NCJ Number
114434
Journal
Practical Lawyer Volume: 34 Issue: 4 Dated: (June 1988) Pages: 55-61
Date Published
1988
Length
6 pages
Annotation
This article offers practical advice for preparing the client in a personal injury case for possible surveillance and for handling surveillance evidence and dealing with it effectively at trial.
Abstract
The client should understand that an investigator may attempt to encourage him or her into revealing the extent of injuries either directly or through shadowing, tailing, eavesdropping, or peeping. The client should also understand that such evidence may be photographed, filmed, or recorded. The attorney should file interrogatories or other discovery requests to determine the existence of any surveillance of documentation of surveillance of the plaintiff. In allowing discovery of surveillance material, most courts have held that such evidence is discoverable so long as the defendant is permitted to depose the plaintiff as to the injuries and disabilities before the evidence is revealed. The investigator then should be subpoenaed duces tecum to bring the evidence to the deposition. The investigator should be examined to determine whether the evidence was properly acquired, was disclosed during discovery, has prejudicial effects that outweigh its probative value, or is unreliable. Particularly intrusive surveillance can lead to satellite litigation on grounds of trespass, invasion of privacy, or intentional infliction of emotional distress. Surveillance evidence should be reviewed for reasonableness and for possible fabrication. Even if surveillance evidence is admitted, it can be dealt with effectively by showing justification for behaviors that might threaten the plaintiff's chances for a recovery. A list of reasonable and unreasonable surveillance is appended.