Personal injury cases, especially those involving large insurance companies, can become extremely antagonistic. Sometimes, defendants will go to great lengths to avoid paying a personal injury claim. Many insurance companies conduct what has come to be called “disability video surveillance” in the hopes of proving that a plaintiff does not in fact suffer the injuries claimed.
While many individuals may consider being videotaped to be an obvious invasion of privacy, the law in New Mexico and other states allows insurance companies to videotape claimants without their knowledge and use it against them in court as long as they stay within certain limitations. Not only is it legal, it is allowable under the rules of discovery and admissible in court under the rules of evidence.
While private video surveillance of a person in their home or private place of business is not allowed under federal and New Mexico law, videotaping a person in public is perfectly legal. If a person works in a public place, like a restaurant or hotel, they can also be videotaped at work. Often times, plaintiffs are videotaped in their yard performing yard work, gardening or other physical activities. If in a public place, the person being videotaped does not have to be aware of being videotaped and does not have to consent to being videotaped.
However, if the videotape is going to be used in court, the New Mexico and federal rules of evidence place several requirements and limitations to its use. First, a videotape of a plaintiff is admissible in court if it is relevant to the case at hand. Evidence is relevant when it tends to make the facts of a case more or less likely. A video recording of a plaintiff can be relevant if it shows the extent of their injuries, how the injuries impact the plaintiff‘s daily life, etc. Second, under the rules of evidence, a defendant cannot simply state that there is a video recording of the plaintiff, but must provide the actual recording as evidence. Third, under the “rule of completeness” a party cannot just submit into evidence an edited version of the recording, but must submit the entire recording upon the other party‘s request.
Keeping this in mind, it is important to be aware of certain issues. Insurance companies rarely do the actual videotaping and surveillance. Instead, they contract local private investigators who are more familiar with the area and with surveillance techniques. In Albuquerque and New Mexico there are a very large number of private investigators who name “insurance fraud surveillance” as one of their specialties. For this reason, persons involved in a personal injury claim are advised to assume that they are being videotaped any time they go out in public.
And keep in mind, the video will not be shown in the most favorable light to the plaintiff so that even seemingly innocuous activities such as carrying groceries may be distorted to make the plaintiff appear dishonest. This should not be taken to mean that one should not carry groceries, do yard work or anything else. It simply means do not say you can‘t due to your injuries when you can. Exaggerating injuries is never good for a claim.
According to some personal injury attorneys, there are times when a plaintiff is most likely to be videotaped. These include the days and weeks surrounding a requested independent medical examination and during the days and weeks surrounding an interview. Surveillance is also likely in the months before definitions of disability are set to change.
Even though it may seem unfair, the law is that if a plaintiff is in a public place an insurance company or any other type of defendant can place him or her under video surveillance. Keeping this in mind, it is important for personal injury claimants to be aware of their actions and surroundings at all times during this process. These are issues that should be discussed with a personal injury attorney.