Jenkins v. Rainner

• Decision Date: 13 January 1976
• Citation: 69 N.J. 50,350 A.2d 473
• Parties: Joyce P. JENKINS, Plaintiff-Appellant, and Mary Beth Hull, by her guardian ad litem Douglas E. Hull, and Douglas E. Hull, Individually, Plaintiffs, v. Joseph H. RAINNER and Ruthig Transportation Corporation, Defendants-Respondents, and George F. Weaver et al., Defendants.
• Court: New Jersey Supreme Court

Page 50

69 N.J. 50

350 A.2d 473

Joyce P. JENKINS, Plaintiff-Appellant, and Mary Beth Hull, by her guardian ad litem Douglas E. Hull, and Douglas E. Hull, Individually, Plaintiffs, v. Joseph H. RAINNER and Ruthig Transportation Corporation,

Defendants-Respondents,

and

George F. Weaver et al., Defendants.

Supreme Court of New Jersey.

Argued April 14, 1975.

Decided Jan. 13, 1976.

Henry L. Hewitt, Camden, for plaintiff-appellant (Weinberg & Fishman, Camden, attorneys).

James A. Mullen Jr., Camden, for defendants-respondents (Kisselman, Dieghan, Montano & Summers, Camden, attorneys).

The opinion of the Court was delivered by

CLIFFORD, J.

In preparation for trial of this action seeking recovery for personal injuries arising out of a vehicular accident, defendants-respondents' liability insurer placed plaintiff-appellant under surveillance and took motion pictures of her. The question presented here is whether on plaintiff's demand defendants must present a print of each film for examination and disclose the circumstances under which the movies were taken. The trial court concluded that they need not. The Appellate Division denied leave to appeal, but on plaintiff's application leave was granted by this Court. We now reverse.

I

On June 16, 1970 plaintiff Joyce P. Jenkins was a passenger in a bus which collided with a vehicle owned by defendant Ruthig Transportation Corporation and driven by its agent, defendant Rainner. In the course of discovery in her action against all owners and operators allegedly involved, Mrs. Jenkins gave an oral deposition on October 4, 1972. She therein testified as to the nature and extent of her injuries and treatment as well as her existing disability and complaints.

Thereafter, on August 14, 1974, plaintiff's attorneys took the deposition on oral examination of one Allen Waldman, a private investigator whose name as a witness had been supplied to them through defendants' answers to interrogatories. Waldman testified that in January, 1973, some three months after plaintiff's deposition, he received an assignment from a representative of Home Insurance Company, liability carrier for defendants. Incident to that assignment Waldman conducted a surveillance of Mrs. Jenkins and took motion pictures of her. Additionally, he had his employee Louis Talarico 'speak to other persons' about Mrs. Jenkins' physical condition and furnish a report on the results of the interviews. While Waldman was permitted to testify freely as to the type of camera used, the kind of lenses available and the range of apertures, he was instructed by defendants' attorney not to answer any inquiry respecting where, when, how often and under what circumstances the movies were taken, nor was he permitted to testify as to when the investigation of Mrs. Jenkins began and ended or to supply the names of the people to whom Talarico spoke. The basis for the attorney's position as stated at the deposition was that

* * * in actuality Mr. Waldman was hired to perform his services for our client, being insured by Home Insurance Company, and it was his work, and when and where and how he did that work is part of the work product of our preparation of this case for suit for defense.

Likewise, a demand of Waldman by plaintiff's attorneys to see Talarico's report was rejected, defendants' attorney stating that the report was a 'confidential communication between our investigator and our office.'

Plaintiff thereupon applied for an order (a) requiring defendants to produce photographs and moving pictures of Mrs. Jenkins, (b) compelling Waldman to answer all questions propounded of him at the depositions, and (c) requiring defendants to produce and allow inspection of the 'expert's report of Mr. Talarico.' After hearing argument and examining the record the trial court denied the relief sought in all respects.

