Law enforcement’s challenge with this proliferation of potential video evidence is in obtaining and preserving the images captured for future evidentiary value.
- Preservation - duty to properly keep and maintain memory and other temporary storage devices on which images are recorded
- Authenticity - the digitally recorded evidence is a true and accurate reflection of what the proponent of the evidence claims it to be
- Policy - a formal agency policy for evidence collection and preservation which includes digital and electronic evidence (video captures, e-mails, computer data)
- Admissibility - the purported evidence is relevant to the ultimate fact to be proved and the extent to which it weighs on the probability of that fact
The admissibility of digital evidence is scrutinized by the typical trial objections attorneys will make to newly introduced evidence, mainly that of either undue prejudice, hearsay, the best evidence rule or a lack of foundation for the introduction of the evidence. These are legal arguments which are left to the prosecutor or Crown Council to defend against in submitting the evidence at trial. Law enforcement’s role in the process is to ensure that in getting the digital evidence to court all the proper steps and precautions have been taken in securing and preserving that evidence. Integrators have the professional responsibility to coach their clients and ultimately to secure the video surveillance system produces quality reflections of the monitored scene, that the digital recordings are accurately imprinted into the storage devices and to advice on the implementation of a formal policy for evidence collection.
A law enforcement officer or other witness who takes the stand to testify concerning the collection and preservation of digital video images must know the equipment and explain how it operates and how it is maintained. Equally important is the technical aspect, a more scientific approach to the image captures, which may involve testimony from the manufacturer. In a recent case, a key piece of evidence was the capture by a patrol vehicle’s automated license plate reader (APLR) of the suspects’ vehicle in the vicinity of the crime scene; because of the novelty of the technology at the time, the prosecutor had to bring in a manufacturer representative to explain to the jury the operation of the system and its interface with other electronic systems, such as GPS, and how the image along with other data is stored then retrieved from the system. After laying the proper evidentiary foundation, admissibility was granted.
Issues of Privacy
The right which is most frequently referred to in this context and is generally most juxtaposed against the use of surveillance is the right to privacy. The right to protection from arbitrary invasion of privacy is a fundamental human right, laid down in article 17 of the International Covenant on Civil and Political Rights (ICCPR). The ICCPR has 160 state parties and thus creates obligations which stretch across most of the world.
Article 17 of the ICCPR:
1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation
- Everyone has the right to the protection of the law against such interference or attacks
The European Convention on Human Rights also contains a similar provision protecting the privacy of its citizens. Claims in the European Court of Human Rights (ECHR) have been made pursuant to article 8 of the European Convention on Human Rights which protects the “right to respect for private life”
Article 8 of the European Convention on Human rights stipulates:
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In United States of America citizen’s privacy is safeguarded by “The Forth Amendment”. One would be hard pressed to find a more eloquent summation of the rights the Fourth Amendment protects than this one by Justice Brandeis:
“It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited . . .”
The Fourth Amendment’s goal of protecting citizen privacy “against unreasonable searches and seizures” has been the major driving force behind much of the Supreme Court’s Fourth Amendment jurisprudence. As such, ever since the Court’s seminal ruling in Katz v. United States, the Court has held that warrantless searches that encroach upon a citizen’s reasonable expectation of privacy are unconstitutional. Holding otherwise would “erode the privacy guaranteed by the Fourth Amendment.”
Since its ruling in Katz, the Supreme Court has decided a substantial number of Fourth Amendment cases. But surprisingly few deal with modern technology.
In 1986, the Court ruled on two Fourth Amendment cases involving aerial surveillance. The first, California v. Ciraolo, involved a defendant who grew large quantities of marijuana in his backyard. Since the defendant’s yard was surrounded by a ten-foot- high fence, police flew a plane over his house and took pictures of his marijuana crop. The police used these pictures to obtain an arrest warrant and, after failing to get the pictures suppressed, the defendant pled guilty to the cultivation of marijuana.
