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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 have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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