As to Talarico's report, the briefs before us do not touch upon it. Given the present unilluminating record, particularly the absence of any indication that Talarico is in fact an expert, and the conspicuous avoidance of any argument on the report in the proceedings before us, we deem the point to have been waived. Suffice it to say that if the people Talarico interviewed have knowledge of relevant facts, their identify and location must be disclosed to plaintiff. R. 4:10--2(a). With respect to the films and the questions of Waldman, however, we think the trial court erred.

II

The relevancy of the films is acknowledged by defendants; for purposes of the argument we can assume they purport to portray plaintiff engaged in some physical activity inconsistent with her claims of disability. However, their disclosure is resisted on the ground that they were prepared for trial at the direction of defense counsel and thus are cloaked with absolute immunity from discovery as 'work produce'; and further that even if invasion of the defense file be permitted under our rules of discovery, plaintiff has not demonstrated either her 'substantial need' for these movies or her inability without undue hardship to obtain their substantial equivalent by other means, as required by R. 4:10--2(c).

A

Much of what was traditionally included as non-discoverable 'work product' has in recent years been stripped of its absolute protection. See Pressler, Current N.J. Court Rules, Comment R. 4:10--2. See also 'Developments in the Law--Discovery,' 74 Harv.L.Rev. 940, 1027--1046 (1961). So it is that now one is hard put to conceive of any non-privileged relevant material which enjoys an unqualified protection against discovery, that favored status of absolute immunity being reserved for 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' See Pressler, Current N.J. Court Rules, Comment R. 4:10--2. While reaffirming the sacrosanct character of whatever may be included in these latter categories, we hold as well that if the industry of counsel or his investigator results in a piece of concrete evidence, such as the motion picture films in this case, then that evidence is not rendered non-discoverable Solely because of the 'work product' doctrine. If it be non-discoverable despite its relevancy and the absence of privilege, it must be by reason of some exception provided for by our discovery Rules.

B

By its terms R. 4:10--2(c) permits a party, subject to certain conditions, to obtain discovery of non-privileged relevant documents and tangible things even though they were prepared by the adversary for trial, but 'only upon a showing that the party seeking discovery has Substantial need of the materials in preparation of his case and that he is unable without Undue hardship to obtain the substantial equivalent of the materials by other means' (emphasis supplied). Here the trial judge denied the application because he perceived no substantial need for plaintiff to view the movies; and inasmuch as she or her counsel could not see the films, he saw no benefit to them in the 'information relating to the details of the movies' as sought by the interrogation of Waldman.

Defendants argue that plaintiff has no 'substantial need' to view the surveillance movies because she better than anyone else knows the truth of her physical condition at the time the pictures were taken, and consequently her purpose in seeking discovery is not to learn facts of which she would otherwise be ignorant but rather to prepare herself in advance of trial against the damaging impact of impeachment evidence. This was substantially the position taken by the court in Margeson v. Boston & Me. R.R., 16 F.R.D. 200 (D.Mass.1954), on a motion to require production of documents, as follows:

The adoption of the Civil Procedure Rules was not a denial of the concept that the court is the forum and the trial the procedure best calculated to uncover the truth. The enthusiasm which greeted the discovery provisions of the Rules when carried, as it has been, to the extent here advocated, that 'the truth should be known before the trial, and nobody be surprised', seems calculated, however, to weaken the efficacy of ordinary trial procedure. There is a vast difference between surprise and unfair surprise. The one is as beneficial as the other is harmful. Not merely may too many rehearsals, in the form of too much discovery, take the bloom off the opening night, but this absence of freshness may make the performance sterile. A certain amount of surprise is often the catalyst which precipitates the truth. Alternatively it may serve as a medium by which the court or jury may gauge the accuracy of the account.

If every witness consistently told the truth, and none cut his cloth to the wind, little possible harm and much good might come from maximum pretrial disclosure. Experience indicates, however, that there are facile witnesses whose interest in 'knowing the truth before trial' is prompted primarily by a desire to find the most plausible way to defeat the truth. (Id. at 201.)

This approach, however, is not without its infirmities. As a matter of history it runs counter to this State's accommodation of competing policy considerations in this area,...