The Fascinating Work Product Implications of Surveillance Videos

April 21, 2021

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.