Shenk v. Berger

GARRITY, Judge. Dissatisfied with the amount of their award, Edward F. and Christine A. Shenk appeal from a judgment entered by the Circuit Court for Anne Arundel County (Williams, J.). The Shenks brought suit against Patricia E. Berger for injuries Mr. Shenk sustained as the result of a vehicular accident. We will deal with issues surrounding the right to discover a surveillance film of Mr. Shenk’s activities and the subsequent admission of the film into evidence.

Background On June 15, 1986, at approximately 2:30 p.m., Edward F. Shenk, who had been traveling in the westbound direction ⁵⁰⁰ on Greenbranch Lane, brought his vehicle to a stop at the intersection of Crain Highway in Anne Arundel County. Mr. Shenk had crossed the northbound lanes of Crain Highway and was stopped in the cross-over area waiting for southbound cars to pass in order to complete his turn. Patricia E. Berger, who had been waiting behind Mr. Shenk’s vehicle at the stop sign on Greenbranch Lane, also crossed the northbound lanes of Crain Highway from Greenbranch Lane. Upon reaching the cross-over area, however, she struck Mr. Shenk’s stationary vehicle in the rear.

Mr. Shenk suffered numerous injuries to his neck and back areas, including a herniated disc, cord compression and disc protrusions. About six weeks post-accident, representatives of the appellee contacted Robert E. Hoffman, owner and director of Checkmate Investigative Services, who arranged for a private investigator to conduct surveillance of Mr. Shenk at his residence. The service received instruction to provide a videotape depicting Mr. Shenk at times when he was not wearing his neck collar. The period of surveillance covered from July 25, 1986 through August 1, 1986.

On July 28, 1986, Adrienne Herold videotaped Mr. Shenk while he was engaged in activities. The tape revealed Mr. Shenk carrying a small bag of trash as well as squatting down on his legs in order to touch up with paint a damaged area on the rear bumper of his truck. On July 25, 1988, Edward Shenk filed suit against Patricia Berger and propounded interrogatories. Mr. Shenk’s interrogatory #7 asked the following question: “Identify each person who investigated the causes of, circumstances surrounding, and/or damages suffered as a result of the collision.” His interrogatory # 12 read as follows: “State whether you possess or control photographs, motion pictures, plats, diagrams of the scene, objects and/or parties connected with the collision, and identify the type and subject matter of each.” ⁵⁰¹ In her Answers to Interrogatories filed September 21, 1988, Ms. Berger responded to interrogatory # 7 by writing, “Ernest Schmidhauser, Catharine Rankin, H.A. McDonald, State Farm Insurance, 195 Ritchie Highway, Severna Park, Maryland 21146, and Robert E. Hoffman, Checkmate Investigative Services, 9009 Mendenhall Court, Columbia, Maryland 21045.” In her response to interrogatory # 12 Ms. Berger wrote, “[pjhotographs are in the possession of my attorney.” In a postscript to correspondence which Ms. Berger’s attorney addressed to the Shenks’ attorney on March 22, 1989, Ms. Berger’s attorney informally supplemented Ms. Berger’s answer to interrogatory # 7 by writing “P.S. To update our interrogatory answers, please add to answer # 7 along with Robert E. Hoffman, the name of Adrienne Herold, same address.” At the beginning of trial, Ms. Berger’s counsel advised the court that he would be offering a videotape into evidence.

Counsel for the Shenks strenuously objected to the admission of this evidence on the basis that Ms. Berger did not include the videotape in her answer to interrogatory # 12. Ms. Berger’s attorney indicated that the tape was not discoverable as it constituted attorney work product. The court ruled as follows, [ajctually over the years this sort of thing has been held to be work product and not discoverable and I don’t see any basis to change that in this case. Certainly it’s just a depiction of a portion of time in the plaintiff’s life and obviously very relevant, so I will permit it to be shown to the jury.

