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DTCI: Discovery of the facts behind settlement documentaries

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Riegner By Eric A. Riegner
Karns By Timothy L. Karns

With increasing frequency, plaintiffs’ attorneys are using settlement “documentary” videos before and during mediation in catastrophic cases. Utilizing the format of a tabloid television news program, these “documentaries” address problematic liability and damages issues in a light that is often unreasonably favorable to the injured party. They accomplish this by combining demonstrative re-creations, medical imagery, day-in-the-life footage, and heavily edited videotaped interviews of key third-party witnesses, experts and physicians.

Plaintiffs’ attorneys believe that the intimidation factor of these settlement documentaries produces a return on their investment. In contrast, defense counsel and claims professionals often dismiss them as biased posturing. The fact is that the unedited footage, if it can be obtained, may be very useful in defending and evaluating the case.

When asked to produce unedited footage, many times a plaintiff will fervently object on the grounds that it is shielded from discovery by the work-product doctrine. However, federal caselaw from multiple jurisdictions suggests that unedited footage of witness interviews may not be subject to work-product protection. Furthermore, even if a court were to find that the unedited footage constitutes work-product, an argument can be made that a plaintiff has waived work-product protection by injecting the witness interviews into the litigation and making a partial disclosure of their contents.

Settlement documentaries and the federal work-product doctrine

The federal work-product doctrine is intended to maintain “legal professionalism by precluding attorneys from capitalizing on an adversary’s work efforts.” Morisky v. Pub. Serv. Elec. & Gas Co., 191 F.R.D. 419, 424 (D.N.J. 2000). Thus, in most instances, the doctrine, which has been codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure, precludes discovery of materials that “are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. Proc. 26(b)(3)(1). However, it does not protect underlying facts contained within the work product.

While federal courts have consistently held that “notes and memoranda prepared by an attorney, or an attorney’s agent, with respect to a witness interview ‘are opinion work product entitled to almost absolute immunity,’” Murphy v. K-Mart Corp., 259 F.R.D. 421, 428 (D.S.D. 2009), (internal quotations omitted), numerous federal courts have found that verbatim nonparty witness statements are neither privileged nor work-product and must be produced. See Dobbs v. Lamonts Apparel, Inc., 155 F.R.D. 650, 653 (D. Alaska 1994), (holding that verbatim third-party witness statements made in response to attorney questionnaire were not work-product materials.) Many federal District Courts have even permitted discovery of third-party witness affidavits drafted by opposing counsel. Tuttle v. Tyco Electronics Installation Services, Inc., No. 2:06-CV-581, 2007 WL, 4561530, at *2 (S.D. Ohio Dec. 21, 2007), (holding that the work-product doctrine does not protect underlying facts from disclosure and, therefore, cannot be used to justify the withholding of affidavits); E.E.O.C. v. Jamal & Kamal, Inc., No. 05-2667, 2006 WL 2690226, at *1 (E.D. La. Sept. 18, 2006),(“[A]n attorney’s memorialization of events, effectively acting as a stenographer, does not fall within the sphere of documentation protected by work product privilege.”); Walker v. George Koch Sons, Inc., No. 2:07-CV-274 KS-MTP, 2008 WL4371372, at * 5 (S.D. Miss., Sept. 18, 2008), (“The Affidavits merely recite relevant facts within the affiants’ personal knowledge, rather than revealing an attorney’s mental impression of legal strategy.”) In Milwaukee v. Concrete Studios, Ltd v. Greeley Ornamental Concrete Prods., the court extended this logic one step further and permitted discovery of an audio tape conversation between a third-party witness and the plaintiff’s attorney. 140 F.R.D. 373, 379 (E.D. Wis. 1991).

Like the audio tape conversation referenced above, unedited footage from a witness interview is, in essence, nothing more than a verbatim recitation of the factual information known by that witness. Consequently, a strong argument can be made that it is not subject to work-product protection and, therefore, discoverable. Rather than revealing an attorney’s mental impression or legal strategy, the recorded witness interviews do nothing more than memorialize the relevant facts within each witnesses’ personal knowledge.

Even if the unedited recordings of witness interviews are work-product, a plaintiff likely waives work-product protection by injecting the settlement documentary into the litigation or by disclosing portions of the witness interviews. Under federal law, “[w]ork-product protection may ... be waived.” Lindley v. Life Investors Ins. Co. of Am., 267 F.R.D. 382, 394 (N.D. Okla. 2010). Generally, waiver of work-product protection occurs “when covered materials are used in a manner that is inconsistent with the protection.” Id. (quoting Bank of Am., N.A. v. Terra Nova Ins. Co., 212 F.R.D. 166, 170 (S.D.N.Y. 2002)). “At issue” or “implied waiver” occurs when “a party injects the substance of work product into [the] litigation.” Id. “Subject matter waiver” occurs when “a party makes a partial disclosure of work-product while seeking to maintain protection of work-product related to the same subject.” Id. Three factors are consistently applied by the courts in evaluating whether a party has waived an otherwise applicable privilege through some affirmative act:

whether the assertion of the privilege is the result of some affirmative act, such as filing suit or asserting an affirmative defense, by the asserting party;

whether the asserting party, through the affirmative act, put the protected information at issue by making it relevant to the case;

whether the application of the privilege would deny the opposing party access to information that was vital to the opposing parties’ defense.

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 199 F.R.D. 677, 681 (N.D. Okla., 2011), (citing Hearn v. Rhay, 68 F.R.D., 574, 580 (E.D. Wash. 1975)). Thus, by disclosing portions of a third-party witness interview to support a particular version of the facts, a plaintiff likely waives work-product protection and makes the unedited footage relevant to the subject proceeding.

