Section Review

Joseph M. Desmond is a partner at Morrison Mahoney LLP in Boston. His practice focuses on the defense of brain injury cases and other catastrophic injury claims.

David Viens is an associate at Morrison Mahoney LLP. His practice focuses on general liability defense.

Introduction

Video surveillance of allegedly injured plaintiffs is often the most persuasive evidence in a personal injury trial, and in some cases may determine the outcome of a case. While every picture is worth 1,000 words, good video surveillance often says the four words that defense lawyers are trained not to say to a jury: “The plaintiff is lying.” The importance of the role of video surveillance in impeaching the plaintiff was best described by the Eastern District of Pennsylvania in Snead v. American Export-Isbrandtsen Lines, Inc.,[1] in the following passage:

The main purpose for secret motion pictures of a plaintiff is to impeach his credibility. Films taken without the knowledge of the subject often have a dramatic impact in court. One who has described in elaborate detail his disabilities, their extent and duration, and the limitations they impose may be shown by the camera to be a fraud. The possibility that such pictures exist will often cause the most blatant liar to consider carefully the testimony he plans to give under oath.[2]

Video surveillance is not only an effective tool in cross-examining a plaintiff, but in many cases it is also substantive evidence that demonstrates the plaintiff’s physical abilities. Such evidence may be used, at a minimum, to demonstrate that the plaintiff has a residual earning capacity that must be considered in light of a plaintiff’s common law duty to mitigate his damages. When surveillance can be used as substantive evidence, and not merely for impeachment purposes, counsel should be cognizant of the duty to disclose the evidence to avoid its exclusion at trial.

Notwithstanding the importance of surveillance to civil litigants, there is little guidance in the rules of civil procedure or in Massachusetts caselaw that is instructive on the permissible scope of surveillance or the obligations of counsel in the disclosure and use of video surveillance at trial. This article examines the substantive limits on the use of surveillance and the additional procedural considerations that must be weighed during the course of the litigation when surveillance is involved.

Permissible Scope of Surveillance Activities

Investigation and surveillance efforts are constrained primarily by state and federal laws that provide private causes of action for invasion of privacy. There appears to be little or no authority in Massachusetts that would permit the exclusion in a civil case of surveillance evidence obtained in contravention of a person’s right to privacy. In the criminal context, law enforcement surveillance is constricted by the Fourth Amendment, which protects citizens from unlawful searches and seizures by the government and operates to exclude from trial any illegally obtained evidence. The Fourth Amendment only applies to government actors, however, and does not apply in civil cases to exclude illegally obtained evidence. Indeed, in criminal cases, the government may introduce evidence that was illegally obtained by private citizens and voluntarily handed over to the state where the government was not involved in obtaining the evidence or coercing its disclosure.[3] Exclusion of such evidence as “fruit of the poisonous tree” is justified only where the government participated in the activity that offends the individual’s Fourth Amendment rights. Although the Fourth Amendment does not apply to non-government surveillance in civil litigation, Fourth Amendment jurisprudence will likely play a role in determining whether civil liability exists in a subsequent suit alleging invasion of privacy based on questionable surveillance tactics used in a prior personal injury suit.

State Privacy Law

The State Privacy Law, G. L. c. 214, § 1B, provides:

A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.

The Superior Court decision in DiGirolamo v. D.P. Anderson & Associates, Inc.,[4] illustrates the risks that surveillance presents and sheds light on the permissible scope of surveillance activities in the context of G. L. c. 214, § 1B. In DiGirolamo, the plaintiff filed suit against a private investigative agency for invasion of privacy pursuant to G. L. c. 214 § 1B after the agency conducted surveillance of the plaintiff in connection with a workers’ compensation claim. The agency had been retained to conduct surveillance of the plaintiff to determine the extent of her mobility and physical activity after she had suffered a broken leg during the course of her employment with the Metropolitan District Commission.

