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 client." Id.

The court ordered plaintiff to produce the videotape.