. These cases become even more suspicious when plaintiffs testify in their depositions that they are unable to perform activities of daily living such as walking without a limp, lifting their arms higher than the shoulders, or to perform routine job duties. As one federal court judge recently noted: “It is axiomatic that an insurer has the right to investigate the validity of a claim; otherwise, there would be no check against fraud.”1 Insurers, claim administrators, and attorneys will sometimes use surveillance as an evidence gathering-technique in their investigation into the validity of these suspicious claims.
Defendants conduct surveillance during the investigation and discovery phases of these cases, and generally, it is conducted in anticipation of litigation. It is well established in Wisconsin that the work product doctrine protects surveillance from pre-trial discovery in civil actions.2 However, at least one judge on our court of appeals disagrees with this idea and opines that he would like to see our supreme court overturn the court of appeals holding in the Ranft v. Lyons decision.3
Ranft v. Lyons4 is the seminal case in Wisconsin that addresses the issue of the discoverability of an opponent’s pretrial surveillance in a civil case. In Ranft, the plaintiffs served interrogatories on Lyons to determine if they were subject to any post-accident surveillance. The defense objected to answering these interrogatories on the grounds that the work-product doctrine precluded the discovery of any surveillance of the Ranfts conducted by the defendants. The Ranfts filed a motion to compel discovery of this information, but the trial court judge denied the motion. The Ranfts appealed the trial court’s order to the District I court of appeals. The issue presented to the court of appeals was “whether a plaintiff who claims disabling injuries is entitled to pretrial discovery of whether or not he or she has been subject to post-accident photographic or video surveillance by the defendant.”5 The court of appeals agreed with the trial court and held that the work-product doctrine protected post-accident surveillance and prevented its disclosure before trial. Four years later, the District II court of appeals examined the surveillance issue in Martz v. Trecker.6
In Martz, the plaintiff treated with numerous doctors from the time of the accident until the trial and testified at trial that her physical abilities were limited because of the injuries she sustained in her accident with Trecker. During the court trial, Trecker introduced surveillance videotape which contradicted Martz’s trial testimony about her diminished physical abilities. Martz objected to the admission of the videotape into evidence, but the trial court admitted it. Martz was not happy with the jury’s verdict and filed an appeal. At the court of appeals, Martz argued that the trial court erred when it admitted the surveillance videotape in evidence.7 Martz tried to distinguish the Ranft decision from her case on the facts and argued that Ranft should not apply to her case. However, the panel rejected her argument and concluded that the trial court did not erroneously exercise its discretion when it allowed the use of the videotape surveillance at trial. Even though Judge Brown concurred in the opinion, he wrote separately to register his disagreement with Ranft.8 Indeed, Judge Brown does more than simply register his disagreement; he makes it clear that he hopes “that, someday, our supreme court might have the opportunity to visit the issue discussed in Ranft, and reach a different result.”9
It is the intention of this article to examine the arguments posited by Judge Brown and to illustrate that they do not provide sufficient rationales for our supreme court to reach a different result. It is to a careful delineation of these arguments that I now turn.
II. Judge Brown’s Arguments in Favor of Disclosure
The arguments advanced in Judge Brown’s concurring opinion boil down to the following: (A) The majority rule in the United States entitles a party to know whether he or she has been the subject of surveillance and to have access to pretrial surveillance; and (B) The policy goal of cost-effective litigation supports disclosure of surveillance. Both arguments are deceptively appealing, but they are specious nonetheless. The arguments will be addressed in seriatim.
A. The Majority Rule Argument
The Ranft court acknowledged the majority rule “that a party is entitled not only to know before trial whether he or she has been subjected to photographic or video surveillance but to have pre-trial access to the surveillance materials as well.”10 The court then listed the two main reasons given for permitting access to the surveillance materials: (1) the modern policy which favors disclosure of relevant evidence over gamesmanship; and (2) the possibility of the production of misleading or deceptive evidence by editing the surveillance videotape. The Ranft court rejected these two reasons because they were not sufficient to trump the work-product doctrine.11 Judge Brown is critical of the Ranft court’s rejection of “these two reasons, without any evaluation, as sufficient rationales requiring disclosure.”12
The Ranft court’s attention was not distracted by the reasons given for disclosure under the majority rule. The court chose to focus on the real issue. The real issue was whether the work-product doctrine, as codified and defined in Wis. Stat. § 804.02(2)(c), protected defendant’s post-accident surveillance information of a plaintiff from pre-trial discovery.
One must remember that this appeal arose out of a pre-trial discovery order. This discovery dispute required both the trial court and the court of appeals to begin their analysis with the scope of permissible discovery under Wis. Stat. § 804.01(2). Under subsection (2)(a), discovery may be obtained regarding any matter not privileged and relevant to the subject matter of the pending action. Subsection (2)(c) provides qualified work product protection for trial preparation materials.
