Where surveillance
videos of plaintiff were obtained in preparation for litigation and were thus
work product, the Court of Appeals affirmed the trial court’s decision to
require defendant to only produce those surveillance videos he intended to use
at trial for impeachment purposes.
In Locke v. Aston,
No. M2022-01820-COA-R9-CV (Tenn. Ct. App. Sept. 25, 2023), plaintiff filed an
HCLA action against defendant doctor. After plaintiff nonsuited her first case
and in anticipation of plaintiff re-filing, defendant’s counsel obtained
surveillance videos of plaintiff. After plaintiff re-filed her case, a
discovery dispute arose around the production of these surveillance videos.
While the trial court originally ruled that the defendants should produce the
videos without limitation, it subsequently amended its ruling and ultimately
found that the surveillance videos were work product and that defendant was
only required to produce those videos he intended to use at trial for
impeachment purposes. On appeal, this ruling was affirmed.
Tenn. R. Civ. P. 26.02(3) governs when material that qualifies
as work product is nonetheless discoverable by an opposing party. The Rule
requires the person seeking discovery to show that they have a “substantial
need of the materials in the preparation of the case and [are] unable without
undue hardship to obtain the substantial equivalent of the materials by other
means.” By ruling that only the videos that would be used for impeachment were
discoverable, the trial court had agreed with defendant that plaintiff did not
have a substantial need of surveillance video that corroborated her claim.
Thus, substantial need was the primary issue in this appeal.