The Supreme Court held that the aerial surveillance did not violate the defendant’s rights. While acknowledging that the “curtilage” of one’s property is generally protected under the Fourth Amendment, the Court made clear that “[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” As such, the Court held that the defendant’s “expectation that his garden was protected from . . . observation was unreasonable” because “[a]ny member of the public flying in [the] airspace [above the defendant’s yard] . . . could have seen everything that these officers observed.” The Court further clarified the unreasonableness of the defendant’s expectation of privacy in this case, noting that even a “power company repair mechanic on a pole overlooking the yard” could have seen the marijuana. Presumably, one of the defendant’s neighbors could also have seen over the fence by looking out a second- story window into the backyard.
In 2001, the Court ruled on Kyllo v. United States. Federal agents received a tip that the defendant grew marijuana in his home. Since such indoor cultivation typically entails the use of high-intensity lamps, police used a thermal imager to determine whether high levels of heat were emanating from the defendant’s house. The scans revealed that parts of the house were significantly warmer than the surrounding homes. This evidence helped the police obtain a search warrant and ultimately discover the defendant’s marijuana plants. After unsuccessfully moving to suppress the thermal imaging evidence, the defendant conditionally pled guilty to manufacturing marijuana.
The Court held that the defendant’s Fourth Amendment rights had been violated by the admission of the thermal imaging evidence. It began by emphasizing that “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” After recognizing the dangers modern technology poses to the privacy of citizens, the Court went on to hold that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search.”
The Court made the need to ensure that citizens’ rights are adequately protected from advancing technology abundantly clear in its decision. It pointed out the dangers posed to privacy rights by devices like “thermal imager[s],” “powerful directional microphone[s],” and “satellite[s]” and stated that “the rule we adopt must take account of more sophisticated systems that are already in use or in development.” The Court explicitly rejected the suggestion of limiting the Fourth Amendment to prohibiting only those practices that reveal “intimate details” of the household. The Court observed that “[i]n the home . . . all details are intimate details, because the entire area is held safe from prying government eyes” and that “the Fourth Amendment draws a firm line at the entrance to the house.”
Privacy Regulations & Guidelines in Canada
The Privacy Act relates to an individual’s right to access and correct personal information the Government of Canada holds about them or the Government’s collection, use and disclosure of their personal information in the course of providing services (e.g., old age pensions or employment insurance).
The Privacy Act only applies to federal government institutions listed in the Privacy Act Schedule of Institutions. It applies to all of the personal information that the federal government collects, uses and discloses—be it about individuals or federal employees. It should be noted that the Privacy Act does not apply to political parties and political representatives. The Office of the Privacy Commissioner of Canada oversees compliance with the Privacy Act.
The Personal Information Protection and Electronic Documents Act (PIPEDA) sets out the ground rules for how private-sector organizations collect, use or disclose personal information in the course of commercial activities across Canada. It also applies to personal information of employees of federally-regulated works, undertakings, or businesses (organizations that are federally-regulated, such as banks, airlines, and telecommunications companies).
The Office of the Privacy Commissioner of Canada issues in March 2006 a set of Guidelines for the Use of Video Surveillance of Public Places by Police and Law Enforcement Authorities. Video surveillance of public places nonetheless presents a challenge to privacy, to freedom of movement and freedom of association, all rights taken for granted in Canada argues the Commissioner. This is especially true when the surveillance is conducted by police or other law enforcement authorities.
The use of video surveillance to detect, deter and prosecute crime has increased significantly over the last few years—in Canada and abroad. Police and law enforcement authorities increasingly view it as a legitimate tool to combat crime and ward off criminal activity—including terrorism. Serious events have heightened the interest of public authorities in deploying video-surveillance in public places. It is widespread in the United Kingdom and increasingly used by law enforcement and anti-terrorism authorities in the U.S. and Canada, particularly since September 2001.
Police and public security agencies monitor public parks and streets. Some cities have put in place video surveillance systems for specific festival periods. The Royal Canadian Mounted Police (RCMP) use cameras to monitor high-security areas such as Parliament Hill. Cameras are used to survey Canada-US border crossings. They are very extensively used in airports, and port authorities are becoming increasingly interested in using video cameras to monitor their facilities.
Video surveillance of public places subjects everyone to scrutiny, regardless of whether they have done anything to arouse suspicion. At the very least it circumscribes, if it does not eradicate outright, the expectation of privacy and anonymity that we have as we go about our daily business.
