What is the Legal Risk of Recording Over Surveillance Video?

By John Honovich, Published Sep 04, 2011, 08:00pm EDT

One common fear among surveillance users is that video will be recorded over before the user knows or is able to retrieve the video. Under such circumstances, fears of lawsuits and litigation are significant.

A recent US court case involving Wal-Mart provides a valuable precedent that users should not be found liable for video recorded over in the normal course of events.

This case was recently upheld on appeal in the New Jersey Superior Court and the full and the full verdict can be found here: State vs Lugo-Pagan decision.

Here are the key particulars in the case:

  • A Wal-Mart security officer noticed suspicious activity of an jewelery department employee stuffing merchandise in Wal-Mart bags. As the employee was leaving, security confronted the defendant and discovered the unpaid bags of merhandise.
  • 7 days after the incident, the defendant requested a copy of the surveillane.
  • 2 months later the court ordered Wal-Mart to provide all video recorded on the date of the incident
  • Wal-Mart only provided short video clips (about 5 minutes each) and could not provide any more as the video was recorded over after 30 days
  • Defendant was found guilty of shoplifting. However, the defendant appealed on the basis of the destroyed surveillance video.
  • The appeal was denied with the Court concluding "It is undisputed that Wal-Mart, and not the police, destroyed the evidential value of the videotapes by taping over them, pursuant to its policy, thirty days later. Where tapes were erased by the police "as a matter of routine," our Supreme Court found no evidence of bad faith by the police. State v. Reynolds, 124 N.J. 559, 569 (1991). Certainly, the erasing of tapes by Wal-Mart cannot be considered evidence of bad faith by the police here. "

We think this is a good case to share with concerned security managers as it is a fairly typical one that involves a prominent end user.

This case should help allay concerns over liability for not having recorded video. While video recording are certainly useful for prosecuting, not having them or only saving some is consistent with the verdict of this case.

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