ILNews

Ladendorf: Footage protected by work-product doctrine

February 26, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
ladendorf Ladendorf

By Mark C. Ladendorf

My law firm recently confronted the discoverability of settlement documentary footage in a case involving a tractor-trailer collision in the U.S. District Court for the Northern District of Indiana, Hammond Division. Our firm retained an outside vendor to assist in the preparation of a “settlement video brochure” to present at the federal settlement conference. The video depicted the human toll of the plaintiff’s catastrophic injuries through lay and expert witness statements and home videos.

The case did not resolve at the settlement conference, and shortly thereafter a discovery dispute arose over the production of the unused, unedited video footage. Federal Magistrate Judge Paul R. Cherry presided over the discovery dispute.

On behalf of the plaintiffs, we argued that the unused, unedited footage was protected by the work-product doctrine. Specifically, we took the position that the videographer we hired, Image Resources Inc., was an accessory of counsel during the creation of the video, and that the unedited footage contained specific questions that constituted attorney mental impressions, conclusions, opinions and legal theories. To support these arguments, we relied upon the holdings in Hickman v. Taylor, 329 U.S. 495 (1947), U.S. v. American Tel. and Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980), and Duplan Corp. v. Moulinage et Retorderie de Chavoanoz, 487 F.2d 480 (4th Cir. 1973), all of which stand for the proposition that the work-product doctrine protects documents and tangible things that are prepared in anticipation of litigation.

Ultimately, Magistrate Cherry was persuaded by these arguments and ruled that the unused, unedited footage was not discoverable. He stated in his written order:

“The work product doctrine protects ‘documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).’ Fed. R. Civ. P. 26(b)(3)(A); see also Sandra T.E. v. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). However, these materials may be discovered if they are otherwise discoverable under Rule 26(b)(1) and ‘the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.’ Fed. R. Civ. P. 26(b)(3)(A)(ii).”

Rosenbaum v. Freight, Lime and Sand Hauling, Case No. 2:10-CV-287-RL-PRC, Document 113 (available through Federal PACER System).

Magistrate Cherry’s ruling makes clear that a party attempting to obtain unedited video footage must show “good cause” that it cannot, without undue hardship, obtain the substantial equivalent by other means. For example, generally, in cases where opposing counsel seek footage of unedited interviews, they can obtain equivalent statements from witnesses featured in the settlement documentaries through alternative channels, such as depositions, or their own interviews.

The Indiana Court of Appeals has embraced a non-exhaustive list of elements of good cause that include: “(1) The information could not be obtained by deposing a witness; (2) The witness is no longer available; (3) The witness is hostile; (4) The witness no longer remembers the details of the occurrence; and (5) The moving party must have substantial need of the material requested. This is by no means a complete list of the factors establishing ‘good cause,’ and each case will require an individual evaluation by the trial court and a prudent use of judicial discretion.” Newton v. Yates, 353 N.E.2d, 485 (Ind. Ct. Ap. 1976)

In our case, Magistrate Cherry found no special circumstances existed to justify the production of the unedited footage, where opposing counsel had the ability to take their own statements or depositions from witnesses featured in the unedited footage. The work-product privilege serves “dual purposes: (1) to protect an attorney’s thought processes and mental impressions against disclosure; and (2) to limit the circumstances in which attorneys may piggyback on the fact-finding investigation of their more diligent counterparts.” Sandra T.E., 600 F.3d at 621-22.

In the case of settlement documentaries, opposing counsel are aware of the identities of the interviewees and essentially receive a summary of their statements through the “settlement documentary” itself. Allowing discovery of more than what was placed in the documentary would reveal the mental impressions of the creating counsel, in violation of Rules 501 and 502 of the Federal and Indiana Rules of Evidence.

The key distinction between witness statements obtained through depositions or informed statements, versus witness statements obtained for a video settlement documentary, is that the latter is not merely the witnesses’ verbatim recitation of the facts. Rather, the witnesses work through the process with the attorneys and the videographer. As such, the raw footage is work-product by the very nature of the line of questioning. Keep in mind, however, that these conversations might be discoverable through a deposition of a witness, just like any other conversation between an attorney and a witness.

Settlement documentaries provide an effective visual tool in presenting a client’s side of the case when deposition transcripts fail to show the whole picture. There is a tremendous effort and expense associated with the production of these videos, and opposing counsel should not be permitted to circumvent a lawyer’s efforts in the strategic preparation of his case. The bottom line is that just because evidence is in video format does not mean it loses its work product privilege.•

__________

Mark C. Ladendorf is the founder and principal of Ladendorf Law and is the current president of the Indiana Trial Lawyers Association. The opinions expressed are those of the author.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  2. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  3. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  4. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

  5. The US has 5% of the world's population and 25% of the world's prisoners. Far too many people are sentenced for far too many years in prison. Many of the federal prisoners are sentenced for marijuana violations. Marijuana is safer than alcohol.

ADVERTISEMENT