Keolis Transit Services, LLC v. Eighth Judicial District Court (Toth)

Summary

The Nevada Court of Appeals considered a writ petition challenging an order compelling disclosure of an insurer's surveillance videos and related reports in a personal-injury action. It held that two videos and a related report created before suit, without direction from counsel, were not protected work product under Nevada precedent. The court held that a third video and report created at counsel's direction after suit were work product, but remanded for the district court to determine whether substantial need and undue hardship justified discovery.

Holdings

1. The Court of Appeals may exercise writ jurisdiction to review the discovery order because the petition presented an important legal issue requiring clarification and disclosure of potentially protected work product could not be fully remedied by a later appeal.
2. The first two surveillance videos and related report were not protected work product because they were created by the insurer before suit without showing that they were created at the direction of Keolis's counsel.
3. The third surveillance video and related report were protected work product because they were created at the direction of counsel after Toth filed suit and therefore were prepared for trial.
4. The Court of Appeals could not determine the ultimate discoverability of the third video and related report because protected work product may be discovered upon a showing of substantial need and undue hardship, and the district court failed to conduct that analysis.

Questions Presented

1. Whether the Court of Appeals should exercise extraordinary writ jurisdiction to review the district court's discovery order.
2. Whether surveillance materials created by an insurer before suit are protected work product when they were not created at the direction of counsel.
3. Whether surveillance materials created at counsel's direction after litigation commenced are protected work product.
4. Whether work-product surveillance materials may nevertheless be discoverable upon a showing of substantial need and undue hardship, and whether the district court properly analyzed that exception.

Disposition

writ_granted