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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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