United States District Court, D. Alaska
ORDER MOTION TO COMPEL
Russel Holland United States District Judge.
Thomas Myers moves to compel defendants Aleutian Endeavors,
LLC and Thomas Robinson to answer Interrogatory No.
This motion is opposed. Oral argument was not requested and is
not deemed necessary.
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. The parties have begun discovery and a
dispute has arisen over plaintiff's Interrogatory No. 5.
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
responded: “OBJECTION: Work
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[.]” 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
now moves for an order compelling defendants to
“withdraw their work product objection and answer
plaintiff's Interrogatory No. 5 concerning
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).
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.
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.
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 ...