Judge John J. Kralik, Case Number: 23BBCV01169, Date: 2024-01-12 Tentative Ruling

Plaintiff Steven Alfaro (“Plaintiff”) filed the complaint for personal injuries and property damage on May 24, 2023 against Defendant Eric Peter Goldman (“Defendant”). Plaintiff alleges that on June 10, 2021, Defendant negligently owned, operated, entrusted, managed, repaired, and maintained his motor vehicle such that his vehicle collided with a vehicle occupied by Plaintiff.

On October 16, 2023, Plaintiff filed a motion to compel Defendant’s further responses to Request for Production of Documents, set one (“RPD”) No. 8.

Plaintiff moves to compel Defendant’s further response to RPD No. 8. Plaintiff states that according to Defendant’s response to the FROGs, Defendant verified that sub rosa surveillance was performed on Plaintiff on June 13, 2022 and October 6, 2022 by Badcat Investigations and that a report was prepared on October 7, 2022.

RPD No. 8 seeks any and all documents pertaining to surveillance of Plaintiff, including but not limited to any and all reports, photographs, or videotapes. In response, Defendant objected that impeachment is not a proper form of discovery, the RPD violates qualified attorney work product doctrine, and disclosure for surveillance film need not take effect until the defense is given an opportunity to depose Plaintiff fully as to his injuries, their effect, and his present disabilities. Plaintiff argues that there is good cause for the production because the footage is discoverable and not protected by the work product doctrine, the RPD seeks relevant information that is reasonably calculated to lead to the discovery of admissible evidence, and the information is necessary to protect against surprise and prepare examination for the person who took the films. Plaintiff argues that he seeks only raw, unedited surveillance footage, without direction, commentary, or defense counsel’s impressions, conclusions, opinions, or legal research.

Attorney work product doctrine includes, “A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (CCP § 2018.030(a).) Work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice. (CCP § 2018.030(b).)

Plaintiff argues that the videos taken by defense investigator are not attorney work product as the videos/pictures were taken by a third-party investigator. Moreover, Defendant intends to use the videos/pictures at trial.[1] Plaintiff argues that he is not seeking derivative or interpretive work by defense counsel, but instead the raw videos/pictures themselves. Plaintiff also argues that the fact that the evidence may be used for impeachment purposes does not shield it from disclosure. Plaintiff argues that so long as the information sought is discoverable and relevant, it should be produced—whether it is used for impeachment purposes or to protect against surprise. Finally, Plaintiff argues that if the documents are not produced, then the surveillance and report should be excluded at trial so that Plaintiff is not unfairly prejudiced.

In opposition, Defendant argues that he objects to producing the video before Plaintiff’s deposition based on the qualified work product doctrine based on the fact that the video will be used for impeachment purposes. Defendant argues that he should be given the opportunity to depose Plaintiff fully regarding his injuries and present disabilities first and that to allow otherwise would eliminate any impeachment value that might be derived from the video. Defendant requests that the Court issue an order denying this motion or at least order that the surveillance video be produced after Defendant has deposed Plaintiff. (See e.g., Ward v. CSX Transp., Inc. (E.D.N.C. 1995) 161 F.R.D. 38, 41.)[2]

Defendant relies in part on Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, 177–179, arguing that surveillance falls squarely under the qualified privilege. The Suezaki court stated:

[Defendants] urge that, even if the [investigator] films are not privileged for other reasons, they are privileged solely because they are the “work product” of their attorney. In this connection they point out that without question their attorney had the films taken solely as part of his trial preparation, and that they were intended to be confidential. They urge that undoubtedly the films were the result of the work product of the attorney, which is correct, and contend that for that reason alone they are privileged as a matter of law, which is incorrect.

