Howard hired a private investigator to conduct surveillance on his ex-wife Patricia after being ordered to pay her monthly maintenance. The investigator recorded extensive video and notes of Patricia and her partner Ellen, including intimate moments, without their knowledge or consent. Patricia's lawyer demanded copies of the investigator's materials from Howard's lawyer during discovery for a potential legal action, but was refused. Patricia has the right to obtain the materials during discovery even if they are not admissible in court. The notes would be admissible if the investigator testifies, but videos with audio may not be due to privacy laws. Patricia is considering suing Howard for invasion of privacy regarding the surveillance.

1. Legal Memorandum: In re the marriage of Robbins, page 1
Legal Memorandum
Case: In re the marriage of Robbins
Re: Discovery of personal investigator notes and videos
Date: February 18, 2010
I. FACTS
Two months ago, respondent Howard Robbins was ordered by the court to pay petitioner
Patricia Robbins $10,000.00 per month in maintenance. After the maintenance order was made,
Howard hired a personal investigator to conduct surveillance on Patricia. The investigator
recorded videos and took notes on his extensive surveillance of Patricia, and her partner, Ellen.
The videos include Patricia and Ellen’s public displays of affection as well as their sexual
relations. It is unknown whether the video surveillance included audio recording. The
investigator alleges Patricia has not taken her and Howard’s children to counseling as ordered by
the court. The investigator also alleges that Patricia resides in Ellen’s home with the children
and does not reside in the family home awarded to her by the court. Patricia’s lawyer has
demanded copies of the investigator’s notes and videos from Howard’s lawyer. Howard’s
lawyer has refused this request.
II. ISSUES
Issue 1: Does Patricia have the right to obtain copies of the investigator’s notes and videos?
Conclusion: Yes.
Issue 2: Are the notes and videos admissible evidence?
Conclusion: The notes are admissible if the investigator is called as a witness for Howard. The
videos with audio are not admissible. The videos without audio are admissible.

2. Legal Memorandum: In re the marriage of Robbins, page 2
III. ISSUE ANALYSIS
Issue 1
If Howard intends to attempt to modify or halt maintenance through court action, Patricia
has the right to obtain discovery through the production of the investigator’s notes and videos.
Washington Superior Court Civil Rule (WSCCR) 26 (A) and (B) (1) provide discovery
provisions for cases including marriage dissolutions. WSCCR 26 (A) states the methods of
discovery, which include “Production of documents or things.” WSCCR 26 (B) (1) states in the
general scope of discovery, “Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action.” This portion of the rule
includes, “existence, description, nature, custody, condition and location of any books,
documents, or other tangible things.” The videos are tangible things whether they were recorded
on tape or digitally. WSCCR 26 (B) (1) also provides that discoverable items need not be related
to the claim of either party or admissible at trial.
If Howard does not attempt to modify or halt maintenance through court action, Patricia
does not have the right to obtain discovery through the production of the investigator’s notes and
videos. Absent a court action, discovery rules do not apply. Patricia and Ellen may wish to file a
separate suit against Howard and the investigator for invasion of privacy, possible trespassing
and even voyeurism. This section was prepared by Jennifer Barnes.
Issue 2
If Howard brings a court action against Patricia to modify or halt maintenance and calls
his investigator as a witness, the notes made by the investigator during his surveillance of
Patricia and Ellen are admissible evidence. If Howard does not call the investigator as a witness,
the notes are not admissible evidence, as they would be considered hearsay. Washington State
Court Rules of Evidence 801 defines hearsay as “a statement, other than one made by the

3. Legal Memorandum: In re the marriage of Robbins, page 3
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”
The videos Howard’s investigator made may be admissible if they were produced in
accordance with the law. RCW 9.73.030 prohibits the recording of communications and
conversations where the parties conversing are unaware the recording is taking place. As such, if
the videos contain audio recording the audio portion may be inadmissible or the entire video may
be ruled inadmissible.
Videotaping individuals when and where they have a reasonable expectation of privacy
may violate the 9th amendment. In Griswold v Connecticut, US Supreme Court Justice Goldberg
(in his concurrence) interpreted the 9th amendment as one that protects privacy in ways earlier
amendments did not specifically provide. However, this broad interpretation is controversial and
the Griswold case dealt with the right of a married couple to use contraception. The Robbins
case involves two partners being videotaped without their knowledge or consent in public as well
as private spaces, and potentially in the privacy of the bedroom they share. This section was
prepared by Jennifer Barnes.
Conclusion
We recently became aware that the defendant Howard Robbins hired a private
investigator to put video surveillance on our client Patricia Robbins, her children and her partner
Ellen, to use it as supporting evidence for a motion to modify the defendants court ordered
maintenance.
In the process of gathering this information, our client believes that her reasonable
expectation to privacy as afforded her by the 9th amendment has been violated due to portions of
the video being sexually explicit and the manner in which it was obtained. At this time, our client
is considering filing a separate lawsuit for invasion of privacy. We made a request to the

4. Legal Memorandum: In re the marriage of Robbins, page 4
defendant’s attorney for a copy of the video pursuant to WSCCR 26 (B) (1). The attorney
declined to cooperate stating that he did not know if the defendant was going to submit the video
as it might not be admissible evidence. We informed him that the video is still discoverable
despite lack of admissibility under the general rules of discovery. The attorney did not comply
with our request. Further, we requested a CR 26(i) Conference with respondent and were again
denied our request to the discoverable material.
It is our client’s rights to have the court compel the defendant to surrender an accurate
and true copy of the video per the discovery statute. The defendant has a statutory duty to
perform according to our request. The defendant should confirm the existence, description,
nature, custody, condition and location of any books, documents, or other tangible things. The
video falls clearly within the legislature’s definition of tangible things.