Unfortunately, railroad carriers take certain actions after a railroad accident in the attempt to decrease the value of an injured worker’s personal injury claim. One of these actions is to take surveillance video of the injured party. The hope and idea here are that the videos will capture railroad employees performing certain acts that they say they couldn’t have performed because of the injuries incurred. Such videos may show that an injured worker exaggerated an injury or lied about one.
Please know that it’s hard for injured people to sit back and let other family members, friends, or even hired professionals do the work that they were used to doing prior to an accident. However, if they want full and fair compensation for their injuries, they must strictly follow any limitations their doctors impose. They must also be honest about their physical abilities and pain. Doing more than they’re permitted to do typically means less money for their claim if it’s caught on video.
Legal Issues with Surveillance Videos
A person or railroad company taking a surveillance video of an injured person may seem like an unfair violation of privacy. However, the act is legal provided that it’s not intrusive, unreasonable, or interferes with a person’s reasonable expectations of privacy.
If a company takes a video or hires a third party to take one, it’s important for the injured worker to know about it. It’s important because a railroad company may try to use it to discredit a worker or reduce the injured person’s damage award.
The decision as to whether a party can obtain a copy of a video can grow quite complex. Note that a judge makes this final decision and often does so by considering several different interests and issues.
One such issue is the work product privilege. This privilege says that a party generally may not discover or obtain any written or oral materials that were prepared by or for an attorney in the course of legal representation, especially in preparation for a lawsuit. The Supreme Court has said that a surveillance video is covered under the work product privilege unless the employer intends to use it at trial. However, if the injured party can show that he/she has a significant need for the video or cannot get the information within the video by other means, the court may tell the company to make it available to them.
If the court does decide that the railroad company should give a copy of the video to an injured party, there’s often a question as to when the injured party should have access to it. The question typically focuses on whether access should be provided before or after the injured party is deposed. Generally, if the video will be evidence in a trial, the railroad will need to give it to their injured employer before their deposition. If it won’t be used as evidence but might be used to show that the injured party contradicted themselves during the trial, they must turn the video over to the injured employee after their deposition.
Real Court Decision on Discovery of Surveillance Video
The issue of whether an injured person should obtain surveillance video arose at the center of a recent Missouri court case.
According to the facts of this case, Andrew Young was injured in an accident while on his scooter in November of 2012. DHL driver Edward Friedel hit Young after failing to yield the right-of-way to him. Young filed suit against Friedel and DHL. In the discovery process, Young’s attorney requested copies of any video surveillance taken of him after the date of his injury.
The attorney for Friedel and DHL objected, claiming the request was, among other things, protected under the work product privilege. However, the attorney admitted that they had a surveillance video of Young and submitted a privilege log which provided:
- The dates they obtained the surveillance
- The identity of the person who created the video
- A brief description of the video’s content
Young acknowledged that the surveillance video was protected by the work product privilege, but he told the judge he had no other way of obtaining that evidence. He also specifically requested a copy of the surveillance video before his deposition.
DHL argued that since it had no plans to use the video as evidence at trial, it should not have to produce the video. DHL, though, stated it would give Young a copy of the video after his deposition if they determined they would use it at trial to question his credibility. The Court agreed with DHL and ruled that the company should be allowed to protect the surveillance video until it had the opportunity to depose Young.
Contact Rossi Vucinovich for Help
If you sustained a railroad injury, it’s likely that your employer has or will obtain video surveillance of you. To preserve your claim and maximize its value, contact a skilled railroad injury lawyer now. Note that Rossi Vucinovich PC has been helping railroad employees and their families recover for railroad injuries for over 50 years. We’re dedicated to helping injured railroad workers obtain the benefits they need to treat their injuries, pay their bills, and continue supporting their families. Do yourself a favor and contact us today to get the legal help you deserve.