Smith v. Chen

[Cite as Smith v. Chen, 2013-Ohio-4931.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Henry Smith, :

Plaintiff-Appellee, :
No. 12AP-1027
v. : (C.P.C. No. 10CVA-12-18058)

Ying H. Chen, D.O. et al., : (REGULAR CALENDAR)

Defendants-Appellants. :

D E C I S I O N

Rendered on November 7, 2013

Colley Shroyer & Abraham Co., LPA, and David I. Shroyer,
for appellee.

Hammond Sewards & Williams, and Frederick A. Sewards,
for appellants.

APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
{¶ 1} Defendants-appellants, Ying H. Chen, D.O., and OrthoNeuro (collectively
"defendants"), appeal from a judgment of the Franklin County Court of Common Pleas
granting the motion to compel discovery of plaintiff-appellee, Henry Smith ("plaintiff").
Because plaintiff established good cause for production of surveillance video, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 10, 2010, plaintiff filed a medical malpractice complaint
against defendants. Plaintiff alleged that on January 15, 2007, Dr. Chen, a neurological
spine surgeon employed by OrthoNeuro, performed surgery on plaintiff's back. Plaintiff
claimed that following the surgery he suffered from weakness and pain in his neck and
No. 12AP-1027 2

back, which he believed was the result of "intraoperative spinal coed ischemia caused by
the surgery procedure." (Complaint, ¶ 15.) Plaintiff had an additional surgery on June 9,
2007 to relieve his weakness and pain. Plaintiff alleged that he now suffers from cervical
spondylosis, constantly experiences progressing pain, discomfort, and weakness in his
neck and back, and has entered into chronic pain management and is on chronic
disability. Plaintiff asserted that he has incurred permanent medical expenses, "loss of
enjoyment of life, inability to do usual functions, lost wages, and a lost earning capacity."
(Complaint, ¶ 24.)
{¶ 3} Defendants filed an answer to the complaint, and the parties proceeded with
discovery. Plaintiff was deposed on January 6, 2012. On March 12, 2012, defendants filed
their final pre-trial statement, identifying Jeanne Knable and Jeremy Grimes as two
individuals who would testify for the defense regarding plaintiff's activities.
{¶ 4} On June 18, 2012, plaintiff filed a request for production of documents,
requesting copies of " 'any and all investigative reports, videotapes, audiotapes, witness
statements, etc., that were prepared by Boerger Investigative Services, Jeanne Knable or
Jeremy Grimes, concerning Henry Smith's activities or disabilities intended for use in the
above matter.' " (Motion to Compel, 2.) Defendants objected to the request, asserting
that any such video surveillance materials were privileged attorney work-product, which
defendants intended to use solely as impeachment evidence.
{¶ 5} On November 8, 2012, plaintiff filed a motion to compel the production of
the surveillance evidence, or, alternatively, a motion in limine to prevent defendants from
introducing the surveillance evidence during trial. Plaintiff noted that he had no
knowledge of what might be on the surveillance video and asserted that if the video were
not produced he would have "no opportunity to ascertain the quality or accuracy of what
the video portrays" or whether "the video images ha[d] somehow been manipulated or if
the person in the video [was] even, actually, Plaintiff." (Motion to Compel, 4.)
{¶ 6} Defendants filed their memorandum contra plaintiff's motion to compel on
November 12, 2012. Defendants asserted in the motion that, Franklin County Court of
Common Pleas Local Rule ("Loc.R.") 41.04 provided that parties need not disclose
impeachment exhibits in their pre-trial statement, Loc.R. 41.04 recognized the privileged
No. 12AP-1027 3

nature of impeachment evidence. Defendants further asserted that, as they prepared the
video for trial, it was attorney work-product and plaintiff had not established good cause
for its production.
{¶ 7} On December 5, 2012, the court issued a decision and entry granting the
motion to compel. The court determined that Loc.R. 41.04 had limited applicability, as
the rule only pertained to whether a party was required to disclose the existence of certain
types of evidence to the opposing party before trial. The court found that plaintiff had a
compelling need to view the video prior to trial, in order to ascertain whether defendants
had manipulated the video. Because defendants had already taken plaintiff's deposition,
the court found that even "if the contents of the video are shown to Plaintiff, the
impeachment value claimed by Defendants still stands," as plaintiff's "sworn testimony
[was] 'frozen.' " (Decision and Entry, 4.) The court concluded that the "surprise and
unfairness to Plaintiff outweigh[ed] the considerations of attorney work product privilege
offered by Defendants." (Decision and Entry, 4.) Defendants timely filed an appeal from
the court's decision.
II. ASSIGNMENT OF ERROR
{¶ 8} Defendants sole assignment of error asserts as follows:
The trial court erred, as a matter of law, when it granted
Plaintiff's Motion to Compel Discovery of Defendants'
Surveillance Videotape since its purpose was to be used by
Defendants for impeachment purposes only and it constitutes
Defendants' counsel's work product.

