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All You Need to Know About Insurance Surveillance: February 16th Legal Talk With Derek Wilson

Topic 1:  Surveillance And How Insurance Companies Use It Against You

Laura Hampshire: Good Morning and welcome to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire joined by Derek Wilson, personal injury lawyer with 20 years experience and good morning Derek, thanks for coming back.

Derek Wilson: Thanks for having me Laura, great to be here.

Laura Hampshire: Yeah, well last time we talked about long-term disability, what that meant, how people apply, what to do when they’re denied long-term disability, but we’re going to be talking about something different today. What are we going to talk about?

Derek Wilson: We’re going to talk about surveillance and how insurance companies use that or try to use that to limit the amount of money they have to pay out to an individual.

Laura Hampshire: And so when you’re talking about surveillance what exactly are you referring to?

Derek Wilson: Well, there are different types. The primary one is that an insurance company, if they’re hiring a private investigator, it’s going to be video surveillance, somebody’s going to follow you and take video. Not just pictures, usually it’s video. I mean there’s other surveillance they can do, they can research you online, we can talk a little bit, we’ll talk a little bit about that, social media, but the main one they’re doing is they’re following you to get an idea of your activity level, what you’re doing, what you appear to be able to do that type of thing.

Laura Hampshire: And we should point out as well, I mean Derek you have some incredible experience because you also worked on the other side.

Derek Wilson: Yeah I used to write, I mean when you’re working as a defense lawyer you get a file, you haven’t met the person, it’s a bunch of paper, and you have to put a picture together of that person’s life and I’d often recommend to an insurance company that they do surveillance. So we can talk about that as well when surveillance is typically done on a file and it’s done at different stages. Let’s talk about that. So often it can be done really early on when a defense lawyer has been appointed because the lawyer will recommend in his or her opinion to the insurance company that they do surveillance. Often it’s done, we talked a little bit last week I believe or whenever I was last on about examinations for discovery. That’s when you go and answer a lot of questions. The other lawyer for the insurance company asks you questions.

Often they’ll do surveillance on that day because they know where you’re going to be, they can follow you, they don’t have to try too hard. They can follow you to the discovery, they can follow you home. Often surveillance is done later on in the litigation when they know they’re not going to resolve and the case is getting ready for trial. So there are different points in time I should say where they will do surveillance, and again, they’re not doing it to help you, they’re doing it to hurt your case.

Laura Hampshire: Yeah, because they want to save their money right?

Derek Wilson: Exactly. Yeah, they want to limit their payout for sure.

Laura Hampshire: Is surveillance used in every single insurance case?

Derek Wilson: No. I mean it’s not. Often there is no surveillance on the file. It’s typically used I would say in larger cases where there’s more exposure and the insurance company is looking to see do they really have to pay out this amount of money or there’s something in the file that doesn’t quite sit right with them.

Maybe it’s an accident in which there’s been not a lot of property damage done and yet the person is alleging severe injuries and they could definitely have severe injuries but the insurance company wants to test that. And the main thing, and I tell my clients, the plaintiff, as long as your honest surveillance is not going to hurt you. It’s when you don’t tell the truth that surveillance becomes a problem.

Laura Hampshire: Okay. Very interesting because yeah, most people would want to kind of fudge the truth a little bit I guess.

Derek Wilson: Well yeah and that’s where you’ve got to be very careful about it. I mean I can give you an example, so somebody who says they can’t work and legitimately can’t work because of their injuries, maybe they had a factory job, and it’s quite a bit of repetitive bending and lifting, and they’re getting an income benefit, we talked a bit about that last day from their own insurance company.

The medical supports them that they can’t work, they go to a discovery, and they’re asked questions about different parts of their case, so maybe they’re asked about who cuts the lawn since your accident, and they say, “Oh I don’t, my wife does.” Or “I’ve hired somebody.” And then they’re asked this question, and lawyers who ask questions at discovery they generally know the answer, or they’re not going to ask the question, okay? Generally speaking.

So they’re asking you a question, who cuts the lawn, and you say it’s my spouse or someone we’ve hired, they have you on videotape doing it one time. Okay, your case is destroyed in lots of ways because they’ve got you lying. You’ve basically told them you don’t cut the lawn, they have you cutting the lawn and some people, clients when they’re caught, they’ll say to me, “Well it doesn’t mean I can work.”

And it may not, maybe you seriously can’t work, and the medical evidence still supports that you can’t work, and cutting the lawn once is not the same as working 10 hours. It doesn’t matter, these cases more often than not almost always are tried by a jury, six people who you don’t know off the street. They’ve caught you in one lie, so who says you’re telling the truth about everything else?

