An article recently featured in The Legal Intelligencer highlights a number of important investigative steps for litigating personal injury matters. The authors recap instances where these minor but important moves made the difference in their case.
In your last 20 motor vehicle collision cases, how many times have you visited the scene of the crash or sought the drivers’ phone records? Once, twice … zero times?
These investigative steps should be second nature and common sense to the trial lawyer. Yet, many lawyers rarely visit the accident scene or pursue the driver’s phone records. Excuses are easy to make. Liability seems clear. There is no time to visit the scene. You can view the scene on Google Street View. The area is dangerous. Phone records are difficult to obtain without litigation. The case will settle quickly. Certainly, some cases are more clear than others, and the decision to forego these investigative steps can be justified. However, without a scene inspection or phone-record review, you will not know what you are missing. Or, even worse, what you are missing may come back to haunt you at trial.
Pennsylvania law is well settled on the relevancy of surveillance videos and them being subject to discovery. What is not so clear is when the surveillance must be disclosed or produced. It is important to note that both the disclosing and producing of the surveillance are two separate events. The defense does not have to produce surveillance videos at the same time that they disclose their existence; thus, the question becomes when must the two events take place?
In addressing this matter, Pennsylvania Court’s strive to strike a balance. As stated in the PA Surveillance Compendium, “Pennsylvania Courts have recognized the competing interests at play when it comes to the issue of video surveillance—for Plaintiffs, it is securing a trial free from surprise, and for Defendants, it is the potential to expose fraud or exaggerated claims of injury.”
“Under the law today, you do not need to disclose the existence of surveillance footage until (1) the Plaintiff requests video surveillance in discovery, and (2) the deposition of the surveilled individual is taken. Morganti v. Ace Tire & Parts, Inc., 70 Pa. D. & C. 4th 1 (Common Pleas 2004) (Wettick, J.). You may wait until after Plaintiff has been deposed to disclose the existence of the surveillance video to Plaintiff. This is true even if Plaintiff propounds discovery upon Defendant months before his or her deposition is taken and specifically requests Defendant to identify and produce any and all surveillance videos of Plaintiff. This Rule preserves the impeachment value of the surveillance, while giving the Plaintiff time to test the integrity of the impeachment evidence.” Id.
In other words, prior to the plaintiff’s deposition, the defense may hold the surveillance in an attempt to secure contradictory testimony. Afterwards, the defense must produce the surveillance in a timely matter.
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