Don’t Let the Creeps Hiding in the Bushes (Sub-Rosa Surveillance) Derail Your Legitimate Personal Injury Case

Don’t Let the Creeps Hiding in the Bushes (Sub-Rosa Surveillance) Derail Your Legitimate Personal Injury Case

In my Chico based Personal injury practice, I am increasingly seeing defense lawyers and insurance companies utilizing Sub-rosa Surveillance of my clients. Sub-rosa basically means hidden or done in secret and refers to the practice of the defense hiring an investigator. That person then goes out and without the injured persons knowledge hides out near their house and follows them around, secretly filming the person. These investigators will often hide in a van or other vehicle with blacked out windows and utilize high-powered magnified lenses. They can follow you into restaurants and hide small hidden cameras in their purse, backpack, shirt or anywhere. Most of my clients that have been surveilled were not aware that they were being watched. Once they find out, it is creepy and disturbing. People feel victimized a second time (The first time being when the drunk driver (or whoever) carelessly crashed into them and caused permanent injury and then a second time when they realize that their privacy has been taken away). These insurance company investigators are not supposed to film inside your house (and probably not your back yard), but any public place is fair game, as well as your front yard.

Interestingly, the practice of Sub-rosa is more common in workers compensation cases than in civil personal injury cases, but it happens in both.

The insurance company is hoping they catch you on video performing an activity that is inconsistent with your described injury. For example, if you claim to have severe back pain and that you cannot lift any meaningful weight, and you are then caught on video lifting heavy weights, that could put your credibility at issue.

You can also hurt your case without the defense needing surveillance, by posting your activities on Facebook or Social Media. Even an innocent picture of you walking in a park can be used by the defense (often in a dishonest manner). We advise everyone to not post comments or pictures until their case is finished. If you cannot do that, then be as careful as you can on what you post. The insurance company will do their best to take any pictures or comments you post out of context. They are very good at doing that.

One clue that you have been surveilled is when the defense lawyers asks very specific questions in deposition. For example:

Q: Can you go outside and wash your car with that back injury?

Q: Can you put water in a bucket and carry it to your car to wash it?

Q: Can you bend down to wash the wheels of your car?

Q: Can you move your hand round and round to wash the wheels of the car?

Usually when the questions are this specific, you have a good idea that they have video showing you washing your car outside, carrying a bucket of water, bending down to wash the wheels and moving your arm and shoulder round and round to wash the wheels or tires of the car.

If you answer that you can do those activities, despite your injury, you have answered correctly. If you deny that you can do those activities, you have answered incorrectly and can now be impeached at trial and have your credibility attacked.

How do personal injury lawyers and their clients combat this practice of Sub-rosa?

I like to be aggressive for my clients. This means moving quickly and properly working the case up. As soon as permissible after filing the lawsuit, we send out Form Interrogatories for the defense to answer. Make sure to check boxes 13.1 and 13.2 which read:

13.0 Investigation—Surveillance

13.1 Have YOU OR ANYONE ACTING ON YOUR BEHALF conducted surveillance of any individual involved in the INCIDENT or any party to this action? If so, for each surveillance state:

(a) the name, ADDRESS, and telephone number of the individual or party;

(b) the time, date, and place of the surveillance;
(c) the name, ADDRESS, and telephone number of the

individual who conducted the surveillance; and
(d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy of any

surveillance photograph, film, or videotape.

13.2 Has a written report been prepared on the surveillance? If so, for each written report state:
(a) the title;
(b) the date;

(c) the name, ADDRESS, and telephone number of the individual who prepared the report; and

(d) the name, ADDRESS, and telephone number of each PERSON who has the original or a copy.

As can be seen, these questions require the defense to answer under oath if any Sub-rosa has taken place, the date of the Sub-rosa, etc.

Many times, the defense tries to make unfounded objections and not answer the question. For the busy (and sadly many times lazy) lawyer, it can be easy to over-look these unfounded objections. Just receiving an objection will clue you in that Sub-rosa has likely taken place. A proper meet and confer letter (and if necessary) and then a motion to compel must take place to force the defense to properly respond to these questions.

Often the defense will answer your Form Interrogatory discovery “NO” as to surveillance, and then quickly send their investigator out after answering, to conduct Sub-rosa. This is why, as discussed above, the deposition might be the next time you get a clue that surveillance has taken place.

What is the best way to handle Sub-rosa Surveillance?

I will discuss this in terms of what you, the injured person should do, and what your lawyer should do.

How do you, the injured plaintiff, prepare for and handle Sub-rosa?

The first thing, and this applies to your case whether you have been surveilled or not, is to always conduct yourself in the most honest and forthright manner you can. Your lawyer can handle just about any fact, as long as you are truthful with them, but a lie will sink your case every time. Most people will not lie, but some feel the temptation to overstate their injuries. Sometimes this is not intentional. For people who have been injured for a length of time, it wears on you. It is one thing to live with injuries for weeks or even months, but when the injury goes on year after year, it can lead to depression and diminish quality of life. It is a really big deal. Many people do not look injured; but suffer from severe and debilitating pain. This inability of friends and family (or jurors) to understand their pain can lead to unintentionally overstating injuries. (Because they want to make sure their pain is understood). We are always advising clients to not overstate injuries, pain, or limitations, but also do not understate. We want simple accuracy.

