October 1, 2022

Volume XII, Number 274

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September 29, 2022

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Nevada Clarifies Discovery of Surveillance in Claim File

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.

© 2022 Wilson ElserNational Law Review, Volume XII, Number 67
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About this Author

Michael Lowry Las Vegas Retail Manufacturing Attorney Wilson Elser Law Firm
Partner

Michael Lowry has an active litigation and defense practice, with clients among the country’s largest and most recognizable brands in several industries, such as retail, restaurant and hospitality, commercial transportation, manufacturing and more. As a member of the firm’s emergency response team, when transportation clients face a catastrophic event, Michael and other members of Wilson Elser’s 24/7 go-team arrive on the scene to help gather and preserve information that may be critical to the client’s defense, as well as liaison at the scene with investigating...

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