[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Kent v. Warner, 2024 WL 3639624 (D. Neb. Jul. 24, 2024), “Plaintiff, Vernie Kent, seeks to compel Defendant, Kade Warner, to produce a surveillance video Defendant’s attorney prepared in conjunction with this litigation.”
The response to that motion was that “Defendant contends the surveillance video is covered by the work-product doctrine and, at a minimum, should not be produced until after he deposes Plaintiff.”
Both parties in Kent agreed that the video was work product. Plaintiff, however, asserted a substantial need for it.
Plaintiff also presented a fall-back privilege log issue: “Plaintiff argues that if Defendant is permitted to withhold the video until after his deposition, he should be required to include more detail on his privilege log, including exact dates of surveillance and descriptions of the video(s)’ contents.”
. . . requiring Defendant to disclose additional details [on its privilege log] would infringe on the privilege and disrupt the balance between requiring disclosure and maintaining the surveillance footage’s impeachment value until after Plaintiff is deposed.
Kent v. Warner, 2024 WL 3639624 (D. Neb. Jul. 24, 2024).
The Kent court concurred with “the majority of courts to rule on the [work product] issue….” Those courts “have agreed that a plaintiff’s inability to obtain the substantial equivalent of video surveillance is adequate to overcome the work-product privilege.” Id. at *1 (citing cases).
It then qualified that right, again following the majority rule: “However, most courts have also recognized the impeachment value to the defendant of surveillance evidence in a case involving a plaintiff’s purported injuries and have balanced these competing interests by requiring the defendant to disclose video surveillance only after having the opportunity to depose the plaintiff.” Id. at *2 (emphasis added).
Turning to the privilege log issue, “Plaintiff argues that listing the ten-month date range of the surveillance footage is insufficient under Rule 26 and wants Defendant to disclose the exact dates of the video(s), the identity of the person who created the video, and a more detailed description of the contents.” Id. at *2 (emphasis added).
The court disagreed with plaintiff, writing “that requiring Defendant to disclose additional details [on its privilege log] would infringe on the privilege and disrupt the balance between requiring disclosure and maintaining the surveillance footage’s impeachment value until after Plaintiff is deposed.”
Having balanced the competing interests, the court ordered that the surveillance video be produced within seven days after plaintiff is deposed.