The law requires that you mitigate your damages. All this means is to do the best that you can to heal, to follow your doctor’s advice, and just be the best version of yourself that you can, so if your case goes to trial, you can look the jurors right in the eye, knowing you are telling the truth, when you say “I have done the best that I can to heal, but unfortunately, I still have the following problems”, or whatever. This also means you do not overstate your injuries.

It is also extremely important not to make general statements, such as “I can never ride my bike since the car crash” (unless 100% accurate). “I cannot work at all”. “I cannot lift more than 10 pounds”.

Unless somebody is paralyzed or suffers from some other extremely significant injury, it is often not a matter of what you cannot do. It is more about what you avoid, or a daily choice of “Do I play catch with my kid, knowing it will cause so much pain I will have to lay in bed all day after, or do I disappoint my kid by not playing catch but saving myself from pain”? This is a very unfair choice that many people are forced to make daily, because they have been injured by somebody else’s carelessness.

Back to the example of the person who is asked by their child to play catch. If they are asked in deposition if they can play catch and they answer No, but Sub-rosa shows otherwise, then their case and credibility will suffer.

One way to handle this is to avoid overly general statements (see above) and avoid saying you cannot do things (again, unless you are 1000% sure you have never done that activity since you were injured, then it is okay to say that). Avoid saying you cannot do things to your doctor and in deposition. Example:

Q: (From defense lawyer in deposition): Is there any activities that you can no longer do since your injury?

A: I am not sure that there is anything I cannot do, but there are many things that I am limited in or that I avoid most of the time?

Q: Okay, tell me about those things (and then this can be a long list).

Another example:

Q: Can you throw a baseball with your child.

A: Yes, but it causes pain and I often have to lay down for the rest of the day if I do it.

See the difference? In the last example, if the injured person said they could not throw the ball with their child and the defense has Sub-rosa that shows otherwise, their credibility is shot. Many times, the injured person is really meaning to say, “I can barely throw the ball and it hurts every time I try” but instead of being precise they answered in general terms of “I cannot even throw a baseball”. In the law it helps to be precise if possible and to avoid overstating things.

What is the best way for the lawyer to handle Sub-rosa Surveillance?

As stated above, it starts with hard work and figuring out if the insurance company has conducted Sub-rosa of the plaintiff. Form Interrogatories 13.1 and 13.2 (See above) should be sent out.

A Request for Production of Documents should also be sent if the lawyer suspicions that Sub-rosa has taken place. An example:

1: Any and all documents in any way related to surveillance of the PLAINTIFF, including but not limited to video or digital footage, photos, reports, billings from the investigator, all raw footage (whether showing Plaintiff or not), surveillance logs, etc.

Also, Special Interrogatories should be sent to the insurance defense lawyers. An example is shown below:


Has video surveillance, including but not limited to sub rosa surveillance, been taken by YOU of Plaintiff at any time since (INSERT INJURY DATE). (In this set of interrogatories, “YOU” and “YOUR” shall mean GLOBOCORP and all of its employees and agents, including attorneys, or other PERSONS acting on its behalf.)


If video surveillance, including but not limited to sub rosa surveillance, has been taken by YOU of Plaintiff at any time since (INSERT INJURY DATE), please identify by name and contact information any PERSON who was involved in the taking of such surveillance. (In this set of interrogatories, “PERSON” includes any natural person, firm, association, organization, partnership, business, trust, corporation, governmental or public entity or any other form of legal entity).


If video surveillance, including but not limited to sub rosa surveillance, has been taken by YOU of Plaintiff at any time since (INSERT INJURY DATE), please identify any DOCUMENT that related to the taking of such surveillance. (In this set of interrogatories, “DOCUMENT” shall mean all documents, electronically stored information, and tangible things, including without limitation all writing as defined in Section 250 of the California Evidence Code.)


If video surveillance, including but not limited to sub rosa surveillance, has been taken by YOU of Plaintiff at any time since (INSERT INJURY DATE), please identify by date when the taking of such surveillance occurred.


If video surveillance, including but not limited to sub rosa surveillance, has been taken by YOU of Plaintiff at any time since (INSERT INJURY DATE), please state the total cost incurred by YOU for the taking of such surveillance.

What often happens when the defense responds, is they make objections and either refuse to say if they have conduction Sub-rosa (and then you know they have) or they admit they have Sub-rosa but refuse to produce the Sub-rosa Surveillance. At this point, after a proper meet and confer, it is critical to make the effort to file a motion to compel.

It is interesting that the controlling case is the Suezaki case, which dates back to 1962 (Suezaki v. Superior Court (1962) 58 Cal. 2d 166). While there have countless trial court decisions interpreting this case, there is very little from the Appellate Courts or California Supreme Court.