Laura Hampshire: Yeah once your credibility is gone.

Derek Wilson: Right so it’s much better to say, “Yeah I’ve cut the lawn.” Maybe you’ve only done it once, maybe you did it with a lot of pain, that’s fine, tell the other lawyer that but don’t lie about it. Because you don’t know, and your lawyer doesn’t know. I mean what’s funny is I’ve had clients tell me they’re being followed all the time, and I’ve had clients tell me they’ve never been followed. And clients that say they’ve never been followed I get surveillance reports on and clients who told me they’ve been followed all the time there’s no surveillance.

So you don’t know. I mean essentially you don’t know, I mean if you do see a car you haven’t seen before on your street, and it’s there two, three, four days, and you leave and that car leaves when you leave, yeah you’re probably being followed, and some people can spot that. But you don’t know when they’re doing surveillance, so you know my best advice is tell your lawyer and tell everybody the truth. Who cares if they have you doing what you say you can do, great. They’re not going to tell a jury, “Hey look we caught them.” They didn’t catch you doing anything. They caught you basically doing what you’ve told them you can or can’t do and that’s really what it comes down to.

Is Surveillance Legal?

Laura Hampshire: And is it legal though for this kind of surveillance? Do people have a case for harassment or anything or stalking at that point?

Derek Wilson: Insurance companies aren’t going to use people who aren’t qualified, so they’re hiring professional investigators, and I don’t know the specifics. I do know they have their own code of ethics, like things that are obvious, they can’t follow you into your own home. They can’t even film you in your own home, but they can film you outside because people are outside in their backyard, can expect their neighbors to look over and see them.

There’s not that, I guess as long as you’re in more of a public domain where people can see you, and a backyard would include that, your fair game. So if you’re out cutting your lawn, and they’re across the street they can do that. Right?

If you’re shoveling snow they can do that. If they follow you to Walmart and you’re shopping in Walmart, they can do that. I mean the most smoking gun surveillance is when they have you working right? You say you can’t work, and they’re following you to work every day, they don’t need to do much more than that to destroy your case.

Laura Hampshire: Yeah.

Derek Wilson: So there are rules and regulations but are they allowed to do surveillance? Yes, they are, and it’s not illegal.

Laura Hampshire: Even if it’s impeding your life if you know your being followed everywhere for a week?

Derek Wilson: I see what you’re saying but let’s face it: when you decide to bring a lawsuit you are putting your life, a certain amount into a public domain. If a case gets to trial all the records, anyone can go see… They can’t prohibit anyone in the public unless there was a specific reason for coming to watch your trial and clients will say that, “Well I don’t want all my medical records out there.”

Then I guess you’re not going to sue because if you’re injured and you want to pursue a case you have to give them the information, the evidence necessary and cases are tried in public forums and that information will come out, so you, know, be up-front and be honest and you won’t have any problems. People who run into difficulty and time and time again, are people who, like you said earlier, fudge the truth or tell a blatant lie. They’ll get caught. It will come out sooner or later. Either in the records or it will come out through surveillance or you know, just they’ll get tripped up at some point in time.

What Cases Is Surveillance Used For?

Laura Hampshire: Now you said that not all insurance companies use surveillance on every single case, so why is it used?

Derek Wilson: Okay, well one of the reasons they don’t use it in every case is, well, it’s quite expensive. I mean you can have somebody who might be going out three or four days in a row, they might get nothing on four days and get something on the fifth-day, let’s say. You’re paying these people, typically a surveillance report when I would see it would cost three to five thousand dollars.

So you’re not going to throw that on every case. You’re generally, like I said, if there was something fishy in the medicals maybe, something that’s inconsistent about this person’s presentation or something may be at the discovery that they said or didn’t say that brings their credibility into light you might want to test it with surveillance.

Or like I said, if it’s a large case and they may have to pay out a lot of money, you want to make sure that person’s not working. So it makes sense to spend five thousand dollars. But they can’t do that. It would be prohibitive to do it in every case. And if there’s no red flags, why bother? I mean if the person seems pretty much up front, they’ve told everything, their records are consistent with presentation. Probably no need to delve further.

Laura Hampshire: Okay. So now we talked a little bit about when they use surveillance and you said a good chance at the beginning?

Derek Wilson: Yeah.

Laura Hampshire: And a good chance near the end of when the case is going through?