The plaintiff lived in a fourth-floor apartment that included a three-panel sliding glass door that led to a small balcony, and both the glass door and balcony were visible from the street. During surveillance of the plaintiff, investigators watched the plaintiff’s apartment from a vehicle parked on the adjacent public street and photographed and videotaped the plaintiff at various times when the opportunity arose. After the plaintiff learned of the surveillance at a Department of Industrial Accidents hearing, the plaintiff filed suit against the agency, pursuant to G. L. c. 214, § 1B, for invasion of privacy. [5]

In considering the investigative agency’s motion for summary judgment, the court first clarified the misleading language of the Privacy Statute, [6] and noted that a violation only occurs where the plaintiff has proven interference with his privacy that was “unreasonable and either substantial or serious.”[7] The court next noted that because of the “breadth” and “inherent uncertainty” as to the meaning of these terms, courts must define the scope of the right to privacy “on a case-by-case basis, by balancing relevant factors, . . . and by considering prevailing societal values and the ability to enter orders which are practical and capable of reasonable enforcement.”[8]

The court noted at the outset that investigators may generally observe, photograph or videotape subjects in public places, and that such surveillance violates no right to privacy.[9] The court stressed, however, that a gray area arises when subjects leave the public realm and enter the “privacy” of their own homes.

The precise issues the court framed were whether a private investigator violates a subject’s statutory right to privacy under four different scenarios:

1. Where the investigator looks through the subject’s window into her apartment with the naked eye;
2. Where the investigator looks at the subject with the naked eye when she walks out onto a balcony;
3. Where the investigator photographs, videotapes, or looks at the subject with some degree of enhanced vision, such as a telescopic lens, when she walks out onto a balcony; and
4. Where the investigator photographs, videotapes, or looks at the subject with some degree of enhanced vision while she remains inside her home.

After borrowing the logic from the criminal caselaw construing “reasonable expectation of privacy” in the Fourth Amendment context, the court concluded that only the fourth scenario above, i.e., using enhanced vision to view the subject inside her home, would constitute an unreasonable and substantial or serious interference with the plaintiff’s right to privacy in violation of G.L. c. 214, § 1B.[10]

In reaching this conclusion, the court adopted the United States Supreme Court’s Fourth Amendment analysis from Oliver v. United States,[11] where the Court considered whether a government actor’s observations of a person infringed upon the person’s “reasonable expectation of privacy.” In Oliver, the Court held that a reasonable expectation of privacy only exists when the person has an “actual expectation of privacy and the expectation is one that society recognizes as reasonable.”[12] The DiGirolamo Court also quoted the Second Circuit Court of Appeals’ conclusion in United States v. Taborda,[13] the seminal case on enhanced visual surveillance, that:

Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair a legitimate expectation of privacy.[14]

The court stated it was “both sensible and administrable” to apply this reasonable expectation of privacy analysis, which recognizes a distinction between unenhanced vision and enhanced vision, to its determination of when an interference with privacy is substantial or serious.

Applying this analysis to the case before it, the DiGirolamo Court concluded that the investigators’ observations of the plaintiff in her home, using their unenhanced vision and without trespassing, did not violate any reasonable expectation of privacy on the part of the plaintiff. The court concluded, however, that the use of enhanced vision in observing, photographing or videotaping the plaintiff in her home, i.e., through the use of binoculars or a telescopic lens, would violate the plaintiff’s reasonable expectation of privacy and would thus constitute an unreasonable and substantial or serious interference with her privacy under G. L. c. 214, § 1B.[15]

With respect to the surveillance of the plaintiff when she exited her apartment to her balcony, which faced a parking lot and was clearly visible from the street, the court concluded that neither the investigators’ unenhanced nor enhanced viewing of the plaintiff in this area violated any reasonable expectation of privacy on the plaintiff’s part.[16] The court stated that “while standing on her balcony, [the plaintiff] enjoyed no greater right to be free from enhanced viewing than she did while standing on the street.”[17] Thus, the court concluded that the investigators’ observation and photographing of the plaintiff with enhanced vision while on the balcony did not constitute an unreasonable and substantial or serious interference with privacy under G. L. c. 214, § 1B.[18]

Right to Privacy in the Workplace

The DiGirolamo decision discusses the scope of the right to privacy in public places versus private residences. The decision does not, however, provide illumination as to when workplace surveillance impinged upon a subject’s right to privacy. The recent Supreme Judicial Court decision in Nelson v. Salem State College,[19] provides insight as to this aspect of the right to privacy in the surveillance and G. L. c. 214, § 1B context.