When the insurance defense lawyer objects and refuses to produce the Sub-rosa, their best argument is that they do not have to produce the Sub-rosa because it is Attorney Work Product. The Attorney Work Product Privilege basically says if something is done at the behest of one of the lawyers on a case, and that evidence shows the lawyers thoughts, impressions, strategies, etc. then it does not have to be produced. There is also a component that the courts do not want a lazy lawyer on one side to do a nothing and then the other lawyer does a bunch of work, just to have to turn the hard-working lawyers work over to the lazy lawyer. However, Sub-rosa is considered at most qualified work product. That means it must be produced if the asking lawyer can show good cause.

Language from one of my motions to compel and from case law and Witkin is shown below:

Surveillance footage of a party created by a third-party investigator is not protected by claims of work-product and must be produced in order to avoid surprise at trial and avoid unfair prejudice. One of the general purposes of discovery is to avoid surprise at trial. Suezaki v. Superior Court (1962) 58 Cal. 2d 166, 172. In Suezaki , the California Supreme Court allowed the Plaintiff to inspect surveillance photos taken of him by defendant where it was shown that Plaintiff had "a need for the films both in order to protect against surprise, and in order to prepare for examination of the person who took the pictures." Id. at 172. The Supreme Court rejected Defendant's claim that the film was attorney client privilege noting that the film is not a communication between the defendant and his/her attorney, but rather, "[t]he films are representations of the plaintiff." The court went on to hold that, even if the tape is construed as attorney work product, this privilege is not absolute, but "is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted."

Surveillance evidence is generally held discoverable because (a) the evidence cannot otherwise be obtained and (b) it is necessary for preparation for trial. Smith v. Diamond Offshore Drilling, Inc. (SD TX 1996) 168 F.R.D. 582, 586.

The work product rule applies to written matters which reflect an attorney’s mental impressions and therefore does not apply to videos or photographs taken by Defendants’ investigator. See C.C.P. section 2018.030. It is difficult to fathom how videos or pictures of Plaintiff taken by a third-party investigator can constitute attorney-work product, especially if Defendants intend to use the videos/pictures at trial.

2 Witkin, Cal. Evid. 5th Witnesses § 139

Witkin comments on the Suezaki Case (Facts almost identical to this one) that “(b) No privilege in present case. There is no basis in principle for the privilege” (To refuse to produce surveillance evidence).

(1) The intention of the parties that a matter be confidential is immaterial unless there is a communication by the client to the attorney. Here, the film was a physical object, not a communication. Even if deemed a communication, it was not one from the client. Prior cases in which communications made by a client’s agent were held privileged usually involved a physical or mental examination or blood test of the client by a specialist, engaged to communicate something from the client which the client would have transmitted himself if able to do so. No such communication occurred here. (58 C.2d 177.)

(2) “The films are not a graphic representation of the defendants, their activities, their mental impressions, anything within their knowledge, or of anything owned by them. The films are representations of the plaintiff, not of the defendants. If they can be said to be a ‘communication’ in any sense of the word, they represent an unconscious and unintended ‘communication’ from plaintiff.” And there is no privilege in “a communication from a litigant to his adversary’s attorney.” (58 C.2d 177.) (See 19 A.L.R.4th 1236 [photographs of civil litigant realized by opponent’s surveillance as subject to pretrial discovery]; for work product issue, see infra, § 143.)

After reading the Suezaki case, you might assume that all courts will order the defense to turn over the Sub-rosa. Many times, that is not the case. Many courts will decide that the Sub-rosa is work product and deny the motion to compel.

See (for example) the case of Coito v. Superior Court (2012) 54 Cal.4th 480. The Coito case is often relied upon by the defense to refuse to produce the Sub-Rosa.

In this writers’ eyes, the motion still must be made. This evidence is just too important not to try all reasonable steps to get it. If the Court denies the motion, what happens next.

When it comes to work product evidence, it cannot be used as both a sword and a shield. This means that a party cannot refuse to produce the evidence and then later (when it suits them), try to use it.

What happens frequently is the defense wants to control what Sub-rosa is shown at trial. This is not fair. For example, let’s say the defense has 10 hours of Sub-rosa on the plaintiff. Nine hours and 45 minutes shows the plaintiff looking very injured and consistent with the claimed injuries; however, there is a 5-minute clip that the defense cherry picked out, which shows the plaintiff looking sprightly and uninjured. If they get to only show the jury that 5-minute clip, while at the same time refusing to produce the remaining 10 hours of footage, this is unfair, misleading and would offend justice.

Making the motion to compel, even if unsuccessful, sets the foundation to exclude all the Sub-rosa at trial.

To conclude, be the most honest and best version of yourself that you can be, both when talking with your doctors and in your earnest desire to heal yourself. This is good advice for life in general and when dealing with your personal injury case.

The other advice is to have a Personal Injury Lawyer who actively works the case up and understands how to take these cases to trial.

Adam Sorrells

Law Office of Adam Sorrells




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