Personal Injury Surveillance

Brien Roche

Surveillance in personal injury cases is not quite as common as it used to be.  It still is used by insurance carriers. 

It’s a very dangerous defense tactic.  It is fraught with deception.  For instance videos and/or pictures may be altered. Distances may be minimized or exaggerated.  Lighting, focal length and camera angles all make a difference.  Also action may be slowed down or speeded up.

Personal Injury Surveillance-Things To Consider

Aside from those basic issues dealing with the content of the surveillance material, there are several other things that need to be considered:

• Was the evidence lawfully obtained?
• Was the observation undertaken from a public location? If so it may be permissible but if not, then it may not be permissible.
• Was it taken in compliance with state consent to record laws?
• In addition was the investigator properly licensed?
• Did the investigator engage in any direct contact with the plaintiff? If so that may run afoul of the ethical rules.
• Was some disguise used to gain entry or access to the plaintiff?
• Also any videos or photos need to be carefully reviewed with the client to determine authenticity and alterations.  There may also be meta data that is available that could be telling.  

Discovery

• Under the federal rules, the identity of the investigator and the substance of any report are subject to automatic discovery.
• Concealing the evidence based upon it being impeachment is not justified.
• Have the proper requests been made to ferret out the existence of this surveillance evidence?
• Is the defendant trying to hide behind the work product doctrine? If the material itself is work product is one thing but clearly whether the defendant conducted surveillance and the dates and locations are certainly not privileged or protected. 
• Also has the defendant engaged in post-discovery surveillance in order to avoid the discovery rules?
• It may be advisable to ask an express Interrogatory and Request for Documents for this type of surveillance material or activity review.  Whether the request expressly calls for it or calls for a more general form, it should not be protected by a work product objection.  Myers v. Aleutian Endeavors, LLC, 2018 U.S. Dist. Lexis 93306 (D. Alaska 2018)

These are all things that need to be considered closely in terms of evaluating your own position.

Preparing the Client

As part of the preparation for litigation and also for the deposition it’s critical that the client be prepared for the possibility of surveillance.  They need to be advised of the fact that the surveillance may be conducted in a fashion where they have no clue that they are on a video camera.  

Personal Injury Surveillance-Perspectives

There are different schools of thought on producing videos.  The majority opinion seems to fall into category 1 below:

 1.  Produce all of it when asked for in discovery because it is not protected as work product. Fender v. Norfolk S. Ry. Co., 55 Va. Cir. 344 (Norfolk 2001)

2.  Produce it only after the plaintiff’s deposition.Fare v. John Doe, 66 Va. Cir. 61 (Chesterfield 2004), Fender, 55 Va. Cir. 344; Runions v. Norfolk & W. Ry. Co., 51 Va. Cir. 341 (Roanoke City 2000); McIntyre v. CSX Transp.,, 22 Va. Cir. 302 (Richmond 1990)

3.  Finally no need to produce before trial unless it will be used at trial. Larson v. McGuire, 42 Va. Cir. 40 (Loudoun 1997)

Undisclosed audio recordings have limited use per section 8.01-420.2 of the Virginia Code. However, even though of limited use, they may be discoverable to show improper conduct.  If a video has audio, the Virginia Rules of Professional Conduct and LEOs may be implicated.

The idea of withholding surveillance material until after a deposition is taken is flawed.  This is based on the assumption that the defendant is entitled to test the veracity of the plaintiff.  However if that were the criteria for discovery, then the plaintiff would not be required to produce much discovery either until after the defendant’s deposition.  That simply is not justified. 

Rule 4:9(b)(ii)

At the very least, the defendant should be made to disclose this material in a privilege log. 

Also keep in mind that under Rule 4:9(b)(ii), the party making the objection must state whether any responsive materials are being withheld.  In addition if responsive materials are being withheld, then they should be identified in a log.

Polarizing the Case

Also this may be a good opportunity to “polarize the case”.  That is to say, point out the fact that they are conducting surveillance.  Point out the fact that they are hiding behind bushes.  Point out the fact that they are invading the plaintiffs’ privacy.  That may well anger a jury and increase the size of the verdict.  

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with cross-examination issues.