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knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
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Practice Tips

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1. Obtain the investigator’s log, reports, or
field notes.


Sometimes the log accompanies the film, but if it
does not, a telephone call may produce it. If there is
opposition, send a demand letter. If that does not
work, have a subpoena duces tecum issue. If
defendant refuses to produce these documents,
and then attempts to show the film at trial, argue that
they have not laid a foundation and prevented you
from investigating their conduct.







2. Unless the film is of the “so what?” variety,
watch it several times to note body mechanics,
whether the applicant is exceeding work
limitations, and whether there are time gaps or
“field editing.”


Specific items to watch for include lifting and carrying,
walking with or without assistive devices, use of the
hands or arms, movements of the neck and back.
Click here for a table to record notes.

The film may have been edited or condensed to give the appearance of much activity in a short space of time. Watch the counter and the log for the missing
minutes. Investigators claim they do not edit the
film, but they also do not press the button when
the applicant is grimacing or showing pain
reactions, or the bus the applicant is running to
avoid, and the like (“field editing”).

 

Surveillance Summary Table: Click here to download in MS Word format.

Practice tip: look at the counter or log, not just the body mechanics. Doctors look at the mechanics and not the time frame.

To make sure you get videotapes, make demands
in your letter of representation and in your deposition billing letter.


3. Correlate the activity on the film with medical evidence, both before and after. The applicant may be filmed doing more than usual, and treatment notes soon after may report increased pain.

 

4. Review deposition testimony to determine
whether the activity conflicts with the
applicant’s testimony.


 

5. Have the applicant review the film and prepare
notes on their activities.
If they report that the items
lifted were much lighter than they appear to be, have
them weigh them. Prepare a declaration for them to
sign. Make sure the applicant understands the effect
of the sworn statement.


 

Do a declaration or a letter to alert the medical examiner to the “missing minutes.” Click here for a sample declaration.

Evidence Code §1553.
A printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent. This presumption is a presumption affecting the burden of producing evidence. If a party to an action introduces evidence that a printed representation of images stored on a video or digital medium is inaccurate or unreliable, the party introducing the printed representation into evidence has the burden of proving, by a preponderance of evidence, that the printed representation is an accurate representation of the existence and content of the images that it purports to represent.


6. Write to the treating physician and/or
medical examiner
 

Sample Letter to Primary Treating Physician

Sample Letter to Medical Examiner


7. Review for violations of law. Was the film
obtained by fraud, or by violation of Civil Code
§1708.8? Was it produced too late?


Review the law in getMedLegal’s Quick Reference (search for “surveillance”) and write demand letters if necessary. The film may disappear (see “A Sad Face Fills a Window, Or, “When Is a Zoom Lens Not A Magnification Device?” in Smoking Gun).
 

Fraudulently obtained video may be excluded from evidence and any medical reports that considered the video may also be excluded Redner v. WCAB 36 CCC 371

A person is liable for invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device if it could not have been obtained without a trespass. Investigator may not trespass (physical invasion of privacy) or use visual enhancing devices such as telephoto or zoom lens (constructive invasion of privacy) unless supported by articulable suspicion of suspected fraudulent insurance claim.

Civil Code §1708.8

Voir dire of Investigator Concerning Use of Magnification Device

Letter to Opposing Counsel on violation of Civil Code Sec. 1708.8


8. Prepare for Trial

If the films are to be shown at trial, send a demand
letter and prepare to assert lack of foundation and
other objections if the documents demanded are
not forthcoming.

Prepare to voir dire the private investigator. If he
refers to notes, logs, or reports while testifying, and
these were not served despite written demand and a
subpoena duces tecum, then move to exclude the
film. If you have the logs or notes in advance, prepare
to cross examine on “missing minutes” and the like.

Top of Page

 

Relevant Part of Pretrial Demand Letter

Sample Cross Examination of Investigator at Trial

How to Analyze Surveillance
Videotapes
By Marjory Harris
> Analyzing Surveillance Videos
> Remembering Barry. J. Williams
> Interview with Frederick George Craw
> Interview with Steve Chapman
> Smoking Gun