III. MOTION TO COMPEL PROPERLY GRANTED
{¶ 9} Defendants assert the trial court erred in granting plaintiff's motion to
compel, as the surveillance video is privileged attorney work-product and defendants will
only use the video as impeachment evidence at trial.
{¶ 10} Before addressing the merits of the case, we note that appellate courts can
only "review and affirm, modify, or reverse judgments or final orders." Ohio Constitution,
Article IV, Section 3(B)(2). A judgment that leaves issues unresolved and contemplates
further action by the court is not a final appealable order. Briggs v. Mt. Carmel Health
Sys., 10th Dist. No. 07AP-251, 2007-Ohio-5558, ¶ 7. Thus, discovery orders are generally
No. 12AP-1027 4

interlocutory orders which are not immediately appealable. Legg v. Hallet, 10th Dist. No.
07AP-170, 2007-Ohio-6595, ¶ 15.
{¶ 11} While general discovery orders remain interlocutory, "orders requiring the
disclosure of privileged information are final and appealable." Id. at ¶ 16. R.C.
2505.02(B)(4) specifies that an order granting or denying a provisional remedy is final
and subject to review if the order (1) "in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy," and (2) "[t]he appealing party would not be
afforded a meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action." A "provisional remedy" is "a
proceeding ancillary to an action, including, but not limited to, a proceeding for * * *
discovery of privileged matter." R.C. 2505.02(A)(3). The "work-product doctrine provides
a qualified privilege protecting the attorney's mental processes in preparation of
litigation." (Emphasis sic.) Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors
Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, ¶ 55. As the order at issue determined that
the surveillance video was attorney work-product subject to discovery for good cause, it is
a final appealable order which this court may properly review.
{¶ 12} "A trial court enjoys broad discretion in the regulation of discovery, and an
appellate court will not reverse a trial court's decision to sustain or overrule a motion to
compel discovery absent an abuse of discretion." Stark v. Govt. Accounting Solutions,
Inc., 10th Dist. No. 08AP-987, 2009-Ohio-5201, ¶ 14. Generally, whether "information
sought in discovery is confidential and privileged 'is a question of law that is reviewed de
novo.' " MA Equip. Leasing I, L.L.C. v. Tilton, 10th Dist. No. 12AP-564, 2012-Ohio-4668,
¶ 13, quoting Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13.
However, "Ohio courts do not review all issues surrounding privilege de novo." Id. at ¶ 16.
Whether materials are protected by the attorney work-product privilege, and the
determination of the good-cause exception to that privilege, are not characterized as
"questions of law, but as 'discretionary determinations to be made by the trial court.' "
Id., quoting State ex rel. Greater Cleveland Regional Transit Auth. v. Guzzo, 6 Ohio St.3d
270, 271 (1983). See id. at ¶ 18 (noting that the appropriate standard of review "ultimately
No. 12AP-1027 5

