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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. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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