Derek Wilson: Well, those are both correct, Laura, but also in the middle. The discovery generally is probably the middle of the litigation and so again often it’s at a discovery not so much because of the timing but just because they know where you’re going to be. And it’s usually further on into the litigation so if someone is at a discovery and they’re saying they can barely move and they present very withdrawn and essentially depressed and really not high functioning but they follow that person and they go out dancing that night and they follow them to a ballroom, I mean problematic for the person who gave that evidence. So that’s something as well. You have them, you know where they’re going to be, so you can essentially at least on that day find out what they’re doing or what they’re not doing.

How Does Surveillance Affect A Personal Injury Case?

Laura Hampshire: So how exactly can surveillance hurt your case?

Derek Wilson: It can hurt it. Essentially it really all comes down to what we said before about credibility. So that’s really what it’s for and it’s to prove that you are doing something that you said you can’t do essentially. So if they have you going to a wedding and it’s a public forum, okay, it’s at Carmen’s or somewhere like that where they can go into the lobby and they see you smiling and dancing and you’ve just told a lawyer a week ago your very depressed and can’t leave the house, they’re inconsistent.

So at least you have an inconsistency there you’re going to have to explain. And a jury’s going to be scratching their head and saying, “Well, is this person really that depressed? They don’t look that depressed.” As they say, a picture is worth 1,000 words, they look like they’re having a good time there. So you may have an explanation for it, maybe that day you were in a great mood and were able to get out and the next day you paid for it, but the reality of the situation is they’ve got something now that they can use against you.

Laura Hampshire: But essentially, as long as you are honest, surveillance shouldn’t be a scary thing.

Derek Wilson: No.

Laura Hampshire: Essentially.

Derek Wilson: No, because basically, they’re going to see you doing what you say you can do. So if you do go out with your friends once in a while, maybe you don’t go out as much as you did before the accident but you go out a couple of times a month instead of a couple of times a week, say that. So if they have you a couple of times going out it’s consistent with what you said. If you said, “I never go out since the accident, I’ve never gone out once.” And they have you going out a couple of times, it’s much more difficult for you to reconcile that with what you just told them.

Laura Hampshire: Exactly.

Derek Wilson: So that’s, again, the truth never hurts.

Laura Hampshire: And we’ll talk a little bit about what kind of surveillance insurance companies are doing when we come back. You’re listening to Legal Talk with Derek Wilson on 900 CHML.

Topic 2:  Surveillance And Social Media: Facebook, Twitter, Instagram And Texts

Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire joined by Derek Wilson, personal injury lawyer right here in Hamilton and today we’re talking about surveillance. And that’s the thing that insurance companies do to make sure that you’re telling the truth, and as Derek and I were just discussing, as long as you are honest, surveillance shouldn’t be scary.

Derek Wilson: That’s right, it shouldn’t be a problem for you.

Laura Hampshire: But what kinds of surveillance are insurance companies doing now? I mean they can sit outside your house but there’s so much more involved in surveillance now.

Derek Wilson: There is because I’d say in the last 10 years social media has really become a focus and it’s not even like we were talking earlier Laura about hiring a private investigator and the money that has to be spent on that. An insurance adjuster or anyone really can sit and look at your Facebook page if it’s public, look at your Twitter feed.

I don’t even know them all but those are the ones that I’m probably most familiar with and see essentially what you’re posting. And essentially, again, you’re the one being the plaintiff who’s put that information out there so think about in the context of a car accident or a lawsuit, you’re saying that again you’ve told somebody at discovery. By telling somebody I mean the other lawyer, the lawyer from the insurance company that you’re not able to travel, you haven’t left the country since the accident.

You don’t go out and they have a bunch of Facebook pictures of you in Mexico having a good time, they’re going to use that against you. And they’re going to basically say that you’re not telling us the truth, we have a Facebook page to the contrary and again, they’re going to use that to attack and diminish your credibility.

Laura Hampshire: Okay. Now I know, I mean especially with privacy settings, I always tell my friends if it’s online it’s online, the end. I don’t know if privacy settings really matter. When it comes to surveillance does that matter?

Derek Wilson: That’s a good question and pardon the pun but I guess the jury to some extent is still out on that issue because if you have a public page with a lot of postings on it, and again, the types of things we talked about a few seconds ago with you, with a person I should say going on holiday or partying with their friends or going dancing and there’s quite a few posts, then the case law so far seems to go along the lines that it supports insurance companies.

