STATE OF SUPERIOR COURT
COUNTY OF _____________________

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v. ) C.A. No.___________
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WEST PALM BEACH CAR ACCIDENT PLAINTIFF'S MOTION TO COMPEL DISCOVERY OF SURVEILLANCE EVIDENCE

Now comes the West Palm Beach Car Accident Plaintiff, , and hereby moves that this Court enter an order compelling the Defendant, , further to identify any surveillance films, evidence or other materials taken of, or depicting or describing or visualizing West Palm Beach Car Accident Plaintiff in the within action.

West Palm Beach Car Accident Plaintiff for grounds of his Motion, states that pursuant to discovery, West Palm Beach Car Accident Plaintiff served Interrogatories and Production Requests on Defendant and requested all information concerning any surveillance films, pictures, videotapes or other materials taken of, or depicting or describing West Palm Beach Car Accident Plaintiff.

In response to the discovery requests, Defendant acknowledged that he had surveillance evidence of West Palm Beach Car Accident Plaintiff, but refused to identify the evidence, to produce it or otherwise to make it available in discovery. Defendant also claimed that the surveillance evidence was protected from discovery on the grounds that it was to be used for impeachment at trial or to rebut testimony and that it was also protected by the attorney work product doctrine. For the reasons stated below, this Court should reject Defendant's arguments and should order full and complete compliance with the discovery rules including providing a description of all surveillance evidence, and full and complete answers to the Interrogatories and Production Requests as required by the Rules.

ARGUMENT

I.
Surveillance Evidence
Is Generally Discoverable.

Most courts have held that surveillance evidence is generally discoverable so long as the defendant is permitted to depose the West Palm Beach Car Accident Plaintiff regarding his injuries and disabilities prior to answering interrogatories or producing documents regarding surveillance evidence. West Palm Beach Car Accident Plaintiff's testimony is then memorialized for impeachment purposes, which is the alleged basis for the defense objection to producing the surveillance evidence. Here, West Palm Beach Car Accident Plaintiff's deposition has already been taken by Defendant and West Palm Beach Car Accident Plaintiff has fully answered all of the Defendant's interrogatories concerning the nature and extent of injuries and damages. Additionally, Defendant was allowed to and did question West Palm Beach Car Accident Plaintiff on the accident, the nature of the injuries, any limitations or disabilities resulting therefrom and all damages.

There is also a mandatory settlement conference scheduled within the next month. Discovery of surveillance evidence will be an aid to both sides in settlement discussions and the evaluation of West Palm Beach Car Accident Plaintiff's claims. Snead v. The American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 146 (E.D.Pa. 1973). West Palm Beach Car Accident Plaintiff should have an opportunity to obtain access to the information concerning surveillance evidence and to weigh that information prior to the settlement conference.

II.
Surveillance Evidence Is Substantive In Nature
And Not Merely A Basis For Impeachment.

Defendant claims that surveillance evidence is strictly in the nature of impeachment and should, accordingly, be withheld from discovery. First, impeachment evidence is not distinguished as such in the discovery rules. Rather, any information that is reasonably calculated to lead to the discovery of admissible evidence is fair game in discovery. Second, courts have rejected any claim that surveillance evidence is merely used for impeachment and have held that surveillance evidence is subject to discovery as it is primarily substantive in nature. See Crist v. Goody, 31 Colo.App. 496, 507 P.2d 478 (1972).

Surveillance evidence should also be discoverable even if it is not intended for introduction at trial and even if it is not admissible, provided it may lead to the discovery of admissible evidence. Moak v. Illinois Central Railroad Co., 631 So.2d 401 (La. 1994).

Here, the surveillance evidence apparently will deal with issues relating to liability and damages and, accordingly, it is substantive in nature and should be subject to the usual discovery rules.

III.
Surveillance Evidence
Is Not Work Product.

Defendant has also argued that surveillance evidence constitutes attorney work product and, accordingly should be protected from discovery. Work product protection, however, is limited. See, e.g., Moak v. Illinois Central Railroad Co., 631 So.2d 401 (La. 1994) (surveillance evidence is discoverable regardless of whether it was intended to be introduced at trial and was outside of work product privilege, provided that, even if not admissible, it could have led to the discovery of admissible evidence). Here, where the Defendant clearly is attempting to use the existence of the surveillance evidence to his advantage, and has put the West Palm Beach Car Accident Plaintiff on notice that the surveillance evidence will, in fact, be introduced at trial, even to the extent that there is some qualified immunity, that immunity is overcome when the Defendant intends to use the surveillance evidence at trial. Cabral v. Arruda, 556 A.2d 47 (R.I. 1989); see also Annot., 19 ALR 4th 1235 (1983).

CONCLUSION

For the reasons stated, West Palm Beach Car Accident Plaintiff requests that this Court order Defendant to answer fully and completely the interrogatories dealing with surveillance evidence and to produce for inspection, copying and review any tangible surveillance evidence in the nature of films, audiotpages, videotapes, photgraphs and the like which in any way depict, describe or pertain to West Palm Beach Car Accident Plaintiff.

WEST PALM BEACH CAR ACCIDENT PLAINTIFF

By his attorneys,

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