Under the limits of subsection (2)(c), a three step analysis is required for discovery of tangible work product: (1) The party seeking discovery must show that the tangible items are within the scope of Wis. Stat. § 804.01(2)(a); (2) If the items are within the scope of discovery, then the party opposing discovery of tangible items must show that the items are protected work product; and (3) If the items are protected work product, then the party seeking discovery must show that he or she has a substantial need for the materials to prepare the case and that he or she is unable to obtain the substantial equivalent without undue hardship.13
However, the Ranfts did not seek tangible work product like films or photographs. They sought work product information with their interrogatories. The court noted, however, when a party seeks work product information rather than documents and other tangible things, then one need only show that failure to permit discovery would result in the objectives of pretrial discovery being unnecessarily frustrated or that there is other good cause for disclosure.14 At the court of appeals, the Ranfts failed to demonstrate that either this failure of pretrial discovery unnecessarily frustrated their discovery objectives or that good cause required disclosure of the surveillance information before their trial.
The Ranft court declined to follow a red herring and applied the proper analysis to the issue before it. The Ranfts failed to prove that the circuit court’s discovery order was inconsistent with the facts of record and the established legal principles surrounding the scope of discovery of work product information in Wisconsin. The primary function of the court of appeals is to correct errors.15 In Ranft, the circuit court judge did not erroneously exercise his discretion; therefore, there was no error for the court of appeals to correct.
B. The Cost Effectiveness Aspect of Disclosure
The second argument advanced by Judge Brown is that the Ranft panel neglected to mention a third reason, and in his opinion, why the majority of courts require disclosure of surveillance information and materials. Judge Brown opined: “In my view, the Ranft panel neglected to mention a third reason why the majority of courts require disclosure of surveillance tapes. The third reason is that disclosure permits accurate assessment of the strengths and weaknesses of a case, thus fostering settlement and freeing the courts and parties of a costly trial.”16 Judge Brown cites just one case from the Superior Court of Delaware, Olszewski v. Howell, and one secondary source, to support his argument that the data supporting cost effective settlements outweigh allowing a jury to see the impeachment of a dishonest plaintiff.17 TheOlszewski case can be distinguished from Ranft because the defendant in Olszewski did not claim any privilege or work product protection.
In Olszewski, the defendant admitted in his answers to interrogatories that he had video tape surveillance of the plaintiff from two different days but refused to produce the motion pictures. Olszewski filed a motion for production to prevent “surprise and to develop, if necessary, counter evidence.”18 Howell argued against production on the grounds that plaintiff failed to show “good cause” and, in addition, that the information contained on the tape was not within his exclusive knowledge.19 The Olszewski court cited four policy reasons and found that “good cause” existed for disclosure.20 But the court went on to address the unique facts surrounding these cases with the following:
It should be noted, however, that in the area of discovery, each case is somewhat factually unique and even such general policy reasons as those cited above are not necessarily dispositive of other cases raising similar questions. In this case, the following two facts have been considered and lend added weight to the conclusion herein reached. First, the female plaintiff here makes no claim that she cannot engage in particular activities, but asserts that certain activities cause pain. Second, the defendant has, through deposition, and discovery of medical reports, fully recorded the female plaintiff’s claims in the pretrial record prior to the production herein ordered. In view of these facts, the risk of disclosure to the defendant is minimal.21
More importantly, the Olszewski court recognized that each case would have be reviewed on its individual facts instead of relying on the holding of this one case to dispose of other cases raising similar issues.
More accurately, a careful review of the law reveals that where other jurisdictions have adopted a rule requiring disclosure, it has more to do with how other states define work product than any cost effectiveness argument. The case law from these other jurisdictions is based on an analysis of the scope of attorney work product protections that are not found in the Wisconsin Rules of Civil Procedure. In New York, for example, CPLR 3101 requires full disclosure of any films, photographs, video tapes, or audio tapes, including transcripts or memoranda.22 In addition, the Pennsylvania Rules of Civil Procedure do not protect trial preparation material, except in limited circumstances. On the contrary, Pa.R.C.P. 4003.3 specifically provides that a party may obtain discovery of any matter even though prepared in anticipation of litigation.23
Finally, Judge Brown implies that allowing defense attorneys to show surveillance video at trial for impeachment purpose somehow advances a gamesmanship theory of litigation due to the defendant’s decision to try a case. Judge Brown writes: “I do not favor the policy of going to trial simply to allow jurors to see a videotape. The exhilaration that a defense attorney might gain from seeing the look on an opposing lawyer’s face when the tape is played does not, in my opinion, justify the cost involved in trying the case.”24 The dictionary provides us with two definitions of gamesmanship: “1: the act or practice of winning games by questionable expedients without actually violating the rules[; and] 2: the use of ethically dubious methods to gain an objective.”25 The use of surveillance evidence to impeach a dishonest plaintiff is neither a questionable expedient nor an ethically dubious method to prevail in the defense of a fraudulent claim. I believe it is gamesmanship to usurp a defendant’s ability to confront dishonest witnesses, and to impeach their credibility, in front of the fact finders. Plaintiffs who testify honestly and truthfully will not be discredited, but the dishonest ones should be because the ultimate goal of any trial is a search for the truth.