That they can actually get copies of your private page and the reason being is that judges have said if you have these types of postings on your public page, more than likely you have the same types of postings if not more on your private page. So there have been orders because obviously plaintiff lawyers don’t want more of that produced of trying to say, “No, we’re not going to produce it.” But they’ve been ordered to produce it on behalf of their client and again, it seems to be if you have a lot of public postings they can get at your private postings.

Whereas if you have private settings, your privacy settings are such that there’s really nothing on your public page, then it’s not so easy. Because there’s nothing. If you look at a person’s Facebook page there’s nothing there, so now you can make an argument, well what the insurance company is doing is they’re going on a “fishing expedition” because they have no idea what’s on your private page.

You haven’t put it out there because they look at your public page, there’s nothing to suggest anything different than what you might have said at your discovery because there’s nothing there okay? So in those situations, they haven’t necessarily, and I say necessarily because again this issue, there are different cases going different ways but as a general rule of thumb, they haven’t ordered production of the private page.

So with my clients, I tell them first of all when I meet them for the first time, you know what’s the easiest thing? Stay off Facebook. I don’t really use it that much. You know, my business does sometimes put out postings, but they’re not personal postings they’re postings about legal issues. Do not use this as a way of communicating your personal life to all your friends and family’s laundry because let’s go back to what we talked about in the last segment.

You decide to bring a lawsuit, it’s all going to become public forum at least public in terms of the insurance company’s going to know it and their lawyer’s going to know it and if you get to a trial it’s a public forum. Don’t post right? It’s not that hard. Even though it might be for a couple years don’t put anything on Facebook, you’re not helping yourself.

Laura Hampshire: Exactly.

Derek Wilson: All right? You’re just giving them, them being the defendant, the insurance company, more ammunition to use against you. As a defense lawyer, I love that stuff. I could look at Facebook and go, “Hey there we go.” So again, and it’s not cost-prohibitive anybody can look at Facebook. You don’t need to hire a private investigator. So we were talking earlier about when would you use surveillance and I told you one of the issues is it being cost-prohibitive because it’s expensive.

Laura Hampshire: Right.

Derek Wilson: It’s not expensive to check Facebook. It takes an adjuster half an hour, 10 minutes I don’t know and it doesn’t cost anything. So when would that be done? Probably in every case.

Laura Hampshire: Really?

Derek Wilson: Yeah. It’s easy enough to do.

Laura Hampshire: Oh true enough and it’s amazing how much people post online.

Derek Wilson: Exactly.

Laura Hampshire: Even if it’s commentary about the accident too I see people writing comments and it’s like “oh if you’re going to take that to court that could be held against you.”

Derek Wilson: Well exactly! I mean really you shouldn’t be discussing your accident in a public forum. I mean your lawyer is going to give you advice as to what to say and what not to say and how to say it. So doing that is just really suicide for your case if you’re just going to get “Oh I hate insurance companies.” Or “I’m mad at this.” It’s not really going to help you at all, so why bother. Which is why really, you know it’s always important to, in my opinion, seek legal advice early on and you will be told by most personal injury lawyers if not all, don’t be posting a lot of stuff on Facebook. It’s not going to help you.

Laura Hampshire: Oh Facebook, Twitter, Instagram, all of it.

Derek Wilson: Yeah.

Laura Hampshire: Don’t do it.

Derek Wilson: Any social media really.

Laura Hampshire: Yeah. Especially when you’re in a legal situation it just seems to make common sense. What about text messages?

Derek Wilson: Well, that’s a good point too. I mean text messages are probably harder because as far as I know unless they’re going to get phone records, I don’t know how you have permanent records of a text. So if you’re texting somebody, I mean again, I guess from my perspective why are you texting this person to begin with.

Like if it’s someone in your family you can talk to them about your accident right? If it’s a friend or someone else, why bother? I mean leave it with your lawyers to present your case with the evidence that is there. Once you get involved in any kind of production of the information either through a text or through social media, I don’t understand the reason why you’d want to do that, it’s not going to help your case.

Laura Hampshire: Can they access your texts? Can they request that kind of stuff?

Derek Wilson: I haven’t seen it yet come up and that’s something I would say right now probably not but who knows as cases develop whether it will always be that. And I’m not sure about the technology, whether or not text is something that you would keep. I mean if you kept it on your phone can they get your phone from you? I don’t think so, not yet, we haven’t gone that far.

Laura Hampshire: Well, because I remember when the law kind of changed when they said if your phone isn’t locked police can freely access everything on there. I didn’t know if it was the same for insurance companies.

