Surveillance of the Injured Accident Victim in California

By Gary N. Stern, Esq.

Along with the rights a person who is hurt at work or injured in an accident has through the Workers' Compensation system and/or by bringing a civil court lawsuit, there are also obligations and responsibilities.

Perhaps the most important such obligation is to utilize the judicial or Workers' Compensation system only for legitimate, good faith claims. Unfortunately, every so often someone seeks to take advantage of his or her rights in a dishonest manner. Fraudulent claims are not common. In fact, objective studies have shown that contrary to the propaganda seen in media reports generated by big business and insurers, fraudulent or exaggerated claims are rare. 

Surveillance of the Injured Accident Victim.  Californian photographs injury.

However, because the injured claimant has the burden to prove the nature and extent of the injuries, and because some injuries cannot be seen, touched or felt by others, the law allows defendants and insurers to investigate the claimant in an effort to determine if the injury claims are real and credible.  One tool used by the injured's adversaries is the surveillance video.

A common question is, do "they" have the right to follow me?  To videotape me? To investigate my personal life?  The short answer is yes, but with reasonable limitations grounded in a person's constitutionally recognized right of privacy.  The other protection in the law is that your lawyer has the right to find out if such surveillance has taken place.  If your attorney obtains such a disclosure, he or she must be allowed to view the video evidence to determine its authenticity and relevancy to the case, before such evidence can be used against you.

As far back as 1962, the California Supreme Court said that defense lawyers could not hide behind claims of privilege to avoid disclosing to the injury victim and his lawyer the existence of surveillance materials. The general rule is that the defense lawyer, upon inquiry, must disclose the existence of surveillance photographs and videotapes to the claimant's lawyer.

There is, generally speaking, one huge condition to such a disclosure obligation.  The defense lawyer can often justify a refusal to disclose any such investigation until after he has taken the deposition of the claimant so that he can get on the record exactly what injuries are being claimed. In other words, the defense lawyer can "set up" the claimant by getting him or her to state what things he or she cannot do because of the accident and to then arrange a video surveillance in the hope that the claimant will be seen doing the very activity that was claimed under oath could not be done.  

But what about this nefarious, clandestine surveillance of an individual's daily activities, documenting these activities with the aid of video or still cameras?  It is a particularly important question in our modern society, where technology has become such an intrusive part of our lives. Many of us believe that the explosion of technological advances has damaged our right to be left alone, our right of privacy.  Fortunately, in California, we still do have a constitutional right to privacy. 

The principle recognized in our law is that in our private places, behind closed doors, in our homes, our privacy cannot be violated. But it is another thing when we are out in public.  In a standard interpretation of the law, private investigators may only photograph or videotape private people when they are clearly visible to the general public and there is no expectation of privacy. They may not enter onto private property or place themselves in a position that would allow them a view that would be otherwise blocked from public view, such as peering or taking pictures thru or over backyard fences.

Furthermore, there are actual laws on the books that protect your right of privacy.  California Civil Code section 1708.8 lays out the law prohibiting an invasion of privacy.  Section 1708.7 prohibits stalking.  There are also legal protections for harassment that can even lead to a finding that a person has committed an assault.

It is also important to note that the average person in our modern society lives a very "public" life.  More and more, the average citizen makes use of social media such as Facebook, LinkedIn and Instagram.  The conscientious plaintiff lawyer today  must always remember to remind his client to limit or even suspend the use of social media throughout the case, since it is very easy for the defense lawyer to read such online postings and see if anything exists that casts doubt on the plaintiff's credibility.

It is not unreasonable for the modern plaintiff lawyer to caution his client at the very first meeting to just assume that the defense already knows or will soon know everything about the plaintiff from the day he was born until today.  The lawyer makes that sweeping statement as part of a very practical recommendation:  Tell the truth, act the truth, be consistent, be honest.  When the accident victim follows these guidelines, the prying eyes of the defense will only learn what they should learn; that the injury victim really was hurt and really does deserve fair and just compensation for the injuries.

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