## Facts

- A tractor-trailer driver sued another driver for negligence after a rear-end collision and sued the trucking company owner on a respondeat superior theory.
- During discovery, the plaintiff served an interrogatory asking whether the trucking company had conducted any surveillance of him and requesting production of any such materials.
- The company answered that it had conducted no surveillance, which was accurate when made.
- After answering, the company arranged surveillance of the plaintiff and obtained surveillance materials, but did not supplement its interrogatory response.
- The plaintiff moved to compel production of the surveillance materials and to exclude their use, arguing the company violated the duty to supplement under Rule 26(e)(1).
- The company opposed the motion, contending the materials were (i) protected work product and (ii) exempt from disclosure because they would be used only for impeachment.

## Issues

1. Whether surveillance materials prepared in anticipation of litigation are protected from discovery as work product, or must be produced upon a showing of substantial need and undue hardship under Rule 26(b)(3).
2. Whether labeling surveillance as “impeachment-only” excuses production when the materials are sought by targeted discovery requests.
3. Whether a party must supplement an earlier interrogatory answer that became materially incomplete after later-obtained surveillance, and what relief is appropriate for failure to supplement.

## Decision

- The court granted the plaintiff’s motion to compel production of the surveillance materials.
- The court held the company could not withhold the surveillance under the work-product doctrine because the plaintiff established substantial need and inability to obtain the substantial equivalent without undue hardship.
- The court rejected the argument that an “impeachment-only” intent barred discovery, explaining that the impeachment carve-out limits certain pretrial disclosures but does not create immunity from discovery.
- The court found the company violated Rule 26(e)(1) by failing to supplement its earlier interrogatory answer after obtaining responsive surveillance.
- The court required supplementation and production, while preserving protection for counsel’s opinion work product (mental impressions and legal theories).

## Legal Principles

- Surveillance materials prepared in anticipation of litigation may be discoverable under Rule 26(b)(3) when the requesting party shows substantial need and cannot, without undue hardship, obtain the substantial equivalent by other means.
- The “solely for impeachment” limitation in Rule 26(a)(3) does not override otherwise proper discovery requests or the duty to supplement under Rule 26(e).
- A party must supplement or correct discovery responses when they become materially incomplete or incorrect and the corrective information has not otherwise been made known.
- Courts may order production of factual surveillance content while protecting opinion work product.

## Conclusion

In a personal-injury discovery dispute, the court compelled production of post-response surveillance and required supplementation, holding that qualified work-product protection yielded to substantial-need and undue-hardship showings and that an impeachment-only characterization did not excuse compliance with discovery and supplementation duties.


Gutshall v. New Prime, Inc., 196 F.R.D. 43 (W.D. Va. 2000)