Derek Wilson: It wouldn’t be. I mean police have different powers entirely. It wouldn’t be, an insurance company when you actually are suing someone it’s interesting, you always talk about the insurance company but you’re not suing an insurance company directly that’s in a car accident. You’re suing a defendant, so if you hit me I’d be suing you. So you’re just another individual so why would you have that?

You’re not going to have any more power than I would civilly, okay? So we’re not talking about what the police may be able to do or not do with their investigation and what they’re allowed to do under the criminal code et cetera, et cetera. So this is just essentially what you’re allowed to do in a civil case. So I would go as far to say right now ordering someone production of their text probably would not be allowed.

What You Need To Know Before Filing A Lawsuit, In Terms Of Surveillance

Laura Hampshire: Okay, because yeah I thought I remembered a Supreme Court of Canada decision on that a couple of years ago that I think covered text but I wasn’t sure. Okay, that’s really interesting. So what are things that people need to know when they file a lawsuit and they know that they’re going to be followed, surveilled?

Derek Wilson: Yeah, it’s a constant theme but I always say, and it’s one of my adages and something I say often in the office, the truth never hurts because it doesn’t. It’s what your parents have told you, always tell the truth and again, you can tell the truth even if you think that that’s not going to help you, it’s going to be far better to do that than try to figure your going to bluff an insurance company or their lawyers because you’re not. Even if you get away with it for a while, people will generally slip up and sooner or later the truth is going to come out.

Like I said it will come out either in the written records or because they’ve got a video of you doing something you said you couldn’t do or because you’ve posted something on Facebook or Instagram or Twitter that’s inconsistent with what you said and you may not even remember it. Like you know we all do this, you go, “Oh this is just a quick tweet I’m doing, it’s not going to come back to cause me any difficulty.” And guess what, that’s the one that hey, isn’t that that guy? I remember him. So if you’re telling the truth it doesn’t really matter what you do.

Laura Hampshire: Okay, but if you know that you’re being followed if you see someone taking pictures or video of you, what should you do? What are you able to do?

Derek Wilson: Well, I’ve had clients that can, you know there’s nothing… They’ll walk up to the car and say, “Hey are you following me?” I mean there’s nothing to prevent you from doing that. Usually what happens is the guy in the car will leave but don’t get into an altercation or anything. Don’t get mad, I mean you could walk up, “Why are you following me?” You know, “Stop following me.” It doesn’t mean they’re going to.

They probably would because now they know that you know for sure that you’re being followed but I don’t recommend that every time you see a strange car you go up and say “Are you following me?” But clients have done that and it has stopped surveillance. If you don’t know for sure if you’re being followed, then assume that you are and if you want to go about your daily activities, you’re going to pick up your child from school, you’re going to go to Walmart and pick up something that you need, go and do it.

I mean it shouldn’t really inhibit your daily activity right? Because you should be telling the truth anyway. You should be saying, “Oh I’m able to go out to shop.” Or “I’m able to drop my kids off.” It doesn’t mean you’re able to work.

Laura Hampshire: Act normally.

Derek Wilson: Act normally. Why not? And don’t exaggerate. I mean it’s the same thing I’d say with all my clients in the lawsuit you can’t really, not can’t really, you just don’t. If you exaggerate again it’s the same type of thing. Exaggeration will eventually come out the same way as a lie will come out. So better not to do either and you’re going to do much better in your case than somebody who doesn’t follow those rules.

Laura Hampshire: Well, I’m just assuming that if anybody saw someone videotaping or taking pictures of them, regardless if it was surveillance or not they’d probably go up and go, “Hey wait a second.” I mean it happens all the time in public places and people do need to be aware that as soon as you step outside your front door, it’s free game is it not?

Derek Wilson: Yeah, and part of the issue too Laura is you don’t know. I mean these guys are good, they’re trained. They’re not somebody who’s gone to school for a couple of weeks. They’ve done this for a long time, so they’re pretty good at not being picked up. I mean not all the time, obviously, some people do know when they are being surveilled, but you know the types of cameras you wouldn’t even know you’re being followed. And so that’s why it’s more of a blanket piece of advice. They’re not going to follow you every day it’s way too expensive, and they might not follow you at all but assume that you may be followed. And because of that assumption, make sure that you’re telling the truth.

Laura Hampshire: And once again, where are they allowed to follow you or surveil you?

Derek Wilson: Basically in anything that’s a public domain. Or considered to be public.

Laura Hampshire: I know you said before that they can only shoot you from outside your home, but they can’t shoot through a window?

Derek Wilson: No.

Laura Hampshire: Using a zoom lens or anything like that?

