PI reports (California)

[laesquire]

SCENARIO:

1. At the MSC AA states the issue that survelience film is NOT admissable unless the PI reports regarding the film is served.
2. AA did demand all investigative reports in writing before the MSC.

QUESTION:
1. Does the Defense have to serve the PI reports for the film to be admissable?

[postscript2]

If recollection serves me well, the answer is yes. Surveillance reports introduced at trial are likely to be thrown out unless the films were not attainable prior to the trial or something very incriminating was learned and filmed post MSC.

If you think about with SB899 laws, you/we are dealing with AME's and PQME's, in which case the films would be submitted for review. Now you can't sneak this in, because both parties have to agree about which documents (non-medical) are going to be sent to them.

So as a practical and legal matter, hand over the reports/films and submit to the appropriate doctor to comment upon. Better safe than sorry.

LCS

[laesquire]

Good point on better safe than sorry.

I have never had an applicant attoney want to read the private investigator reports. It seems like work product to me.

[chirple]

It appears the a/a has raised the issue of the admissability of the films based on missing reports. The reports would be work product.

The reports are not the best evidence.
The reports are only the opinion of the investigator.
The films themselves are the best evidence. However, they are 'almost' useless unless they were viewed by the doctor(s) reporting on the injury and commented upon.

Sometimes the investigator's reports have additional information not seen in the films, like background check information, or descriptions of where they followed but did not film. This should not affect the admissabiltiy of the films, themselves.

Likely the a/a just wants to know what is in the reports so as not to be blindsided at trial by them. That is reasonable in WC. No surprises. If the defense expects to get those films in evidence they better have disclosed them, listed the investigator as a witness to lay a foundation, and frankly have them reviewed by the reporting doctor(s).

[armenta@englishlloyd.com]

PI reports are absolutely not work product once there is an election to use the materials. All work product is waived once you introduce the materials in evidence, be that at trial, to a QME, etc. and the Applicant is entitled to those materials once an election is made to use the materials. If you want to avoid the PI reports being discovered, and indeed any writings at all made by the defense to the PI (instructions, notes, memos, etc.), then don't use the materials and don't disclose them to any expected to testify or report.

Here's my standard memo on the subject.

The attorney who employed the expert cannot be permitted to still assert the attorney's work-product privilege after a decision has been made that the expert's knowledge and opinions are to be thrust into the evidence arena.' (Jefferson, Cal.Evid. Benchbook (1972) § 41.1, pp. 704--705 (original emphasis); see also Tip Top Foods, Inc. v. Lyng, 28 Cal.App.3d 533, 553; Bolles v. Superior Court, 15 Cal.App.3d 962, 963.)

Since Ford determined well in advance of trial that at least Mr. Brink, the coordinator of Ford's tests, would be called to testify, the work product privilege was inapplicable.”

See, Brokopp v Ford Motor Company (1977) 71 Cal.App.3d 841, 857-858.
“Petitioner John S. Bolles seeks mandate to compel the deposition of Wilmont Nicholson, an expert witness for real party in interest, Barton Development Company. As Barton has stated its intention to call Nicholson as a witness, the work product privilege is inapplicable. (Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 530--532.) “

See, Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 963.
“...insofar as the product of this employment relates to the preparation by the attorney of his client's case, it is a work product not subject to discovery, except as provided in Subdivision (b) of Code of Civil Procedure § 2016; but if and when the expert becomes a potential witness on behalf of the client the product of his employment is subject to discovery.”

See, Scotsman Manufacturing Company v. Superior Court (1966) 242 Cal.App.2d 527, 531.
“Nevertheless the initial status of the expert, as consultant and possible witness, changes its character at that point in the suit when it has become known he will actually testify as a witness. When it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause. At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others. Such evaluation properly includes appropriate pretrial discovery. (San Diego Professional Assn. v. Superior Court, 58 Cal.2d 194; Brown v. Superior Court, 218 Cal.App.2d 430; Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122.)”

See, Swartzman v. Superior Court (1964) 231 Cal.App.2d 194, 203.
“In making the order conditional the trial court recognized that 'the initial status of the expert, as consultant and possible witness, changes its character at that point in the suit when it has become known he will actually testify as a witness' requiring that his testimony be evaluated along with that of others and therefore subjecting him to appropriate pretrial discovery procedures. As was said in Bolles v. Superior Court, 15 Cal.App.3d 962 at 963, 'As Barton has stated its intention to call Nicholson as a witness, the work product privilege is inapplicable. (Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 530--532.)' We conclude that the information and opinion of an expert respecting the subject matter about which he is a prospective witness are subjects of discovery by interrogation or deposition procedures and, if submitted in a report confined thereto, by production of such a report. However, as was said in Swartzman, supra, 'In the case of expert opinion witnesses good cause normally must be shown to compel a deposition in advance of trial and in the absence of good cause a motion to quash the deposition is justified.' Good cause includes a showing that the expert may be called as a witness. Since, as pointed out above, no good cause has been shown in the instant case for the taking of the depositions at this time the imposing of the conditions in the order referred to was an abuse of discretion. The practicalities of the situation compel brief consideration of a case wherein parties claim that no decision has been reached as to the use of an expert witness and continue to profess indecision to the date of trial. This was envisioned in Swartzman, supra, and commented on in Scotsman Mfg. Co., supra, at page 532, 51 Cal.Rptr. at page 514, as follows: 'If, as asserted in the instant case, petitioner is unwilling to declare its intention respecting the prospective status of Dr. Morelli as an expert witness, the trial court, in an appropriate proceeding, would be authorized to permit discovery by interrogation or deposition. (Swartzman v. Superior Court, Supra, 231 Cal.App.2d 195, 204--205.)'

We hold that, upon a showing of good cause made at an appropriate stage of the proceedings, e.g., the pretrial hearing at which time discovery is presumably complete, the case at issue and ready for trial setting, a party may be required to elect whether or not to call the expert as a witness and to disclose such election to his adversary. If he elects to do so, the opposing party shall be granted a reasonable time thereafter within which to conduct appropriate additional discovery directed at securing the desired information.”

See, Sanders v. Superior Court (1973) 34 Cal.App.3d 270, 279.