“Smile, you’re on Candid Camera” was the gotcha phrase on the long running popular “Candid Camera” television show. This show involved the use of concealed cameras filming ordinary people doing strange things. Today, most cell phones have video cameras that are readily available to the public. This makes it easy to film the injured person and extremely cost effective.
Injured persons with accident claims of inability to work, lift, carry or pursue hobbies should be aware of the possibility that insurers will hire investigators to film them without their knowledge. If the film indicates that the injured person has lied or exaggerated their disability, this will be used to diminish or even defeat the claim for damages. A common jury charge by the court states that if the jury finds that the witness has been false in one thing, then the jury could conclude that the witness has been false in all things.
The surveillance video is different from the security camera accident scene video found inside most retail stores and many outside areas. This security video may capture the actual accident itself as well as conditions that existed for a period of time before the accident. The video evidence may help the plaintiff establish that the defendant had actual notice of the dangerous condition that caused the accident and establish liability.
Insurers will not usually produce a security accident scene video to the plaintiff before a lawsuit is filed. They often refuse to produce these videos until after the plaintiff’s deposition because they want to use it to impeach the plaintiff during the deposition. Impeachment can consist of outright falsehoods or inconsistencies in testimony so as to cast doubt on the testimony. A motion to compel production should be successful in forcing the defendant to produce the video before the deposition. A sample motion that was successful in federal court appears elsewhere on this blog.
The surveillance video can be made at any time after the defendant has notice that a claim is made. Defendants are usually successful in withholding production of the surveillance video until after the deposition because it is generally used solely for impeachment. If the surveillance video supports the plaintiff’s claim, it may not become known or used. It can be devastating for the plaintiff’s case to question the plaintiff who claims the inability to work when faced with a video of him or her chopping wood preserved on film.
The injured plaintiff should be always aware of the possibility of an investigator for the defendant making a video of them doing something inconsistent with their claimed injuries.