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Ladendorf: Footage protected by work-product doctrine

February 26, 2014
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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.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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