The uneasy feeling of being covertly watched is one that’s inspired more than a few catchy songs, but you should know it’s a possibility if you’re the plaintiff in a Fort Myers personal injury lawsuit.
Whether we’re talking about a matter of medical malpractice, a car accident injury, or a dangerous product case, there’s nothing in Florida law that will technically block the defendant from conducting some type of surveillance on you. In fact, you should probably expect it. In personal injury cases, the goal of “spying” is to rebut damage claims. Florida courts have generally held that because of the public interest in exposing fraudulent personal injury claims, plaintiffs can anticipate that a “reasonable” investigation is likely to include independent verification of their injuries.
But that doesn’t mean your privacy goes out the window. By working with a Fort Myers injury lawyer, you’ll get a much better sense of what these investigators are likely to look for and ways you can shield your privacy. We will help ensure that your rights are protected, and injury case defendants won’t get away with playing dirty.
What Are the Surveillance Rules in a Florida Injury Lawsuit?
Fairly common surveillance tactics in Florida injury lawsuits:
- Monitoring your social media pages to see what sort of activities you’re up to. They may scour the posts and pictures for clues about not only your physical capabilities, but your mental/emotional state – which can be a significant component of damages in a Fort Myers injury lawsuit.
- They might have an investigator post up to watch/record you as you leave your home, enter your place of employment, or carry on with daily activities.
- They might request surveillance footage of local businesses or government agencies that might show you moving throughout a typical day – grocery shopping and lifting bags, walking through the park with a backpack on, unloading items from your vehicle at a local print shop, etc.
However, this “spying” is not without limitation.
For one thing, Florida is a two-party consent state. F.S. 934.03 makes it a third-degree felony for anyone involved in or overhearing a private conversation to record that conversation with the consent of each party. That applies to both in-person conversations and those through an electronic device, such as a cell phone. So assuming there was an expectation of privacy in the conversation, they cannot legally record your personal conversations. That means they’re unlikely to be intercepting your phone calls, etc.
They also can’t “bug” your home or put a tracking device on your car. A court would likely find the defense on shaky ground if they were snooping around your home, following you around closely in public places, knocking on your door under false pretenses, or using any methods that could be considered intrusive or unreasonable.
For the most part, courts frown upon last minute “surprise” entry of surveillance footage as evidence. If an injury lawyer requests the defense disclose surveillance footage in a timely manner prior to trial and the defense fails to comply with that request, the court could completely prohibit the video from being used at all. (In one 1992 case before Florida’s 3rd District Court of Appeal, the defense obtained damaging surveillance footage during the trial and failed to disclose it until the plaintiff had rested their case. The judge did not allow the video to be entered into evidence because it wasn’t listed as evidence before the trial – a decision the 3rd DCA upheld.)
That said, courts have held that defendants could withhold the contents of surveillance footage from the plaintiff’s legal team until after deposition. That was the position of Florida’s 1st District Court of Appeal in the 2006 South Florida medical malpractice case of Beck v. Holloway.
Ways a Fort Myers Injury Lawyer Can Minimize the Impact of Defense Surveillance
Although it can be unnerving to think that someone may be performing surveillance on you as you’re recovering from your injuries, take some comfort in the fact that sometimes this effort backfires.
For one thing, lying or exaggerating about the severity of one’s injuries in a personal injury case isn’t nearly as common as tort reform proponents would have you believe. Which in turn means that the surveillance footage they capture might actually help your case. We diligently inquire as deposition or trial approaches about whether there is surveillance footage they intend to use.
For another, we make it a point to discuss this issue with clients at the outset of a case. You’ll be encouraged to set all social media profiles to private – and ideally refrain from posting much at all until the case is concluded.
It’s important to always be honest and fully forthcoming with your personal injury lawyer – both about what happened and the extent of your injuries. We’re on your side, we’re committed to advocating for you – but we’ll never encourage you to lie or exaggerate (that’s our professional reputation at stake too). That said, we do know the ways in which defense lawyers might seek to discredit plaintiffs, and we’re better able to advise them how to avoid giving the wrong impression when we’re getting the full story.
Bottom line: You should expect some amount of “spying” from the defense in a Florida personal injury lawsuit, but it’s typically not a significant concern when you’re working with a highly skilled trial lawyer.
If you are injured in Fort Myers, Port Charlotte, Sarasota, Cape Coral, Naples, or Key West, contact Garvin Injury Law at 800.977.7017 for a free initial consultation.
VIDEO SURVEILLANCE IN PERSONAL INJURY CASES, June 2011, Vol. 85, No. 6, Florida Bar Journal
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