It is not uncommon in personal injury claims for a defendant to put a plaintiff under surveillance. The defendant may want to try to keep the surveillance secret to use as an impeachment surprise at trial. However, such surveillance may not be protected as work product and defendants may be required to disclose the surveillance in discovery.
In the case of Gutshall v. New Prime, Inc., 196 F.R.D. 43 (W.D. Vir. 2000), the plaintiff was hurt in a tractor-trailer accident and sent discovery requests to the defendant that sought the disclosure of all surveillance of the plaintiff. The plaintiff spotted ongoing surveillance and reported it to his lawyer. The lawyer sought to enforce his discovery request by filing a motion to compel with the court.
The defendant claimed the surveillance was attorney work-product that would only be used if appropriate for impeachment at trial. As such, the defendant argued the surveillance was protected from discovery. The Court disagreed and ordered the defendant to hand over all of the surveillance to the plaintiff during pre-trial discovery. The reasoning was that the surveillance may show admissible evidence that is relevant to the plaintiff’s claim of injury. The Court also held that such material was not protected as work-product. In doing so, the Court relied on what it described as the majority of federal district court decisions on both the nature of surveillance and whether surveillance was work product.
Even if the surveillance could be considered work-product, the Court also found sufficient need for disclosure to overcome that claim of privilege. The Court reasoned there was substantial need for the plaintiff to have access to such surveillance prior to trial because of the weight the jury may give the evidence, the need to check the reliability of the evidence and the fact that the circumstances captured by any surveillance cannot be duplicated.
On the issue of what is discoverable prior to trial and the scope of the work product doctrine, New Hampshire law is similar to federal law. As such, consideration should be given in every personal injury case about whether or not the plaintiff should request all surveillance in discovery prior to trial.