Defendants’ surveillance videotapes of personal injury plaintiffs provide a fascinating glimpse into the work product doctrine. Such videotapes are classic work product (because they are prepared in anticipation of litigation, and are primarily motivated by the litigation), and it is difficult for plaintiffs to argue that they have a “substantial need” for a videotape of their own activities.
In Marchello v. Chase Manhattan Auto Finance Corp., 219 F.R.D. 217 (D. Conn. 2004), the court acknowledged these basic principles, but also explained that the plaintiff may need to see the videotape to determine if it presents a misleading view. The court noted that many courts balance these competing interests by requiring defendants to disclose only videotapes they intend to use at trial, and then only “after the plaintiff has been deposed so that Defendant may impeach Plaintiff if he exaggerates his injuries.” Id. at 219. The court adopted this clever approach.
Even for lawyers not involved in personal injury litigation, the handling of surveillance videotapes demonstrates courts’ interesting approach to the work product doctrine – which is inherently capable of a more flexible approach than the attorney-client privilege.