Gutshall (P) was operating a tractor-trailer when he was rear-ended by another tractor-trailer, owned by D, and operated by Tapper (D). P sued for injuries from the negligence of Tapper (D), and the vicarious liability of D. P served the following interrogatory on D: 'Please state whether or not you have conducted and/or obtained any surveillance of the plaintiff.' On November 17, 1999, the plaintiff requested production of: 'Documents and things . . . relating to any . . . visual depiction . . . of . . . any person involved in the collision, which is in your possession, to which you have access or of which you have knowledge.' D had not engaged in surveillance but did so at a later date. Eventually, P motioned to compel discovery and exclude the evidence as D failed to supplement is responses as require under Rule 26 (e)(1). D refused claiming it only intended to use the evidence for impeachment purposes.

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