Derek Wilson: No, nothing because again, they’re not allowed to actually look at you inside your house. But outside, if you are outside taking the garbage out to the front they would be able to see you. They could definitely videotape that. Or if you’re cutting your lawn or you’re shoveling snow or doing some kind of construction work, you’re working on a fence or doing some handyman, and that’s the kind of work they’re looking for. If someone’s coming to their home and leaving getting into their car, so what. But if someone’s carrying large bags of groceries into their house, and they say they can’t carry more than five pounds, it’s not good for your case.

Laura Hampshire: And how many times is surveillance usually used to debunk someone’s insurance claim?

Derek Wilson: That’s a good question. It depends and often if someone’s going to due surveillance, I’ve had cases as a plaintiff lawyer that they’ve tried surveillance numerous times and have got nothing. So why are they grasping at straws? I don’t know but you look at it and go, okay well you had nothing the first time you did it, nothing the second, nothing the third… I mean seriously.

And then there will be situations where they have gotten really something good the first time and they figure they’re going to get it the second time so they’re going to wait a little while and then maybe closer to when you’re getting ready for trial they’re going to go out and do some more surveillance and they’re going to use that to really minimize what they’re going to pay you. Right? Because eventually, they’re going to show you, in most cases, they are going to show you the surveillance at some point in your case.

Laura Hampshire: Okay, you actually get to see it?

Derek Wilson: Yes, or at least you get a report of what they’ve observed, but if they’re going to use it at trial other than very special circumstances they have to show you the videotape, you’ll see it all.

Laura Hampshire: And you’re able to defend yourself in whatever they claim to some degree?

Derek Wilson: I guess if it’s not in court yet, yet you can say what you want about it but they’ve got the videotape, and they’re going to use that against you. How are you going to change your case if you said, “I can’t work.” And they’ve got you working, say what you want. You can say to them, “Well, I was okay those five days.” Okay, thank you. They’re going to tell the jury you weren’t okay, I mean obviously you’re telling us you can’t work, but you happened to be great for five days in a row? It’s not very believable.

Laura Hampshire: True enough, okay.

Derek Wilson: But they would in most cases, you will get to see that surveillance at some point in time.

Laura Hampshire: Very interesting. Of course, we’re talking to Derek Wilson a personal injury lawyer here in Hamilton and you can check out his website, derekwilsonlaw.ca. Also, check him out on Facebook and Twitter at derekwilsonlaw or give Derek a call, 905-769-0418. If you have any questions about personal injury Derek is here to answer your questions. And we will be right back with more Legal Talk with Derek Wilson right here on 900 CHML.

Topic 3:  Surveillance & What the Insurance Company needs to Disclose

Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire joined by Derek Wilson, personal injury lawyer and today we’re talking about surveillance and insurance company surveillance and just before the break we were talking about if they do take a surveillance video of you they have to disclose that, they have to show you that but what do they have to disclose, or what don’t they have to disclose when it comes to surveillance?

Derek Wilson: Right, so when you sue somebody, and you issue a statement, a claim, and then the insurance company through their lawyer puts in a statement of defense, we call those pleadings. So when you’re getting ready for a discovery, we’ve talked about that before, when they ask lots of questions you have to produce what’s called an affidavit of documents.

So if the insurance company has already commissioned surveillance they have to disclose that they have that report in their affidavit of documents, and they don’t have to, there are different sections of an affidavit of documents, there’s a schedule, what they call schedule A which are all the documents that either party have no issue producing. They’ll give them to you.

There’s a schedule B where they’ll tell you what the document is, but they’re not agreeing to produce it. So you’ll often see a surveillance report, I’ll know that they have surveillance because I’ll look at the schedule B, and I’ll see the name of it, the investigation company, the date of the report. So you now know they have surveillance because it’s there. And then when you go to do a discovery, not only do they get to ask the plaintiff all kinds of questions, I get to ask the defendant.

So in a car accident, if you’re the person who rear-ended somebody, I get to ask you questions about how the accident happened, all those types of questions really. We call it liability. But I’m also going to ask your lawyer who technically is also a lawyer for the insurance company about the surveillance and what’s in your affidavit of documents, and they’re required by law to tell me certain details of the surveillance.

So they don’t have to produce it but they have to tell me the name of the investigator. They have to tell me what day they surveilled you, the time or times, and they have to give a description of what they saw. And the case law is pretty clear on that. That at a discovery, that information has to be disclosed. So I will have some idea of what the surveillance says or doesn’t say.

