An interesting discussion took place at the recent CAAA convention in San Diego regarding the defense's filming of the applicant clandestinely - generally known as sub rosa video. The discussion was led by attorney Lawrence Stern of Mallery and Stern in Los Angeles.
The gist of the subject matter was that, contrary to popular belief (and custom), a basic foundation is required in order to justify the taking of sub rosa video.
Civil Code Section 1708.8 codifies the rights to privacy. Subsection (g) reads in pertinent part:
"This section shall not be construed to impair or limit any otherwise lawful activities of ... other entities... who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity, ... fraudulent insurance claim, or any other suspected fraudulent conduct..."
So what exactly is an "articulable suspicion"? Well, it's clearly more than just a suspicion (or there'd be no need to include the word "articulable"). Most would agree that a tip from someone of possible fraud - be it a coworker or doctor - should be enough. Also, a prior record of fraudulent behavior would likely suffice.
But we all know of instances when reasons far less than the above have instigated such surveillance. What about if the defense simply thinks an injury or disability has gone on for too long? Or the claim is potentially huge? Or the carrier just doesn't trust the certifying doctor?
Are these good enough -- articulable -- reasons under the cited Civil Code section? Almost certainly not.
The point is that a carrier engaging in completely unfounded surveillance could be looking at potential civil liability. And damages might amount to more than you might think. For example, one's reputation can be severely and negatively affected when the neighborhood sees a neighbor being surveilled.
So the moral to this story depends on which side of the fence you sit:
For the defense it means you better start reconsidering broad "fishing expeditions" with no real grounds.
And for applicants and their counsel, you might start considering whether an invasion of privacy action is warranted!
