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One of the tools available to the defendant in a personal injury case, where the plaintiff alleges ongoing physical limitations, is a video showing that same plaintiff performing activities that the plaintiff claims he or she can no longer do. The common saying “A picture is worth 1,000 words” applies even more so to a video. It allows the jury to see with their own eyes a plaintiff’s condition after an accident. However, there are some hurdles to being able to actually use a surveillance video as evidence at trial.
In Diamond Offshore Services v. Williams, the Texas Supreme Court addressed admissibility of post-injury video showing a plaintiff performing physical labor that he had claimed in deposition he couldn’t perform. The plaintiff contested that the video was cumulative and unfairly prejudicial because it only showed a 30-minute period of his day. The Supreme Court disagreed with the plaintiff, stating that the jury should be allowed to view the video and draw their own conclusions about the plaintiff’s impairment and credibility. The court rejected the unfair prejudice argument on the basis that litigation is an adversarial process, and unless the video would mislead the jury, that “parties select what to record, or what part of a recording to show, to best help their case.”
However, a 2024 case out of the Houston Court of Appeals found that a defendant attempting a similar trial strategy was not allowed to use their post-injury video at trial. This ruling was based on the defendant’s failure to supplement their discovery responses before the close of discovery. The defendant argued that they were only using the video for impeachment purposes once the plaintiff testified from the witness stand that he could not pick up items of a certain weight. The court disagreed with the argument, and stated the video was late and was inadmissible as evidence.
Texas State Courts hold that surveillance video taken in anticipation of litigation is protected under the work product privilege. However, if a defendant sits on the work product privilege too long for a video the defendant wants to use at trial, it will be in the judge’s discretion to deny use of the video. However, please note the Fifth Circuit holds that surveillance video is not protected as work product and is subject to production in discovery. If you are in federal court in Texas you may have to turn over surveillance video, even if it doesn’t help your case. If you are in Texas state court, you can get surveillance on a plaintiff and then evaluate whether it is helpful, as long as you don’t wait too long.
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