Legal Considerations to Preserving Video Surveillance Evidence
Missing surveillance video, even if you did not 'mean' to do it, can lead to sanctions and penalties in court.
We spoke with attorney Mark Berman [link no longer available] who specializes in electronic discovery issues, such as video surveillance, about when end users have the duty to preserve footage from being lost, destroyed or degraded, and how to use it.
Determining If Content Should Be Preserved
If someone receives a notice of a litigation or they reasonably should have known the information could be potentially relevant, then that is where the preservation obligation kicks in. The most common cases where these issues come up with video surveillance are personal injury.
Penalties For Lost Footage
The loss of video surveillance footage can be due to negligence and go all the way to being the result of malicious intent and sanctions increase depending on the level of intent found by the court. Those could include monetary sanctions, attorney’s fees, a court determined finding of fact, evidence preclusion or in more egregious cases, awarding a win to the other party.
When electronically stored information is lost, and there is a finding of intent that goes beyond negligence, some courts will instruct the jury about taking an adverse inference from its absence – “sometimes the juror is directed to make that inference and sometimes the jury is simply permitted to do so.”
For example, in Kramer v. Macerich Property Management, a court decided the appropriate sanction was an adverse inference to be given at trial after the management company disposed of video after viewing it, even though the plaintiff never sent a letter asking for them to preserve it.
How to Preserve It
Do It ASAP
Images and digital information can get overwritten quickly "so preservation should be done as soon as possible to make sure it doesn’t disappear or degrade,” he said. Different organizations have different retention times, and when it’s not clear how long that footage is being retained, it’s important to preserve and review it as soon as it becomes footage of interest.
Have Someone Who Knows What They’re Doing Make the Copy
Berman recommends organizations with video surveillance footage that needs preservation to hire an outside professional to do it, even if they know their own system well. This can be a person or integrator with experience using that specific system and will know how to export it correctly.
“If possible, don’t have your own in-house IT person do it. If it is important enough that you think it needs to be preserved, have a professional do it,” he said. "You have them fill out an affidavit saying they went to the site, took possession of the original, made a copy, the original was properly maintained without any change, and copies have been made, for example.” This process also helps establish chain of custody later.
If something goes south, the organization has a better defense when they can prove they took steps to have someone knowledgeable about the system do the export.
There are many cases where an internal person electronically stored information and the copies “just don’t take -- for good reasons and for bad reasons -- and then no one realized it and no one looks at it for two years,” he said. "By that time, the original is already overwritten, and you now have to contend with a motion claiming that you spoliated (or lost) critical evidence."
The Issue of Who Maintains Footage
Video surveillance footage is sometimes stored on-site, on corporate servers, in the cloud or by security companies. It needs to be clear who has possession, custody or control of digital evidence, and it’s important to have company set policies and procedures on what happens after an incident, Berman says.
“Sometimes it is the security department or sometimes it is management that learns of an incident first, but one side does not always knows what the other side is doing, and the footage gets lost, overwritten or deleted, where departments are not speaking with each other. Management may know about a lawsuit and the security department or company doesn’t," he said.
In the case of Jennings v. Orange Regional Medical Center, the plaintiff sent a letter asking the center to hold on to the video, but the video was never forwarded to the risk management department. The video was overwritten. The court "granted plaintiff’s spoliation motion to the extent of precluding defendant from introducing evidence at trial."
When companies get sold, it’s important that they keep certain digital material concerning events that may or have been sued about. Once the computers or servers where the electronically stored information is sold, the company loses control of the evidence, and that is a potential problem as well.
Just Because Footage Isn’t Missing Doesn’t Mean Sanctions
"If the video surveillance footage is one of multiple avenues of evidence to establish a legal position, then the likelihood of sanctions being awarded is decreased and the severity of a potential sanction decreases,” Berman said.
In the case Giuliano v. 666 Old Country Road, the plaintiff was able to prove video was intentionally destroyed, but still had enough evidence to prove her case so the only sanction was "an adverse inference charge be given at trial against [the] defendant with respect to the unavailable recording," Berman wrote in a summary of the case [link no longer available].
In contrast, if the surveillance footage was the key item that could prove the case, penalties increase. Exploring this further, I asked Berman what would happen if video footage was the only evidence of a slip and fall and the store “lost” the footage. He reminded me that court is going to say the person who was injured is evidence and that he can testify to what occurred.
"The video is the only evidence when the person is dead, and there are no other witnesses,” he said.
Having Footage Allows You To Use It To Your Favor
Organizations should be aware of the benefits of video surveillance footage. The original must be preserved, but when presented in court, it can help prove your case.
“If you have digital evidence like video, you can color code it so you can more easily explain a situation, you can slow it down, enhance it, and show weather conditions. The beauty of having digital evidence is that you can use it to advance your case. It is just like when you have an audio tape, and you give it to an expert to get rid of the background noise,” he said.