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Spy Cams in Litigation: A Violation of the Wiretap Act

Last month we discussed SEPTA’s use of video to ward off fraudulent claims.  This month we’ll discuss a case in which the insurance company used a surveillance video and got itself caught in a violation of the wiretap law.  Click here for more about that law.

This story begins with a simple car accident.  First Keystone Risk insures the taxi that rear ended my client.  About a month ago, First Keystone decided to spy on my client, hoping to film her doing activities that she claimed under oath she was unable to do.  But First Keystone made some huge mistakes along the way.

My client has an inactive cleaning business that is advertised on the Internet.  She hadn’t cleaned a house for pay for several years.  First Keystone’s investigator called the number on the site and reached my client.  This was an ethical violation since it is impermissible to contact a person directly when that person has an attorney.  The more important violation occurred soon thereafter.

The investigator requested that my client clean his home.  My client, depressed over not being able to work, in need of money, and feeling better than she had in years, decided to take on the job.  She brought her 6’ 5”, 300 pound cousin with her to do the heavy duty work.  She was filmed doing only light cleaning of the kitchen, something she never claimed not to be able to do.

After viewing the video I noticed something crucial.  The investigator had not only videotaped my client, he had also audio taped her private conversations in this private home, something that I believe violates the Wiretap Act.  I immediately notified First Keystone of this violation.  They responded by filing a lawsuit against my client, claiming that her injury litigation was fraudulent.  In my opinion, this is a malicious prosecution intended strictly in retaliation for my having caught them with their pants down vis a vis the Wiretap Act.

On October 28, 2013, the injury litigation came up for trial.  I permitted the defense to show the videotape, even though I could have kept it out of evidence.  I chose not to object so that the defense could not later claim that if only the arbitrators had seen the video, they would have ruled against my client.  The arbitrators ruled in my client’s favor, awarding her $15,500 for her losses and damages.  They clearly believed that her injuries were real.

Stay tuned as this saga continues.

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