Defendant’s discovery obligations regarding surveillance materials
Conducting surveillance on plaintiffs through private investigators in personal injury claims is so prevalent that only a few cases reach the trial without some kind of investigation completed on behalf of the defendant. Surveillance is often very intrusive on victims of motor vehicle accidents. The methods employed by investigators range from making random phone calls at various times of day to plaintiffs’ numbers, to not–‐so-‐discretely videotaping them at various social gatherings. Yet, investigations may be utilized for discouraging bogus claims.
There are laws in place that assist in proper utilization of investigation materials in civil proceedings. Discovery obligations, as enshrined in the Rules of Civil Procedure, are examples of such laws. The disclosure obligations will prevent trial by ambush and assist the parties in making a fair assessment of their respective cases in light of the existing investigation materials, which may in turn help with the early resolution of claims and avoid the formidable expenses of trials.
Rules 30.02(1) and 30.02(3) require the existence of surveillance files to be disclosed in a party’s Affidavit of Documents while Rule 30.02(2) requires their production, unless privilege is claimed. The impact of Rule 31.01(1)(a) is that the videotapes in a surveillance file must also be listed in the Affidavit of Documents. The impact of Rule 31.01(1)(a) is that the videotapes in a surveillance file must also be listed in the Affidavit of Documents.
Usually soon after the Examination for Discovery or in some cases even before that, the defendants list their surveillance files in Schedule “B” of their Affidavit of Documents and thereby claim litigation privilege with respect to these materials. How much information is cited in the list usually varies commensurate with what the defence lawyer perceives to be the appropriate level of disclosure. Some list the span of surveillance, while others may include the name of the investigation company and date(s) of investigation (e.g. Detectives Inc.; May 10, 2010 to June 30, 2011).
There is, however, clear law on what information about the privileged surveillance file needs to be released in the Affidavit of Documents and I usually insist on their disclosure. For example, in Devji v. Longo Brothers Fruit Market Inc. the Ontario General Division ruled that regardless of claim of privilege, the following must be disclosed about surveillance:
- Date, time, and precise location;
- Particulars of the activities and observations made; and,
- The names and addresses of the persons who conducted the surveillance.
If a party continues to keep that surveillance material in the Schedule “B” until 90 days prior to the trial, Rule 30.09 prohibits him to use it for any purposes other than impeaching testimony. Of course if there are special circumstances that would satisfy a Judge to grant leave, the materials may be used for other purposes.
It is almost always the case that the investigators, entrusted with the task of conducting surveillance within a particular span of time, produce a report in addition to the videos. Often the reports not only provide a summary of what is depicted in the videos but they include additional comments such as description of instances when surveillance was attempted, but the plaintiff was not observed, or when the plaintiff seems to have become aware of the surveillance and done something to avoid it. Sometimes the reports also include a summary, in which the investigator states her perception of the plaintiff’s extent of abilities, impairments, or pain behaviors.
The question here is here is: what if the defendant produces the surveillance DVDs but withholds the report attaching thereto, claiming litigation privilege? Does waiving the litigation privilege with respect to a particular surveillance video result in an implied waiver regarding the attaching reports? Are videotapes and reports part and parcel of one investigation file or are they separate documents to which a party may claim distinct litigation privilege?The argument for production of both is that without production of the reports, the videos may portray an incomplete and unbalanced picture of the plaintiff, for the jury.
If the defendant is allowed to use an investigation video, taped by an investigator who is well aware of the purpose of his mission, and videotapes only when the party engages in activities, which if presented to the court, will jeopardize her claim, there is a potential for substantial prejudice to the plaintiff.
Take the example of a plaintiff who, suffering from chronic pain disorder as a result of injuries sustained in a motor vehicle accident (MVA), has substantially reduced her sporting activities. While prior to the accident she may have participated in weekly outdoor soccer tournaments, she is substantially limited as a result of her pain disorder after the accident. Since the MVA the chronic pain disorder has caused her to seclude herself and her social life is negatively impacted. Finally, trying to somewhat better her situation, she attempts to participate in some amateur indoor soccer games.
However, every time she participates in such sports, she pays the price by having to stay in bed for the following few days. The defendant’s investigators have, of course, videotaped her when in the arenas. These tapes are now produced to the plaintiff’s counsel more than 90 days prior to the trial. As one may expect, the videos do not contain footage of the plaintiff’s house, as the investigator awaits the plaintiff to show up and do something. However, the report likely makes mention of the fact that during the next few days following the soccer game the “subject” was not observed coming out of her home.
To make matters more complicated, the videos are produced to the defendant’s medical experts who, not having found any “objective” injuries, are convinced, after viewing the tapes, that the subjective reports of chronic pain are all part of an attempt to defraud the insurance company.
In Dumaliang v. Cheng, the opposite occurred: The defendant produced the reports to the plaintiff but not the videotapes. The defendant claimed litigation privilege regarding the videotapes. However, the defendant ended up producing some still photographs from the surveillance videotapes to his medical expert. After reviewing the investigation materials provided to him the expert commented that the plaintiff was “able to comfortably shop at a local convenience store, load and unload items into her shopping cart while alone, and also carry a parcel into a building without any obvious discomfort.”
After the plaintiff served the motion record for production of the videotapes, the defendant produced the photographs to the plaintiff. Yet, they maintained that there was no waiver of litigation privilege with respect to the videotapes.
