Myers v. Aleutian Endeavors LLC et al

Filing 35

ORDER granting in part and denying in part 26 Motion to Compel. Signed by Judge H. Russel Holland on 6/4/18. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

THOMAS MYERS,

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Plaintiff,
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vs.
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ALEUTIAN ENDEAVORS, LLC, et al.,
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Defendants.
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_______________________________________)

No. 3:18-cv-0033-HRH

ORDER
Motion to Compel
Plaintiff Thomas Myers moves to compel defendants Aleutian Endeavors, LLC and
Thomas Robinson to answer Interrogatory No. 5.1 This motion is opposed.2 Oral argument
was not requested and is not deemed necessary.
Background
Plaintiff alleges that he was injured while working aboard the M/V EXITO in June
2015. Plaintiff commenced this action on November 20, 2017. In his complaint, plaintiff
seeks, among other things, unearned wages, maintenance, and cure. Defendants have
1

Docket No. 26.

2

Docket No. 30.
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answered plaintiff’s complaint and deny his allegations that he was injured abroad the M/V
EXITO.3 The parties have begun discovery and a dispute has arisen over plaintiff’s
Interrogatory No. 5.
In Interrogatory No. 5, plaintiff asks whether
defendant[s] or anyone acting on [their] behalf conducted a
surveillance of the plaintiff or engaged any person or firm to
conduct a surveillance of the plaintiff or his[] activities? If the
answer to the question is ‘yes’, please state the date(s) of each
surveillance and the activities of the plaintiff at the time of each
surveillance.[4]
Defendants responded: “OBJECTION: Work product.”5
Plaintiff’s counsel conferred with defense counsel regarding defendants’ objection and
during that conference, defense counsel “disclosed that no surveillance of the plaintiff had
been conducted thus far” but defense counsel “refused to withdraw his work product
objection and would not commit to informing plaintiff should surveillance be undertaken in
the future, before or after the deposition of plaintiff[.]”6 Defense counsel avers that
plaintiff’s counsel “conceded that he [would not be] entitled to production of the surveillance

3

Docket No. 22.

4

In Personam Defendants’ Answers to Plaintiff’s First Interrogatories at 5, Exhibit 1,
Plaintiff’s Motion to Compel Discovery Response Regarding Surveillance, Docket No. 26.
5

Id.

6

Declaration of Counsel in Support of Plaintiff’s Motion to Compel [etc.] at 2, ¶ 3,
Docket No. 27.
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video/photos before plaintiff’s deposition but insisted . . . that he was ‘entitled to know’
about the existence of surveillance both before and after plaintiff’s deposition.”7
Plaintiff now moves for an order compelling defendants to “withdraw their work
product objection and answer plaintiff’s Interrogatory No. 5 concerning surveillance.”8
Discussion
The issue here is the discoverability of whether surveillance has been done or will be
done in the future, not the discoverability of surveillance materials themselves. Defendants
first argue that because plaintiff now knows that no surveillance has been conducted,
anything the court would determine about the discoverability of the existence of surveillance
would be an advisory opinion, which the court may not render. Maldonado v. Morales, 556
F.3d 1037, 1044 (9th Cir. 2009).
That defendants have informally responded to Interrogatory No. 5 does not mean that
plaintiff is requesting an advisory opinion. Rule 33(b)(3), Federal Rules of Civil Procedure,
provides that “[e]ach interrogatory must, to the extent it is not objected to, be answered
separately and fully in writing under oath.” If defendants’ work product is not a proper
objection or if defendants intend to waive their work product privilege as to the existence of
surveillance, plaintiff is entitled to a written answer as provided for in Rule 33(b)(3). There

7

Declaration of Thomas G. Waller [etc.] at 1-2, ¶ 3, Docket No. 31.

