The Illinois Court of Appeals has ruled that surveillance videos made of a plaintiff in a personal injury suit are disoverable.
In Shields v. Burlington Northern and Santa Fe Railroad Co. defendant argued that the films were protected under the work product doctrine. The appellate court followed the majority rule and held that the plaintiff was entitled to the videos. The court stated that “surveillance videos contain substantive evidence concerning the extent of a plaintiff’s injuries, and they do not reveal mental processes, opinions or other conceptual data. Thus, surveillance videotapes do not count as work product.” Read the opinion by clicking here.
It is important to warn your clients of the risk of surveillance videos. We tell our clients about the risk not because we want them to restrict their activities in public places but because we want to encourage them to accurately remember the activities they engage in so that they will not be impeached on video. Clients should also be cautioned about the difference between the activities they “can’t do” as a result of their injuiries versus the activities they do less frequently or do with pain they did not experience before the injury. An understanding of the difference in degree of these limitations will reduce the likelihood of successful impeachment of your client, by video or otherwise.
Your initial requests for production of documents and things (which we recommend should usually be served withj the complaint or in the early weeks of the litigation) should ask for the following: Please produce all photographs, videos or other visual depictions of the plaintiff.