Lawyers representing insurance companies and others sometimes seek evidence that plaintiffs claiming injuries, disability, etc., are faking it. And of course nothing could be as dramatic as a surveillance video of a plaintiff — who claims he can hardly walk — briskly climbing a ladder to clean his gutters.
Courts dealing with discovery of such surveillance videos face three bedrock principles: (1) such surveillance videos obviously deserve work product protection; (2) plaintiffs normally cannot seek to overcome defendant's work product protection by arguing "substantial need" for the videos — they already know whether they can climb a ladder or not; and (3) a defendant intending to use such a surveillance video at trial must produce it in discovery.
So what do courts do? In Lively v. Reed, the court noted that it "has previously ordered that [the surveillance video] be produced to Plaintiffs following their depositions." No. 1:20 CV 119 MOC WCM, 2021 U.S. Dist. LEXIS 31703, at *6 (W.D.N.C. Feb. 19, 2021) (emphasis added). So savvy courts allow defendants to lock in plaintiffs’ sworn testimony about what they can and cannot do — before those defendants must produce any surveillance videotapes. Bingo.