Utilizing Surveillance and Getting it Admitted Into Evidence

I. UTILIZING SURVEILLANCE

Surveillance can be an extremely effective tool in the defense arsenal. When done appropriately, it can show a judge, jury, mediator or arbitrator insights, which words or documents alone cannot convey. As they say, a picture is worth a thousand words and well done surveillance can be worth thousands of dollars.

Even though it is a powerful tool, surveillance, if used improperly, can backfire. Should the surveillance uncover insignificant inconsistencies between a claimant’s claims or testimony, then a jury could resent the “invasion” of the person’s privacy or the implication that the plaintiff is dishonest about his or her injuries.

Surveillance is not for every case. Even in those cases where it is utilized, adequate time must be allowed so that it cannot simply be dismissed as the plaintiff was having a bad day.

Perhaps the most effective use of surveillance is filming the “absolute” plaintiff or claimant. This plaintiff or claimant testifies or tells his or her treating physicians that he or she absolutely cannot do certain activities or cannot work. Surveillance film showing the claimant or plaintiff participating in those activities can be particularly devastating.

Other plaintiffs or claimants must be judged on a case by case basis. Plaintiffs or claimants with back problems and restrictions on their ability to lift may be excellent candidates for surveillance.

The timing of the surveillance can be critical. If you suspect someone is a candidate for surveillance, the sooner it is utilized, the better chance for success. Do not be reluctant to utilize surveillance before a lawsuit is instituted. Once suit is instituted, the closer you are to an event, such as a hearing, trial, mediation or deposition, the less likely surveillance will produce meaningful results. The plaintiff is usually “on guard” and less susceptible to acting in a manner contrary to his or her allegations. However, some plaintiffs are so arrogant about their claims that no matter when you utilize surveillance, your efforts can reap rewards.

II. DISCLOSING SURVEILLANCE AND GETTING IT ADMITTED INTO EVIDENCE

No matter how successful your surveillance, it is all for naught if you cannot have it admitted into evidence. All the effort and money spent on uncovering the inconsistencies between the plaintiff’s claims and his or her actions will be wasted if a judge prohibits its introduction into evidence at trial.

Often overlooked is being able to authenticate the surveillance film. Select a competent company to conduct the surveillance, so its representatives can testify as to the authenticity of the film, demonstrate its accuracy and that the film was not edited.

Regardless of the jurisdiction, the key to having surveillance admitted is disclosure. Do not wait until the last minute to reveal to plaintiff’s counsel that surveillance film exists, unless you have a very substantial reason for withholding the information. For example, plaintiff testifies at trial, for the very first time, that he or she cannot engage in a certain activity. Surveillance taken previously and not disclosed or surveillance taken in response to the testimony might be admitted under those circumstances. But expect a battle.

Disclosure is critical, because whatever the jurisdiction, the discovery rules were enacted to prevent surprises. Careful attention must be paid to the rules and under what circumstances and when surveillance must be revealed to the other side. The following is a brief discussion of the admissibility of surveillance in New Jersey, Pennsylvania and the Federal Courts.

A. NEW JERSEY

In any case filed in New Jersey, plaintiffs will normally propound Form C Uniform Interrogatories. The ninth form interrogatory requires that the defendant reveal if any videotapes were made with respect to anything that is relevant to the subject matter of the complaint and to provide copies or make the videotapes available for inspection or copying. Thus, the critical issue is relevancy. Relevancy is a two part analysis. First, what action made the surveillance relevant and second, when did the surveillance become relevant? Once these two issues have been satisfied, the court will look to the timing of the disclosure of the surveillance to determine if plaintiff has been prejudiced.

The case of Dong v. Alape, 361 N.J. Super. 106, 824 A.2d 251 (2003) best exemplifies these issues. In Dong, plaintiff suffered multiple injuries in a car accident on January 12, 1998. His most significant injuries were multiple fractures, damaged cartilage, damaged ligaments (including the ACL) and internal derangements to his left leg. He used crutches for several months and a cane for the remaining first year after the accident. Plaintiff also missed the second semester of his senior year and completed high school the following fall. His interrogatory answers and medical reports repeatedly mentioned serious and permanent injuries to his left knee, limited use of his left leg, loss of use of his left leg, loss of ability to walk properly, etc.

On the first day of trial, on May 23, 2001, plaintiff’s counsel stated that among plaintiff’s current restrictions was that he walked with a limp. Later that day, defense counsel informed plaintiff’s counsel, for the first time, that he had surveillance film, taken over several days in August 2000, which showed plaintiff walking at various locations without a limp. The film was prepared at defense counsel’s request and he had had it in his possession since September 2000.

Defense counsel argued for its admissibility, stating that he had not planned to use the film until plaintiff’s counsel’s opening statement when he stated that plaintiff walked with a limp. Initially, the trial judge would not allow the film to be introduced into evidence.