depends upon whether an appellate court is reviewing a question of law or a question of
fact"). Accordingly, we review the trial court's determination of good cause for an abuse
of discretion.
{¶ 13} "The scope of pretrial discovery is broad and parties may obtain discovery
regarding any matter that is not privileged and is relevant to the subject matter." Legg at
¶ 15, citing Civ.R. 26(B)(1). The work-product doctrine provides for a limited privilege
which protects documents, electronically stored information and other tangible things
"prepared in anticipation of litigation or for trial by or for another party or by or for that
other party's representative." Civ.R. 26(B)(3).
{¶ 14} The work-product doctrine emanates from the United States Supreme Court
decision in Hickman v. Taylor, 329 U.S. 495, 511 (1947), in which the Supreme Court
recognized that proper case preparation demands that an attorney "work with a certain
degree of privacy, free from unnecessary intrusion by opposing parties and their counsel."
Id. at 510. If an attorney's work-product prepared in anticipation of litigation were "open
to opposing counsel on mere demand, much of what is now put down in writing would
remain unwritten. * * * Inefficiency, unfairness and sharp practices would inevitably
develop in the giving of legal advice and in the preparation of cases for trial." Id. at 511.
The Hickman court acknowledged, however, that "[w]here relevant and non-privileged
facts remain hidden in an attorney's file and where production of those facts is essential to
the preparation of one's case, discovery may properly be had." Id.
{¶ 15} Thus, the work-product doctrine provides " 'a zone of privacy in which
lawyers can analyze and prepare their client's case free from scrutiny or interference by an
adversary.' " Squires, Sanders & Dempsey at ¶ 55, quoting Hobley v. Burge, 433 F.3d
946, 949 (7th Cir.2006). See also Civ.R. 26(A). The doctrine is " 'an intensely practical
one, grounded in the realities of litigation in our adversary system,' and the privilege
afforded by the work-product doctrine is not absolute." Id., quoting United States v.
Nobles, 422 U.S. 225, 238-39 (1975).
{¶ 16} Civ.R. 26(B)(3) thus provides that an attorney's materials prepared in
anticipation of litigation are discoverable "only upon a showing of good cause therefor."
The party seeking discovery carries the burden of demonstrating good cause for the
No. 12AP-1027 6

sought-after materials. Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, ¶ 16.
"[A] showing of good cause under Civ.R. 26(B)(3) requires demonstration of need for the
materials—i.e., a showing that the materials, or the information they contain, are relevant
and otherwise unavailable." Id. More recently, the Supreme Court of Ohio has explained
that "attorney work product, * * * may be discovered upon a showing of good cause if it is
directly at issue in the case, the need for the information is compelling, and the evidence
cannot be obtained elsewhere." Squire, Sanders & Dempsey at ¶ 60.
{¶ 17} The parties do not dispute that the surveillance video was prepared at the
direction of defendants' counsel in anticipation of litigation. Thus, they do not dispute
that the surveillance video is attorney work-product. Accordingly, the parties simply
dispute the court's finding that plaintiff established good cause for the production of the
surveillance video.
{¶ 18} Defendants assert that Loc.R. 41.04 recognizes the "privileged nature of
[impeachment] evidence." (Defendants' brief, 4.) Loc.R. 41.04 states, in pertinent part,
that a party must list in their pre-trial statement "all evidence expected to be offered into
evidence, except exhibits to be used only for impeachment." Loc.R. 41.04 simply details
what information must be contained in a party's pre-trial statement. The rule does not
state that evidence is privileged solely because a party intends to use such evidence for
impeachment purposes. Rather, the general rules of discovery would apply to such
evidence. See Civ.R. 26(B)(1).
{¶ 19} As noted above, this court reviews only final appealable orders. Thus, "the
privilege issue is the only part of the trial court's order that comports with the definition of
'final order' under R.C. 2505.02(B)." Garcia v. O'Rourke, 4th Dist. No. 02CA16, 2003-
Ohio-2780, ¶ 11. Defendants' contentions regarding Loc.R. 41.04, and the trial court's
ruling on the same, are thus not properly before this court. Rather, the only issue
properly before this court is whether the surveillance video is privileged attorney work-
product subject to production for good cause.
{¶ 20} Defendants' reliance on Thrope v. Rozen, 1st Dist. No. C-960143 (Oct. 3,
1997) is similarly misplaced, as Thrope does not concern discovery of attorney work-
product. In Thrope, the defense introduced a surveillance video during its case-in-chief,
No. 12AP-1027 7