In Nelson, the plaintiff, a public employee of Salem State College, filed suit against her employer for invasion of privacy under G. L. c. 214, § 1B after learning she was secretly videotaped by her employer in an open area of her workplace while she changed clothing and applied sunburn medication to her upper chest area.[20] The plaintiff also asserted claims against the defendants under 42 U.S.C. § 1983, pursuant to the Fourth Amendment to the United States Constitution, alleging that the defendants’ video surveillance of her workplace without a warrant violated her right to privacy.[21]

In Nelson, applying the same reasonable expectation of privacy analysis as that adopted in DiGirolamo, the court determined that the plaintiff had no reasonable expectation of privacy in the area of her workplace where she was secretly videotaped.[22] In reaching this conclusion, the court first noted that “[g]enerally speaking, business premises invite lesser privacy expectations than do residences.”[23] However, the court further noted that “deeply rooted societal expectations foster some cognizable privacy interests in business premises.”[24] Despite these deeply rooted societal expectations, the court stated that “persons cannot reasonably maintain an expectation of privacy in that which they display openly,”[25] and on the facts of the case, the court concluded that the plaintiff was videotaped in “an open work area” where there was no objectively reasonable expectation of privacy.[26]

In determining that the plaintiff’s workplace was “open” and “public,” and thus not subject to a reasonable expectation of privacy, the court focused on the open access to the workplace by the public and other workers, as well as the physical layout of the office. The court noted that the office where the plaintiff worked was open to the public throughout the day; patrons were not required to check in; and numerous volunteers and employees could access the office with keys in their possession. As to the physical layout of the office, the court noted that the office was located on a busy commercial street. The front window of the office encompassed the entire front wall and provided passersby a full view of the interior of the office, including the plaintiff's desk and other individuals in the office. The space was not enclosed, and could be entered at any time by anyone in the center, without prior notice. The court concluded that this office, by any reasonable interpretation, constituted an “open work area.”[27] Based on the “open” and “public” nature of the plaintiff’s workplace, the court concluded the employer’s secret videotaping of the plaintiff did not infringe upon any reasonable expectation of privacy.

Combining the rationales of the DiGirolamo and Nelson decisions, it appears that investigators would be free to conduct surveillance of a subject while the subject was in his workplace if the workplace is deemed to be “an open workplace” or “public,” as described in the Nelson case. In most cases, this determination should be reasonably easy to make and it will likely be readily apparent whether a particular workplace is “open” or “public.” For example, a restaurant or department store where a subject was employed would clearly be deemed “open” and “public,” as members of the public are free to enter such businesses at their will.

Audio Recording

An additional statute that counsel must be cognizant of prior to commencing surveillance of a subject in civil litigation is G. L. c. 272, § 99, entitled “Eavesdropping, Wire Tapping, and other Interception of Communications.” This statute unambiguously proscribes the recording of another’s conversation without the consent of the person being recorded and imposes criminal punishments for violations.[28] In addition to potential criminal liability, the statute also provides a civil cause of action for any person whose oral communications were intercepted, used or disclosed against any person that intercepts, discloses or uses an intercepted oral communication. The statute specifically allows punitive damages, as well as an award of attorneys’ fees for violations. Under the statute, there is no requirement that the recording be made willfully to support a damages claim, [29] nor is the proscription limited to areas where the subject has a reasonable expectation of privacy.

Effect of Prohibition on Ex Parte Communications on Surveillance

A related concern for counsel initiating surveillance is the need to remain compliant with the ethical rules relative to ex parte communications with represented persons. In most cases, the need for surveillance does not arise until after a claim has been asserted or a suit has commenced. In either situation, the claimant will likely be represented by counsel, thus inhibiting opposing counsel’s ability, under the ethical rules, to communicate with the represented party.[30] Counsel’s failure to comply with the ethical prohibitions in this regard may result in evidentiary sanctions, such as the exclusion of any evidence obtained from the surveillance in contravention of the ethical rules. Counsel cannot make an end-run around the prohibitions of Rule 4.2 by hiring an investigator or some other agent to communicate with a represented party during surveillance.[31] Where counsel directs an agent to engage in activity that would be violative of the ethical rules if performed by counsel, the unethical conduct may be imputed to counsel and may result in evidentiary sanctions, in addition to potential professional discipline.[32]

