Steve Pyun Authors Daily Journal Article on Sub Rosa Recordings as Work Product

Defense attorneys in personal injury cases routinely hire private investigators to surreptitiously record plaintiffs doing things they have claimed they were unable to do post-injury. These are called "sub rosa" recordings in legal proceedings. (The Latin phrase literally means "under the rose," as the flower has been associated with secrecy dating back, according to Wikipedia, to "Greek and Roman cultural cross-transmission of myths from Egypt.")

Los Angeles associate Steve Pyun, a member of the firm's Strategy, Writs, and Appeals Team, explains, in an article published in the Daily Journal on May 10, 2016, "[s]uch evidence may strike a devastating blow to the plaintiff's credibility, and case." (The article is titled "Revisit sub rosa recordings as work product.") He also states, "The frequent use of this defense tactic often leads to disputes between parties on whether sub rosa video recordings must be produced in discovery."

The last California case to address this issue was Suezaki v. Superior Court, a California Supreme Court decision published more than 50 years ago. Mr. Pyun notes that Suezaki is often miscited by plaintiff's attorneys, who claim that "sub rosa video footage is not entitled to attorney work product protection, and therefore must be produced upon request in discovery" when actually, "Suezaki stands only for the proposition that such recordings are not entitled to absolute work product protection."

Mr. Pyun's scholarly legal analysis of Suezaki stems from a matter earlier this year, wherein the firm represented a large national retailer against a plaintiff who filed a motion seeking to either compel production of sub rosa video pre-trial, or preclude its use at trial. Mr. Pyun filed an opposition, arguing the information was entitled to work-product privilege.

The Court ruled that the video information was entitled to work product privilege, and any attempts to preclude their use at trial would be premature and depend on a showing of prejudice to plaintiff. Plaintiff’s request for sanctions was denied.