{ "id": 3364109, "name": "PERCY SHIELDS, Plaintiff-Appellee, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant-Appellant (Richard T. Sikes, Jr., Contemnor-Appellant)", "name_abbreviation": "Shields v. Burlington Northern & Santa Fe Railway Co.", "decision_date": "2004-10-22", "docket_number": "No. 1\u201403\u20142506", "first_page": "506", "last_page": "513", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 506" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "373 R2d 432", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1962, "opinion_index": 0 }, { "cite": "23 Cal. Rptr. 368", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1962, "opinion_index": 0 }, { "cite": "58 Cal. 2d 166", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4377328 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/cal-2d/58/0166-01" ] }, { "cite": "253 A.2d 77", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8107326 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/a2d/253/0077-01" ] }, { "cite": "350 A.2d 473", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1976, "opinion_index": 0 }, { "cite": "69 N.J. 50", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1906272 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nj/69/0050-01" ] }, { "cite": "390 So. 2d 704", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9581935 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/so2d/390/0704-01" ] }, { "cite": "63 F.R.D. 53", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3701613 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/frd/63/0053-01" ] }, { "cite": "110 F.R.D. 160", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 425342 ], "year": 1986, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/frd/110/0160-01" ] }, { "cite": "142 F.R.D. 435", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7851257 ], "year": 1992, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/frd/142/0435-01" ] }, { "cite": "152 F.R.D. 145", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7849969 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "148" }, { "page": "150" }, { "page": "150" }, { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/frd/152/0145-01" ] }, { "cite": "144 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592553 ], "year": 1991, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0178-01" ] }, { "cite": "314 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140073 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "430" }, { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0421-01" ] }, { "cite": "221 Ill. App. 3d 280", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798978 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "285-86" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0280-01" ] }, { "cite": "19 A.L.R. 4th 1236", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1983, "opinion_index": 0 }, { "cite": "356 U.S. 677", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166290 ], "weight": 3, "year": 1958, "pin_cites": [ { "page": "682" }, { "page": "986" } ], "opinion_index": 0, "case_paths": [ "/us/356/0677-01" ] }, { "cite": "24 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802319 ], "year": 1962, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0026-01" ] }, { "cite": "35 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380279 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "359-60" }, { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0351-01" ] }, { "cite": "213 Ill. App. 3d 427", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606207 ], "year": 1991, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/213/0427-01" ] }, { "cite": "265 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872507 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "660" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0654-01" ] }, { "cite": "319 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527809 ], "year": 2001, "pin_cites": [ { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0771-01" ] }, { "cite": "295 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45791 ], "year": 1998, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0548-01" ] } ], "analysis": { "cardinality": 869, "char_count": 17588, "ocr_confidence": 0.752, "pagerank": { "raw": 4.704239797856059e-08, "percentile": 0.29525891277831257 }, "sha256": "11c6ab00e546f675355088e717c3f4f53527f69f16c135dbd5096dadfca52907", "simhash": "1:df97dfea2e9ae508", "word_count": 2735 }, "last_updated": "2023-07-14T16:37:49.624900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PERCY SHIELDS, Plaintiff-Appellee, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant-Appellant (Richard T. Sikes, Jr., Contemnor-Appellant)." ], "opinions": [ { "text": "JUSTICE McNULTY\ndelivered the opinion of the court:\nRichard Sikes, an attorney for Burlington Northern & Santa Fe Railway Company, appeals from an order holding him in contempt for refusing to respond to discovery concerning Burlington\u2019s surveillance of Percy Shields, the plaintiff in this personal injury litigation. We hold that no privilege prevents discovery of any videotape or film of plaintiffs activities taken during such surveillance. We affirm the trial court\u2019s order directing Burlington to produce any such videotapes or films.\nBACKGROUND\nIn his complaint plaintiff alleged that on August 17, 2000, while he worked for Burlington, he suffered injury in a car accident near railroad yards. He sued Hammer Express, owner of the car that hit the one in which plaintiff rode, and Burlington. Plaintiff served interrogatories on Burlington asking Burlington to \u201c[ijdentify all persons who have followed and in any way conducted surveillance of plaintiff on behalf of the defendant since the incident(s) described in plaintiffs Complaint.