In defending a personal injury lawsuit, there are multiple defense strategies that may be employed. The decided strategy is going to depend on the nature of the claim and the facts learned throughout discovery. At times, it may be necessary to hire a private investigator to conduct video surveillance of the plaintiff.
At least in my mind, when I think about getting video surveillance of a plaintiff, I am doing so in order to attempt to impeach a plaintiff if the plaintiff gets up at trial and says I cannot do this or that and I have video or photos to the contrary. If this is the testimony, depending on what the surveillance shows, and if appropriate, this would seem like the perfect opportunity to impeach the plaintiff, in front of the jury, in order to potentially create some doubt in the jury's mind about the legitimacy of the plaintiff's claim. However, if you have obtained surveillance of a plaintiff, you may be required to disclose it earlier than you think.
In Tennessee, there are not many cases that address the above issue. It appears, at this point, if the plaintiff asks for the defendant to produce impeachment information in discovery, even if it is photographic evidence and/or surveillance video, it must be produced.
In Pettus v. Hurst, the Tennessee Court of Appeals held that a discovery request for the identity of an investigator and disclosure of the investigator's photos and video surveillance was permissible and disclosure of the requested information was required as this is "consistent with Tennessee Rule of Civil Procedure 26.02(1) since the private investigator [has] personal knowledge of facts relevant to the claims or defenses involved in the case." 882 SW 2d 783, 787 (Tenn. Ct. App. 1993). Interestingly, however, it does not appear this issue has been decided by the Tennessee Supreme Court.
This was a surprise to me. It seems the photographic evidence and/or surveillance video is going to have less value and impact and likely not even going to be for use as impeachment evidence if the plaintiff knows of the information in advance. But, this is where the law stands for the time being.
Tommy Santel is a co-founding partner of Parkerson Santel PLLC. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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