8

Plaintiff’s Motion to Compel Discovery Response Regarding Surveillance at 2,
Docket No. 26.
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is an actual, present controversy here as to how defendants should respond to Interrogatory
No. 5.
As to the question of whether the existence of surveillance is discoverable, defendants
urge the court to find that it is not because it is work product. Defendants cite to Ranft v.
Lyons, 471 N.W.2d 254 (Wis. Ct. App. 1991), in support. There, the court held that “[a]
lawyer’s strategic decision to invest a client’s resources on photographic or video
surveillance is protected work-product.” Id. at 261. Defendants also cite to Snead v.
American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973). There, the court
held that before making any disclosures as to the existence of surveillance, “the defense must
be given an opportunity to depose the plaintiff fully as to his injuries, their effects, and his
present disabilities.” Id. at 151.
The court is not persuaded by these authorities. The court finds the holding and
reasoning of Dodson v. Persell, 390 So.2d 704 (Fla. 1980), to be more persuasive. There,
the Florida Supreme Court held “that upon request a party must reveal the existence of any
surveillance information he possesses whether or not it is intended to be presented at trial.”
Id. at 707. The court explained that
[w]hat we require is that a party must disclose the existence of
material which is or may be relevant to the issues in the cause
whether as substantive, corroborative, or impeachment evidence.
Relevant evidence cannot be allowed to remain hidden in a
party’s or an attorney’s files. Knowledge of its existence is
necessary before a judicial determination can be made as to
whether the contents are privileged.

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Id. Other courts have also “held that although surveillance material is protected work
product, whether [a d]efendant conducted surveillance and the dates on which any
surveillance took place [are] not privileged. . . .” Fletcher v. Union Pacific R.R. Co., 194
F.R.D. 666, 668 (S.D. Cal. 2000); see also, Tripp v. Severe, Case No. CIV.A.L–99–1478,
2000 WL 708807, at *1 (D. Md. Feb, 8, 2000) (defendant required “to disclose the existence
of the surveillance materials” but not required to produce surveillance materials until “after
plaintiff's deposition has been taken”). Based on these authorities, the court concludes that
the existence of surveillance is not protected work product.
Defendants also argue that the existence of surveillance should not be discoverable
because it is not relevant. “[P]arties may obtain discovery of any information that is ‘relevant
to any party’s claim or defense and proportional to the needs of the case [.]’” Tedrow v.
Boeing Employees Credit Union, 315 F.R.D. 358, 359 (W.D. Wash. 2016) (quoting Fed. R.
Civ. P. 26(b)(1)).

“‘Relevant information for purposes of discovery is information

reasonably calculated to lead to the discovery of admissible evidence.’” Id. (quoting
Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th Cir. 2005)). Some
courts have found that the discoverability of surveillance materials depends on whether the
defendant will use the materials at trial. See, e.g., Bradley v. Wal-Mart Stores, Inc., 196
F.R.D. 557, 557 (E.D. Mo. 2000). Defendants argue that if surveillance materials are not
themselves discoverable unless they are going to be used at trial, then information about the

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existence of such materials would not lead to the discovery of admissible evidence and thus
it is not relevant.
But, defendants’ argument cuts the other way as well. If surveillance materials are
going to be used by a defendant at trial, then information about the existence of such
materials could lead to the discovery of admissible evidence. At this point, the court is not
convinced that, in this case, information about the existence of surveillance is irrelevant.
Defendants’ work product objection to Interrogatory No. 5 was not proper, and the
existence of surveillance may be relevant to the claims and defenses in this case. Thus,
defendants are compelled to provide an answer to Interrogatory No. 5 that complies with
Rule 33(b)(3).
The foregoing does not, however, resolve the issue of whether plaintiff is entitled to
be informed of any future surveillance. As even plaintiff seems to concede,9 the decision to
conduct surveillance is not the same as the fact of surveillance. The former is plainly work
product. Plaintiff is not entitled to be informed prior to defendants conducting any
surveillance in the future.
Conclusion
Plaintiff’s motion to compel is granted in part and denied in part. Defendants’ work
product objection is overruled. Defendants shall answer Interrogatory No. 5 in a form that

9

Reply Memorandum in Support of Plaintiff’s Motion to Compel [etc.] at 2, Docket

No. 34.
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complies with Rule 33(b)(3). Defendants do not, however, have to inform plaintiff should
they decide to conduct surveillance in the future.
DATED at Anchorage, Alaska, this 4th day of June, 2018.
/s/ H. Russel Holland
United States District Judge

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