United States District Court, D. Arizona
ORDER
Honorable Roslyn O. Silver Senior United States District
Judge.
Lydia
Merck (“Plaintiff”) alleges she was inside the
cab of her parked semi-truck when Defendant Robert Gary
Parker (“Parker”), a truck driver employed by
Defendant Swift Transportation (“Swift”), crashed
into Plaintiff's truck, causing her to collide with her
closet and nearby vehicles, thereby causing injury to
Plaintiff's back. (Doc. 1). The case is set for a jury
trial, and Plaintiff now moves in limine to exclude
surveillance videos and photos taken of Plaintiff during her
meetings with her attorney. (Doc. 180). In support, Plaintiff
argues the surveillance “was an improper intrusion into
the attorney-client privilege” and should be excluded
pursuant to Federal Rule of Evidence 403 because their
probative value is substantially outweighed by the danger of
unfair prejudice. (Id.). These are addressed in
turn.
First,
because this litigation is brought under Arizona
law[1]
and based upon diversity of citizenship, this Court likewise
applies Arizona law regarding the attorney-client privilege.
Roehrs v. Minnesota Life Ins. Co., 228 F.R.D. 642,
644-45 (D. Ariz. 2005) (citations omitted). And in Arizona,
for a communication to be privileged, there must be a
communication, and it must be “made to or by the lawyer
for the purpose of securing or giving legal advice, ”
“made in confidence, ” and “treated as
confidential.” Id. at 646. “The party
seeking to invoke the protection of the attorney-client
privilege carries the burden of proving to a reasonable
certainty that the elements of the privilege exist.”
Id. at 645. Importantly, “[b]ecause it impedes
full and free discovery of the truth, the attorney-client
privilege is strictly construed.” United States v.
Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (citations
omitted); see also Roehrs, 228 F.R.D. at 645 (citations
omitted).
Here,
Plaintiff was videotaped and photographed at the Renaissance
Hotel in downtown Phoenix when Plaintiff was meeting with her
attorney to discuss this case in advance of a court
proceeding. (Doc. 180). Five videos and one photograph were
taken. In the first video, Plaintiff is shown “walking
outside, smoking a cigarette, with multiple persons
around.” (Doc. 185). In the second, Plaintiff is shown
“walking inside the hotel by herself.”
(Id.). Then, the third and fourth videos “show
Plaintiff walking with her attorney outside the Federal Court
building, ” and the fifth video “shows Plaintiff
and her attorney walking inside a Restaurant within the
Renaissance Hotel.” (Id.). The final video
“shows Plaintiff standing, walking, and placing her
purse over her body cross-wise inside a Restaurant in the
Renaissance Hotel.” (Id.). Lastly, the
photograph “shows Plaintiff and her attorney sitting a
table at the Restaurant within the Renaissance Hotel.”
(Id.).
For
one, the attorney-client privilege is not implicated by these
videos and the photograph because they do not divulge any
protected “communications, ” such as the
substance of any discussion between attorney and client.
Indeed, neither party contends Swift intends to offer a
lip-reading expert at trial to interpret any captured lip
movements and establish a communication, nor does Plaintiff
assert that an ordinary juror would be able to interpret a
communication unaided. In addition, assuming there were
communications, the privilege does not apply because, at all
relevant times, Plaintiff and her attorney were surrounded by
third-parties, meaning anything communicated was not done in
confidence. See generally State v. Sucharew, 65 P.3d
59, 64 (Ariz.Ct.App. 2003) (“[T]he presence of a third
person will usually defeat the privilege on the ground that
confidentiality could not be intended with respect to
communications that the speaker knowingly allowed to be
overheard by others foreign to the confidential
relationship.”) (citation omitted). Finally, regarding
the three videos merely depicting the Plaintiff, and not her
attorney, the privilege also does not apply to those because
no communication is being “made to or by”
Plaintiff's attorney.
Plaintiff
also argues Swift's counsel violated Arizona Rule of
Professional Conduct 4.4. In so arguing, Plaintiff points to
the comments, which explain that a lawyer representing a
client “must subordinate the interests of others to
those of the client, ” but reminds lawyers that, in
doing so, “the lawyer may not disregard the rights of
others, ” including by “unwarranted intrusions
into privileged relationships, such as the lawyer-client
relationship.” Comment 1 to Ariz. R. Prof. Conduct 4.4.
However, here, Plaintiff's counsel simply observed and
documented Plaintiff's meeting with her lawyer in a
public space. Plaintiff's counsel did not surreptitiously
capture the content of any communication between them, or
observe anything with more intensity than could any other
passerby. Such actions do not intrude into the lawyer-client
relationship. Further, the videos and photographs can be
redacted to ensure Plaintiff's counsel is not shown.
Plaintiff's
remaining arguments are that the surveillance videos should
be excluded pursuant to Federal Rules of Evidence 401 and 403
because they are irrelevant and because their probative value
is substantially outweighed by the danger of unfair
prejudice. Evidence is relevant if it has any tendency to
make a fact of consequence in determining the action more or
less probable than it would be without the evidence.
Fed.R.Evid. 401. However, the court may still exclude
relevant evidence “if its probative value is
substantially outweighed by a danger of [ . . . ] unfair
prejudice.” Fed.R.Evid. 403.
Here,
the surveillance is highly relevant to Plaintiffs claimed
injuries and long-term impairments, which are at the heart of
this damages-only trial. In addition, the evidence is not
unfairly prejudicial, as it does not encourage the jury to
form an opinion on an improper basis.[2] See, e.g., In re:
Cathode Ray Tube (CRT) Antitrust Litig., No. 1917, 2016
WL 6246736, at *11 (N.D. Cal. Oct. 26, 2016) (citations
omitted).
Accordingly,
IT IS ORDERED Plaintiffs Motion in
Limine to Exclude Defendant's Surveillance of
Plaintiff, (Doc. 180), is DENIED. However,
the videos and photographs shall be redacted to ensure
Plaintiffs counsel is not depicted.
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Notes:
[1] Throughout this litigation, the
parties have exclusively referenced Arizona law, despite that
other states' laws might apply instead, as most recently
explained by this Court at Doc. 170 at 7 n.7. Yet, because
the parties continue to exclusively reference Arizona law,
the Court will, at least for the purposes of this motion,
rely on Arizona law. See Williams v. BASF Catalysts
LLC, 765 F.3d 306, 316 (3d Cir. 2014) (collecting cases
and explaining that “choice-of-law issues may be
waived” by the parties when they fail to raise them
before the court); see also Wachovia Sec., LLC v. Banco
Panamericano, Inc., 674 F.3d 743, 751 (7th Cir. 2012);
Malone v. Ahrens & DeAngeli, PLLC, 445 Fed.Appx.
940, 943 (9th Cir. 2011) (citation omitted); Fruge v.
Amerisure Mut. Ins. Co., 663 F.3d 743, 746 (5th Cir.
2011); P & O Nedlloyd, Ltd. v. Sanderson Farms,
Inc., 462 F.3d 1015, 1017 n.3 (8th Cir. 2006);
Puerto Rico Hosp. Supply, Inc. v. Boston Sci. Corp.,
426 F.3d 503, 505 (1st Cir. 2005); Gilchrist v. Jim
Slemons Imports, Inc., 803 F.2d 1488, 1497 (9th Cir.
1986).
[2] Although not raised in Plaintiffs
motion, the Court will consider prohibiting the parties from
referencing to the jury that Plaintiff was meeting with her
counsel in this litigation at the time this surveillance was
taken. The parties may ...