A Focus on Work-Product Privilege of Surveillance Material

A Review by Erik Munzer

Today, attorneys regularly hire private investigators to gather surveillance material in the form of video in order to uncover the truth in fraud cases.  Types of cases that most often require video surveillance include personal injury claims or disability issues.  That being said, the question that the article attached aims to answer is: Are surveillance materials discoverable?

Discoverable materials are defined in terms of absolute privilege and qualified privilege.  The absolute privilege envelops “an attorney’s impressions, conclusions, opinions, or legal research or theories” (see article).  The qualified privilege arises in a circumstance where failure to disclose the information “would unfairly prejudice the other side or otherwise result in an injustice” (see article).

Now, refocusing on the question at hand: Are surveillance materials discoverable?  It is important to understand how the defending lawyer plans on using such material.  For example, suppose an investigator is hired by a lawyer to work surveillance on a man who has claimed that he cannot engage in physical activity because of personal injury.  However, the investigator finds and films the same man participating in physical exercise at a gym.  Whether or not this material is discoverable is largely dependent on how it will be used; namely to aid the counsel in trying the case or if the results would be used as evidence.  For example, a Florida Supreme Court has ruled: “But if the (video) will be used as evidence, the materials, including films, cease to be work product and become subject to an adversary’s discovery” (see article).

While there is not a law in California that dictates whether or not surveillance materials are discoverable, California judges are concerned with the presence of surveillance materials.  One court has commented that the video being presented “may be distorted, misleading, and false” (see article).  As an investigator, this aspect of the article is of great importance.  The integrity of the film investigators produce cannot be altered in any way.  Any modifications made to the camera (i.e. lighting, speed, enhanced zoom capabilities, etc.) can ruin any chance of convicting the plaintiff.  More importantly, any mutation of film by an investigator can yield to his/her unemployment.  An investigator should produce an honest film and let the burden of how the video should be used rest in the hands of the court.

“Discovering Surveillance Material” by Cari A. Cohorn

Published in the California Lawyer