In personal injury litigation, surveillance is one of the most important tools available to defense counsel. When used strategically, surveillance can undermine exaggerated claims of injuries, challenge witness credibility, and provide juries with an objective measure of a plaintiff’s true physical capabilities following the alleged injury. However, in order to maximize its impact, defense attorneys must meticulously navigate Florida’s discovery rules, evidentiary standards, and privacy considerations.
A plaintiff’s claims arising out of a motor vehicle accident hinge on that party’s subjective complaints of pain, mobility limitations, loss of enjoyment of life, and pain and suffering. The use of fruitful surveillance provides a way for defense attorneys to counter a plaintiff’s word with objective video and photographic evidence. The key to fruitful surveillance starts in the early stages of discovery: during the plaintiff’s deposition. Some often missed points of discussion during a plaintiff’s deposition include social media accounts as well as the pharmacies, grocery stores, gyms, churches, and daily routine. Obtaining such crucial information allows an investigator to efficiently tailor their efforts and time so that the quality of the surveillance is as fruitful as possible.
Florida courts have long valued the use of surveillance as a means of investigating the validity of claimed injuries in auto negligence actions. Tucker v. American Employers’ Ins. Co., 171 So.2d 437, 438 (Fla. 2d DCA 1965). The foundational case governing surveillance in Florida is Dodson v. Persall, 390 SO.2d 704 (Fla. 1980). In Dodson, the Court held that surveillance footage, often taken by a defense-retained private investigator, constitutes privileged material, falling under the work-product privilege doctrine. However, before the defense is able to present any such surveillance footage at trial, defense counsel must disclose the same in accordance with the court’s trial order.
This framework set forth by the Dodson Court allows the defense to preserve the impeachment value of surveillance footage while still complying with Florida’s discovery rules. However, as time and technology have advanced, so have the courts’ standards for surveillance. Florida courts have continued to refine this balance between impeachment value and fairness to the parties. The La Villarena Court clarified that plaintiffs need not request surveillance in discovery for the defense to disclose such evidence. La Villarena v. Acosta, 597 So.2d 336 (Fla. 3d DCA 1992). If the defense intends to use surveillance footage at trial, it is not permissible to “ambush” the plaintiff at trial with the evidence. Doing so could greatly risk its admissibility at trial. Rather, the defense must identify the surveillance footage on its exhibit list and provide said exhibit prior to trial.
Moreover, at trial, surveillance footage must be properly authenticated pursuant to Florida Statute § 90.901. Neither surveillance photographs nor videos are considered self-authenticating evidence under Florida Statute § 90.902. With that said, it may seem as if the only answer to authenticate the footage is to call the private investigator who took the photographs and/or videos to testify that the contents of the footage are a fair and accurate representation of what they observed while obtaining said surveillance. Florida courts have lessened this burden on defendants. To overcome the issue of authentication, the court in Cirrillo v. Davis, 732 So.2d 387 (Fla. 4th DCA 1999), has expanded authentication for surveillance footage to allow that investigator’s employer to testify as to the “chain of custody” of the video and/or photographs.
Defense counsel is encouraged by ethical implications to ensure that any retained private investigator’s actions comply with Florida law. Plaintiffs typically argue against the admissibility of surveillance by highlighting their right to privacy. Simply put, a private investigator cannot invade a plaintiff’s right to privacy in order to obtain surveillance footage. The Court in Pinkerton Nat. Detective Agency, Inc. v. Stevens, 132 S.E.2d 119 (Ga. Ct. App. 1963), has expressly defined an invasion of privacy to include snooping around a plaintiff’s house, peeping in windows, knocking on the door under the guise of being a salesman, and following too closely in public places. Any such invasive efforts could also risk the admissibility of surveillance footage at trial.
Surveillance remains one of the most impactful tools available to defense counsel in Florida personal injury litigation. When used effectively, it shifts the narrative from subjective complaints to objective evidence – often redefining how juries evaluate both liability and damages. The key is not just obtaining surveillance – but rather setting your investigator up for success and knowing when, how, and whether to use it.