Legal: You Are Being Watched

Privacy in our world has become increasingly scarce, and there appears to be no stopping the trend. Our cell phones not only track our whereabouts anytime we have it in our possession, but they also track our behavior. They record every keystroke, every tap and can even tell you when they are elevated or laying on a flat surface.  Almost all modern vehicles have tracking devices, and some insurance companies even promise discounts if you allow them to install a device on your car to monitor your driving habits.  People tend to post numerous things on social media, voluntarily giving up any privacy without giving it a thought. Additionally, the world has become inundated with cameras that are recording everything on a loop, from cameras attached to buildings, inside cars and buses or sometimes even on street signs and traffic signals. While one can certainly argue that our privacy is lost, the reality for attorneys is that we have many more avenues to prove the facts of exactly what happened in any given situation. 

In any civil case, you must be able to show liability, that someone is at fault.  I have found that over the past twenty plus years that I have been practicing civil litigation, the number of cases where determining fault is difficult to establish are becoming fewer and fewer, largely because of the vast amount of information that we can tap into.  This has caused a shift in lawsuits, in my opinion, away from arguing who is at fault, to a matter of the seriousness of the injury (and if there is an injury, the value of the injury becomes the issue).   I can often prove liability (fault) through information I obtain through subpoenas to the owners of cameras or other monitoring information (including subpoenas of cell phone records to see if at the time of the accident there was cell phone activity such as texting, social media activity, etc.). 

For example, in many car accidents, no one wants to admit fault (even if they know they are the one responsible).  In a recent case that I handled, a serious accident occurred when a driver of one automobile struck another vehicle in a residential neighborhood. Vehicle A was traveling east on the road, while Vehicle B was pulling into the lane of traffic.  The speed limit was 20 miles per hour.  I represented the driver of Vehicle B, who was seriously injured, who claimed they had more than enough time to enter the lane and did not even see Vehicle A.  Vehicle A claimed they were going 20 miles per hour and that my client was at fault.   As it turned out, Vehicle A was equipped with a dashcam.  Unbeknownst to the owner of Vehicle A, the dashcam also monitored the speed of their vehicle.  Despite the driver of Vehicle A saying they were going 20 miles per hour, the dashcam data revealed they were going 50 mph at the time of impact.  His insurer settled quickly after we acquired the information. 

In another case, I had a client who was walking to their car in the parking lot of a big box retailer when they were struck by a vehicle who then left the scene.  Turns out that the retailer has an extensive camera system covering the parking lot that has a high level of detail.  The retailer cooperated and provided us with the video of the incident, and the driver of the vehicle was quickly identified.  As there were no witnesses to the incident, without the video, the at fault party likely would never have been found.

It has become standard practice in automobile accident cases to search for businesses or residences in the area that may have video surveillance and obtain those records as soon as possible.  As some video systems record over data after only a few hours, time is of the essence.  However, as more and more systems rely on cloud backup and digital recording, there are instances where I have been able to get video up to a year after an accident occurred. 

Automobile accident cases are not the only type of case where digital evidence has come to help in proving fault.  In the 90s and 00s, grocery store chains and retailers were getting inundated with slip and fall cases, often fraudulent, where someone caused a condition (like a spill) and then pretended to be injured.  In response, these stores have also invested an immense amount of money in surveillance systems that typically catch almost every square inch of the store.  Therefore, in almost every slip and fall case now with any type of large retailer or grocer, we have a video detailing exactly what happened. If someone slips on a wet spot on the floor, the video often shows us how the wet spot got there, and how long it was there before the person falls.  Not only does this weed out the cases that have no basis, but it also helps prove the retailer/grocer’s fault in those cases where they truly were negligent. 

I would like to add one final note about social media’s impact in proving a case.  In addition to helping those who are injured, I also occasionally represent individuals sued by other individuals for injuries.  In one such case, I had a client whose tenant claimed she was injured badly due to a faulty step, claiming all types of injuries that were debilitating and preventing her from working.   Through some very simple social media investigating, I found this claimant on social media, and this person was not bashful about posting videos of themselves dancing the night away, traveling and doing pretty much everything that this person had claimed they could no longer do because of the alleged fall on the step of the property owned by my client. 

While there is likely more than one good argument for how the loss of privacy in our world is damaging, the reality is that we have and will continue to lose more and more of our privacy. Therefore, always assume that when you are shopping in any store that you are being watched.  Remember that whenever you have your phone with you, your behavior is being monitored and whenever you are driving, there is a good chance you are either being watched and/or your driving is being monitored.  As technology continues to evolve and our privacy continues to decline, major changes have materialized since the beginning of the 21st century in regards to the process of litigating a civil matter. The abundance of resources being utilized for factual data continues to change the way that we handle legal claims for those that are injured and it’s important to retain an attorney with knowledge of these new sources of information to ensure the best possible outcome.