"which contradicted [the plaintiff's] earlier testimony concerning the extent of his
disabilities." Id. The plaintiff argued on appeal that the trial court erred in allowing the
defendant to introduce the video, as the defendant had not produced the video in
discovery. The court noted, however, that the plaintiff had not made a discovery request
which would have obligated the defendant to produce the video. Moreover, in Thrope, the
defendant did provide the plaintiff with "both the edited and the unedited versions of the
tape the day before the tape was used at trial." Id. As Thrope does not concern the work-
product privilege, and as the defendant in Thrope voluntarily produced the surveillance
video to the plaintiff before trial, Thrope is inapplicable in the instant case.
{¶ 21} Defendants assert that the trial court employed the incorrect standard to
determine whether plaintiff established good cause. Defendants note that the trial court
"used a balancing test to determine whether the video should be produced at trial when it
held '[t]he surprise and unfairness to Plaintiff outweighs the consideration of attorney
work product privilege offered by Defendants.' " (Appellants' brief, 6.)
{¶ 22} As noted above, under Civ.R. 26(B)(3), a party may establish good cause by
demonstrating: (1) that the work-product is directly at issue in the case, (2) there is a
compelling need for the information, and (3) the evidence cannot be obtained elsewhere.
Squires, Sanders & Dempsey at ¶ 60. We note that, while our independent research does
not reveal an Ohio case which has directly considered the issue before this court,
regarding discovery of a surveillance video prepared by a defendant in anticipation of
litigation in a personal injury action, our research reveals several federal courts which
have considered the issue. See First Bank of Marietta v. Mascrete, Inc., 79 Ohio St.3d
503, 508 (1997) (noting that while "federal [case] law is not controlling with regard to
interpretation of the Ohio Rules of Civil Procedure, it can be instructive where, as here,
the rules are similar"); Fed.R.Civ.P 26(b)(3) (providing that attorney work-product is
discoverable if "the party shows that it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by other
means").
{¶ 23} The trial court found that the video was directly at issue in the case, noting
that the video "may affect the substantive issue of damages and may go to the heart of
No. 12AP-1027 8

whether Plaintiff is injured as claimed." (Decision and Entry, 4.) Defendants assert that
the video is not directly at issue, as it does not provide evidence regarding the applicable
standard of care or breach. See Korreckt v. Ohio Health, 10th Dist. No. 10AP-819, 2011-
Ohio-3082, ¶ 11, citing Adams v. Kurz, 10th Dist. No. 09AP-1081, 2010-Ohio-2776, ¶ 11
(stating the elements of medical malpractice claim). Defendants further assert that the
video is not "necessary or compelling for the Plaintiff to establish his damages," as
plaintiff can establish his damages "through his own testimony, medical records, the
testimony of his experts and other witnesses he has identified that he will call at trial."
(Defendants' brief, 9.)
{¶ 24} The court's conclusion that the surveillance video will affect the substantive
issue of damages was not an abuse of discretion. Plaintiff claimed in his complaint that
he suffered a loss of enjoyment of life and an inability to engage in daily activities as a
result of his injuries. Thus, the surveillance video will help to establish or negate the
extent of plaintiff's damages. See Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D.
148, 150 (E.D. Pa.1973) (noting that surveillance films in a personal injury case "which
would tend to show a plaintiff's physical condition, how he moves, and the restrictions
which are his, are highly relevant—perhaps they will establish the most important facts in
the entire case"); Papadakis v. CSX Transp., Inc., 233 F.R.D. 227, 228 (D.Mass.2006)
(noting that "[i]n personal injury cases, surveillance materials are evidence of whether
and to what extent a claimant was injured," and because the "existence and extent of
injury is the very essence of Plaintiff's claims * * * the surveillance tapes need to be
produced"); Chaisson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir.1993)
(finding that surveillance evidence was properly subject to discovery, as "the severity of
[the plaintiff's] pain and the extent to which she has lost the enjoyment of normal activity
are among the key issues a jury must decide in calculating her damages," thus the
surveillance "[e]vidence which would tend to prove or disprove such losses must be
considered 'substantive' "). Compare Sutton v. Stevens Painton Corp., 193 Ohio App.3d
68, 2011-Ohio-841, ¶ 27 (8th Dist.). Because the video at issue goes to the ultimate issue
of damages, the trial court did not err in determining that the video was directly at issue in
the case.
No. 12AP-1027 9

