142 F.R.D. 435 | S.D.W. Va | 1992
MEMORANDUM ORDER
Presently pending before the Court is plaintiffs motion seeking an order requiring the defendant, CSX Transportation, Inc. (hereinafter “CSX”), to answer interrogatory number 20, an interrogatory which seeks to flesh out details concerning surveillance of plaintiff conducted by CSX or investigators in its employ. The dispute with regard to defendant’s responses to the remaining interrogatories which were the subject of plaintiff’s motion has been resolved by the parties.
In resolving the issues raised by the parties, the Court does not, of course, write on a clean slate, and it would, perhaps, be helpful to trace the evolution of the principles applied in this Division in discovery disputes involving surveillance.
Surveillance material has been subject to discovery in this division for many years, the Court first ordering its production in a case involving Norfolk and Western Railway Company, Smith v. Norfolk and Western Railway Company, Civil Action No. 77-3257 (decided February 4, 1981). In 1985, in a case involving CSX in which it was represented by the firm representing it in this case, Hesson v. The Chesapeake and Ohio Railway Company, Civil Action No. 83-3349 (decided May 31, 1985), the Court ordered defendant to “make available for inspection and copying all films and tapes taken in connection with surveillance of plaintiff,” and to answer interrogatories asking for the names and addresses of “any person conducting surveillance,” the “dates on which films or videotapes were taken” and seeking to determine
Once it is conceded, as it must be, that not only those surveilled may be tempted to alter the truth, but that those conducting the surveillance may be subject to the same temptation,
. See, Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa.1973); Daniels v. National Railroad Passenger Corporation, 110 F.R.D. 160 (S.D.N.Y.1986); Martin v. Long Island Rail Road Company, 63 F.R.D. 53 (E.D.N.Y.1974); Carlton v. National Railroad Passenger Corporation, 7 Fed.R.Serv.3d 79, 1987 WL 7607 (E.D.Pa.1987). See also, Forbes v. Hawaiian Tug & Barge Corp., 125 F.R.D. 505 (D.Haw.1989); DiGiacobbe v. National Railroad Passenger Corporation, 1987 WL 11227, 1987 U.S.Dist.Lexis 4029 (E.D.Pa.1987); Ancona v. Net Realty Holding Trust Co., — N.Y.2d-, 583 N.Y.S.2d 784 (1992).
. If, as is apparent, surveillance material is subject to alteration or distortion, then it simply makes no sense to conclude, as some courts have, that ‘‘[i]n those cases ... in which knowledge that a defendant does or does not possess motion pictures of the plaintiff would influence the testimony of the plaintiff or his witnesses, the possibility that the defendant may possess such motion pictures would probably tend to make the witnesses more careful. In those cases where the knowledge would not influence their testimony, the information would have little or no value to the plaintiff." Hikel v. Abousy, 41 F.R.D. 152, 155 (D.Md.1966). Altered or distorted surveillance material, if the alteration or distortion is to be exposed, would need to be provided to the plaintiff even though knowledge of the existence of the surveillance would not have altered plaintiffs testimony.
. See, Daniels v. National Railroad Passenger Corporation, 110 F.R.D. 160, 161 (S.D.N.Y.1986); Collins v. The Crosby Group, Inc. 551 So.2d 42 (Ct.App.La.1989). See abo, Delvaux v. Ford Motor Company, 518 F.Supp. 1249, 1252 (E.D.Wis. 1981).