The medium’s very nature allows law enforcement to observe and monitor the movements of a large number of persons, the vast number of whom are law-abiding citizens, where there are no reasonable grounds to be capturing a record of their activities. When video surveillance was done with tapes, where an operator had to watch each event to make a judgement about an individual, the volume of work kept misuse down to a minimum. Now we have facial recognition systems and pattern recognition software that can massage the vast stream of images, so the actual use of the data increases, even if it is not by human operators. The likelihood of images being retained for further data mining increases simply because the workload is now potentially manageable. The risk of systematized observations of groups or persons now exists, simply because it is technically feasible. On top of all this, fear of terrorism and street crime has driven the numbers of cameras up, as public officials seek to assuage the fears of citizens and gain control of the uncontrollable.
Proliferation of video-surveillance raises a concern that inferences will be drawn about people, that the data will be used for trivial or discriminatory purposes. People are well aware of the presence of cameras, in fact there is a brisk trade in fake cameras because they are promoted as being as effective as real ones in deterring bad behavior. For these reasons, there is good reason to believe that video surveillance of public places by the police or other law enforcement authorities has a chilling effect on behavior—and by extension on rights and freedoms.
The guidelines are intended as guidance for overt, general video surveillance by law enforcement agencies—what some police forces refer to as "community cameras"—in places to which the public has largely free and unrestricted access, such as streets or public parks.
They apply to continuous or periodic video recording, observing or monitoring of individuals in open, public spaces, in the absence of particularized suspicion of an individual or individuals.
While the guidelines can be used to promote and protect privacy in other settings, such as police facilities like cell blocks or interview rooms, and more generally could be useful as guidance for other applications of video surveillance technology, their scope remains within the limits of generalized surveillance of public spaces.
These guidelines are not intended to apply to circumstances where targeted video surveillance may be used as a case-specific investigative tool for law enforcement purposes, under statutory authority or the authority of a search warrant.
We anticipate that there will be further technical advances in video-surveillance, and that the appetite for its deployment will continue to grow. Since the OPC started working on these guidelines, there has been continued interest on the use of video surveillance by privacy and data protection authorities, in Canada and abroad. For example, the United Kingdom Home Office published in early 2005 an in-depth study assessing the impact of closed-circuit television systems implemented in a range of contexts. Closer to home, a number of provincial government departments and authorities have published guidelines for the use of video surveillance by public bodies. These include British Columbia, Alberta, Saskatchewan, Nova Scotia, New Brunswick, Newfoundland & Labrador, Ontario, and Quebec in particular which recently completed an extensive consultation on the use of video surveillance cameras in public places by government bodies.
As our knowledge of the efficacy and impact of video surveillance increases and becomes ever more precise, adjustments to how this technology should be controlled will likely need to be made. Indeed, as part of its Contributions Program, the OPC awarded in the fall of 2004 funding to Quebec’s l’École nationale d'administration publique (ENAP) for research on the use of video surveillance cameras in public spaces in Canada. We received the ENAP’s research report in December 2005 and plan to integrate its findings in future work we undertake on video surveillance.
The Office of the Privacy Commissioner will monitor the guidelines set out in this document to ensure that they continue to reflect needs dictated by the state of the technology and its implementation. In the meantime, we are analyzing the application of PIPEDA to the deployment of video surveillance by the private sector, and plan to publish our findings in this regard in 2006.
1. Video surveillance should only be deployed to address a real, pressing and substantial problem. The problem to be addressed by video surveillance must be pressing and substantial, of sufficient importance to warrant overriding the right of innocent individuals to be free from surveillance in a public place. Accordingly, concrete evidence of the problem to be addressed is needed. This should include real evidence of risks, dangers, crime rates, etc. Specific and verifiable reports of incidents of crime, public safety concerns or other compelling circumstances are needed, not just anecdotal evidence or speculation.
2. Video surveillance should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative. Less privacy-invasive alternative ways of addressing the identified problem should be chosen unless they are not feasible or significantly less effective.
