By Rick D. Norris, Jr., Christian & Small Partner
In today’s society, people are constantly snapping photos and taking videos with phones. This trend has made the use of photographs and surveillance footage in litigation more prevalent and powerful. In this blog post, we will explore different types of surveillance and best practices for the retention and storage of each. We will also discuss strategies for when and how to use footage during an investigation and litigation, and explore spoliation and privacy issues.
Types of Surveillance
There are many different types of fixed, on-premises surveillance. Many business owners use closed circuit TV (CCTV), while others choose to outsource the surveillance to a third party. In either scenario, surveillance may either be monitored in real time by a security guard (or other employee), or as is often the case, surveillance feeds may not monitored. Many fixed surveillance systems use mounted cameras that do not move or pivot, but some more advanced systems (especially if the feed is monitored) have the ability to change camera angles to capture what is happening in a specific area (for example, many casinos have this capability).
Another option is surveillance-for-hire. Whereas premises surveillance captures footage of any incident that takes place on a particular property, surveillance-for-hire is used to capture the activities and behavior of a witness or party. This type of surveillance is generally obtained via a private detective service and may result in photographs, video footage, audio recordings or other evidence. Generally, this kind of surveillance is obtained for the purpose of litigation and is typically used for impeachment purposes or to mitigate a damages claim.
Discovery issues can become a factor with either of these types of surveillance. There are times when video footage must be produced. In McClure v. Publix, 124 So. 3d 998 (Fla. 4th DCA 2013), the court held that there was no abuse of discretion by the trial court in permitting the defendant to delay the production of the in-store surveillance video until after the plaintiff’s deposition had been completed. Delaying the production gives the defendant the opportunity to have the plaintiff describe the events of the incident exactly as he or she recalls it – without having the plaintiff’s memory bolstered or influenced by the video. Courts seem to be unanimous that whether the footage at issue is in-store surveillance or hired surveillance – and whether the footage will be used as substantive evidence or for impeachment purposes only – it must be disclosed prior to trial.
Unlike an internal incident report, which typically enjoys work-product protection from discovery, in-store video surveillance generally does not enjoy such protection. However, surveillance-for-hire may be protected by the work-product doctrine.
Because fixed surveillance and hired surveillance are obtained and preserved in different ways and for different purposes, the discoverability and strategies for use differ.
Retention and Spoliation Issues
Businesses who capture surveillance footage via on-site systems typically store that footage on-site as well, unlike businesses that outsource surveillance. Whether stored on tapes or digitally, most systems are programmed to cycle or loop over themselves after a set period of time, thereby erasing and writing over footage captured before. Thus, clear storage policies are necessary.
When it comes to retention, the best practice is to have a written policy that covers the usual storage and recycling procedures for surveillance footage. Additionally, the policy should explain “litigation holds” and the process to follow for preservation of footage in anticipation of litigation: “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
There are several steps that should be taken to preserve data. Suspend The routine retention/destruction policy should be suspended and in its place a “litigation hold” should be enforced to ensure the preservation of relevant evidence. Internal procedures should be established to ensure the capture and safe storage of video footage once “notice” has been received of an incident that could lead to potential litigation. These procedures should include provisions for affirmative intervention to prevent the automatic recycling of video footage. Beware that courts may consider a business’s failure to comply with its own internal guidelines for the preservation of video footage to be a substantial factor in evaluating spoliation sanctions.
If the surveillance is recorded in-house: (1) advise the appropriate retail personnel to take immediate steps to prevent the loss or destruction of the video; (2) have the pertinent parts of the video copied onto a DVD; (3) have the appropriate viewing software copied; and (4) have a copy of the video and software forwarded to risk management personnel for review and safe keeping.
If the surveillance is recorded off-site, the necessary steps should be taken to ensure the transfer of the recording to a DVD, along with the appropriate viewing software, so the footage can be accessed in the future.
