Personal injury litigation can have very significant financial consequences, particularly when the victim’s injuries are such that they limit day-to-day function and quality of the life. Plaintiffs are tasked with producing credible medical data explaining the nature, scope and likely long-term effects of the harm incurred (when applicable). One potentially substantial type of evidence that the defense may obtain is visual evidence suggesting that the claimant is exaggerating the extent of their injuries or impairment. This evidence could include photographs, video footage etc. that impeaches the credibility of a plaintiff much more effectively than verbal or written assessments or accounts of the claimant’s post-accident status.
Discovery is the process of revealing the facts of a case. Maryland’s rules regarding discovery are largely modeled according to the Federal rules, thus the state’s courts have sought direction from them when making interpretations. Shared discovery of all related facts collected by the parties in a case are fundamental (essential) in litigation; therefore, parties may compel one another to disclose the facts that they possess. If a party is determined to violate the disclosure requirements in the process, they may risk having key evidence such as surveillance footage excluded from the trial.
Maryland law allows a party in litigation to obtain all facts and subject matter that is relevant as long as it is not deemed to be privileged, such as discussions exclusively between a party and their attorney. The discovery process relating to surveillance material has surfaced in several cases that have historically guided the courts. Overall, pretrial discovery is intended to accomplish the following:
- For parties to acquire useful and truthful information that is likely to be presented by opposing counsel in the case
- To access information that is likely to further uncover other admissible evidence
- To access information necessary to cross-examine witnesses
To summarize this process, courts have long turned to Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. which explains that the rules seek to find a balance between the interests of the plaintiff and the defendant. This goal is obviously difficult to achieve because the parties naturally have interests (goals) that dramatically conflict, so the desired outcome is to protect the interests of both parties as best as possible.
Timing of Disclosure Involving Surveillance
When a party in a case has surveillance evidence, there is an obvious problem as it relates to necessary disclosure. The party in possession wants to be able to present this evidence during the trial; however, if the evidence is disclosed, it allows the potential for the opposing party to adapt their testimony to align with the often powerful visual evidence. In Shenk v. Berger 86 Md. App. 498 (1991), the court stated that the party must disclose the surveillance evidence; however, the disclosure may occur after they depose the opposing party in the case to establish a statement.