\u201d Plaintiff also sought production of \u201c[a]ny and all reports, films, or other documents concerning any surveillance of plaintiff or investigation of plaintiffs activities.\u201d\nBurlington objected that plaintiff, in the interrogatory and document request, sought privileged work product not subject to discovery until Burlington decides to use it at trial. Because Burlington had not yet decided whether to use any such material in its possession, Burlington argued that it had no duty to answer the interrogatory or produce the material. Burlington added, \u201cif any surveillance material is to be used at trial, it will be disclosed to plaintiff a sufficient time in advance of trial to allow plaintiff to prepare for the admission of such evidence.\u201d\nPlaintiff moved to compel answers to the interrogatory and the document request. The trial court granted the motion on June 16, 2003. Sikes advised the court that Burlington refused to respond to the interrogatory and the document request. On July 23, 2003, the court found Sikes in contempt of court and fined him $100, with payment stayed pending appeal of the order. Burlington and Sikes filed this timely appeal.\nANALYSIS\n\u201cThe circuit court retains great latitude in defining the scope of discovery. [Citation.] A discovery order will not be disturbed absent abuse of discretion, although the court does not have discretion to compel disclosure of privileged information or that otherwise exempted by statute or common law.\u201d TTX Co. v. Whitley, 295 Ill. App. 3d 548, 553 (1998). Because Burlington claimed that the work product privilege exempted from disclosure the material sought, we review the court\u2019s order de novo. In re D.H., 319 Ill. App. 3d 771, 773 (2001); Midwesco-Paschen Joint Venture for the Viking Projects v. Imo Industries, Inc., 265 Ill. App. 3d 654, 660 (1994). As the party asserting a privilege, Burlington bears the burden of proving facts that give rise to the privilege. Mlynarski v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 213 Ill. App. 3d 427, 431 (1991).\nBurlington asserts that Supreme Court Rules 201(b)(2) and (b)(3) protect the material plaintiff seeks. Those rules provide:\n\u201cMaterial prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party\u2019s attorney. ***\n*** A consultant is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial. The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.\u201d 166 Ill. 2d Rs. 201(b)(2), (b)(3).\nBurlington claims that any surveillance tapes or films prepared either by Burlington or by any videographer working for Burlington count as \u201cwork product,\u201d \u201cprepared by or for a party in preparation for trial.\u201d\nIn Monier v. Chamberlain, 35 Ill. 2d 351, 359-60 (1966), our supreme court held that the work product privilege protects\n\u201conly those memoranda, reports or documents which reflect the employment of the attorney\u2019s legal expertise, those \u2018which reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience,\u2019 (Miller, Recent Discovery, 1963 U. of Ill. L.F., 666, 673[)] ***. Thus, memoranda made by counsel of his impression of a prospective witness *** [are] exempt from discovery ***. Other material, not disclosing such conceptual data but containing relevant and material evidentiary details must, under our discovery rules, remain subject to the truth-seeking processes thereof.\u201d\nThus, \u201c[a]s properly understood, *** [the work product] rule does not protect material and relevant evidentiary facts from the truth-seeking processes of discovery.\u201d Stimpert v. Abdnour, 24 Ill. 2d 26, 31 (1962).\nVideotapes of a plaintiff in a personal injury suit include relevant, admissible substantive evidence concerning the extent of the plaintiffs injuries and continuing disability. As the federal court held, in a case Burlington cites:\n\u201c[T]he weight of authority favors discoverability of surveillance information, principally because such information is probative of a critical issue in a personal injury case \u2014 the physical condition of the plaintiff. [Citations.] Disclosure of this information *** makes a trial \u2018less a game of blind man\u2019s b[l]uff and more a fair contest,\u2019 United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986, 2 L. Ed. 2d 1077 (1958), where each party can knowledgeably evaluate the strength of its evidence and chances of ultimate success. [Citation.] Discoverability of surveillance information will serve the collateral interests identified by other courts, including concerns for authenticity, encouraging settlement, *** and fairness.\u201d Wegner v. Cliff Viessman, Inc., 153 ER.D. 154, 159 (N.D. Iowa 1994).\nThus, the majority of courts that have addressed the issue have permitted discovery of surveillance films and videotapes. Annotation, W. Wakefield, Photographs of Civil Litigant Realized by Opponent\u2019s Surveillance As Subject to Pretrial Discovery, 19 A.L.R. 4th 1236 (1983).\nIllinois law supports discovery of videotapes prepared by consultants in preparation for litigation. In Neuswanger v. Ikegai America Corp., 221 Ill. App. 3d 280 (1991), an expert made a videotape showing his tests on the operation of the machine that injured the plaintiff. The plaintiff sought the videotape in discovery, and the court entered a finding of contempt when the plaintiff did not receive the tape as ordered. The appellate court affirmed the order requiring production of the videotape, with appropriate deletions from the soundtrack for anything the expert said that revealed his thought processes and theories. The court explained:\n\u201c[W]here the material gathered or produced by an attorney or expert is of a more concrete nature *** and does not expose the attorney\u2019s or expert\u2019s mental processes, it serves the judicial process and [it] is not unfair to require the parties to mutually share such material and analyze it prior to trial.