One may anticipate the benefits that the reports may serve to the discovery process. Without the reports the videos fail to provide a complete and balanced picture of the plaintiff’s abilities and impairments. The lack of activity is just as relevant as the presence thereof, and without the reports the jury will be deprived of the whole picture. Furthermore, the reports will provide context to the surveillance. The investigator observes all activities but has discretion on what she videotapes. The segment of a surveillance video that shows the plaintiff lifting a grocery bag may be followed by some pain behavior that is not caught on tape but mentioned in the report.
The Plaintiff, in Dumaliang v. Cheng, made a similar argument. In summary, the plaintiff submitted that it was “unfair for the defendants to seek to rely on still photographs as evidence supporting an expert opinion, without providing the videotape of that surveillance to establish (i) the context in which it was taken, and (ii) whether there is evidence from that surveillance which contradicts Dr. Berbreyer’s [the expert] conclusions.”
Master Glustein agreed. He stated, “…Since the defendants seek to rely on a portion of the privileged surveillance evidence, principles of fairness require that the defendants produce the full videotape surveillance evidence of those events.”5 Master Glustein found that by producing the still photographs to their expert, the “the defendants have opened the door on this otherwise privileged evidence”.
But what if the expert did not have access to the still photographs or the reports and only relied on the videotapes? Would the videos on their own allow the plaintiffs and the court “the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question”?
Last year this was the question in the motion before Justice Gorman in Buchner v. Foster. The defendant produced surveillance DVDs well in advance of the trial to the plaintiff, who requested production of the accompanying reports. The defendant claimed litigation privilege with respect to the reports but after the motion record was served, compiled and produced a summary of the reports.The action, giving rise to this motion, related to a motor vehicle accident, as a result of which the plaintiff claimed having suffered injuries that gave rise to chronic pain disorder.
This was a novel case. Neither parties were able to point out an Ontario decision that dealt with the same issue. On behalf of the plaintiff, I directed the Court’s attention to the Alberta Court of Queen’s Bench’s decision of O’Scolai v. Antrajenda, which dealt with a similar scenario, in addition to the above-mentioned decision of Dumaliang v. Cheng. In O’Scolai v. Antrajenda the defendants had produced the surveillance videos and reports, but, among others, the plaintiff sought production of the investigator’s complete file.
In that decision Justice Read clearly indicated his disagreement with the proposition that “disclosure of a part of a file waives privilege with respect to the entire file”. However, he ruled that the principles of fairness and consistency may result in waiver by implication. This principle is set out in Wigmore on Evidence:
“Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not.
He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.”
After reviewing a number of decisions and elaborating on the application of the “fairness test”, Justice Read ordered the defendants to disclose to the plaintiff whether there had been additional surveillance done by the investigator whose videos and reports were previously produced, so that the plaintiffs could be “satisfied that the videotapes disclosed was consistent with other surveillance on file (i.e. the Defendant is not ‘cherry-picking’ favourable evidence).”
In Buchner v. Foster I argued that the principles of fairness and consistency resulted into an implied waiver of litigation privilege. By cherry-picking what portion of the surveillance materials to produce, the plaintiff would suffer substantial prejudice at the trial if reports were not produced to put the video footage in their proper context.
Justice Gorman disagreed. In her reasoning Her Honor stated: “I am not persuaded that the mere disclosure of the surveillance video is sufficient to have caused privilege to have been waived regarding the surrounding documentation. The DVD is a distinct entity apart from the logs and the correspondence that instructed the investigators” (emphasis added). Though Justice Gorman reasons did not indicate whether reports are also considered surrounding documentation that were considered distinct from the DVDs, such conclusion may be implied from the result of the motion.When defence surveillance videos are to be used for their substantive value (as opposed to using them for impeachment purposes) in trial, the decisions of Landolfi v.
Fargione and Ball v. Vincent provide the guiding standards of admissibility. In addition to the relevance threshold the video evidence must (a) be accurate in their representation of the relevant facts, (b) be fair and absent of an intention to mislead, and (c) be verified under oath by a person capable of doing so.
Without the reports, which may include the concluding remarks of the investigator, the videotapes may serve as an inaccurate and misleading representation of the plaintiff’s abilities and impairments. Investigators are not experts and do not have a Rule 53.03 duty of objectivity to the court. Their sole purpose is likely to be assisting the defence of Plaintiffs claims. The videotaping of Plaintiffs is a procedure that is largely reliant upon the discretions and experiences of the investigators
As such, if defendants are allowed to pick and choose what portion of surveillance materials they may produce and rely upon, surveillance materials will serve to mislead the jury and the plaintiffs will suffer significant prejudice at trial. It is hoped that the state of law in this matter will soon come to a clear and certain position where surveillance is no longer used as a tool for bullying Plaintiffs and a “hired gun” for defence counsel.
M.H.  O.J. No. 1542.  Also see; Aherne v. Chang, 2011 ONSC 3846, p.20; Walker v. Woodstock District Chamber of Commerce, , 7 O.R. (3d) 381 (Ont. C.A.); Murray v. Blackwood, (1988), 66 O.R. (2d) 129 (Ont. Div. Ct.); Sacrey v. Berdan,  O.J. No. 2572 (Ont. Dist. Ct.).  Also see Landolfi v. Fiargone, 2006 CarswellOnt 1855.  2006 CanLII 36356 (ON SC).  Ibid, p.11.  Ibid, p. 15.  2014 ONSC 1118 (unreported).  2008 ABQB 77.  McNaughton revision, vol. 8, s.2327 at pp 635-38.  2006 CarswellOnt 1855.  (1993), 24 C.P.C. (3d) 221 (Ont. Ct. (Gen. Div.)).