Surveillance Files, an Inadvertent Recording, and a Request to Delete
You are hired by a workers' compensation insurer to surveil a claimant in Albuquerque over three days. The claimant reported a back injury and says he cannot lift more than 10 pounds or stand for more than 20 minutes. On day one you record 47 minutes of video on your phone: the claimant carries a 40-pound bag of dog food from his truck, then uses a cane while walking into a medical clinic. The video accidentally captures 90 seconds of the claimant's conversation with his wife from 30 feet away; neither consents. On day three you photograph him at a gym lifting weights through a large public window. The adjuster texts: 'Send me all raw files tonight. Delete the cane clip-it hurts our case. Also send the audio; I want to hear what he told his wife.' You have not yet backed up the files.
1. Identify the evidence-handling and legal problems in the adjuster's instructions.
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Deleting the cane clip would be spoliation of evidence and an ethical violation. The clip is relevant and potentially exculpatory; you must preserve it. The original phone files should be treated as originals until copied and hashed. The 90-second audio is a separate problem: New Mexico is generally a one-party-consent state, but you were not a party to the claimant-wife conversation and neither consented. Recording it may violate the interception statute. Do not listen to, use, or distribute it; quarantine that segment and consult counsel. The gym video through a public window is more defensible if taken from public property and not into a private area, but avoid filming into locker rooms or medical treatment areas. The clinic cane footage is relevant and must be preserved.
2. What steps should you take now to preserve and produce the evidence?
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Do not edit or delete. Immediately stop using the phone for new captures, create a forensic copy of the entire storage, compute a hash, and log the date, time, device, and custodian. Make working copies and keep originals sealed. Create an evidence log listing each file, duration, location, and what it depicts. Produce a complete, indexed copy to the adjuster, including the cane clip, under a transmittal letter. For the audio, sequester it and state in the report that an unintended audio capture occurred and is not being used pending legal review. Do not 'clean' metadata. If the phone must be returned to personal use, image it first and document that step.
3. How should you respond to the demand to delete the clip and send the audio?
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Refuse the deletion and the audio request in writing. Explain that destruction could expose the insurer and you to sanctions, and that the audio may be unlawful to use. Offer a lawful alternative: produce the video with the cane clip included and a summary of relevant observations. If the insurer wants an audio analysis, have counsel advise. Document the instruction and your refusal. If the adjuster insists on destruction, escalate to your supervisor and the insurer's counsel; consider withdrawing if pressed to act unlawfully. Do not send the raw phone or unredacted audio. Preserve all files until the retention period and any litigation hold expires.