Plaintiff completed his case and at the beginning of the defense case, defense counsel renewed his request that the judge allow the film to be admitted into evidence. Defense counsel argued that although the Form C Interrogatories required disclosure of the film, it was not relevant to the subject matter until plaintiff’s counsel’s opening statement.

In response, plaintiff’s counsel argued that it would be highly prejudicial to allow the film into evidence after plaintiff had already presented his case. Since the trial judge had previously ruled the film inadmissible, plaintiff’s counsel had presented his case based upon that ruling. To allow the surveillance film into evidence at this juncture limited plaintiff’s counsel’s options to calling plaintiff as a rebuttal witness, putting plaintiff at a severe disadvantage.

The trial court reversed itself and allowed the film into evidence and plaintiff then testified as a rebuttal witness. On appeal, the appellate court reversed the trial court’s rulings, finding it to be highly prejudicial to the plaintiff. The appellate court was troubled by defense counsel’s failure to disclose the surveillance film earlier, given the form interrogatories and the plaintiff’s medical records which clearly put the plaintiff’s condition at issue. Having had the films in his possession for eight months before disclosing them also added to the court’s concerns.

B. PENNSYLVANIA

The admissibility of surveillance films is governed by Pa.R.C.P. 4003.1 and 4003.3 which do not protect trial preparation material. Pa.R.C.P. 4003.3 specifically provides that a party may obtain discovery of any matter discoverable under Pa.R.C.P. 4003.1 even though prepared in anticipation of litigation. The discovery does not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the party’s representative other than the party’s attorney, discovery does not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of the claim or defense or respecting strategy or tactics.

Since there is no qualified privilege (work product), the issue is simply is surveillance material discoverable. Pa.R.C.P. 4003.1 allows a party to obtain discovery which is relevant to the subject mater involved in the litigation.

Since surveillance films are included within the scope of 4003.1, the remaining issue is when the films must be produced. Plaintiffs will argue that they should be produced before plaintiff’s deposition which would create a level playing field for all the parties.

During the ordinary course of discovery, plaintiffs will propound discovery seeking copies of any surveillance. Clearly discoverable, plaintiffs will want to see the films as soon as possible. Defendants, in answering the discovery, will object.

Aggressive plaintiff’s counsel will seek to have the objections stricken. Defense counsel will respond by emphasizing the need to withhold disclosure until after the plaintiff’s deposition, to allow the defendant the opportunity to impeach the plaintiff’s testimony.

To date, these skirmishes have been decided in favor of the defense. Pennsylvania courts have favored allowing defendants to withhold disclosure until after plaintiff’s deposition.

C. FEDERAL COURTS

The admissibility of surveillance films is governed by F.R.C.P. 26(b)(3) which reads as follows:

    (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

A plaintiff cannot obtain the films through discovery simply by showing that they are relevant evidence. Instead, the films are protected from discovery through a qualified privilege which protects the films from discovery in the absence of a showing that the plaintiff “has substantial need of the materials in the preparation of the party’s case and that the party is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means.”

The courts must balance the interests protected by the work product doctrine (qualified privilege) and the interests advanced by full disclosure. Consequently, most courts have ruled that a defendant must produce the films it intends to introduce at trial after the plaintiff’s deposition. This ruling preserves the impeachment value of the surveillance while advancing the doctrine of full disclosure. If the defendant does not intend to introduce the films at trial, they need not be produced even if requested during discovery.

III. CONCLUSION

Surveillance can be very effective if used properly. To maximize its admissibility at trial, the timing of the disclosure is critical. The following is a quick reference guide for determining when to use surveillance and once it is utilized, getting it admitted into evidence.

  • 1. Should you use surveillance?
    • a. Analyze the injuries and limitations.
    • b. Analyze the claimant.
      • i. “absolute” claimant
      • ii. arrogant claimant
      • iii. the nature and extent of the injuries
    • c. Has claimant recently provided evidence that is materially inconsistent from previous information?
      • i. more serious or different injuries
      • ii. greater physical limitations
    • d. Has information been uncovered contradicting plaintiff’s allegations?
  • 2. Choose a competent company to do the surveillance.
    • a. Provide film that can be authenticated.
    • b. Provide a complete copy of all the surveillance.
    • c. Has latest technology to conduct proper and undetected surveillance.
    • d. Experienced at giving testimony.
  • 3. Budgeting for appropriate surveillance – one day is rarely sufficient.
  • 4. Timing of surveillance.
    • a. Weather.
    • b. Active or inactive season.
    • c. Close to an event, i.e. hearing, deposition, etc.
  • 5. Once it’s relevant, disclosure is the key issue.
    • a. Discuss the timing with defense counsel.
    • b. Usually disclosing after the plaintiff’s deposition it should be admissible.
    • c. Extraordinary circumstances.