CARSON CITY, Nev. (Legal Newsline) - An insurance company that took surveillance videos of a woman before she filed a lawsuit over a car accident must turn them over to plaintiff lawyers, a Nevada appeals court ruled, although it sent back to the trial court the question of whether a third video taken after the plaintiff sued must be shared with the other side.
Because insurers are in the business of anticipating and trying to prevent litigation, the Nevada Court of Appeals said, the general rule protecting materials prepared “because of” expected litigation doesn’t apply. Instead, the attorney work-product rule applies only when an insurer prepares materials at the direction of its lawyers, and even then, only if the insurer can prove the lawyer’s involvement wasn’t a pretext for protecting the information from discovery.
Shay Toth was rear-ended by a truck operated by Keolis Transport in July 2017. A few days later, Toth’s lawyer informed the trucking company’s insurer that she would be making negligence and injury claims. The insurer then pulled Toth’s record of prior litigation and hired an investigator to take video of her “publicly engaged in daily activities.” The investigator submitted a report to the insurance company in August 2018.
Toth sued in 2019, and the insurance company created a third surveillance video, disclosing the existence of all three to Toth’s lawyers AT Cliff Marcek P.C. and Moss Berg Injury Lawyers. The plaintiff lawyers demanded all three videos, but the insurer refused, calling them protected attorney work product. The trial court rejected that argument and ordered all three turned over to the plaintiff side.
The insurer filed an interlocutory appeal with the Nevada Court of Appeals, which took the opportunity to clarify the analysis trial judges must make when dealing with surveillance videos. In a Feb. 24 decision, the court said the key question is whether an attorney was involved.
Attorney work product, defined as “documents and tangible things” produced in anticipation of litigation, is protected under Nevada’s rules of civil procedure unless the other side can prove “undue hardship” unless it obtains them. The key test is whether materials were produced “because of” expected litigation. Ordinary business documents aren’t protected.
The analysis is complicated with insurance companies because they exist, in part, to try to prevent accidents that will lead to lawsuits, the appeals court noted. That means they routinely prepare materials that are in some way connected to anticipated litigation.
But the argument “cuts both ways,” the appeals court went on, since Toth could argue materials prepared by insurance companies like the surveillance videos are the equivalent of routine business documents in other industries. The Nevada Supreme court has said materials produced at the direction of an attorney are generally protected, however.
In this case the insurer didn’t provide evidence it started the surveillance of Toth at the direction of a lawyer, the appeals court concluded. “Insurance investigation materials are created in anticipation of litigation, and are therefore protected work product, only when they are created at the direction of counsel under circumstance demonstrating that counsel’s involvement was reasonable and not for the mere strategic purpose of obtaining work-product protection,” the appeals court stated.
Courts have established a general rule that defendants don’t have to turn over surveillance videos until after the plaintiff has been questioned in a deposition, so the defense can use the video evidence to impeach that testimony.