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Surveillance in Personal Injury Cases – What You Need to Know
If you are a plaintiff in a personal injury case, you can reasonable expect that at some point during your case, you will be surveilled by a private investigator. Insurance companies typically contract the services of personal investigators to photograph and film plaintiffs. They do this to make sure a plaintiff’s behavior is consistent with their injuries. As an injured person, it’s important to know what to expect regarding surveillance, as well as how you should conduct yourself on a daily basis, and how you can limit your exposure.
What Rights Do Private Investigators Have When Conducting Surveillance?
As long as a P.I. is not trespassing on your private property, he or she can record you anytime and almost anywhere. While it may seem intrusive, the law in New York allows P.I.’s to surveil with near impunity. For example, if a P.I. is parked in your neighborhood and you’re on your front lawn, or even in your living room, the P.I. is authorized to record you. This footage could ultimately be used as evidence against you, should the defense believe it serves to discredit your injury claim.
There are some exceptions regarding the rights of private investigators and surveillance, however. A private investigator may not record you in any area where you have a “reasonable expectation of privacy”, such as a bathroom. Private investigators are also barred from trespassing on private property to record or set up hidden cameras. Other than these exceptions, private investigators can surveil you in any location.
How Private Investigators Learn Personal Information About Plaintiffs
There are several ways private investigators learn about plaintiffs. Typically, defense attorneys will ask very personal questions during depositions. Responses to these questions often give them enough information to relay potential habits to private investigators. For example, lawyers may ask plaintiffs what their typical day looks like, where they go to church, where they get coffee, etc. Based on answers to these questions, attorneys will hire private investigators to follow up.
Private investigators will then begin to study plaintiffs’ habits, often following them from their homes and observing their daily routines. Private investigators are trained to be discrete, so it’s likely the average person would never know they were being observed. This is where adherence to normal behavior becomes a key factor.
Even if you were seriously injured, it’s likely some days will be better than others, and you may feel more active than usual. Understandably, this could spark a desire to get out and jog, walk more than usual, etc. If this behavior would constitute a marked departure from your norm, the defense would not hesitate to use it as evidence to discredit the severity of your injuries
Social media is another important way in which private investigators glean information about injured plaintiffs. Because pictures and text posted to social media accounts are considered public information, private investigators have the right to take these things and give them to the defense, who may use them as evidence. For example, if you claimed to be bed-ridden after breaking your back, but posted a picture of you at the beach in a wheelchair (or outside of your house in general), the defense could use this to discredit your claim of being bed-ridden, even though you are clearly still injured.
How You Should Conduct Yourself Day-to-Day
As was discussed earlier, private investigators search for any deviation from what may be normal behavior after an accident, or any behavior that might discredit the impact of your injuries. Because of this, it is important to maintain strict adherence to your behavioral norm throughout the duration of your case.
For example, if you were to have an injury that resulted in permanent usage of a cane to walk, it’s very important that you continue to use the cane. Even though there will likely be days where you feel better and maybe don’t need it, it’s important not to provide the defense with any evidence that could discredit the seriousness of your injury.
As for social media, the same logic is true. Avoid posting images or text that may contradict or minimize your injuries. Also, be mindful of what others post of you, because its likely a P.I. will be closely monitoring your friends’ social media profiles as well.
Because private investigators are trained to be thorough, limiting your exposure to their surveillance can be difficult, but there are a few things you can do to increase your privacy.
Even though it may be an uncomfortable thing to have to do, consider closing the blinds in your home during your case. Because private investigators are authorized to record activities in your home (excluding the bathroom), closing the blinds allows you more autonomy and privacy.
Also, consider making your social media accounts private. Both Facebook and Instagram have options to make your profile “private.” This option allows only those you’ve accepted as friends to view your content. If you do utilize this option, be very careful about who you accept as friends going forward. A private investigator could, in theory, create a fake account to try and infiltrate your profile. If you’re careless with who you allow to be your friends and followers, you could compromise the privacy that this option affords you.
Though it may be intrusive and uncomfortable to have to deal with a private investigator’s surveillance, it’s normal procedure in a personal injury case. It’s important to consider your conduct on a daily basis so as not to provide the defense with evidence that could harm your case. If your conduct is consistent with your injuries, the defendant’s surveillance will not likely decrease the value of your case.