Myers v. Aleutian Endeavors, LLC

          ORDER MOTION TO COMPEL

          H. Russel Holland United States District Judge.

         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 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 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 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 ...