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Jenkins v. Rainner

Decided: January 13, 1976.

JOYCE P. JENKINS, PLAINTIFF-APPELLANT, AND MARY BETH HULL, BY HER GUARDIAN AD LITEM DOUGLAS E. HULL, AND DOUGLAS E. HULL, INDIVIDUALLY, PLAINTIFFS,
v.
JOSEPH H. RAINNER AND RUTHIG TRANSPORTATION CORPORATION, DEFENDANTS-RESPONDENTS, AND GEORGE F. WEAVER, SAFETY BUS SERVICE, RUTH J. LOWE, AND RAPHAEL J. MARINI, DIRECTOR OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, DEFENDANTS



For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.

Clifford

In preparation for trial of this action seeking recovery for personal injuries arising out of a vehicular accident, defendants-respondents' liability insurer placed plaintiff-appellant under surveillance and took motion pictures of her. The question presented here is whether on plaintiff's demand defendants must present a print of each film for examination and disclose the circumstances under which the movies were taken. The trial court concluded that they need not. The Appellate Division denied leave to appeal, but on plaintiff's application leave was granted by this Court. We now reverse.

I

On June 16, 1970 plaintiff Joyce P. Jenkins was a passenger in a bus which collided with a vehicle owned by defendant Ruthig Transportation Corporation and driven by its agent, defendant Rainner. In the course of discovery in

her action against all owners and operators allegedly involved, Mrs. Jenkins gave an oral deposition on October 4, 1972. She therein testified as to the nature and extent of her injuries and treatment as well as her existing disability and complaints.

Thereafter, on August 14, 1974, plaintiff's attorneys took the deposition on oral examination of one Allen Waldman, a private investigator whose name as a witness had been supplied to them through defendants' answers to interrogatories. Waldman testified that in January, 1973, some three months after plaintiff's deposition, he received an assignment from a representative of Home Insurance Company, liability carrier for defendants. Incident to that assignment Waldman conducted a surveillance of Mrs. Jenkins and took motion pictures of her. Additionally, he had his employee Louis Talarico "speak to other persons" about Mrs. Jenkins' physical condition and furnish a report on the results of the interviews. While Waldman was permitted to testify freely as to the type of camera used, the kind of lenses available and the range of apertures, he was instructed by defendants' attorney not to answer any inquiry respecting where, when, how often and under what circumstances the movies were taken, nor was he permitted to testify as to when the investigation of Mrs. Jenkins began and ended or to supply the names of the people to whom Talarico spoke. The basis for the attorney's position as stated at the deposition was that

Likewise, a demand of Waldman by plaintiff's attorneys to see Talarico's report was rejected, defendants' attorney stating that the report was a "confidential communication between our investigator and our office."

Plaintiff thereupon applied for an order (a) requiring defendants to produce photographs and moving pictures of Mrs. Jenkins, (b) compelling Waldman to answer all questions propounded of him at the depositions, and (c) requiring defendants to produce and allow inspection of the "expert's report of Mr. Talarico." After hearing argument and examining the record the trial court denied the relief sought in all respects.

As to Talarico's report, the briefs before us do not touch upon it. Given the present unilluminating record, particularly the absence of any indication that Talarico is in fact an expert, and the conspicuous avoidance of any argument on the report in the proceedings before us, we deem the point to have been waived. Suffice it to say that if the people Talarico interviewed have knowledge of relevant facts, their identity and location must be disclosed to plaintiff. R. 4:10-2(a). With respect to the films and the questions of Waldman, however, we think the trial court erred.

II

The relevancy of the films is acknowledged by defendants; for purposes of the argument we can assume they purport to portray plaintiff engaged in some physical activity inconsistent with her claims of disability. However, their disclosure is resisted on the ground that they were prepared for trial at the direction of defense counsel and thus are cloaked with absolute immunity from discovery as "work product"; and further that even if invasion of the defense file be permitted under our rules of discovery, plaintiff has not demonstrated either her "substantial ...


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