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Fitch v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

December 30, 1997

KATHY M. FITCH Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer for J.C. PENNEY COMPANY, INCORPORATED Employer.

          November 21, 1997

          COURT MEMORANDUM CONCERNING MOTION FOR PROTECTIVE ORDER

          Mike McCarter Judge

         Summary: Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities.

         Held: The Court conducted a full-day hearing into claimant's allegations. She did not provide a scintilla of evidence to indicate wrongful conduct on the part of respondent's counsel or other agents. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.

         Topics:

Discovery: Generally. Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities. Following a full-day hearing, and briefing by the parties, the Court concluded there was not a scintilla of evidence to support claimant's serious allegations. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.
Discovery: Protective Orders. Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities. Following a full-day hearing, and briefing by the parties, the Court concluded there was not a scintilla of evidence to support claimant's serious allegations. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.
Discovery: Surveillance. Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities. Following a full-day hearing, and briefing by the parties, the Court concluded there was not a scintilla of evidence to support claimant's serious allegations. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.
Surveillance. Claimant moved for a protective order based on allegations that respondent's counsel intimidated and frightened her friends, coworkers, and family through seeking information about her and through hiring private investigators to videotape her activities. Following a full-day hearing, and briefing by the parties, the Court concluded there was not a scintilla of evidence to support claimant's serious allegations. Evidence of questioning of one witness by respondent's counsel indicated his demeanor and questions were exemplary. The videotaping was conducted over a period of several weeks, but only in public settings, in which claimant had no reasonable expectation of privacy. Moreover, she can hardly claim emotional distress during the surveillance when she did not know about the surveillance as it occurred.

         By motion dated October 23, 1997, petitioner, Kathy M. Fitch (claimant), moved for a protective order prohibiting respondent, Liberty Mutual Fire Insurance Company (Liberty), and its attorney from contacting prospective witnesses and from conducting further video surveillance. The motion also asks that all statements taken by Liberty and all video surveillance be suppressed.

         After reading the initial brief in support of the motion, the Court scheduled and conducted an all-day hearing on the motion. That hearing was held on October 30, 1997, in Bozeman, Montana.

         Following the hearing, the parties submitted additional briefs. The final brief was received by the Court on November 21, 1997, at which time the motion was deemed submitted. After reviewing the briefs, the evidence introduced at hearing, and the surveillance tapes, the Court issued an Order denying the motion as "utterly without merit." (Order Denying Motion for Protective Order, December 3, 1997.) The Order did not address the specific contentions made by claimant. This memorandum will do so.

         The Motion

         The motion arises out of a sworn statement taken by respondent's attorney and video surveillance of claimant over a 24-day period. In her initial motion, claimant accused respondent's attorney, Mr. Larry W. Jones (Jones), of intimidating or frightening friends, coworkers and the family of claimant. Specifically, the motion asserts:

Friends, co-workers, and family of [claimant] have stated to [claimant] that, without prior notice or their consent, they have been contacted, questioned, "cornered", and intimidated or frightened in various ways by Mr. Jones and/or his agents.

         (Motion for Protective Order at 2, emphasis added; quotation marks in original.) As an "example" of intimidation, the motion states that "Brenda Herbst was interviewed by Larry Jones in a manner that was intimidating and unreasonable." (Id., emphasis added.) With respect to the video surveillance and questioning of witnesses, the motion alleges that "the actions of Mr. Jones and his agents extend far beyond the issues raised in the Petition, and merely represent a fishing expedition into the [claimant's] private business and the privacy and business of the individuals listed in Exhibit A." (Id. at 1.) Exhibit A is a list of 16 witnesses. Finally, the motion alleges that "the family business operated by [claimant's] husband and sons has been, and continues to be harmed," by the videotaping, and that the reputation of claimant's family and their business has been harmed. (Id. at 2.)

         The motion asks that Liberty, "its attorney, Larry W. Jones, and their agents be required to immediately cease contacting, attempting to contact, following, telephoning, attempting to question, or in any way harassing, annoying, intimidating, intercepting or waylaying, and/or molesting [claimant], her family, co-workers, business associates, and friends listed in Exhibit A . . . ." (Id. at 1.)

         The Hearing

         Claimant and her attorney, Mr. H. Charles Stahmer (Stahmer), were present at the October 30, 1997 hearing. Liberty was represented by Jones.

         Witnesses: Claimant, Brenda Herbst, Vicki Dagenhart, Mark Fullerton and Ron Maki testified. Herbst is a co-employee of claimant. Dagenhart is a friend of claimant and presently lives with her. Fullerton and Maki are private investigators who participated in the surveillance of claimant.