Additionally, Judge Brown neglects to mention a defendant’s fundamental right in these cases; namely, the right to a trial by jury. The Wisconsin Constitution provides in pertinent part that the right to a trial by jury is inviolate in our state and extends to all cases without regard to the amount in controversy.26 If a party decides to have his or her case resolved by a jury, it is that person’s right to do so under our constitution. The constitutional right to a jury trial outweighs any policy goal advanced by Judge Brown. If Judge Brown’s hope is ever fulfilled, then the teeth will be taken out of this constitutional right.
Every judge and lawyer knows that some plaintiffs exaggerate not only the extent of their injuries but also the impairments and disabilities that they claim are caused by their injuries. The best defense in these cases is to conduct a thorough investigation into the claimed injuries in order to reveal and refute any exaggerated or magnified claims. Surveillance only comes into existence after an accident occurred. It will not have any effect on the legitimate bodily injury claims in a plaintiff’s cause of action. Moreover, it concerns facts which are invariably better known to the plaintiffs than to the defendants.
Facts concerning the nature and extent of a plaintiff’s injuries should be known equally to both sides but frequently, because of their subjective nature, they are impossible for the defense to discover with any certainty. Hence, it is a field fertile for fraud. The strong public policy against perjury, combined with the constitutional right of a trial by jury, outweighs any policy goal of cost-effective litigation. Because the parties will never likely be on even grounds when it comes to the presentation of evidence regarding the exact extent of a plaintiff’s injuries, defense attorneys should not be required to disclose their work product which results from their decision to conduct surveillance in anticipation of trial.
The justice system works for all of the citizens of our state. The courts should not abet plaintiffs who exaggerate or manufacture fraudulent claims from facing a jury after the revelation of this evidence. It is in the public interest that valid claims are ascertained and fabricated claims exposed.
The public needs to know that some parties file fraudulent claims, and defendants have a right to defend against these cases.
Kevin Ferguson is a senior claim attorney with American Family Mutual Insurance Company. His practice includes litigation in the state and federal courts of Wisconsin and the Tribal Courts of the Mohican Nation. As a practicing lawyer, Kevin is a member of the American Bar Association, the Defense Research Institute, the Civil Trial Counsel of Wisconsin, the American Inns of Court, and the Wisconsin Academy of Trial Lawyers. He has written and spoken extensively on insurance law and ethics. He is a Board Certified Civil Trial Advocate by the National Board of Trial Advocacy as well as a member of the Board of Examiners for the National Board of Trial Advocacy. Kevin drafted the Civil Ethics examination question for the National Board’s April 2003 examination.
1 See, e.g., McCulloch v. Hartford Life & Accident Ins. Co., 363 F.Supp.2d 169, 178 (D. Conn. 2005).
2 See, e.g., Ranft v. Lyons, 163 Wis. 2d 282, 471 N.W.2d 254 (Ct. App. 1991); Martz v. Trecker, 193 Wis. 2d 588, 535 N.W.2d 57 (Ct. App. 1995).
3 Martz v. Trecker, 193 Wis. 2d 588, 598, 535 N.W.2d 57, 61 (Ct. App. 1995).
4 163 Wis. 2d 282, 471 N.W.2d 254 (Ct. App. 1991).
5 Id. at 286, 471 N.W.2d at 255.
6 193 Wis. 2d 588, 535 N.W.2d 57 (Ct. App. 1995).
7 Id. at 593, 535 N.W. 2d at 59.
8 Id. at 598, 535 N.W.2d at 61.
9 Id. at 601, 535 N.W.2d at 62.
10 163 Wis. 2d at 300, 471 N.W.2d at 261(citing Annotation, Discovery of Surveillance Photographs, 19 A.L.R. 4th 1236 (1983).
11 Id. at 300, 471 N.W.2d 261.
12 Martz v. Trecker, 193 Wis. 2d at 598, 535 N.W.2d at 61.
13 Ranft, 163 Wis. 2d at 299, 471 N.W.2d at 260.
14 Id. at 298-99, 471 N.W.2d at 260.
15 Cook v. Cook, 208 Wis. 2d 166, 186, 560 N.W.2d 246,
255 (Ct. App. 1997)(court of appeals’ primary function is error correcting).
16 193 Wis. 2d 599, 535 N.W.2d at 62 (citing Olszweski v. Howell, 253 A.2d 77, 78 (Del. Super. Ct. 1969).
18 Olszewski, 253 A.2d at 77.
20 Id. at 78.
22 N.Y. Civ. Prac.L. & R. 3101(d).
23 42 Pa. Cons. Stat. Ann. § 4003.3.
24 Id. at 601, 535 N.W.2d at 62.
25 Merriam Webster’s Collegiate Dictionary 478 (10th Ed. 1995).
26 Wis. Const. art. I, § 5.