\n*** Atlantic Mutual argues that a videotape discloses an expert\u2019s thought processes and case evaluation by the movement, angle, distance and duration of focussing on various aspects of the expert\u2019s field investigation. However, such subtleties do not convince us that the videotape is thus transmuted into \u2018core work product\u2019 or \u2018conceptual data\u2019 in need of protection.\nMoreover, to the extent that an expert\u2019s mental processes would be exposed in the manner suggested, we believe that the same could be said with respect to a tape-recorded interview. *** [Jjustice is best served by full and fair disclosure and *** any interest that the party recording a conversation, surreptitiously or otherwise, may have in denying production of a defendant\u2019s taped conversation must fall to the overriding judicial interest in finding the truth. ***\nIn our opinion, the truth-seeking interest in a civil case is sufficiently compelling to require disclosure of [the] consulting expert\u2019s videotaped field investigation without a showing of exceptional circumstances.\u201d Neuswanger, 221 Ill. App. 3d at 285-86.\nThat is, because the sound deletions would prevent the revelation of any protected conceptual data, the videotape did not constitute \u201cwork product\u201d within the meaning of discovery rules. \u201c[T]he video tape, while possibly disclosing some of the experts\u2019 thought processes through angle or focus, was not the type of opinion or theory that constitutes protected work product.\u201d Midwesco-Paschen, 265 Ill. App. 3d at 668. Insofar as the videotape included substantial evidence concerning the operation of the machine at issue, our broad discovery rules demanded its production.\nBurlington contends that the decision in Wiker v. Pieprzyca-Berkes, 314 Ill. App. 3d 421 (2000), exempts its videotapes from production. In Wiker the plaintiff sought to recover for injuries she suffered in a car accident. She requested any videotape the defendant may have taken of her. The defendant did not produce any videotape in response. Although the defendant had made a surveillance videotape, the defendant did not use it at trial. The jury found the defendant not liable for the plaintiffs injuries.\nThe appellate court held that the failure to disclose the videotape did not warrant reversal of the judgment, finding that \u201cthe person hired to make the surveillance video qualifies as a consultant under this rule, so long as he or she and the video are not presented at trial.\u201d Wiker, 314 Ill. App. 3d at 430. The court added that \u201cthe defendant would have been obligated to disclose the video in order to use it at trial, even for cross-examination.\u201d Wiker, 314 Ill. App. 3d at 430. Although the court reversed the judgment on other grounds, it did not address the question of whether the defendant would need to produce the videotape in discovery on remand.\nThe court in Wiker did not overrule Neuswanger or Midwesco-Paschen. The court did not hold that the videotape constituted protected work product under the rule, nor did the court discuss how the surveillance videotape would reveal any protected \u201cmental impressions, opinions, or trial strategy.\u201d Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 196 (1991). Wiker does not compel reversal of the court\u2019s order for production of the surveillance videotapes here.\nBurlington also asks us to adopt one federal case that rejects the majority rule. In Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145 (S.D. Ind. 1993), the plaintiff requested surveillance videotapes. After the defendant deposed the plaintiff, the defendant identified and produced one videotape it intended to use at trial, but the defendant \u201creserv[ed] the right to designate other videotape[s] for use at trial\u201d (Fisher, 152 F.R.D. at 148), if it chose later to use any such tapes. The plaintiff sought production of all the videotapes.\nThe court characterized the request as one for \u201cnon-evidentiary surveillance films.\u201d Fisher, 152 F.R.D. at 150. The court acknowledged that courts generally had\n\u201callowed discovery of all surveillance films, including the nonevidentiary tapes, prior to trial. Eg., Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D.W Va. 1992); Daniels v. National R.R. Passenger Corp., 110 F.R.D. 160, 161 (S.D.N.Y. 1986); Martin v. Long Island R.R. Co., 63 F.R.D. 53 (E.D.N.Y. 1974); Dodson v. Persell, 390 So. 2d 704 (Fla. 1980); Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976); Olszewski v. Howell, 253 A.2d 77 (Del. 1969); Suezaki v. Superior Court, 58 Cal. 2d 166, 23 Cal. Rptr. 368, 373 R2d 432 (1962).\u201d Fisher, 152 F.R.D. at 150.\nBecause the defendant had prepared the videotapes in anticipation of litigation, the tapes constituted \u201cwork product\u201d within the federal rules. Under those rules, the plaintiff had the right to obtain the work product only on a showing of substantial need. Fisher, 152 F.R.D. at 151. According to the court, the plaintiff did not need the videotapes as substantive evidence of his injuries or for impeaching the defendant\u2019s evidence, and therefore the court held that the plaintiff did not carry his burden of showing sufficient need.