{¶ 25} We also note that while defendants claim they intend to use the video as
impeachment evidence only, if the video refutes plaintiff's claims regarding the extent of
his injuries, the video will also constitute substantive evidence on damages. See 8 Wright,
Miller & Marcus, Federal Practice and Procedure, Section 2015 (3d Ed.2009) (noting
that "surveillance evidence or evidence of prior injuries is useful for impeachment but it
also has an important substantive aspect since it goes directly to the issue of the extent of
plaintiff's injury").
{¶ 26} The trial court also found that plaintiff demonstrated a compelling need for
the video. The court relied on Snead to support its finding that plaintiff's interest in
obtaining the video before trial was greater than defendants' interest in concealing the
video. In Snead, the court found that a plaintiff in a personal injury action was entitled to
discover a surveillance video prepared by the defendant. The Snead court observed that a
camera "may be an instrument of deception. It can be misused. Distances may be
minimized or exaggerated. Lighting, focal lengths, and camera angles all make a
difference. * * * The editing and splicing of films may change the chronology of events."
Id. at 150. The Snead court concluded that the defense should be required "to disclose the
existence of surveillance films or be barred from showing them at trial." Id. at 151.
{¶ 27} The Snead court's observation, regarding a party's ability to manipulate film
images, is perhaps more true today than at the time Snead was decided. Today, digital
cameras and computer programs permit even the novice photographer to easily edit,
enhance, and manipulate digital images. Accordingly, the trial court's conclusion that
plaintiff had a compelling need to view the video prior to trial, to ascertain "in advance if
the video images have somehow been manipulated, or if the person on the video is
actually Plaintiff," was an accurate conclusion. (Decision and Entry, 4.)
{¶ 28} Defendants further assert that the trial court erred in finding that plaintiff's
prior deposition testimony protected the impeaching value of the surveillance video.
Defendants contend that production will destroy the impeaching value of the evidence, as
plaintiff will be able to prepare his trial testimony to conform to the images on the video.
While plaintiff may so structure his trial testimony, if plaintiff's trial testimony differs
from his deposition testimony, taken before plaintiff had a chance to view the video,
No. 12AP-1027 10

defendants will be able to impeach plaintiff with his deposition testimony. If plaintiff's
trial and deposition testimony are the same, then the video will either impeach plaintiff's
testimony, or it will not, because plaintiff's testimony will align with the images on the
video.
{¶ 29} Moreover, federal courts which have considered the issue conclude that
discovery of a surveillance video following the plaintiff's deposition strikes the appropriate
balance between the plaintiff's interest in seeing the video before trial and the defendant's
interest in retaining the impeaching value of such evidence. See Wightman v. Reassure
Am. Life Ins. Co., S.D.Ohio No. 3:05-cv-204 (Nov. 30, 2006) (finding that the "case law
on point unanimously supports Defendant's position," that defendant need not produce
the surveillance evidence until after plaintiff was deposed); Donovan v. AXA Equitable
Life Ins. Co., 252 F.R.D. 82 (D.Mass.2008) (while the court noted that "[m]ost courts,
both federal and state, have held that video surveillance tapes, if they plan to be used at
trial, must be produced in discovery," the court would not order the surveillance tapes
produced until after "the completion of Mr. Donovan's deposition"); Ward v. CSX
Transp., Inc., 161 F.R.D. 38, 41 (E.D.N.C.1995) (concluding that "allowing discovery of
surveillance materials after the deposition of the plaintiff, but before trial, best meets the
ends of justice and the spirit of the discovery rules to avoid surprise at trial").
{¶ 30} Lastly, we note that the tape is under the sole control of defendants. As
such, the evidence cannot be obtained elsewhere. See Bryant v. Trexler Trucking, D.S.C.
No. 4:11-cv-2254-RBH (Jan. 18, 2012), quoting Tripp v. Severe, D.Md. No. L-99-1478
(Feb. 8, 2000) (where a party intends to use surveillance footage at trial, " 'courts
generally find that the work product privilege is waived given the plaintiff's * * * inability
to obtain the substantial equivalent of this record of plaintiff's condition at a particular
time and place' ").
{¶ 31} Under the specific facts presented in this case, we find the trial court did not
abuse its discretion in granting plaintiff's motion to compel, as plaintiff established good
cause for discovery of the surveillance video. The substance of the video may reveal the
extent of plaintiff's injuries, which are directly at issue in the case. As defendants have
indicated that they may display the video at trial, plaintiff has a compelling interest in
No. 12AP-1027 11

viewing the video to ascertain the video's quality and accuracy. Compare Ward v. AT Sys.
Inc., E.D. Pa. No. 07-4249 (Sept. 8, 2008). As defendants have sole control of the video,
plaintiff is unable to obtain the video elsewhere.
IV. DISPOSITION
{¶ 32} Based on the foregoing, defendants' sole assignment of error is overruled.
Having overruled defendants' assignment of error, we affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment affirmed.

SADLER and McCORMAC, JJ., concur.

McCORMAC, J., retired, formerly of the Tenth Appellate
District, assigned to active duty under the Ohio Constitution,
Article IV, Section 6(C).
_____________________________