In the Greyhound case (pp. 399-401) it was made abundantly clear that simply because the subject matter sought to be discovered is the “work product” of the attorney it is not privileged. It was there pointed out that if the subject matter involved is the work product of the attorney that is a factor that the trial court should consider, in its discretion, together with other relevant factors, in determining whether to deny or to grant discovery in whole or in part.[] But it also was pointed out that “work product” of the attorney is not absolutely privileged. In this connection, it was expressly held in Greyhound (p. 401) that, insofar as Hickman v. Taylor, 329 U.S. 495 [67 S.Ct. 385, 91 L.Ed. 451], held to the contrary under federal law, it was not the law of California. This distinction between considering “work product” as privileged, and considering it as a factor in determining whether to grant or deny discovery is not one of words only. Were “work product” to be deemed a rule of privilege in California, then whenever the fact of “work product” was found to exist, the court would be compelled to deny discovery as a matter of law. But under the California rule, the trial court may consider the facts on which a claim of “work product” is predicated, and exercise the discretion granted by the provisions of the discovery statutes in order to prevent abuse and to reach a determination consistent with equity and justice. This simply means that in California the fact that the material sought to be discovered is the “work product” of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted. It does not mean that, simply because the material involved is the “work product” of the attorney, it can or should deny discovery. Something more must exist. The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable. This is made quite clear even in the case of Hickman v. Taylor, relied upon so strongly by defendants. They interpret that case to mean that all “work product” is nondiscoverable. The case did not so hold. It limited its rule of nondiscoverability to those portions of the attorney's files containing material disclosing the mental processes of the attorney formed while he was interviewing witnesses, and stressed the fact that the discovery there sought would be tantamount to compelling the attorney to become a witness. Such matters should not be discoverable under the California rule. But there is nothing in Hickman v. Taylor that holds or implies that a film such as the one here involved would not be discoverable under the federal rules. In fact, the inference is to the contrary.

(Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, 177–179 [stating “While it would appear that inspection of the films should be permitted, the discretion granted by the statute is the discretion of the trial court, not of this court.”] [footnote omitted].)
Here, the surveillance videos/photographs are only subject to a qualified, but not absolute, privilege under the work product doctrine. As represented by defense counsel, the investigative surveillance was conducted under counsel’s direction for the purpose of measuring Plaintiff’s credibility and to capture potential impeachment material by way of videotaping Plaintiff engaging in an unexpected activity or an exaggeration of claimed injuries. (Opp. at p.3.) While the videos/photographs themselves might not be privileged, the videos would thus be subject to a qualified protection.

The Court believes that the balancing set forth in Ward v. CSX sets forth the use of the appropriate exercise of discretion contemplated in Suezaki. The Court finds that delaying disclosure of the sub rosa surveillance videos/photographs until after Plaintiff’s deposition is prudent and an appropriate balance between the protection of work product and the production of all relevant evidence prior to trial. This balances the defense’s considerations in protection of work product with Plaintiff’s request to review the surveillance for trial purposes. There is no need for Plaintiff to obtain the video now as Plaintiff was apparently present during the filming of the events at issue. The only reason Plaintiff would seek the use of the video prior to his deposition is to evaluate how to fashion his deposition responses to the video. At this time, the Court will deny without prejudice the motion to compel further responses to RPD No. 8, subject to the completion of the deposition. The Court believes that it will be appropriate to produce the material after the deposition so that they can be analyzed and identified properly under the Rules of Court for the trial.

Plaintiff Steven Alfaro’s motion to compel further responses to RPD No. 8 is denied without prejudice, subject to the completion of the Plaintiff’s deposition as stated more fully in this written order.

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[1] Plaintiff also argues that the surveillance material are not privileged communications. However, Defendant did not object based on the attorney-client privilege or based on “privileged communications.”

[2] In the Ward case, the U.S. District Court of the E.D. of North Carolina stated:

In the absence of any ruling by the Fourth Circuit, and considering the split of other authority on the subject, the undersigned again concludes that allowing discovery of surveillance materials after the deposition of the plaintiff, but before trial, best meets the ends of justice and the spirit of the discovery rules to avoid surprise at trial. Defendant may insure the impeachment value of the surveillance by taking a video deposition prior to disclosure of the surveillance materials. In that deposition, defendant may carefully examine plaintiff about his injuries and disabilities and even require him to demonstrate alleged limitations of motions on videotape. Inconsistencies between that deposition and the surveillance materials can be used to impeach the plaintiff at trial.

(Ward, supra, 161 F.R.D. at 41.)

Superior Court of California

County of Los Angeles