         Depositions and Sworn Statement: The parties agreed that, for purposes of resolving the motion, the Court may consider the sworn statement of Herbst and two video depositions of claimant. I have read the sworn statement and the transcripts of claimant's depositions. I have not viewed the videotapes of the claimant's depositions.

         Exhibits: Exhibits 1 through 8 were offered and admitted without objection. Three of those exhibits were copies of the surveillance tapes. Exhibit 9, a handwritten statement of claimant's husband, Tommy Fitch, was admitted as an offer of proof as to the testimony he would present if allowed to testify. On the day of trial, he was incapacitated due to a recent injury and therefore unavailable to testify.

         The Videotapes: During the hearing, there was testimony and representations indicating that the videotapes tendered the Court were composites of several original tapes. Since claimant challenged the accuracy of the tapes, I ordered Liberty to furnish the Court and claimant's counsel with a separate copy of each original tape. Liberty thereafter furnished five tapes.

         The tapes were reviewed in detail by my law clerk, Ms. Patricia A. McHugh (McHugh), who identified a single discrepancy. That discrepancy is on Tape 1, which shows claimant at a carwash on September 23, 1997. The videotape jumps from 7:29 p.m. on September 23, 1997, to 1:50 p.m. on September 25, 1997, then back to 7:30 p.m on September 23, 1997. The September 25, 1997 sequence is fleeting and may be a product of the copying process. Nonetheless, the Court has directed Liberty to explain the sequence. Upon receipt of the explanation, the Court will consider whether it should require further evidence concerning the making of the tapes and their admissibility.

         Partial Bench Ruling: At the hearing, I ruled that there is no evidence to support claimant's assertion that Jones intimidated Herbst; to the contrary, Jones' interview of Herbst was exemplary. Since Herbst's interview was the claimant's sole evidence of her allegation that Liberty had intimidated witnesses, I denied her request that Liberty and Jones be precluded from contacting potential witnesses. The basis for my ruling was stated at the hearing, which is reported. In this memorandum, I will restate and expand on my reasons for that ruling.

         Post-Hearing Briefs: At the close of hearing, I granted the parties leave to file additional briefs addressing the motion. In addition to any arguments the parties wished to make, I directed Stahmer to state what testimony Tommy Fitch would give, if permitted to testify, in addition to that set out in Mr. Fitch's handwritten statement. I indicated that if Mr. Fitch had personal information which is admissible and relevant to the allegations of the motion, the Court would return to Bozeman and hear his testimony.

         Mr. Fitch's Proffered Testimony

         Nothing in Mr. Fitch's handwritten statement or the post-trial brief of claimant (petitioner's post-hearing brief) indicates that he has any personal knowledge of facts relevant to the motion. Therefore, there was, and is, no reason to hear his testimony.

         Allegations of Misconduct Made by Claimant at Hearing and in Her Post-Hearing Brief At hearing and in her post-hearing brief, the claimant, through her counsel, alleged the following: • Jones intimidated Herbst when interviewing her, causing her to fear for her job.

• The private investigators surveilling claimant trespassed on private property during their videotaping of the claimant.
• The surveillance constituted or approached "stalking." (petitioner's post-hearing brief at 6, 8.) Claimant's attorney asserts in his post-hearing brief: "When a person is being kept under constant surveillance which causes that person to feel intimidated and fearful and to have severe emotional distress, said surveillance has become harassment and borders on the offense of stalking." (Id. at 8, emphasis added.) Earlier in his brief, he cites the criminal statute on stalking, § 45-5-220, MCA. (Id. at 6.) Stahmer compared the investigators' surveillance with that of the paparazzi who pursued Princess Diana.
• Claimant was "under constant surveillance for three and one half weeks." (Id.) The surveillance was unreasonably long and violated the rights of privacy of claimant, her family and friends. (Id.)
• The prolonged videotaping harassed, threatened and frightened claimant and her family. (Id. at 6-7; Statement by Mr. Stahmer at hearing.)
• The videotaping caused a four-year old child of a friend of claimant's to fear that "someone would come through her window and kill her." (petitioner's post-hearing brief at 6.)
• The videotaping extended to other individuals, including children, thereby invading their privacy rights.
• The "accuracy of several of the videotapes is questionable, and . . . there are many discrepancies and inaccuracies." (Id. at 5.) The times shown on the tapes are inconsistent, suggesting "the possibility that the ...

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