Abstract

In many personal injury cases the plaintiff alleges injuries which affect him for some time after the accident. If the defendant has the means, and if some aspect of the case suggests that the plaintiff has misstated the extent of his injuries, the defendant may want to compare the plaintiff's claim with what he can observe and record for himself by surveillance movies taken of the plaintiff after the accident. If the movies illustrate a material variance between the plaintiffs claim and the actual extent of his injuries the defendant will probably use the movies as evidence in an attempt either to disprove the plaintiffs case for damages or to impeach the veracity of the plaintiff should he testify at the trial. To avoid surprise and enable him to neutralize any adverse evidence, the plaintiff might, by a Rule 33 interrogatory, request that the defendant disclose the content of any surveillance evidence in his possession. The defendant may well object to such an interrogatory on the ground that if he uses the evidence to impeach the plaintiff, it is immune from pre-trial discovery, since it is not relevant to any substantive issue, and since its value might be lost if the plaintiff knows of it. Should the defendant be required to disclose the evidence?

This comment will analyze the rules of pre-trial discovery of impeachment evidence in an effort to crystallize the extent to which such evidence is and should be discoverable. The necessity of such an analysis is acute in Arizona because of our supreme court's recent decision establishing a rule for discovery of this evidence.

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