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SURVEILLANCE

Claims investigation frequently involves surveillance and videotaping of claimants. It is probable that the "electronic revolution" made it easier to spy on others. With today's tiny digital cameras, anyone can cut a hole in a shirt pocket, insert a tiny camera, and take sub rosa videos.

There are several restrictions on claims investigation when conducting surveillance: 1) under the California Constitution, there is a right to privacy; 2) the "anti-paparazzi" law in Civil Code §1708.8 imposes liability for certain practices ; 3) tort litigation against the insurer or claims agency for deceptive investigation practices (see cases below); 4) admissibility and evidentiary issues arising from poor quality of the video or the investigator's testimony, lack of foundation or relevance (the "so what?" video), "field editing" whereby there are unexplained gaps in the film so as to create a false impression of the activity being recorded, failure to produce in advance, and the like.

Videos do not come into evidence on their own. First, they must be timely disclosed and produced. Then, the investigator needs to authenticate the video and, in some cases, in order to be relevant, the video needs to be reviewed by the forensic evaluator. The attorney presenting the video should lay a foundation by asking the investigator under oath about "how," "when" and "where" and whether the film was edited or altered, what equipment was used, and whether it fairly reflects what the investigator witnessed at the time of recording the video. Opposing counsel should conduct a vigorous cross-exam of the investigator to determine what he/she saw that was not recorded ("field editing"). If the investigator gave opinions on the applicant's state of mind (such as commenting on "behavior indicating claims consciousness"), he/she walked into the lion's jaws....

See, too Claims Investigation and Discovery

Label Item Links Comments
Labor Code Admissibility of Evidence: "and other records properly
authenticated."  
LC §5703   
Civil Code  Anti-Paparazzi Law
Civil Code §1708.8
Evidence Code Evidence Code §250: a videotape is a "writing": "Writing" means handwriting, typewriting, printing,
photostating, photographing, ... and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of
the manner in which the record has been stored."
Evid C §250  
Regulations/Rules §10601. Copies of Non-Medical Reports and Records: "Where documents, including videotapes, are to be offered into evidence, copies shall be served on all adverse parties no later than the mandatory settlement conference, unless a satisfactory showing is made that the documents were not available for service by that time." 8 CCR §10601  
Cases  Suezaki v. Superior Court (1962) 58 C2d 166: videos not privileged.

Unruh v. Truck Insurance Exchange (1972) 7 Cal. 3d 616: injured worker can sue insurer for intentional torts: "we are unable to conclude that a compensation insurer remains within its proper role as such, when, as in the instant case, through its agents or others employed by it, such insurer intentionally embarks upon a deceitful course of conduct in its investigations which causes injury to the subject of the investigation. We cannot give our approval to such misconduct which tramples upon the employee's rights, by deeming it no more than the normal behavior of the insurer."

Redner v. WCAB (1971) 5 Cal. 3d 83: "Even if the motion picture evidence had been offered in a timely fashion at the referee's hearing, the referee should have refused to rely upon it ... because the carrier obtained it by fraudulent inducement....the carrier should not profit from its own deceitful conduct."
Suezaki v. Superior Ct


Unruh v. Truck Ins.











Redner v. WCAB
 
Forms      
Websites California Bureau of Security and Investigative Services BSIS   
Practice Tips See "How to Analyze Surveillance Videotapes" by Marjory Harris, Esq. and download the Surveillance Summary Table

Send a demand after the deposition: "This is a continuing demand for surveillance films, investigators’ logs, reports, and field notes, and witness statements. Films must be served whether or not you intend to submit them into evidence or for a medical-legal evaluation. Defendants are hereby notified pursuant to Suezaki v. Superior Court (1962) 58 C2d 166 that applicant will move to exclude any films not viewed prior to hearing by applicant's attorney and all reporting physicians. This is notice that we will recommend prosecution of violations of Civil Code §1708.8."
   
Articles

Governor Schwarzenegger Signs New Anti-Paparazzi Legislation

"Peek-a-boo, We See You: A Look at the Ins and Outs of Sub Rosa by Howard J. Stevens, Esq.

Article on CC §1708.8


"Peek-a-boo"

 
Magazine Articles Marjory Harris reviews some really bad movies.


How to Analyze Surveillance Videotapes by Marjory Harris, Esq
Smoking Gun: Bad Videos

How to Analyze Surveillance Videotapes
 
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