In personal injury and medical malpractice actions in which plaintiffs have alleged they sustained injuries that have impaired their abilities to engage in their normal activities, it is not uncommon for the defendants to hire investigators to surveille and make video recordings of the plaintiff that may appear to refute, or confirm, the nature and degree of the impairment. Such actions are not without risk for a defendant sanctioning them, because the recording is fully discoverable by the plaintiff and can backfire on the defendant if it corroborates the plaintiff’s claims. This column examines the development of the law addressing the discoverability of surveillance videos.
The development of VHS and Betamax formats in the late 1970s, which resulted in smaller, less costly and more accessible video recording equipment, led to such technology being relatively common place by the 1980s. It was likely during this time that defendants and insurance companies determined that the technology could be useful for spying on plaintiffs in personal injury actions. By the early 1990s all four departments of the Appellate Division were forced to grapple with whether such recordings made surreptitiously on behalf of defendants were discoverable by plaintiffs.