- What/how much to preserve: The best practice is to preserve the entirety of the event and a “reasonable” period of time prior to and subsequent following. In an ideal world, you should preserve footage showing from the time of the plaintiff’s entry upon the premises through his/her departure, including the time and location of the incident at issue as well as a sufficient period of time of the location prior to the plaintiff’s entrance to address notice-of-defect issues.
- How long to preserve: All footage should be preserved until the statute of limitations has expired or the plaintiff’s case has concluded.
- Other problems and pitfalls: What if the injured person says they are fine on premises but later files suit? This problem and others arise often in the context of slip-and-fall cases. The best practice is to preserve all evidence, in the case of any incident, if litigation is reasonably anticipated.
When it comes to spoliation, the standard for imposing sanctions varies, because what constitutes “notice” that surveillance footage is relevant to litigation varies by jurisdiction. Federal Rule of Civil Procedure 37 addresses a party’s failure to provide electronically stored information. Many courts are hesitant to impose sanctions when a video was overwritten according to routine business practice or other circumstances beyond the spoliator’s control. There are consequences for destruction of footage, and spoliation is the destruction or significant alteration of evidence, or the failure to preserve such evidence for another’s use in pending or “reasonably foreseeable” litigation. Where spoliation has occurred, the trial court has the discretion to impose sanctions.
Strategies for Using Surveillance Footage
Here are the details on how to use footage before a suit:
- Use in initial review and evaluation of claim: It may show liability or provide a strong defense to a claim. Even if it shows liability, it may rebut a damage claim if it shows the plaintiff after the accident behaving in a way inconsistent with the injuries alleged.
- Use in the investigation stage when interviewing potential witnesses: It can refresh a witness’ recollection, or a witness may be able to identify others in the video.
- Use of favorable video during settlement negotiations: It demonstrates to the plaintiff and plaintiff’s counsel the issues they will face in proving the case and explaining the video at trial; and
- Use to train and educate for risk management purposes: It can evaluate staff’s compliance with risk management procedures.
During litigation, make certain recording remains intact, and never edit the contents of the original recording. Upon receipt of discovery motions, request the plaintiff’s deposition prior to disclosing the contents of the film. Most jurisdictions support preserving the impeachment value of the surveillance. Don’t allow the plaintiffs to confirm injury against the recording’s contents. Be sure to list not only the recording as an exhibit but also the investigator as a witness. Demonstrate the inconsistency in the plaintiff’s complaints with activity shown in surveillance, and use the tape to reduce the value of the plaintiff’s claims. You can also use the tape during the plaintiff’s deposition. It should be submitted in support of a motion for summary judgment. Video is a powerful tool at trial – especially in this day and age where jurors expect our every move to be captured.
If the photographs and videos are to be used at trial, it will be necessary to authenticate them through the individual(s) who captured the images. This person will need to be able to testify concerning 1) his or her qualifications to take video; 2) what activity was filmed; 3) that the photo equipment used to film the activity was in good working order; 4) that they followed appropriate procedures in filming the event; 5) his or her custody of the video; 6) that the video fairly and accurately represents the activity; and 7) the identification of the video.
There are a few ways privacy issues arise, including employers monitoring employees. Employees have a legitimate expectation of privacy in the workplace, but this expectation is more limited than an individual’s expectation at home, outside of working hours, or when not using equipment that belongs to the employer. The employer must balance its legitimate interest in safety and efficiency, the right to adequate performance at work, the right to protect itself against legal action, the right to protect its strategic information and property, and other factors. For parties or witnesses, a person involved in a personal injury lawsuit generally has a reduced expectation of privacy and should reasonably expect an investigation into his or her claims and/or credibility. Surveillance-for-hire is generally appropriate and such footage is allowed.
Whether surveillance invades a person’s right to privacy can hinge on whether the person is engaged in public or private activities in a public or private location. Common pitfalls to avoid include snooping around a plaintiff’s home, using false pretenses, and conducting surveillance in an unreasonable manner.
This blog post is based on a presentation made by Rick Norris at the CLM Retail, Restaurant and Hospitality Conference on February 5-6, 2015 in Orlando, Florida.