In every type of accident case or medical malpractice case here in NY, there is a definite possibility that the defense will hire a private investigator to spy on you.

Why would they do that?

When you bring a lawsuit seeking compensation for the harms and injuries you suffered because of someone else's carelessness, you're claiming that your injuries limit you from your daily activities.

In cases where you suffer injury, the defense is entitled to learn what activities you are able to do now and what activities you are no longer able to do. Since the defense attorney and the people they insure do not live with you and don't see you on a daily basis, they truly don't know whether your injuries really are as disabling as you claim them to be.

The defense will get copies all of your medical records from your treating doctors.

That gives them one clear indication of your medical condition. Also, during the course of your lawsuit here in New York, the defense will have an opportunity to question you in a question and answer session, given under oath, known as a deposition. It's also known as an examination before trial. It's really pre-trial testimony.

During your pretrial testimony the defense attorney will ask many questions not only about how your incident happened but he will want to know what injuries you suffered as a result of the wrongdoing and carelessness.

He will then ask many questions about those activities that you are able to do today. He will ask about activities you are unable to do and those activities you have difficulty doing.

What this does is lock you into your testimony regarding your activity level.

In an attempt to discredit you and to destroy your credibility, the defense will often hire a private investigator to track you and obtain surveillance video of you going about your daily activities. In the past, private investigators would use big zoom lenses on their cameras in an attempt to catch you doing those activities you claimed you could not do.

The drawback is that zoom lenses are only effective at certain distances. If a private investigator gets too close, his cover will be blown and you, the injured victim, will then know you are being watched.

Private investigators will often use video cameras in order to obtain surveillance video while at a distance. Maybe they're sitting in a car. Maybe they're walking down the street. Maybe they're sitting on a park bench.

When you think about it, it's kind of creepy to learn, after the fact, that someone you don't know has been following you around watching you.

Isn't that an invasion of your privacy?

As long as the private investigator is on public streets and is observing you from a distance, there is likely no invasion of your privacy.

In fact, using surveillance video is a regular tactic defense attorneys use to try and catch injured victims in contradictions between what they really do on a daily basis compared to what they testify to during their pretrial testimony.

What do drones have to do with surveillance video and injured victims?

By now, you should be familiar with the term 'drone'.

A drone is a remote control motorized device that flies in the air. It originally got its start with the military being able to use a flying device remotely for forward-looking tactical situations that eliminated the need have a pilot risk his life while flying over dangerous enemy territory.

Drone technology has improved dramatically and for the everyday consumer it began being marketed as a little toy. These little flimsy plastic helicopter devices were controlled with simple tiny motors and a primitive remote control and limited battery life.

Drone technology has improved further by allowing users to attach a camera underneath the drone which are powered by four motors or six or even eight motors. Because these are operated by battery, flying time is still limited.

However, current drones in the prosumer level have flying times of 15-20 minutes and with an altitude range of thousands of feet in the air.

Newer technology even allows instant real-time video viewing via a WiFi connection through your iPad or iPhone. Because the technology is so new and the applications for aerial surveillance are virtually unlimited, the potential for danger and abuse exists.

Currently, there are no real laws prohibiting the use of consumer oriented drones for hobby and surveillance activities. The FAA has begun to implement rules indicating that these drones cannot be flown above 2000 feet as they would create a grave risk to airplanes and helicopters.

In fact, there have been many instances within the last year here in New York of drone operators who have recklessly flown their consumer drones at elevations that were clearly visible to pilots and helicopter pilots. One can easily see the danger of having many unregulated drones in the air at the same time we have planes taking off and landing on a minute-by-minute basis.

Imagine this scenario...

You are sitting in your bedroom at home watching television when you hear a buzzing noise and look out your window. You see a drone hovering outside your bedroom window with a camera attached to it. You are wondering why there is a drone flying right near your window and hovering for about two minutes. You look outside and don't see anybody standing around and don't see any car nearby that might be associated with whomever is operating this drone remotely.

Two possibilities should immediately come to mind if this scenario occurs.

The first is that it is some local kid is playing around with his newly purchased drone for a few hundred dollars and just having some fun and trying to see whatever he can. The more nefarious possibility is that the drone is owned by a private investigator who is actually using it to spy on you in your own bedroom.

Should that happen to you, the best recommendation I can make is to contact the police immediately and alert them to the fact that someone is flying a remote control device with a video camera and peering into your bedroom.

I would make the argument that the use of remote-controlled drone hovering and peering into your bedroom is a clear invasion of your privacy.

It is an intentional act designed for one purpose only. To obtain photographic information or video footage of you within your home.

Think about it this way...

If the police need a search warrant to come into your home to search what you are doing in your home, you would expect that a private investigator who was trying to obtain video of you within your home would need to get the same type of permission.

Since a private investigator does not have the ability to obtain a search warrant to come into your home, the next logical argument is that any attempt to peer into your second-floor bedroom window via a remote control motorized drone would not only be a clear invasion of your privacy, but should also be illegal.

Likewise, a private investigator would not be permitted to put a ladder up against your home, climb up the ladder to your second story window and peer into your bedroom, regardless of whether he's using a video camera or just looking.

The scenario I describe above is creepy.

The scenario I describe above is a possibility.

As of today, February 5, 2015, I have not heard of any news stories in New York of a private investigator using a motorized drone and violating an injured victim's privacy within their home. Nor have I heard of any lawsuit being brought by a litigant against a defense lawyer or insurance company for hiring a private investigator who then violated their privacy using a motorized drone to peer inside their home on an elevated level.

Since the use of these consumer and prosumer drones are not yet regulated, the possibilities are endless for how they can be used.

I do envision however that at some point in the near future, a creative private investigator will decide to step over the bounds of what is appropriate and some litigant will find himself looking out his bedroom window wondering why there is a motorized drone hovering outside his bedroom window.

What if the drone is being used in a public space to video a public activity?

What if you were playing sports in a park with your kids and now a private investigator is using a drone with a video camera in the park pretending to test fly it. If he obtained surveillance video of you playing sports in an open park, would that be a violation of your privacy?

In all likelihood, it would not.

It's out in public in public spaces. You as the litigant would be hard-pressed to argue that your privacy was violated. 

What's the bottome line?

The bottom line is that the defense attorneys utilize private investigators everyday in an attempt to catch an injured victim doing those activities he claims he can no longer do. When done correctly, and if the litigant has been less than truthful, it creates a powerful contradiction that can destroy your credibility.

However, if a private investigator attempts to use a remote control motorized drone to obtain surveillance video of you within your home, then the real question arises about whether that is a clear invasion of your privacy and whether it violates the law. 

To learn more about private investigators using drones to spy on you, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer