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Surveillance videos are not protected under the work product doctrine and therefore must be turned over in discovery, a federal magistrate judge in Pennsylvania has ruled. In Evan v. Estell, U.S. Magistrate Judge Malachy E. Mannion of the Middle District of Pennsylvania ruled that the defendant in an auto accident case is prohibited from using a video of the plaintiff as “substantive evidence.” But Mannion ruled that if the defense promptly turns over the video now, it may use the tape at trial for the limited purpose of impeaching the plaintiff. According to court papers, Mary Lou Evan and Shirley Estell were involved in a car accident on Sept. 12, 1997. Evan filed suit in Luzerne County, Pa., and Estell removed the case to U.S. District Court in Harrisburg, Pa. Discovery in the case closed on Sept. 30, 2000. But just a few weeks before trial this fall, Evan said she received word that the defense intended to show the jury a surveillance video. In a letter, defense lawyers said they would not turn the video over to the plaintiff’s lawyers until Evan took a second deposition. Evan’s lawyers filed a motion to preclude the tape from trial, saying they were being “ambushed on the eve of trial” and that discovery had closed more than 11 months before. In response, defense lawyers said they should not be required to turn over the video until they had a second opportunity to depose the plaintiff in order to determine if there were any “intervening changes” in her physical condition. Otherwise, they said, the video will lose its value as an impeachment tool. Mannion looked to Rule 26 of the Federal Rules of Civil Procedure. While some argue that surveillance videos are trial preparation materials and are therefore protected under the work product doctrine, Mannion found that they are discoverable under Rule 26(b)(3), which creates an exception to the privilege where a party can show “substantial need.” “Surveillance videos are discoverable because of their nature and the fact that a party would not be able to obtain equivalent materials, since the surveillance video itself was taken at a particular time and place that can never be replicated,” Mannion wrote. Mannion found that the 3rd U.S. Circuit Court of Appeals has never squarely addressed the question of whether a party in possession of a surveillance video is entitled to demand a second deposition prior to turning it over. But two judges in the Southern District of New York have tackled that precise question, Mannion said, and held that where the surveillance video is intended for impeachment purposes, the defense has the right to take a deposition before turning it over. In Bachir v. Transoceanic Cable Ship Co., the court held that if the video was intended as substantive evidence, it must be turned over “without limitation.” In the second case, Brannan v. Great Lakes Dredge & Dock Co., the defendant had grown suspicious of the plaintiff’s injuries after his deposition and placed him under surveillance. The court allowed a second deposition limited to issues of the plaintiff’s injuries and the extent of his recovery at the time the videos were made. But Mannion found that since Evan was already deposed about the extent of her injuries and recovery, the defense is not entitled to a second deposition. “Unlike the defendants in Brannan and Bachir, Ms. Estell has had the benefit of a previous deposition and, in theory, the ability to tie down the plaintiff with regard to her physical condition,” Mannion wrote. Mannion said he was troubled by the fact that the plaintiff was first notified of the existence of the video shortly before the final pretrial conference, “especially since the content of a video surveillance tape can have a dramatic effect when presented in court.” Since the defense has not said when the video was made, Mannion found that it was impossible for the court to determine whether there were intervening changes in the plaintiff’s physical condition that would justify the taking of a second deposition. As a result, Mannion ruled that the defense must turn over the tape within five days if it intends to use it at trial. “However … that use will be limited to impeachment only as the tape was not previously disclosed as substantive evidence as required by [Rule] 26(b)(3),” Mannion wrote.

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