Covert video surveillance of a plaintiff is frequently employed by the defense to rebut damage claims in personal injury cases. Recently, the effectiveness and ease of video surveillance has been enhanced by improvements in technology, including the advent of easily concealable, high-resolution digital cameras. Surveillance can be effective at trial because it is readily understood by a jury, easily admissible, and often entertaining. It is most effective when used to impeach a plaintiff's credibility as to the extent of his or her injuries. Moreover, since the tape is factual, not opinion, it is not subject to traditional credibility attacks.
With the increasing use of surveillance, it is not surprising that courts have had to address numerous legal issues involving its use. These issues include discovery of surveillance, authentication and use at trial, and use of the video by medical experts. Other important related issues concern trespass and invasion of privacy. This article will discuss these and other important legal issues governing the use of surveillance in personal injury cases.
Balancing the Claimant's Right to Privacy and the Defendant's Right to Investigate
Courts have generally encouraged the use of surveillance as a means of investigating fraudulent personal injury claims. Tucker v. American Employers' Ins. Co., 171 So. 2d 437, 438 (Fla. 2d DCA 1965), was the first Florida case to address the issue of motion picture (film at the time) surveillance. The plaintiff brought an action for personal injuries against the defendant following an automobile accident. The defendant's attorney employed a private investigator to conduct surveillance of the plaintiff. The plaintiff filed a complaint against the defendant, alleging the defendant willfully and maliciously caused the plaintiff to be "openly followed and shadowed in such a manner as to make the plaintiff and the general public aware that she was being followed, and causing her to suffer certain injuries." (1)
The trial court granted summary judgment for the defendant. However, the Second District Court of Appeal reversed and set forth the following balancing test:
Because of the public interest in exposing fraudulent claims, a plaintiff must expect that a reasonable investigation will be made subsequent to the filing of a claim. However, there should be certain limits as to how the investigation is conducted, because there is also a social utility in not permitting a defendant to harass or intimidate a plaintiff into settling a claim on less favorable terms than those which he would voluntarily accept. (2)
The court noted the fact that the investigator openly followed the plaintiff was not in itself enough to render the investigator liable. However, the plaintiff's affidavit raised a genuine issue of material fact, such that summary judgment should not have been granted.
An invasion of a plaintiff's right to privacy may occur if the investigator is snooping around the plaintiff's home, knocking on the plaintiff's door under false pretenses, following the plaintiff closely in public places, or otherwise conducting surveillance in an unreasonable and obtrusive manner. (3)
Discovery of Surveillance
Upon receipt of a proper request to produce or interrogatories under Rule 1.280 of the Florida Rules of Civil Procedure, the defendant must disclose the existence of surveillance materials. A claimant's attorney should serve a request for production seeking all surveillance records, including video tapes, audio tapes, (4) photographs, and any other recordings of the claimant ordered or in the possession of the defendant. As a general rule, however, if the defense does not intend to introduce the tape at trial, it is considered attorney work product and, thus, subject to protection unless extraordinary circumstances exist that overcome the privilege and require production. (5)
Recently, the Fourth District Court of Appeal distinguished between a static, permanent store surveillance tape (which is generally considered non-work product), versus a covert investigator's tape, which is generally considered work product. In Target Corporation v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010), Target sought certiorari review of the trial court's order compelling production, prior to the plaintiff's deposition, of a "static" security video (taken by a store-mounted camera) of the plaintiff's slip and fall. The Fourth District Court of Appeal held that the video was not work product prepared "to aid counsel in trying the case." Rather, it was a static video of the accident itself, discoverable under the Rules of Civil Procedure, which are designed to "prevent the use of surprise, trickery, bluff and legal gymnastics." (6)
The court contrasted this type of static video with the surveillance video at issue in Dodson v. Persall, 390 So. 2d 704 (Fla. 1980). In Dodson, the surveillance film of a purportedly injured plaintiff was taken after the accident occurred. Such covert films, usually taken by retained private investigators, have been characterized by the Supreme Court as falling under the work product privilege, unless intended for use at trial. (7)
Timing of the Duty to Disclose Surveillance
Strategically, the defense usually wants to "lock" a plaintiff to his or her damage claims at deposition (preferably a video deposition), then disclose surveillance video after the deposition. The Florida Supreme Court in Dodson held that judges have discretion to order the depositions of parties to be conducted before production of a surveillance video is required. The rationale is to preserve the opportunity for impeachment of the deponent. Otherwise, it is conceivable that the deponent may alter his or her testimony based on what is depicted in the video. (8)
The timing of the disclosure of surveillance was also at issue in Beck v. Holloway, 933 So. 2d 4 (Fla. 1st DCA 2006). The plaintiff, Holloway, brought a medical malpractice lawsuit against his otolaryngologist, Beck, concerning the performance of meningitis-related surgery. Holloway claimed that, as a result of the malpractice, he was no longer able to drive a truck for work and could not bend over without falling. The Holloways had made no discovery requests for surveillance tapes when, four weeks before trial, Dr. Beck moved for leave to take their depositions for a second time. Dr. Beck's motion revealed that the defense had surveillance videotape in its possession and offered to furnish the plaintiff a copy of what it intended to offer at trial, but requested that the defense not be compelled to produce the videotape before the deposition. The trial court granted the motion, allowing additional depositions and permitting defense counsel to wait until after the depositions to provide the Holloways a copy of the videotape.
At trial, counsel for the Holloways argued that no videotape should be allowed in evidence, because they did not receive an unedited copy of the video before trial. The trial judge...