Nevertheless, a plaintiff will likely argue that witness interviews are nothing more than statements made during the course of compromise negotiations and, as such, inadmissible under Federal Rule of Evidence Rule 408(a)(2) or state-specific rules restricting the admissibility of statements made during the course of alternative dispute resolution proceedings. Plaintiff will then assert that the unedited footage is outside of the scope of discovery because its production will not lead to the discovery of admissible evidence.

This argument ignores the plain language of Federal Rule of Evidence 408(b), which only excludes such statements when they are used to prove or disprove the validity or amount of a claim, or to impeach the party with a prior inconsistent statement. In contrast, the rule explicitly provides that such statements may be admissible for another purpose, such as proving or disproving a witness’s bias or prejudice. Further, state courts have recognized that statements made during the course of mediation or other forms of alternative dispute resolution, while not necessarily admissible, may lead to the discovery of admissible evidence. Horner v. Carter, 981 N.E.2d 1210, 1212 (Ind. 2013), (“Evidence of conduct or statements made in compromise negotiations or mediations except when offered for a purpose other than ‘to prove liability for or invalidity of the claim or its amount.’”); Gast v. Hall, 858 N.E.2d 154, 161-162 (Ind. Ct. App. 2007), (holding that portions of affidavit which contained observations of testator made during will-contest mediation session were admissible).

Distinguishing settlement documentaries from day-in-the-life videos

Despite the federal precedent in favor of discovery, at least one state Supreme Court has held that unedited portions of a day-in-the-life video constitute protected work-product. In Cisarik v. Palos Community Hosp., plaintiff’s counsel intended to produce a motion picture of the plaintiff which would depict a typical day in her life. 579 N.E.2d 873, 874 (Ill. 1991).

Prior to filming, defendants asked for and obtained a protective order giving them advance notice of the filming, the right to be present at the filming, and a copy of the finished film as well as all edited out and unused footage. Id. Specifically, the trial court’s written order required that plaintiff give 14 days notice to the defendants of the date, time and place of filming; that counsel for each of the defendants be permitted to be present during filming and, furthermore, be allowed to cross-examine, at that time, anyone questioned by plaintiff’s counsel during filming; and that all footage be preserved and made available upon the request of any party. Id. at 875.

In revisiting the trial court’s order, a majority of the Illinois Supreme Court concluded that the “so-called ‘Day in the Life Movie’ [was] merely a type of demonstrative evidence,” and, therefore, defendants had no right to intrude into the production. Cisarik, 579 N.E.2d at 874. Likening the subject video to a still photograph, a graph, a chart, a drawing and a model, the high court concluded that “[t]he preparation of such evidence falls within the work product of the lawyer who is directing and overseeing its preparation.” Id. As a result, the court held that the defendants’ counsel has “no right to intrude into the production of this demonstrative evidence,” and that “the test of this evidence will occur when and if it is offered into evidence.” Id.

In a separate written dissent, Chief Justice Ben Miller and Justice Charles Freeman opined that “the majority opinion ignores the proper role of discovery in the litigation process and inexplicably denies the present defendants certain minimal pretrial safeguards traditionally afforded litigants under our well-established rules of discovery.” Id. The dissenting justices noted that under the majority’s reasoning, “litigants should have virtually no discovery rights, for all evidence is subject to tests of admissibility at trial; furthermore, if evidence is later deemed admissible, then it may be introduced even though the opposing party has had no opportunity to discover it.” Id. The dissenting justices further stated that the possibility that certain evidence might later fail to be admissible does not mean that an opposing party is not entitled to the full range of pretrial discovery opportunities with respect to it. Id. After finding the majority’s analogy of the subject video to various forms of demonstrative evidence to be misleading and inaccurate, the dissenting justices concluded that “the majority opinion ignores the proper role of discovery in the litigation process and, as a result, strips the defendants… of the full range of discovery opportunities which they are entitled.” Id. at 877. Therefore, the dissenting justices would have affirmed the entry of the protective order. Id.

Unlike day-in-the-life videos, settlement documentaries are much more than mere demonstrative evidence. Through the use of highly edited on-camera interviews of key witnesses, settlement documentaries attempt to skew the pertinent factual and legal issues and bolster a plaintiff’s case. Thus, as the dissent in Cisarik suggests, denying a defendant the opportunity to discover the unedited version of these interviews essentially eliminates the pretrial safeguards afforded by the discovery process. Specifically, it denies a defendant the opportunity to use the unedited footage during cross-examination to test the veracity of the witness and expose any potential biases or prejudices. When seeking production of unedited footage from a settlement documentary, it will be necessary for defense counsel to distinguish settlement documentaries from day-in-the-life videos.

Conclusion

A defendant should consider requesting the unedited footage from any on-camera interviews of third-party witnesses that are contained in a settlement documentary. Federal caselaw from multiple jurisdictions supports the proposition that this footage is essentially a verbatim non-party witness statement and, therefore, not subject to work-product protection. Furthermore, even if a court were to find that the unedited footage constitutes work-product, a strong argument can be made that a plaintiff waives work-product protection by injecting the witness interviews into the litigation and making a partial disclosure of its contents.•

Mr. Riegner is a member and Mr. Karns is a senior associate in the Indianapolis office of Frost Brown Todd. Mr. Karns is a member of the Defense Trial Counsel of Indiana. This article first appeared in a similar form in “Overdrive,” the newsletter for the Automotive Products SLG of DRI’s Product Liability Committee. The opinions expressed are those of the authors.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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