Surveillance May Be Discoverable In New Hampshire, Part II: Workers Compensation

It is not uncommon for insurers to conduct surveillance of a workers compensation claimant.  The New Hampshire Department of Labor [“DOL”] does not have any rules or written procedures expressly requiring the disclosure of all surveillance video and related information prior to a hearing.  The workers compensation hearings at the DOL are administrative and quasi-judicial in nature.  They are not strictly bound by the rules of evidence followed by courts, but they are still required to be fundamentally fair to both the claimants and insurers/employers.  See Ohio Bell Tel. Co. v. P.U.C. of Ohio, 301 U.S. 292, 302-303 (1937) (state administrative hearings must provide minimal constitutional due process).

The DOL rules do require notice, prior to a hearing, of the evidence and witnesses the parties intend to present.  Counsel for insurers/employers interpret this requirement as mandating nothing more than saying in writing that they have surveillance information that may be used during a hearing.  However, such minimal notice of something that may have a big impact on the hearing is fundamentally unfair.

As far back as 1951, courts recognized that video surveillance could be presented in a manner that provided a “deceptive impression” in a workers compensation case.  Ferraro v. Zurcher, 79 A.2d 473, 479 (N.J. 1951).  As a result some states have rules in place for workers compensation hearings that require the full disclosure of all video surveillance and related information prior to a hearing out of “a decent respect for the notice requirement of due process and fundamental fairness.”  Gross v. Borough of Neptune City, 875 A.2d 251, 253-254 (N.J. Super. 2005); see Kuykendall v. W.C.A.B., 79 Cal.App.4th 369, 405 (2000) (violation of due process not to have video available to both parties’ experts prior to testimony); M/A Com-Phi v. W.C.A.B., 65 Call.App.4th 1020, 1025 (1998) (due process requires review of surveillance video by all medical experts).

Without prior disclosure of all of surveillance video and related reports an insurer can: present selected portions of video that may be out of context; decide to not reveal claimant favorable portions of video or reports; limit the ability of a claimant to prepare for any cross-examination of the investigator who took the video; limit the ability of a claimant to present witnesses to rebut or explain what is seen on the video; and undermines the ability of a claimant to challenge the reliability of the surveillance.  A claimant can bring these concerns to the DOL by way of a motion to compel.  Such a motion can be based on both the common law rule of completeness, see State v. Keith, 136 N.H. 572, 574 (1992), and fundamental fairness as required by constitutional due process, see In re Stapleford, 156 N.H. 260, 264 (2007).  Both of these legal concepts would support an argument that the claimant must have access to all of the surveillance video and related materials prior to a hearing on the merits in order to receive a fair hearing.

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Surveillance May Be Discoverable In New Hampshire, Part I: Personal Injury Claims

It is not uncommon in personal injury claims for a defendant to put a plaintiff under surveillance.  The defendant may want to try to keep the surveillance secret to use as an impeachment surprise at trial.  However, such surveillance may not be protected as work product and defendants may be required to disclose the surveillance in discovery.

In the case of Gutshall v. New Prime, Inc., 196 F.R.D. 43 (W.D. Vir. 2000), the plaintiff was hurt in a tractor-trailer accident and sent discovery requests to the defendant that sought the disclosure of all surveillance of the plaintiff.  The plaintiff spotted ongoing surveillance and reported it to his lawyer.  The lawyer sought to enforce his discovery request by filing a motion to compel with the court.

The defendant claimed the surveillance was attorney work-product that would only be used if appropriate for impeachment at trial.  As such, the defendant argued the surveillance was protected from discovery.  The Court disagreed and ordered the defendant to hand over all of the surveillance to the plaintiff during pre-trial discovery.  The reasoning was that the surveillance may show admissible evidence that is relevant to the plaintiff’s claim of injury.  The Court also held that such material was not protected as work-product.  In doing so, the Court relied on what it described as the majority of federal district court decisions on both the nature of surveillance and whether surveillance was work product.

Even if the surveillance could be considered work-product, the Court also found sufficient need for disclosure to overcome that claim of privilege.  The Court reasoned there was substantial need for the plaintiff to have access to such surveillance prior to trial because of the weight the jury may give the evidence, the need to check the reliability of the evidence and the fact that the circumstances captured by any surveillance cannot be duplicated.

On the issue of what is discoverable prior to trial and the scope of the work product doctrine, New Hampshire law is similar to federal law.  As such, consideration should be given in every personal injury case about whether or not the plaintiff should request all surveillance in discovery prior to trial.