According to a 2019 report released by PreciseSecurity.com, the U.S. has the highest number of CCTV cameras per person in the world.
In fact, one billion surveillance cameras will be watching us around the world in 2021, with the Americas accounting for 18% of all installed surveillance cameras according to a report from ISH Markit published in December 2019 (reported on by CNBC). Presuming that you have one of those billions of cameras, take note! It is becoming a routine occurrence shortly after an alleged premises liability accident for counsel to request preservation of “all” surveillance video taken on the accident date upon notice of impending litigation.
What can you do to preserve evidence upon receipt of a notification to hold or preserve surveillance video?
The best course of action is to preserve “all” video surveillance footage from the incident date, not just for a limited time frame. Your counsel can later determine whether “all” of the video footage is discoverable or relevant if a premises lawsuit is filed. Failure to preserve all relevant surveillance camera footage (real or perceived) can lead to dire legal consequences, as illustrated by two recent Pennsylvania cases.
In a recent federal claim in the Eastern District of Pennsylvania, the court denied summary judgment when a store failed to preserve all video footage from the day of an alleged fall. The failure to preserve all video footage drew an adverse inference instruction at trial While Plaintiff’s counsel sent a letter six days post-accident requesting preservation of “all” video recording from the incident date, the store failed to preserve footage, claiming that “there was no video surveillance of the location of [the] incident” and that the letter did not request “all video surveillance footage for the entire store.” The Court reasoned that, although video footage sought by counsel’s letter went beyond the exact location where Plaintiff fell, it may still have been relevant to Plaintiff’s claims. (See, Charoff v. Marmaxx Operating Corp).
Likewise, the Pennsylvania Supreme Court declined to review a Superior Court ruling that a store spoliated evidence where the store “consciously” decided to retain only limited video footage from 20 minutes before to 20 minutes after the alleged incident in accordance with its retention policy. Plaintiff’s counsel, within two weeks of the incident, requested the store preserve video from six hours before and three hours after the alleged incident. The Superior Court found that the several hours of video surveillance prior to and after the fall was arguably relevant evidence. As a result, the determined that aninstruction that the non-preserved video footage was unfavorable to the store was warranted. See, Marshall v. Brown’s IA, LLC.
Preserving all video surveillance from the date of an incident – both time and place – is the best practice and will allow you to assert a full defense to any claim presented. Do not create limitations by only providing surveillance video for what you believe believed to be relevant—preserve for a 24-hour time frame – for your entire property. (This best practice applies to any incident occurring on your property, whether of a personal injury nature or property damage.) Don’t be foolish. Preserve!
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