At the conclusion of the trial the jury returned a verdict for the plaintiff. Despite evidence indicating that Mr. Shenk had suffered $40,692.89 in damages, the jury awarded him $14,000. The jury awarded nothing to Mr. and Mrs. Shenk on their loss of consortium claim. I. Discovery of Surveillance Tape Discussion of Law Prior to the current Maryland discovery rules, which are closely patterned after the Federal Rules of Civil Proce ⁵⁰² dure, Snowhite v. State, Use of Tennant, 243 Md. 291, 308 , 221 A.2d 342 (1965) (Maryland looks to corresponding federal rule for guidance in construing similar Maryland rule); discovery devices were narrowly defined and of limited use. 3 Poe, Pleading and Practice, § 122; Johnson v. Bugle Linen Service, 191 Md. 268, 278 , 60 A.2d 686 (1948).

The existing Maryland rules are, in part, the product of a philosophy engendering liberal discovery. Balto. Transit v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768 (1961) (discovery rules deliberately designed to be broad, comprehensive in scope and liberally construed); Barnes v. Lednum, 197 Md. 398, 407-408 , 79 A.2d 520 (1951) (rules intended to facilitate discovery); Klein v. Weiss, 284 Md. 36, 55 , 395 A.2d 126 (1978) (fundamental discovery objective is disclosure of facts as to eliminate confusion); Kelch v. Mass Transit Adm., 287 Md. 223, 229-230 , 411 A.2d 449 (1980) (discovery rules liberally construed); Hadid v. Alexander, 55 Md.App. 344, 350 , 462 A.2d 1216 (1983) (clear policy to encourage liberal discovery); see also Sommers v. Wilson Bldg. R. Ass’n., 270 Md. 397, 402 , 311 A.2d 776 (1973) (acquisition of pretrial knowledge of facts and opposing contentions). “Mutual discovery of all the relevant facts gathered by both parties is essential to proper litigation.

To that end, either party may compel the other to disgorge whatever facts he has in his possession.” Hickman v. Taylor, 329 U.S. 495, 507 , 67 S.Ct. 385, 391 , 91 L.Ed. 451 (1946). The Court of Appeals in Barnes v. Lednum, 197 Md. 398, 406-407 , 79 A.2d 520 , wrote “[mjodern discovery statutes or rules are intended to facilitate discovery, not to stimulate the ingenuity of lawyers and judges to make the pursuit of discovery an obstacle race____ No longer can the time-honored cry of ‘fishing expedition’ serve to preclude a party from inquiry into the facts underlying his opponent’s case.’ ” (quoting Hickman, supra, 329 U.S. at 507 , 67 S.Ct. at 392 ). The tension that ensued from attorneys’ obligation to respond to discovery requests and their duty to their clients resulted in the development of the work product doctrine. Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 ⁵⁰³ (1946), the seminal case construing work product, serves as the basis of numerous federal and state court opinions addressing this aspect of the boundaries of discovery.

See Clermont, The Work Product Doctrine, 68 Cornell L.Rev. 760 (1983); Jones, The Law of Evidence, § 19.19 (6th ed. 1973, 1984 suppl.). In Hickman, 329 U.S. at 510 , 67 S.Ct. at 393 , the Court explained that [the] attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or performed by an adverse party’s counsel in the course of his legal duties ... falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims. Id. The central policy underlying the doctrine is the preservation of the attorney’s adversarial role, the premise being that promotion of adversary preparation ultimately furthers the truth-finding process.

In his concurrence, Justice Jackson eloquently captured the essence of this policy, “[discovery is hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.” Hickman, 329 U.S. at 516 , 67 S.Ct. at 396 . Other justifications, which include, inter alia, attorney laziness, inefficiency, and misleading discovery responses, are off-shoots of the primary adversarial concern. See Clermont, supra, 68 Cornell L.Rev. at 784-788. Maryland Rule 2-402 partially codifies the work product doctrine.

In pertinent part, it provides, Rule 2-402. SCOPE OF DISCOVERY Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (a) Generally. — A party may obtain discovery regarding any matter, not privileged, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and ⁵⁰⁴ location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information