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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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