How Courts Treat Surveillance Evidence in Personal Injury Lawsuits

If you have filed a personal injury claim, you may eventually wonder whether someone is watching you. The reality is that insurance companies surveil their claimants more often than most people realize, using video and still images to challenge injury claims and damages. Insurers and defense attorneys sometimes hire private investigators to observe plaintiffs and record their daily activities, hoping to capture footage that suggests your injuries are minor or that you exaggerated your limitations.

Surveillance, however, is not automatically decisive. Courts treat these recordings as just one piece of evidence among many. Judges look at how the footage was obtained, whether it is relevant, and whether it fairly represents what it claims to show before deciding if jurors will ever see it. Our attorneys explain how courts evaluate surveillance evidence in personal injury lawsuits and what you can do to protect your claim.

Is Surveillance Legal in a Personal Injury Case

In many situations, surveillance in an injury case is legal. Defendants and their attorneys may observe and record activities that occur in public places where you have no reasonable expectation of privacy. This generally includes locations such as:

• Public streets and sidewalks

• Parking lots, parks, and outdoor spaces visible from public areas

• Stores, malls, and other businesses that use security cameras

If you are out in public, recording you is often considered fair game.

However, legality depends heavily on how the footage is obtained. Conduct that can cross the line includes:

• Recording through the windows of your home or other private spaces

• Trespassing on private property to capture close up images or video

• Using deceptive or harassing tactics, or violating state or federal wiretap and privacy laws

When surveillance is obtained unlawfully or in a way that is unduly intrusive, courts may exclude the footage or limit its use at trial. Your attorney can evaluate whether the surveillance in your case was gathered lawfully and whether there are grounds to challenge it before the jury ever sees it.

When Courts Allow Surveillance Videos into Evidence

Courts do not automatically accept every recording offered by the defense. Instead, judges apply the rules of evidence and weigh several key factors before deciding whether surveillance footage should be shown to the jury.

Relevance

The video must relate directly to issues in dispute, such as:

• The severity and nature of your injuries

• Your physical limitations and daily activities

• Your credibility, especially if you have described substantial restrictions

A short clip showing you carrying a light grocery bag may be meaningless if your claimed injury involves chronic pain that fluctuates from day to day, or if your doctors have cleared you for limited activity. Your attorney can also challenge efforts to use old footage as if it were taken after your injury.

Foundation

The party offering the video must show that it is genuine and accurate. This usually requires:

• Testimony from the investigator or person who recorded the footage

• Information about when, where, and how the video was captured

• Confirmation that the footage has not been altered in a misleading way

If the defense cannot lay this foundation, the judge can exclude the video entirely or allow only parts of it to be used.

Balancing Prejudice and Probative Value

Even when video is relevant, courts still balance its usefulness against the risk of unfair prejudice. Surveillance clips are often brief and do not show what you experienced immediately before or after the recording—such as pain flare ups, medication use, or the need to rest. Judges recognize that:

• Short snippets can give a distorted picture of your daily life

• Jurors may overvalue video because it appears “objective”

• Context matters, especially with injuries that wax and wane

If the risk of misleading the jury outweighs the probative value, the court can limit or exclude the footage.

How Surveillance Footage Can Hurt or Help Your Injury Claim

Surveillance cuts both ways. Defense lawyers frequently use it to try to undermine your case by arguing that:

• You can do more than you told your doctors or the jury

• You exaggerated your pain or restrictions

• Your claimed limitations are inconsistent with the activities on video

For example, if footage appears to show you lifting heavy boxes after testifying that you can barely bend, the defense will likely emphasize that discrepancy.

But surveillance can also help your claim. In some cases, the footage:

• Shows you moving slowly, using assistive devices, or clearly in discomfort

• Confirms that you are performing only light tasks and resting frequently

• Aligns with what your doctors and you have already described

When your attorney can put the video into context—by explaining what it does not show and tying it to your medical records—it can actually reinforce your credibility instead of undermining it.

Discovery Rules for Surveillance in Personal Injury Lawsuits

One of the most contested issues with surveillance is disclosure—when and how the other side must share it. During litigation, both parties go through discovery, a formal process for exchanging information and evidence.

Timing of Disclosure

In many courts, if the defense intends to use surveillance footage at trial, it must:

• Disclose that the surveillance exists

• Produce copies of the footage within the deadlines set by the rules or court orders

Judges generally disfavor “trial by ambush.” If the defense hides surveillance until the eve of trial, your lawyer may ask the court to exclude it or delay the proceedings so you have time to respond.

Work Product Considerations

Not all surveillance related materials are treated the same way. For example:

• Investigative notes, internal reports, and some raw materials may be protected as attorney work product and not discoverable

• Edited or final video footage that the defense plans to use at trial is typically discoverable so your attorney can prepare a response

Courts often draw a line between privileged strategy documents and the actual evidence that will be shown to the jury.

Depositions and Supplemental Discovery

When surveillance is disclosed, your attorney may:

• Reopen or supplement depositions to question the investigator

• Ask detailed questions about when you were followed, how long the camera was rolling, and what was not recorded

• Seek additional discovery about editing, storage, and handling of the footage

This process can reveal gaps in the video, selective filming, or other issues that undercut its credibility.

Trial Strategies to Challenge Surveillance Evidence

If your case goes to trial and surveillance is at issue, preparation is critical. Strong trial strategy does not ignore the footage; it anticipates it and builds a context around it.

Common approaches include:

• Emphasizing limited duration: Demonstrating that the video covers only a few minutes out of your entire day, leaving out hours of pain, rest, or medical treatment.

• Tying in medical history: Having treating physicians or experts explain how certain injuries allow brief bursts of activity followed by significant pain or fatigue.

• Cross examining the investigator: Questioning how long you were followed, when recording occurred, whether anything was missed, and whether the video was selectively edited to show only the most favorable moments for the defense.

• Highlighting what is not shown: Pointing out that the video does not depict your nighttime pain, therapy sessions, medication effects, or the assistance you rely on at home.

Ultimately, courts instruct juries to view surveillance as just one piece of evidence. Your attorney’s job is to ensure jurors see the whole picture, not a misleading snapshot.

Learn How Clark Fountain Can Help

Surveillance has become a common feature of modern injury litigation. While insurers and defense lawyers often rely heavily on cameras and investigators, courts still apply established evidence rules before allowing juries to see this material. Our attorneys understand how these recordings can hurt a case, but we also know how to challenge their accuracy, expose their limits, and even use them to support your credibility.

In some situations, we can keep unfair or improperly obtained footage out of trial entirely. In others, we focus on turning a seemingly damaging clip into a neutral or even helpful piece of your overall story. Our attorneys have extensive experience dealing with surveillance evidence and the tactics that come with it. Contact us today to learn more about how we can protect your rights and build the strongest possible case for compensation.