Peek-a-boo, We See You: A Look at the Ins and Outs of Sub Rosa

Friday, July 27, 2012 | 0

The rose is said to have been an ancient symbol of secrecy. Sub rosa literally means “under the rose”and may well describe where your secret agent man may choose to hide when you assign a case out for investigation.

The rose's connotation of secrecy dates back to Greek mythology. Aphrodite gave a rose to her son Eros, the god of love; he, in turn, gave it to Harpocrates, the god of silence, to ensure that his mother's indiscretions (or those of the gods in general, in other accounts) were not disclosed. Paintings of roses on the ceilings of Roman banquet rooms were also a reminder that things said under the influence of wine (sub vino) should also remain sub rosa. We want to share some thoughts about obtaining and using sub rosa investigations and video in selected cases.

<b>Rule 1: Have an articulable reason for engaging in a sub rosa investigation</b>

Let’s face it: A sub rosa investigation is an invasion of the right to privacy. That right is protected by the California State Constitution. Invasion of privacy is potentially actionable conduct and may give rise to civil damages. It may, under certain circumstances such as those discussed below, also give rise to actions for personal or mental injury.

Therefore, be aware that there are indeed restrictions and restraints imposed upon Workers’ Compensation defendants regarding the when and how of sub rosa investigation.
The above cautions notwithstanding, the California Constitution provides a limited institutional right to invade the privacy of another person in cases of suspected misconduct or fraud.

California Civil Code §1708.8(g) enables the use of sub rosa evidence to expose fraud. However, its’ undertaking    must    be    “supported    by    an articulable suspicion”that actionable misconduct may be taking place. In other words, if you can articulate the reasons for your suspicions (not just the proverbial “gut hunch”) you do have limited protections under the code.

<b>Rule 2: Don’t use it unless it is really good</b>

Equivocal sub rosa video probably will hurt you more than help you. The big bad insurance company sending its agent out to hide in the rose bushes with camera in hand makes the defendant look less than virtuous, if not downright contemptible. So, if you are going to don the black hat and waxed moustache, make sure it is going to get you what you seek. An applicant who is exposed by a hidden camera engaging in physical activity beyond his or her reported ability is going to testify that the very next day it “really hurt,”so make sure to get video on sequential days if possible. Also, try to make sure you have unequivocal testimony from the applicant about what the restrictions in his or her activities of daily living are, and in this context, the more the merrier. Deposition testimony can be very helpful when the applicant engages in exaggerated subjective complaints and self-imposed physical limitations.

On the other hand, where previous statements to doctors or in deposition do not include any obvious physical limitations but merely profess pain on activity, or where prophylactic work restrictions are imposed, sub rosa is not likely to prove much. See Snowline Unified School District v WCAB (1997) 60 CCC 229. Seemingly impeaching video may also end up being of little value when there is a big lapse of time between the date of the sub rosa evidence and the previous or subsequent incompatible testimony. One of the potential reasons a judge may refuse to give much weight to sub rosa evidence is that the suspect statement and the sub rosa pictures are so far apart in time that the medical condition may have changed between the two events.

The best time to conduct a sub rosa investigation is often just before and just after a medical appointment or deposition. These are the times when the claimant is most tempted to engage in hyperbole in pursuit of a big fat green poultice. Having the video taken on the day of an AME or QME visit or applicant deposition - as well as the day before and day after - could make the sub rosa evidence so strong that an applicant will be unable to explain it away.

<b>Rule 3: Watch the video</b>

Don’t simply rely on the written investigation report to determine whether the video should be used. In our experience the written reports tend to make the investigation sound more productive than it may have actually been.    You know your case far better than the investigator, and you are in the best position to judge whether the film evidence impeaches the statements made to the doctors.

We often see reports that indicate the applicant was moving about freely and not using any assistive device, but when we see the film, we don’t see any kind of strenuous activity or even full range of motion being depicted. On the other hand, this writer once received a last minute call from an investigator indicating that he had some film but it did not show anything helpful: All he got was the applicant getting into a vehicle and driving away.    The investigator had missed the information that the applicant was reportedly rendered blind due to an explosion in his vicinity. Watch the film! Then review Rule 2.

Most photographic evidence is obtained to try to disprove a claimed level of impairment. In most cases this type of evidence, if effective, needs to be shown to a doctor because the question of whether the film impeaches a claimed level of impairment is a medical question and therefore requires medical expertise. While video evidence may be viewed by a trial judge on issues of credibility, in most instances only a doctor (in most cases today the AME or QME) can render a good opinion on what the film shows in terms of impairment or lack of impairment. Regents of UCLA v WCAB (1995) (Martinez) 60 CCC 1124 (writ denied) Often such a viewing by the doctor is conducted in conjunction with the doctor’s deposition.

<b>RULE 5: You must disclose</b>

If you think your sub rosa evidence is good enough to use, you must advise applicant’s counsel that you have it and afford an opportunity for counsel to view it before it gets offered to the doctor or to the WCAB. Fairchild Aerospace v WCAB (Kyles) 64 CCC 1497 (1999) However, you do not have to disclose it prior to taking the applicant’s deposition. Downing v WCAB 16 CWCR 76.

The same rule of disclosure applies to the use of video at trial, but even more so. There are numerous cases where defendants have attempted to hide the pea, only to find the pea ordered off the plate at trial. Galliano Winery v WCAB (Macias) (1996) 61 CCC 1547; U.P.S. v WCAB (White) 64 CCC 1369 (1999) (unpublished) ; Presbyterian Hospital v WCAB (Blair) 62 CCC 1316 (1997).

<b>Rule 6: Get The Investigator</b>

The film is of little use (absent its value as settlement leverage) if you cannot get the investigator to trial.    Film is hearsay. It purports to be a true representation of the subject’s activities at the time it was taken but that evidence needs to be authenticated. Your attorney will need to lay a foundation for the introduction of the evidence by placing the investigator on the witness stand and asking a number of foundational questions about how the video was taken, whether or not it has been altered or edited, the type of equipment used and, most importantly, whether the images depicted represent a true and fair representation of the activity the investigator witnessed at the time the video was taken.

<i>Howard J. Stevens is a partner in McDermott & Clawson law firm in Orange. This column was reprinted with his permission from "Legal Briefs," the firm's client newsletter.</i>