In Harrington v. Atlantic Sounding Co., No. CV-06-2900 (E.D.N.Y. Dec. 30, 2011), the court held that videotapes were protected work product.  In this case, defendants’ private investigator videotaped plaintiff both before and after the first day of plaintiff’s deposition.  Plaintiff sought production of the videotapes, and defendants asserted work product protection.  The court refused to compel production on the facts presented.  First, it was clear that the videotapes had been made by an agent or consultant of the defendants “because of” litigation.  Therefore, the videotapes were work product.  Second, the court noted that most courts find that the substantial need threshold is met where a party intends to use the videotapes as substantive evidence at trial.  However, where a party only intends to use videotapes for impeachment purposes, most courts do not require production until after completion of the relevant deposition.  Here, defendants told the court that they would not use videotapes made before the deposition for any purpose, and reserved their decision as to the use of later videotapes.  The court held that defendants would not have to produce the videotapes unless defendants decided in the future that they intended to use the videotapes for some purpose at trial.