Nearly every court protects as work product personal injury defense
lawyers' secret surveillance videotapes of plaintiffs engaging in
activities that belie their injury claims. Not surprisingly, those courts
normally require defense lawyers to produce any videotapes that they intend
to use at trial -- although wise courts delay that production until after
the defense lawyer has deposed the plaintiff.
In Kohl v. Werner Co., the defense lawyer "learned that an
investigator for the plaintiff was videotaping and surveilling defense
counsel and the defense expert while they were performing the inspection"
of an accident scene. Case No. 16-CV-1021, 2018 U.S. Dist. LEXIS 65774, at
*1 (E.D. Wis. Apr. 19, 2018). Defendants claimed that the plaintiff
"improperly infringed on the defense counsel's work product" and sought an
order "requiring the plaintiff to produce the videotape." Id. at
*1-2. Predictably, plaintiff's lawyer "attempts to liken its surveillance
of defense counsel to situations where a plaintiff is surveilled as he goes
about his daily life." Id. at *3. The court rejected plaintiff's
argument – bluntly noting "[t]hat is a far cry from what happened here. It
was the defense counsel and his expert that were surveilled, not the
The court ordered plaintiff to produce the videotape.