Although there does not appear to be Massachusetts precedent involving the imposition of evidentiary sanctions resulting from an ethical violation committed in the context of surveillance, the case of Midwest Motor Sports v. Arctic Cat Sales, Inc.,[33] provides insight into the possible implications of such a violation. In Midwest Motor Sports, during discovery, the attorney for the defendant-franchisor hired a private investigator to visit the plaintiff-franchisee’s showrooms to surreptitiously record conversations with the franchisee’s employees in order to elicit damaging admissions from the employees for use at trial. Upon learning of these tactics, the plaintiff filed a motion seeking to disqualify opposing counsel and seeking sanctions. After considering the issue, the court found that counsel had violated ethical Rule 4.2 by causing the communication by his investigator with a represented party.[34] As a sanction, the court excluded from evidence the tape recordings, as well as any evidence obtained as a result of the recordings. It should be noted that the court’s ruling was supported by the explicit finding that the defendant’s attorney directed the investigator to communicate with and record the communications with the plaintiff’s employees.[35]

Pretext Interviews

Counsel utilizing surveillance must also be cautious of authorizing investigators to engage in conduct that violates G. L. c. 175I, § 3, which prohibits the use of “pretext interviews” in certain circumstances in the insurance context. This consideration applies whether or not the claimant is represented by counsel. “Pretext interviews” are statutorily defined as an interview by a person who attempts to obtain information about a person and who: (1) pretends to be someone he is not; (2) pretends to represent a person he is not in fact representing; (3) misrepresents the true purpose of the interview; or (4) refuses to identify himself upon request.[36]

The statute permits insurance support organizations[37] to use pretext interviews to obtain information regarding an individual where there is a “reasonable basis for suspecting criminal activity, fraud or material misrepresentation in connection with the claim,” and where there is “specific information available for review by the [insurance] commissioner” to support the pretext interview.[38] Thus, a private investigator hired by an insurance defense firm or insurance company to obtain information about a person may not engage in fishing expeditions through the use of pretext interviews without a foundation for suspecting fraud or material misrepresentation. It should be noted that the statute absolutely proscribes the use of pretext interviews to obtain information about a person from another person or institution that has a generally or statutorily recognized privileged relationship with the subject.[39] Generally or statutorily recognized privileged relationships include the relationship between attorney and client, husband and wife, priest and penitent, patient and psychotherapist, etc.[40]

The statute does not create a private right of action for a violation of G . L. c. 175I, § 3. However, if a pretext interview is used by an investigator to obtain personal or privileged information about a person, in violation of § 3, and that information is subsequently disclosed to the insurance company or counsel that hired the investigator, it would appear that the person about whom the information was obtained could seek monetary damages under G. L. c. 175I, § 20.[41]

Discovery and Pretrial Disclosure of Surveillance

There is no definitive authority in Massachusetts as to whether surveillance must be disclosed prior to trial, and if so, when the disclosure must be made. Several considerations must be taken into account in determining whether and when disclosure must be made.

It is clear that surveillance of personal injury plaintiffs falls within the privilege afforded by the work product doctrine under Mass. R. Civ. P. 26(b)(3). Both the federal rules and the Massachusetts rules of procedure provide a qualified privilege for “documents and tangible things” that are prepared in anticipation of litigation or for trial by the opposing party.[42] The work product protection is limited to “documents and tangible things” and does not prohibit the discovery of underlying facts. Thus, as the District Court for the District of Massachusetts has recognized, observations of a defendant’s investigators, as well as relevant information with respect to the mechanics of surveillance, are proper subjects of discovery.[43]

The work product privilege can be overcome by a showing that the party seeking the discovery has a substantial need of the materials in the preparation of that party’s case, and is unable without undue hardship to obtain the substantial equivalent of the material by other means.[44] The federal rules require that a party seeking to withhold materials pursuant to the work product doctrine fully identify the materials withheld.[45] The purpose of the disclosure requirement under the federal rules is to enable the opposing party to assess the applicability of the privilege.[46] The text of the Massachusetts rule does not include this requirement, though trial courts generally impose this requirement in response to discovery motions seeking to flesh out the basis for the claim of privilege.[47]