\nWe find Fisher unpersuasive. First, it applies a federal definition of \u201cwork product\u201d that broadly protects all materials prepared for trial, even if the materials do not reveal any mental processes or other such conceptual data. Our supreme court expressly rejected the federal definition of \u201cwork product\u201d and deliberately narrowed the scope of the protection the work product doctrine provides. Monier, 35 Ill. 2d at 361. Second, the court in Fisher analyzed the case as one involving \u201cnon-evidentiary surveillance films\u201d even though the defendant expressly \u201creserv[ed] the right\u201d to use the films at trial. The court\u2019s analysis treated the films as if the defendant had agreed to an order precluding it from using any of the purportedly \u201cnon-evidentiary\u201d materials at trial. Unsurprisingly, Fisher stands contrary to the weight of authority, even the authority cited in Fisher itself. We follow Neuswanger, an appropriate application of the principles announced in Monier, and not Fisher.\nFinally, Burlington argues that it must conceal from plaintiff, at least through his deposition, whether it has videotapes and what the videotapes reveal because it might lose the impeachment value of the videotapes. Burlington posits that plaintiff will tailor his testimony to the abilities shown in the videotapes.\nWe do not see any material distinction between surveillance videotapes, with their substantive evidence of the plaintiffs physical limitations, and tape-recorded or transcribed statements from witnesses, or data collected from attempts to recreate an accident. All such evidence can have powerful impeaching effect if one party can conceal it from the other, at least through the depositions of the parties and their principal witnesses. When defense witnesses learn of the statements of a plaintiffs witnesses concerning the manner in which an accident occurred, the defense witnesses can tailor their testimonies to explain what those witnesses saw in a manner that might exonerate the defendant. Concealing substantive evidence from the opposing party always gives a tactical advantage, and it often permits greater impeachment of the opposite party\u2019s witnesses. Full discovery, demanded by supreme court rules, allows each party\u2019s witnesses to tailor their testimony to the opposite party\u2019s evidence. We see no reason to deviate from the policy of full disclosure here, as we see no need for special treatment of the substantive evidence in a surveillance videotape. Because surveillance videotapes constitute substantive evidence and not work product within the meaning of discovery rules, we find that the trial court correctly ordered Burlington to produce any surveillance videotapes of plaintiff.\nHowever, we agree with the court in Wiker that the videographer counts as a consultant within the meaning of Rule 201(b)(3), as long as he is not to be called as a witness at trial. In the interrogatory plaintiff requested that Burlington \u201c[ijdentify all persons who have followed and in any way conducted surveillance of plaintiff on behalf of the defendant since the incident(s) described in plaintiff\u2019s Complaint.\u201d Rule 201 requires a showing of \u201cexceptional circumstances\u201d before the court orders disclosure of the identity of a consultant who is not to testify. We find no argument in plaintiffs brief and no argument in the trial court that purports to show exceptional circumstances requiring disclosure of the videographer\u2019s identity. Therefore, we reverse the order directing Burlington to identify the videographer and we remand for further proceedings on the issue of the need for disclosure of that identity.\nSurveillance videotapes contain substantive evidence concerning the extent of a plaintiffs injuries, and they do not reveal mental processes, opinions or other conceptual data. Thus surveillance videotapes do not count as work product, and the trial court correctly ordered Burlington to produce its surveillance videotapes in response to discovery. We affirm that part of the trial court\u2019s order. But the court also ordered Burlington to identify the videographer, without any discussion or evidence of exceptional circumstances needed to support such an order. We reverse the order insofar as it requires revelation of that identity and remand for further proceedings on that issue. We also reverse the imposition of the fine. The attorney can purge himself of contempt by producing the videotapes. See Neuswanger, 221 Ill. App. 3d at 287.\nAffirmed in part and reversed in part; cause remanded.\nFITZGERALD SMITH, EJ., and TULLY, J., concur.", "type": "majority", "author": "JUSTICE McNULTY" } ], "attorneys": [ "Freeborn & Peters, L.L.E, of Chicago (Richard T. Sikes, Jr., and Charles W. Webster, of counsel), for appellants.", "Brown & Associates, of Belleville (Terry N. Brown and William F. Kopis, of counsel), and Christopher Mullen, of Mullen, Minella & Kelliher, of Chicago, for appellee." ], "corrections": "", "head_matter": "PERCY SHIELDS, Plaintiff-Appellee, v. BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant-Appellant (Richard T. Sikes, Jr., Contemnor-Appellant).\nFirst District (6th Division)\nNo. 1\u201403\u20142506\nOpinion filed October 22, 2004.\nFreeborn & Peters, L.L.E, of Chicago (Richard T. Sikes, Jr., and Charles W. Webster, of counsel), for appellants.\nBrown & Associates, of Belleville (Terry N. Brown and William F. Kopis, of counsel), and Christopher Mullen, of Mullen, Minella & Kelliher, of Chicago, for appellee." }, "file_name": "0506-01", "first_page_order": 522, "last_page_order": 529 }