Now when they actually, if they’re relying upon the surveillance at trial, and they’re going to a jury, they’re going to show video of you working, then they are going to have to produce the surveillance, the video and the full report to you at some stage. Now when I did defense work, I figured why not give them the report early on? Who cares? You’re trying to tell their lawyer that you have problems with your case so why hide it?

Like, one of the worst things, and it hasn’t happened to me yet, but it’s happened to some colleagues now doing plaintiff work if you go to a mediation and… we’ll probably end up talking about that on one of our legal talks in the future. A mediation is a fancy settlement meeting where the insurance company goes and you agree to go to try to resolve the case and a defense lawyer at the beginning of the mediation before it starts says: “Here is a bunch of surveillance we have of your client working.” You’re not going to get the case resolved or the plaintiff’s lawyer is going to get up and leave because they have no idea what you have. If I have a client who’s lying to me, I want to know that before I get to a mediation. I don’t want to waste my time or theirs.

Laura Hampshire: Exactly.

Derek Wilson: Okay, so to me the early disclosure of surveillance is a good thing if an insurance company has things that are helpful to their case and not so good for your case but you can’t make them produce it, but you know, when I did defense work I always produced it early for that reason. Because I want them to know you have issues with your case.

Laura Hampshire: Okay. So what are some of the surveillance strategies that the insurance company might use?

Derek Wilson: In terms of, well again, we talked a little bit about this before, about when they might use it. In terms of actual strategies, sometimes they’ll use two investigators depending upon how sophisticated the case is. They might want to have one person at your house, one person at your place of employment so they can make sure they don’t lose you in between.

Again because often you’ll see they’re following you and they’re driving behind you, it’s easy enough to lose somebody. So those are the types of things that they might do, but it really just depends on what they have found out I would say in the first bit of surveillance and whether it’s useful to keep doing more surveillance or not.

Laura Hampshire: All right.

Derek Wilson: Yeah.

Laura Hampshire: And once again, if you have questions for Derek please check out his website, derekwilsonlaw.ca, also on Facebook and Twitter at derekwilsonlaw and you can give him a call, 905-769-0418, or toll-free, 1-855-769-0418. And the thing that people should understand is that yes, even though you’ve been working as a personal injury lawyer for 20 years, you also worked for the insurance companies before this, so you have an interesting perspective that I don’t think many personal injury lawyers have.

Derek Wilson: Well yeah, I did… Actually, you know, it’s been longer than 20 years now, it’s probably closer to 24 years and yeah it has been 24 years. So for 11 of those years, I was working for insurance companies and essentially, like I said earlier in the program, would recommend that they do surveillance at certain times in a case.

But it really can be helpful for an insurance company, they may have a case where on the surface, and I’ve had these, I had examples of these when I was a defense lawyer, that looks like there’s a lot of exposure, the injuries are pretty serious. They’re objective, nobody’s really arguing about soft tissue injuries. The person has broken bones et cetera, et cetera. They’re not working; the employer says they’re not there; they have medical support that they can’t work, and you figure well we’re going to have to. The insurance company’s going to pay out a lot of money on this case, but they go, and they do some surveillance, and they find out that unbeknownst to anyone even the plaintiff’s lawyer, this person is working at another job maybe under the table, but they have that person doing physical labour, and they’re may be working outside.

It could be roofing or something physical like that. Construction framing, who knows and now the case from the insurance company’s perspective has gone a lot better despite the fact that the person had a lot of physical injuries now you have them not telling you the truth because they said they couldn’t work, and they’re not back at their old, but they didn’t tell you about this new job.

Laura Hampshire: Oh boy. And we’re actually going to hear a story about using surveillance coming up in just a moment. We’ll be right back with Legal Talk with Derek Wilson on 900 CHML.

Topic 4:  Surveillance And When The Insurance Company Isn’t Required To Disclose

Laura Hampshire: Welcome back to Legal Talk with Derek Wilson on 900 CHML. I’m Laura Hampshire and Derek just before the break we were talking about, well all show we’ve been talking about surveillance and what they have to disclose but is there ever a situation when the insurance company doesn’t have to disclose what they have?

Derek Wilson: Yeah, there are very special circumstances, I won’t get into all the details of what you need to do, but they can hold back the report if they’re using it to impeach your credibility at a trial and there’s specific rules around that. One of which they have to at least put the inconsistency to you what they’re trying to impeach, so you have a chance to defend it. And then if you don’t, and you maintain the inconsistency they can use the surveillance report. But there are specific rules around that, and most insurance companies aren’t getting surveillance for that reason.