Plaintiffs seek to overcome the work product privilege by demonstrating that there is a “substantial need” for the material and that the plaintiff is unable to obtain the substantial equivalent without undue hardship.[48] The second prong of this test is readily satisfied as the videotape is actually unavailable through any other means regardless of the hardship. The first prong is much less obviously in favor of disclosure, and a strong argument can be advanced that plaintiffs should not be entitled to obtain the impeaching evidence on the grounds that it is necessary to prepare the plaintiff’s testimony. Stated another way, it is clear that the “substantial need” prong cannot be satisfied by the need for plaintiff’s counsel to be aware of the discrepancies between his client’s testimony and actions in order to tailor his testimony to avoid damaging cross-examination.[49] Rather, the “substantial need” arises, if at all, from the need to examine the accuracy and integrity of the photographer and the photographs.[50] Plaintiffs also argue that the disclosure is necessary in order to prepare rebuttal evidence.[51] Weighing these considerations, many courts in other jurisdictions have determined that surveillance videotapes are discoverable.[52]

Several courts have determined that video surveillance tapes are not merely impeachment evidence, thus bolstering the argument in favor of pre-trial disclosure. In compelling the disclosure of surveillance tapes, the 5^th Circuit Court of Appeals in Chiasson v. Zapata Gulf Marine Corp., [53] explained that “impeachment evidence” is that evidence that is offered to “discredit a witness … to reduce the effectiveness of his testimony by bringing forth evidence which explains why the jury should not put faith in his testimony, while substantive evidence is “that which is offered to establish the truth of a matter to be determined by the trier of fact.” The Chiasson Court noted that films that tend to show a plaintiff’s physical condition are highly relevant and may in fact establish the most important facts in the entire case.[54] Accordingly, the substantive evidence could not be withheld as “impeachment” evidence. Courts in other jurisdictions have also required the disclosure of surveillance tapes in some cases in which the videotape is proffered solely for impeachment purposes.[55]

Timing of Disclosure

Defense lawyers may understandably seek to withhold surveillance evidence until the time of trial in an attempt to maximize the effect on cross-examination by impeaching a plaintiff with videotape of the plaintiff that he has never seen. This tactic theoretically does not permit the plaintiff to tailor his testimony at trial to minimize the impact of surveillance. Once again, the rules provide no clear guidance as to the timing of disclosure, though a generally-followed approach of requiring the plaintiff to submit to a deposition prior to disclosure emerges from a review of the caselaw from other jurisdictions.

Under the federal court rules, a party must identify “each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment …” at the outset of the case without waiting for a discovery request.[56] While the Massachusetts rules do not include the automatic disclosure provisions of the federal rules, the Massachusetts rules require parties to supplement responses with respect to any question directly addressed to the “identity and location of persons having knowledge of discoverable matters” in a “seasonable” fashion.[57] These disclosure requirements are subject to the claims of privilege noted above.

Both the state and federal rules have additional disclosure provisions that must be considered at the point of time the case is set for trial. The federal rules require parties to file a disclosure statement thirty days in advance of trial, identifying each witness whom the party “may call” other than those witnesses used “solely for impeachment.”[58] The Massachusetts Superior Court Standing Order requires parties to list the names and addresses of each trial witness, other than rebuttal witnesses, in the pre-trial memorandum that is submitted to the court at the final pre-trial conference. “Rebuttal witnesses” are narrowly defined as those witnesses that cannot reasonably be anticipated prior to trial.[59] This caveat leaves the question open as to whether disclosure is required, or whether investigators may be called as rebuttal witness to refute the claims made by the plaintiff on the witness stand as to the extent of his disability. There appears to be no clear answer to this question.

While the consensus of authority from other jurisdictions indicates that surveillance materials should be disclosed, trial courts ordering the production of surveillance materials have fashioned discovery orders that balance the competing interests of the parties. Courts requiring disclosure have generally recognized the importance of requiring the plaintiff to submit to a deposition before the disclosure of the surveillance video.[60] For instance, in Snead,[61] the trial court ordered that the defendant did not need to answer interrogatories inquiring whether the defendant had obtained video revealing the true nature and extent of the plaintiff’s injuries, until the plaintiff’s testimony was memorialized in deposition. Further, the court ordered that the disclosure “should take place as close to the time of trial as possible, but before the final pre-trial conference.”

Conclusion

Practitioners should be familiar with the myriad potential pitfalls in connection with the use of surveillance. While surveillance can certainly be a powerful tool in the defense of personal injury actions, caution must be taken to ensure compliance with the applicable rules and statutes. Such caution is necessary in order to avoid the risk of exclusion of favorable evidence at trial, as well as the various other potentially adverse consequences discussed in this article.