Surveillance Footage in Georgia Workers’ Compensation Cases: Is It Discoverable?
GEORGIA – June 15, 2018 (gabar.org) Workers’ compensation cases often involve surveillance footage of the claimant, an issue that has long presented difficult questions of procedure in the state of Georgia. The Summer 2017 Workers’ Compensation Law Newsletter (p. 23) discusses the process for using and obtaining surveillance footage in these cases.
Employers/insurers will often try to introduce surveillance footage in a workers’ compensation case to undermine the employee’s claims of injury. If the footage shows the employee walking, working, or otherwise moving with completely normal function after submitting a workers’ compensation claim, the employer/insurer might use that footage to deny the claim. Claimants naturally want access to any and all such footage to know what it shows, but many jurisdictions have held this type of evidence is privileged and not discoverable prior to trial.
If a piece of evidence is considered “privileged” it contains some work product or some information about the mental impressions or strategies between a client and an attorney. Work product prepared in anticipation of litigation and mental impressions by an attorney prepared in the course of litigation are not discoverable to the other side. In other words, the other side is not entitled to see or learn of those things before trial. Whether surveillance footage was privileged in Georgia workers’ compensation cases has been a murky subject. But recent court decisions have helped sort through the concept.
The most settled law in Georgia on the subject shows that an employee claimant might be entitled to surveillance footage, but the employer does not have to provide it until after the surveilled party has been deposed. In other words, the employer has the right to lock in the employee’s testimony before showing its cards. As long as the employee has enough time to review the footage and prepare for trial, the footage can usually be disclosed after the employee’s deposition.
In requests for any footage, the employer must decide whether to put the employee on notice of the existence of such footage, which might allow the employee to prepare for cross-examination questions. The subject of notice has not yet been resolved through legal opinions.
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