So, unfortunately, you have been in an auto accident. In case the pain and suffering you are going through is not enough, now there is a tricky-looking fellow((an employee of the insurance company)) taking surveillance video of you. Is this permissible?
Yes.
In Nevada, an insurance carrier, their hired representative, or anyone else, may record surveillance video of you as long as they are in a public place, even from the curb in front of your house on a public street. They may use this information for their own internal purposes to get to know you and verify your claims of injuries due to the car accident, but they may also keep this video on file to see if your statements are consistent with what their video shows.
The bigger questions involve what the video means for your claim and whether or when you can require the insurance carrier or their hired representative to show or disclose the video.
First, let us discuss what the video means for your claim.
Will my claim lose now because I got caught on surveillance video?
So you were hurt in a car collision, you went to the hospital or urgent care clinic because your back and neck hurt from the whiplash and you called a personal injury attorney to represent you. Your treatment is going well and you are feeling better, but not completely back to normal. You go outside and shovel snow, move your trash bin, work on your vehicle, pull some weeds, play catch with your children or something similar.
Then you realize that there appears to be a person in a car taking pictures and video of you. You call your attorney who asks you to describe the car and license plate, but you do not remember because you were distracted by the person taking the video. You ask your attorney, “is my claim ruined because I was caught doing…?”
The short answer is probably not. What were you doing? If you participated activities that required significant physical ability and strength, such as performing back-flips on your trampoline or dirt jumping on your motorcycle during a time period in which you claimed that you had difficulty sitting, standing, bending over, sleeping, walking, and so on, your claim probably will be in trouble.
More likely, you were observed in the video doing typical chores such as shoveling snow, moving your trash, etc. The severity of your injuries in comparison to the amount of strength and exertion required by the activity will largely dictate how much the video might affect your case. The insurance carrier may have been verifying your claims of injury for their own purposes, seeking to catch you participating in activities you should not be, or both. You should speak with your attorney about the potential impact of the video.
Show me the surveillance video
When you called your attorney about the surveillance video, you demanded to see the video. Unfortunately, the person generally has a right to take such photographs or video from a public place in Nevada. Furthermore, the photographs or video are private property of the person who took them; thus, you cannot require them to turn the photos/videos over to you. Your attorney probably will not be able to get the video either, at least at first. Just because another person caused the car crash and hurt you, and you made a claim through their insurance, it does not initially entitle you to obtain the results of their investigation.
Of course, in the above paragraph, the key qualifiers are “at first” or “initially” because video can usually be obtained if you file a properly pled lawsuit within the requisite time period. Under Nevada’s rules of discovery, anything that is “not privileged which is relevant” may be obtained by any other requesting party. This includes video.
Even if requested, a Defendant may object to disclosure until trial or at least until after your deposition on the grounds that it is impeachment evidence. Impeachment evidence is something that shows you are or have not told to truth, and its use is often depicted in movies as the “gotcha” moment. Nevada case law is unclear about whether a party is permitted to withhold disclosure of a video where not specifically requested, but the surveilling party must generally disclose it if requested before trial, but not necessarily before your deposition. Your deposition may not be until one, two, or maybe even three years after the surveillance video incident; thus, you may forget what happened that day.
There may be actions you can take to help prepare you for your deposition if you suspect someone took video of you, and you should contact an attorney to help you with this.
Clear Counsel Law Group is experienced in guiding people who have suffered injuries from car accidents through the difficult process of attaining financial restitution for the harm they endured.