Fighting sub rosa corruption - psblaw.com

1 Brian PanishDavid RudorferTo avoid being ambushed in trial itis necessary to aggressively pursue sur-veillance evidence (aka sub rosa ) fromthe beginning to the end of every per-sonal-injury case. The reason is that theclassic use of sub rosato expose anallegedly dishonest plaintiff has evolvedinto a corrupt practice of using advancedvideo editing technology to make a trulyinjured plaintiff appear to be not injured,or less injured. Especially with catastrophic-injurycases, the defense industry s regular useof sub rosanow involves editing andmanipulating video to create a false orinaccurate appearance of the plaintiffbeing less injured.

2 For example, it hasbecome common for the defense to hirea private investigator to engage in hun-dreds of hours of secret sub rosavideoover many days, weeks or even months,in hopes of recording the plaintiff doingsome activity inconsistent with theirclaimed injuries or deficits. The investi-gator then takes the hundreds of hoursof sub rosavideo and edits it down to afew clips which are only a minute or afew seconds long. The videos are alsoedited to make it appear that the plain-tiff is engaging in activities in an order ortime frame that is highly distorted andinaccurate. In short, the sub rosaevidenceis drastically edited to be taken out ofcontext which creates a false impressionof plaintiff s medical condition or needfor future treatment.

3 These are now typi-cal defense sub much more devious use of subrosaevidence involves video that ismanipulated. We have experienced invarious recent trials that the defense hasattempted to introduce video sub rosaofthe plaintiff which was digitally sped upto make it appear that the plaintiff waswalking faster than she claimed shecould. Similarly, we have seen the videotitled, angled or skewed to impact on theappearance of the video such as to makeit appear that the plaintiff is walking up ahill when they were on a flat fraudulent attempts at creatingalleged impeachment evidence by manip-ulating sub rosavideo are unfortunatelybecoming more and more common.

4 Regardless of whether the sub rosaevi-dence is being taken out of context orbeing manipulated, this corruption cannotbe tolerated. There are various tools ofdiscovery or statutes which can be usefulin the fight against the improper use ofsub rosa . Also, objections on the grounds offoundation, authentication and/or thedoctrine of completeness can pose signifi-cant problems for a defense attorney try-ing to use improperly edited sub rosavideo. If you diligently fight to discoversub rosaevidence from beginning to end,you will often be able to either keep theevidence out of trial, minimize the harm itcan cause, or in some cases use it to youradvantage.

5 The purpose of this article isto provide guidance to the plaintiff attor-ney on how to expose the sub rosacorrup-tion, and use it to your advantage. Sub rosaof the plaintiff is subject todiscovery California has long held that photo-graphs and films of surveillance are sub-ject to discovery and, further, that suchevidence is not protected by the attorney-client or work-product privilege. (Suezakiv. Superior Court(1962) 58 166.)The Suezakicase remains the leadingauthority in California on this topic. TheCalifornia Judicial Council has con-firmed this position recognizing the discoverability of sub rosaevidence asreflecting in Judicial Council FormInterrogatory 13 series.

6 FormInterrogatory specifically requiresthe responding party to identify thename, address and telephone number ofthe individual conducting surveillance;the time, date, and place of surveillance;and the name, address and telephonenumber of each person who has the orig-inal or copy of any surveillance photo-graph, film or videotape. Moreover,Form Interrogatory requires theresponding party to identify informationfor any written surveillance reportsincluding the title, date, name of author,and identification of the person who hasthe original or copy. Thus, you can easily begin aggres-sively conducting discovery of sub rosaevidence by serving form interrogatoriesthat includes the 13 series.

7 Every singlepiece of evidence requested by FormInterrogatory and is critical tosuccessfully cross examine the defenseprivate investigator and uncover the fullextent of surveillance or any potentialimproper addition to form interrogatories,it is necessary to also serve special inter-rogatories under Code of Civil Proceduresections , as well asinspection demands/requests for produc-tion under sections all forms of sub rosaevidence. Inshort, request the details of all aspects ofthe sub rosaby special interrogatories andall reports, documents, videotapes, bills,notes or correspondence should be thesubject of requests for production.

8 If the defendant is an entity ratherthan individual, serve a person mostqualified deposition notice under with subject areas on sub , simply notice the depositionsof the individual investigators under sec-tions once you obtaininformation on their careful to evaluate the defen-dant s responses to requests for sub rosaevidence for any objections. If they areasserting objections, you must meet andconfer for amended responses withoutthe objections. If they refuse, you knowthey have sub rosaand you must file amotion to compel which asserts the lawFighting sub rosacorruptionTools to use against an ambush at trial by defendant s corrupted evidence April 2014 IssueSee Panish & Rudorfer, Next Pageand arguments in this article to avoidbeing ambushed at is important to note that sub rosaevidence is unique because it can be cre-ated literally at any time up to andthroughout trial.

9 For this reason, you can-not rely on discovery responses early inthe case. It is necessary to serve supple-mental discovery requests under Code ofCivil Procedure section for allprior interrogatories or supplemental dis-covery requests under section all prior requests for production asyou approach the close of discovery. Again, be sure to keep a close eye forresponses to the supplemental discoverythat include newly asserted objections toprior discovery requests for sub rosaevi-dence. If such objections are asserted,you know they have sub rosaand youmust file the motion to compel this evi-dence or you are risking being ambushedat trial.

10 Please contact author for samplesub rosadiscovery and motion to rosaevidence is not protected by the attorney-client privilege orattorney-work-product doctrineDefendants will often object torequests for sub rosaevidence on groundsof attorney-client privilege or attorney-work-product doctrine. Both of theseobjections are misplaced and withoutmerit. The California Supreme Court, inSuezaki, specifically addressed and dis-missed both these objections. The SuezakiCourt explained thatsurveillance evidence does not constitutea confidential communication for pur-poses of the attorney-client privilege andfurther, that transmission of the evidenceto the attorney, even where the partiesintend the matter to be confidential, cannot create the privilege if none, infact, exists.