By: Patrick Johnson
I swear that we had that video…
What do you do when you’re in-store or in-vehicle video captures an accident on video that does not match the claimant’s story, or even better, it captures a lack of a claimed accident? The first thing that you avoid is assuming that the video will be available months or years later, when it is needed in discovery or for trial, unless you take an active role in preserving that video. Karma has a frustrating habit of showing up in the defense of workers’ compensation claims when it is least wanted.
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If you do have useful video, there are few things to consider immediately.
- Since many automated video monitoring systems will overwrite older videos after a specific period of time, you must manually save or download the useful video to another electronic device/media that will be available for years. If that useful video showing that there was no accident is later overwritten, then simply relying upon the testimony of someone who viewed the video of what the video showed may be a difficult sell to the court, as it will be fought by the other side. The fact that it may have showed no accident at all is not allowed into evidence at trial. If you want that video for later use, you must preserve it immediately. If you are going to record the video using another camera, do not use a phone. It may be that the phone itself later has to be introduced at trial to support the authenticity of the video. In terms of preference for our use later at trial, we would prefer the actual original video. If that is not an option, then we would prefer a digital transfer of the video to another electronic device/media. As a last resort, if the first two options are not available, then you use a separate video recording device to record the original video. Be mindful that that the farther that you move away from presenting the original video at trial, the greater the opportunity that the other side can successfully challenge the video’s acceptance into evidence at trial.
- This video, or a copy of the video, must be maintained in a safe and secure environment to allow it to be argued later that the copy has not been manipulated or tampered with subsequent to the original copying and before it is ultimately introduced into evidence.
- The person who transfers the original video to a separate electronic device/media will also need to be available for trial. That person will have to testify to support the authenticity of a copy of the original video. That person will have to testify as to the means utilized to transfer the video and to testify that it is a copy of the original video. Without the support for the authenticity of the copy video, the court may not accept into evidence at trial. We recommend that you have the transfer conducted by a member of management who was likely to still be with your company for the next two years. Any time that video is copied to another device, you must an individual available to testify to the authenticity of that copy.
- Obtain as much video as possible around the time frame of the alleged accident. It is safe to anticipate that the claimant may well change the time, or even date, of their alleged accident to account for the video showing that no accident occurred. For example, they may state in their original 1008 that the accident occurred at 1:30 PM. If possible, do not simply obtain video from 1:29 PM to 1:31 PM. Obtain as much additional video before and after the time of the alleged accident to challenge the claimant, should their testimony change at trial regarding the time of the accident. Claimant’s counsel will likely request a copy of the video well in advance of trial, so be prepared for the claimant having access to the video and attempting to modify their story. The more video that you have, the less opportunity the claimant has to change their story.
- Preserve the video, even if the video shows the accident occurring. A doctor may be able to look at the video and determine that the mechanics of the accident could not lead to the complaints currently being offered by the employee. While that video may show the accident, it may not show that the claimant injured a particular body part that arises later. In fact, I have that case right now. The claimant claims to have fallen on a particular body part giving rise to one of their claims. But the video, which does show the fall, does not show that this new body part ever struck the ground. I was able to show this video to my Second Medical Opinion physicians.
It is easy in this day and age where everything is recorded to assume that the video will somehow be available for later use at trial, but it is remarkable how often useful video is lost, as no one sought to properly protect it. By the time your adjuster or attorney becomes involved in the case, that video may have been overwritten multiple times. Even if ten people saw the original video, the judge will only want to see the video and may not be willing to rely upon the recollection of individuals who watched the original video.
As offered previously, Karma does not pick sides. And unless you take an active part in protecting the video that is the cornerstone of your defense, Karma will ensure that the video is later unavailable at trial, or there is insufficient support for the court to accept that as an authentic copy. As with most things in life, if you want it done right, do it yourself.
