The claim file is the backbone of most insured losses and one of the first things that many claimants request when litigation starts. Nevada's Court of Appeals recently decided a case that concerned discovering surveillance video contained in a claim file.
In Keolis v. Dist. Ct., there were three surveillance videos of the claimant. Two were created at the adjuster's direction, the third was created later at a lawyer's direction. The claimant requested all three videos, but Keolis resisted, arguing the videos were work-product because they were prepared in anticipation of litigation. The Court of Appeals rejected that argument as to the first two videos:
- "[An] attorney's involvement is not itself sufficient to confer work-product protection to materials that otherwise would have been prepared in the ordinary course of business, irrespective of the attorney's involvement."
- "[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 circumstances demonstrating that counsel's involvement was reasonable and not for the mere strategic purpose of obtaining work product protection for routinely created materials."
The first two videos were discoverable, but the third likely was not because it could be considered work-product.
Keolis highlights the limits of the work-product privilege, but it also emphasizes the importance of using it correctly. Here, the adjuster may have thought the video would be protected. In another case it might be emails that someone thought were protected, but aren't. If a client is relying upon a privilege to protect certain information, Keolis emphasizes how important it is to know the boundaries.
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