Moak v. Illinois Cent. R. Co.

Decision Date14 January 1994
Citation631 So.2d 401
Parties93-0783 La
CourtLouisiana Supreme Court

Douglas K. Williams, Breazeale, Sachse & Wilson, Baton Rouge, for applicant.

J.J. McKernan, Freidman, McKernan & Gold, Baton Rouge, for respondent.

Harry A. Johnson, III, for Louisiana Ass'n of Defense Counsel (amicus curiae).

Lawrence S. Kullman, for Louisiana Trial Lawyers Ass'n (amicus curiae).


[93-0783 La. 1] CALOGERO, Chief Justice. 1

Regarding plaintiff's effort to discover surveillance films taken of him by or under the direction of defendant in this injury case, two discreet questions are presented: (1) May the district court judge deny the plaintiff's request for production of the surveillance films unless and until it becomes evident to the court that the film will be used at trial; and (2) Assuming the trial judge may not deny production, is he bound to delay it until plaintiff's deposition is taken.

For the reasons which follow, we conclude, relative to the first question, that the district court judge may not deny production of the surveillance films, and, relative to the second question, that he is not bound to permit defendant to take plaintiff's deposition before ordering defendant to produce the surveillance films, although he is at liberty to do so in the exercise of his discretion. Because it is not clear whether this judge felt legally compelled to rule as he did regarding the timing of production (i.e., deposition first, production possibly later) or, conversely, whether he understood that he had the discretion to order production followed by deposition, we will remand the case for the trial judge to rule anew.


On August 21, 1992, plaintiff, Woody Raymond Moak, filed a Petition for Damages [93-0783 La. 2] against the Illinois Central Railroad Company, his former employer, pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51. 2 He alleged that he injured his back while working as a carman. He was manually transporting an "F-type knuckle" to its final destination from a bin at the Baton Rouge, Louisiana Rip Track. He contends that he was later discharged because of physical limitations resulting from the injury.

In a pre-trial discovery request for production filed with the petition, plaintiff sought "[a]ll photographs, movies or videotapes made after September 2, 1989, showing or depicting Woody Moak." [The alleged injury occurred on September 26, 1989.] Illinois Central's response to this discovery request was to object for the reason that plaintiff was seeking information which was attorney work product prepared in anticipation of litigation.

When the defendant attempted to schedule his deposition, Moak refused to appear until Illinois Central produced all discoverable material, including any surveillance tapes. Illinois Central filed a Motion To Compel Moak to appear for his deposition, whereupon he filed both a Motion For Protective Order for the postponement of the scheduling of the mover's deposition and a Motion To Compel Discovery with regard to one of his interrogatories and regarding certain items on his Request for Production. At a hearing on the motions, the trial judge ordered that Illinois Central's Motion To Compel plaintiff's deposition be granted, that plaintiff's Motion for a Protective Order be denied, and that Illinois Central respond to the Interrogatory and to certain of the Requests for Production, but not the request for movies or videotapes. In his oral reasons, the trial judge stated that he would reconsider the production of the surveillance film at the pre-trial conference, which was to be scheduled after the deposition. Should it appear at that time that the surveillance films would be used as exhibits at trial, production would then be required, he said.

Citing Collins v. The Crosby Group, Inc., 551 So.2d 42 (La.App. 1st Cir.1989), cert. denied, 556 So.2d 39 and 42 (La.1990), the court of appeal denied plaintiff's application [93-0783 La. 3] for supervisory writs. 3 This Court, however, granted his application and issued a peremptory order, staying plaintiff's deposition until after defendant produces the surveillance film. On defendant's application, we granted a rehearing to reconsider that action. Moak v. Illinois Central Railroad, 618 So.2d 398 (La.1993).


This Court, in Hodges v. Southern Farm Bureau Casualty Insurance Co., 433 So.2d 125, 129 (La.1983), has said that:

[t]he basic objectives of the Louisiana discovery process are (1) to afford all parties a fair opportunity to obtain facts pertinent to the litigation, (2) to discover the true facts and compel disclosure of these facts wherever they may be found, (3) to assist litigants in preparing their cases for trial, (4) to narrow and clarify the basic issues between the parties, and (5) to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims.

To achieve these objectives, the courts are to construe the discovery statutes liberally and broadly. Id. (citing Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir.1973); 8 Wright & Miller, Federal Practice and Procedure, § 2001, p. 17 (1970 ed.)).

The objectives of discovery may be accomplished by several methods. According to La.Code Civ.Proc.Ann. art 1421 (West 1984), parties may obtain discovery through depositions, written interrogatories, production of documents or things or permission to enter upon land or other property, physical and mental examinations, and requests for admission. Article 1461 allows any party to request the production, inspection, and duplication of designated documents including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations and to inspect and copy, test, or sample any tangible things which constitute matters within the scope of discovery.

The scope of discovery in Louisiana is addressed in Articles 1422-1425 of the Code of Civil Procedure. According to Article 1422, "[p]arties may obtain discovery regarding any [93-0783 La. 4] matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party," and even if "the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." (emphasis added)

On the other hand, "a writing" may be immune from discovery under La.Code Civ.Proc. art. 1424 (West 1984) 4 if it has been "obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, or agent in anticipation of litigation or in preparation for trial." For such writings, an exception to this immunity is made by Article 1424, however, if the trial court is "satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice." Nevertheless, Article 1424 prohibits the production "of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert."

Thus, even if Article 1424's qualified immunity for trial preparation writings were to be applicable to tangible things such as film, it is worth noting that the absolute protection traditionally afforded attorney work product has eroded in recent years. Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473, 475 (1976). Other than an attorney's mental impressions, conclusions, opinions, or legal theories concerning litigation, it is difficult to conceive of any non-privileged, relevant material which is so protected against discovery. Id.

More to the point, however, and obviating any need to focus on the exception to immunity based upon unfair prejudice, undue hardship or injustice, is the fact that Article 1424 specifically excludes from discovery only "any writing obtained or prepared ... in [93-0783 La. 5] anticipation of litigation or in preparation for trial." 5 Thus, Louisiana's "work product" exclusion applies only to a "writing" and does not include tangible things such as videotapes, films or photographs. 6 In contrast, Fed.R.Civ.P. 26(b)(3) permits the discovery of "documents and tangible things ... prepared in anticipation of litigation or for trial" ["... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means."] (emphasis added) Although Louisiana discovery rules are based in large part on the Federal Rules of Civil Procedure, we note that our codal provision, (La.Code Civ.Proc. art. 1424) which limits the "work product" immunity to writings, pre-dates the federal rule by eighteen years, and that, throughout its history, other Louisiana discovery provisions (but not Article 1424) have specified that both documents and "tangible things" are subject to discovery through a request for production of documents. Therefore, it can hardly be argued that the use of the term "writing" was routinely employed by our Legislature to encompass both writings and tangible things. Furthermore, despite the Legislature's 1976 comprehensive amendments to the Louisiana discovery provisions, which amendments followed the enactment of Fed.R.Civ.P. 26(b)(3), with its reference to tangible things as well as documents, Louisiana's [93-0783 La. 6] "work product" rule at Article 1424 was not changed.

It is also clear that the objectives of pretrial discovery are enhanced by production of the films. When a plaintiff is claiming personal injury, a film,...

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