Quick Answer
Yes. In Nevada personal injury cases, insurance companies and defense lawyers sometimes use surveillance video or private investigators to try to challenge (1) how the accident happened, (2) the seriousness of injuries, and most commonly (3) the injured person’s credibility and claimed limitations. If the defense obtains surveillance evidence, it can be used in settlement negotiations and, if properly disclosed and admitted, at trial, subject to Nevada’s rules on relevance, authentication, and unfair prejudice. NRS 48.015; NRS 48.035(1); NRS 52.015.
Surveillance is not automatically “fatal” to a claim. Many people with real injuries can still do some activities on good days. The key is understanding how surveillance is used, what Nevada law allows, and how to prevent the case from being framed unfairly.
1) What “surveillance” usually looks like in injury cases
Defense surveillance is most often:
- Video of you in public places (parking lots, stores, parks, gyms, airports).
- Photos taken in public settings.
- Activity checks (for example, watching to see if you are working, traveling, or doing physical tasks).
- Online monitoring, including public social media activity.
Surveillance is usually targeted at showing an “inconsistency” between what an injured person says and what the video appears to show.
2) How the defense uses surveillance against injury claims
Surveillance is usually used in three ways:
A) Credibility and impeachment
If a plaintiff testified or reported severe limitations, the defense may use video to argue exaggeration. Nevada evidence principles allow impeachment through relevant evidence, subject to exclusion if unfairly prejudicial or misleading. NRS 48.015; NRS 48.035(1).
B) Causation and damages arguments
Surveillance can be used to argue:
- the injury is not as severe as claimed,
- the condition resolved earlier than the plaintiff says, or
- the plaintiff’s limitations are inconsistent with the treatment plan.
If the dispute becomes medical, Nevada law often requires competent medical causation proof stated to a reasonable degree of medical probability where the issue is beyond common knowledge. Morsicato v. Sav-On Drug Stores, Inc., 121 Nev. 153, 111 P.3d 1112 (2005); Williams v. Eighth Judicial Dist. Court, 127 Nev. 518, 262 P.3d 360 (2011).
C) “Failure to mitigate” themes
Defense counsel sometimes uses surveillance to argue the plaintiff is not following restrictions or is undermining recovery, which can be framed as a mitigation issue in appropriate cases. Dillard Dep’t Stores, Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882 (1999); Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 646 P.2d 553 (1982).
3) Nevada admissibility rules that apply to surveillance video
Even if the defense has video, it is not automatically admissible. Key Nevada rules include:
A) Relevance
Evidence must be relevant to be admissible. NRS 48.015; NRS 48.025.
B) Balancing, unfair prejudice, misleading the jury
Even relevant evidence can be excluded if its probative value is substantially outweighed by unfair prejudice, confusion, or misleading the jury. NRS 48.035(1).
This is important with surveillance because short clips can be taken out of context and used to imply a person can do an activity all day, every day.
C) Authentication
The defense must authenticate surveillance evidence, meaning they must show it is what they claim it is. NRS 52.015.
That typically involves testimony from the investigator or a proper foundation showing when and where it was recorded and that the video has not been materially altered.
4) Can the defense keep surveillance secret until trial?
Usually, no. Nevada discovery rules generally require parties to disclose and produce evidence they intend to use.
A) Discovery scope and production
Nevada permits discovery of relevant, nonprivileged information proportional to the needs of the case. NRCP 26(b)(1). Parties can request production of documents and electronically stored information. NRCP 34.
B) Work product arguments
Defendants sometimes claim surveillance is work product. Nevada recognizes work product protections for materials prepared in anticipation of litigation, but it also recognizes that such materials may be discoverable in certain circumstances on a proper showing, with heightened protection for mental impressions and strategy. NRCP 26(b)(3); Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 891 P.2d 1180 (1995).
C) Disclosure consequences
If a party fails to disclose required evidence, Nevada rules allow sanctions, including exclusion of the evidence in appropriate circumstances. NRCP 37(c)(1).
5) The biggest plaintiff mistake, changing behavior to “avoid being filmed”
Trying to hide ordinary life activity can backfire. A more defensible approach is:
- Be honest with your doctors about what you can and cannot do.
- Follow medical restrictions and document why you are doing what you are doing.
- Understand that many injuries have good days and bad days, and the key is consistent reporting and documentation.
- Avoid exaggeration, because surveillance is most effective against exaggerated claims.
6) Evidence preservation issues, surveillance disputes can create spoliation problems
Surveillance evidence can create disputes about editing, missing footage, and selective clips. Nevada recognizes serious consequences when relevant evidence is destroyed after a party is on notice of litigation. Stubli v. Big D Int’l Trucks, Inc., 107 Nev. 309, 810 P.2d 785 (1991); Fire Ins. Exch. v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911 (1987).
Nevada also recognizes an adverse inference principle when evidence is willfully suppressed. NRS 47.250; Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006).
7) Practical steps that protect your case if you suspect surveillance
- Assume you can be filmed in public.
- Do not post about the case or your activities online casually.
- Keep your medical care consistent, and keep your symptom reporting accurate.
- If a clip exists, context matters, a complete day, pain flare afterward, medication impact, or activity pacing can change how the evidence is fairly interpreted.
- Work with counsel to demand disclosure and address admissibility, relevance, and fairness issues early. NRCP 26(b)(1); NRS 48.035(1).
Nevada legal authorities cited
- NRS 47.250.
- NRS 48.015.
- NRS 48.025.
- NRS 48.035(1).
- NRS 52.015.
- NRCP 26(b)(1).
- NRCP 26(b)(3).
- NRCP 34.
- NRCP 37(c)(1).
- Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 646 P.2d 553 (1982).
- Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006).
- Dillard Dep’t Stores, Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882 (1999).
- Fire Ins. Exch. v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911 (1987).
- Morsicato v. Sav-On Drug Stores, Inc., 121 Nev. 153, 111 P.3d 1112 (2005).
- Stubli v. Big D Int’l Trucks, Inc., 107 Nev. 309, 810 P.2d 785 (1991).
- Wardleigh v. Second Judicial Dist. Court, 111 Nev. 345, 891 P.2d 1180 (1995).
- Williams v. Eighth Judicial Dist. Court, 127 Nev. 518, 262 P.3d 360 (2011).
If you need assistance with your personal injury case, don’t hesitate to contact Friedman Injury Law.
Friedman Injury Law
375 N. Stephanie St., Ste. 1411
Henderson, NV 89014
P: (702) 970-4222
W: blakefriedmanlaw.com