What Surveillance Material is Discoverable?

In criminal cases, the prosecution has the burden to voluntarily turn over all relevant evidence in a case.  In a civil case, the evidence is broken down by what's work product (opinions, research, decisions) and that which is pure observation, according to retired California Superior Court Judge Eugene Hyman.

The first question question, says Hyman, is what is the item they're wishing to report - is it an observation, movie or report?  The case law is clear that if it is the lawyer's opinion, for example, that is not discoverable because that is attorney/client priviledge under work-product, says Hyman, but if it is observations, such as movies or pictures, then it is more likely to be discoverable.

Regarding social media and whether that is considered discoverable surveillance, on the one hand, says Hyman, that is surveillance.  On the other hand," the law isn't going to do the plaintiff's work for them," says Hyman.  On other words, he adds, if it is something the client is doing, then the plaintiff's attorney will be aware of that and they're not going to be required to report that.  More likely, it will be under sub rosa, or under stealth.

Hyman notes that it is very common in disability claims to show a doctor a movie or pictures and then have the doctor give his opinion.  So, if that is in the expert's report that the movie or pictures helped form his opinion, that's clearly discoverable.  What's more a question, says Hyman, is if the defense has something that they haven't disclosed to anyone but says that the defense does not have to turn it over unless there's a request from the plaintiff's attorney.

Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network.

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