Home > Uncategorized > Defying “No Videotaping” and “No Trespassing” Signs Insufficient to Exclude Sub Rosa Video

Defying “No Videotaping” and “No Trespassing” Signs Insufficient to Exclude Sub Rosa Video

Who doesn’t love to pop some popcorn, pop in a DVD, and enjoy an evening of watching allegedly injured workers act like allegedly un-injured workers?  Well, your humble blogger can’t think of a single thing he enjoys more (actually, that’s not true… not even a little bit)

Sub Rosa is always an issue in comp cases where fraud is suspected.  Applicants will sometimes say one thing to a doctor and another to the employers at the jobs they aren’t supposed to have while collecting temporary disability, or engaging in the various other pursuits which one can throw oneself into while collecting the salary of full time job and simultaneously having the obligations of one completely unemployed.  (Joe Applicant: Waiting for this temporary disability check IS a full time job!)

Of course, it is within every applicant’s and applicant’s attorney’s best interest to keep the QME and PTP from viewing any version of the applicant other than the one presented at the relevant evaluation or appointments.  So, when there is some damning sub rosa video available, some applicant attorneys will go to great lengths to get the videos kicked to the curb.

Ponder, if you will, the case of Duong v. Automobile Club of Southern California.  Therein, defendant obtained sub rosa video of applicant while on the street, from the driveway of a mobile park home, and then from the property itself, although all filming was done from the private investigator’s car.  Applicant was also videotaped in an Albertson’s grocery store.

Applicant sought to have the sub rosa video excluded because of the posted “no trespassing” signs.  It appears that Civil Code section 1708.8 was considered (liability for invasion of privacy for entering the land of another person to videotape or photograph a person “engaging in a personal or familial activity”), but upon defendant’s petition for reconsideration of the WCJ’s exclusion of the sub rosa video, the WCAB held that 1708.8 governs civil liability for tort, and not admissibility before the WCAB.

The WCAB also disagreed with the WCJ’s policy considerations of protecting an applicant’s privacy in this case, as there is no right to privacy in a grocery store or in the publicly visible areas of a mobile home park.

So, for the time being at least, it appears that third parties cannot create an investigator-free zone by posting “no trespassing” or “no videotaping” signs.  As you can imagine, your humble blogger is very pleased with the result in this case, because anything that keeps the parties honest is a good thing.

Now, if only we could have use of sub rosa as rebuttal evidence without first disclosing it on a 5-pager, everyone would be very honest indeed.  Sadly, as some of my readers will recall, that’s not the case.  But, for the time being, your humble blogger will take what he can get.

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