I mean if you’re thinking about it, generally to lower the value of a case insurance companies, as much as the plaintiff doesn’t really want to go to trial, I mean they will so will the plaintiff but the insurance company, it’s a lot of money to go to trial. Really they’re using the surveillance to lower what they have to pay you. So the impeachment exception does happen but not very often. I’ve never used it as a defense lawyer. I’ve seen it but it doesn’t happen that often.

Laura Hampshire: Now when you were working as a plaintiff lawyer were there any cases that you can give an example for the surveillance that was used?

Derek Wilson: Maybe not so much the surveillance but I can tell you the impact and in one case, and again we were talking earlier, surveillance is not just the form of hiring a private investigator. We were talking about social media earlier, and a case for a young woman who I was representing who legitimately had chronic pain and chronic pain are harder cases to prosecute because there’s no broken bones, and you only have pain if I believe you have pain.

Just like you only have a headache if I believe you have a headache. So those cases as you can imagine are based on credibility and there was no surveillance from an investigator’s perspective but there were pictures of this young girl on Facebook and there weren’t even crazy pictures but there were pictures of her somewhere if I recall out, it might have been in the Rockies, and it looked like she was hiking.

And I say looked like, but when I actually spoke to her they had taken a van all the way up to the point where these pictures were done, and she was posing with her boyfriend. They hadn’t been hiking at all. Okay? However, that’s not what the picture… You know, she had an explanation, and I believed her, but the pictures were not helpful and had she not posted them there wouldn’t have been any need for the explanation. Now did she get less money in that case because of those photos? It’s hard to tell, but they certainly don’t help.

Laura Hampshire: Yeah, definitely.

Derek Wilson: So like I said, unless you need to be on Facebook, don’t. Don’t.

Recap On What’s Legal And What Is Not, When It Comes To Surveillance

Laura Hampshire: So we should probably recap a little bit the things that we’ve been talking about today with surveillance. What’s legal and what’s not? Once again with surveillance?

Derek Wilson: Generally, anything in the public domain, they follow you. They can’t harass you, they’re not going to, again these people are professional. They can’t surveil you in your home, they can surveil you on your property. Outside on the front lawn or in front of your house essentially. That’s all legal. Again, like I said, something, if they had you inside your house they wouldn’t be doing that because they wouldn’t be able to rely upon that.

Laura Hampshire: So it has to be a public place.

Derek Wilson: Yes. Yes. Yep.

Laura Hampshire: All right. And when it comes to being surveilled what is the best advice that you give your clients?

Derek Wilson: Yeah, I think again it’s important, I’m going to say it again, the truth is not going to hurt your case so just tell the truth. This is what I do, this is what I’m able to do, this is what I can and can’t do. And if they have pictures showing what you can and can’t do so what. All they’re doing is supporting what you’ve just said. Surveillance is only a problem when you have said something that the pictures, or the video contradicts.

And once you have that contradiction no matter how small, it can and will spill over to the rest of your case. Because what would you say to a jury? Well, he or she’s lying about not being able to cut the lawn, what else is he or she lying about? So now you’ve created that seed of doubt, and you’re asking six people who don’t know you to believe you. Why should they believe you if they’ve caught you in one or two lies?

Laura Hampshire: True.

Derek Wilson: Right? So don’t make it easier, because again, the truth could very well still be that you’re not able to work because of your injuries and you could say that’s unfair. It’s unfair now that because I was cutting my lawn the jury doesn’t believe me but that’s the reality. So tell the truth, and tell the truth you’re not going to run into this problem.

Laura Hampshire: The truth will set you free as they say.

Derek Wilson: Exactly. Exactly.

Laura Hampshire: And when it comes to social media as you recommend, stay off it if you’re in a legal case.

Derek Wilson: Yeah, and if you can’t stay off of it, at least don’t put anything on your public pages right? I mean if you have friends and family you communicate with through Facebook because you live far away keep it private. You know and there’s not a guarantee that it won’t be ordered to be produced but much stronger chance of it not being produced than somebody who has all kinds of postings on their public page that then allow the defense lawyer to say, “They have that there and then we a have reason to believe they have them on their private page and we want their private page.”

Laura Hampshire: Exactly. And if you have any questions to ask Derek just check out his website, derekwilsonlaw.ca. Thank you so much for listening to Legal Talk with Derek Wilson. Derek thanks again for joining us.

Derek Wilson: Thanks very much, it’s my pleasure.

Laura Hampshire: And we’ll have more Legal Talk with Derek Wilson on 900 CHML.

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