3. The impact of the proposed video surveillance on privacy should be assessed before it is undertaken. A Privacy Impact Assessment of the proposed video surveillance should be conducted to determine the actual or potential kind and degree of interference with privacy that will result, and the ways in which adverse effects will be mitigated.
4. Public consultation should precede any decision to introduce video surveillance. Public consultation should be conducted with relevant stakeholders, including representatives of communities that will be affected. "Community" should be understood broadly; it should be recognized that a particular geographic area may have several distinct communities, and one community should not be presumed to speak for the others.
5. The video surveillance must be consistent with applicable laws. Video surveillance must be conducted in accordance with all applicable laws, including overarching laws such as the Canadian Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms.
6. The video surveillance system should be tailored to minimize the impact on privacy. The surveillance system should be designed and operated so that the privacy intrusion it creates is no greater than absolutely necessary to achieve the system’s goals. For example, limited use of video surveillance (e.g., for limited periods of day, public festivals, peak periods) should be preferred to always-on surveillance if it will achieve substantially the same result.
7. The public should be advised that they will be under surveillance. The public should be informed with clearly written signs at the perimeter of surveillance areas, which advise that the area is or may be under surveillance, and indicate who is responsible for the surveillance, including who is responsible for compliance with privacy principles, and who can be contacted to answer questions or provide information about the system.
8. Fair information practices should be respected in collection, use, disclosure, retention and destruction of personal information. The information collected through video surveillance should be minimal; its use should be restricted, its disclosure controlled, its retention limited, and its destruction assured. If a camera is manned, the recording function should only be turned on in the event of an observed or suspected infraction. If a camera records continuously, the recordings should be conserved for a limited time only, according to a retention schedule, unless they have captured a suspected infraction or are relevant to a criminal act that has been reported to the police. Information collected through video surveillance should not be used for any purpose other than the purpose that the police force or public authority has explicitly stated in the policy referred to in 14 below. Any release or disclosure of recordings should be documented.
9. Excessive or unnecessary intrusions on privacy should be discouraged. Surveillance cameras should not be aimed at or into areas where people have a heightened expectation of privacy: for example, windows of buildings, showers, washrooms, change rooms, etc. If cameras are adjustable by an operator, reasonable steps should be taken to ensure that they cannot be adjusted or manipulated to capture images in areas that are not intended to be under surveillance.
10. System operators should be privacy-sensitive. The operators of surveillance systems, including operators hired on contract, should be fully aware of the purposes of the system, and fully trained in rules protecting privacy.
11. Security of the equipment and images should be assured. Access to the system’s controls and reception equipment, and to the images it captures, should be limited to persons authorized in writing under the policy referred to in 14 below. Recordings should be securely held, and access within the organization limited to a need-to-know basis.
12. The right of individuals to have access to their personal information should be respected. People whose images are recorded should be able to request access to their recorded personal information. Under many privacy statutes, they have a right of access. Severing the personal information in a recording (including technological blurring or blocking of the identities of others) may be necessary to allow individual access. Policies and procedures should be designed to accommodate these requests.
13. The video surveillance system should be subject to independent audit and evaluation. The system’s operations should be subject to frequent audit, and its effectiveness should be evaluated regularly to identify unintended negative effects. Audit and evaluation should be conducted by persons or organizations independent of the management and direction of the video surveillance system. Audits should ensure compliance with the policy governing the system, including ensuring that only pertinent information is collected, that the system is used only for its intended purpose, and that privacy protections in the system are respected. Evaluation should take special note of the reasons for undertaking surveillance in the first place, as determined in the initial statement of the problem and the public consultation, and determine whether video surveillance has in fact addressed the problems identified at those stages. Evaluation may indicate that a video surveillance system should be terminated, either because the problem that justified it in the first place is no longer significant, or because the surveillance has proven ineffective in addressing the problem. Evaluation should take into account the views of different groups in the community (or different communities) affected by the surveillance. Results of audits and evaluations should be made publicly available.
14. The use of video surveillance should be governed by an explicit policy. A comprehensive written policy governing the use of the surveillance equipment should be developed. The policy should clearly set out: the rationale and purpose of the system; the location and field of vision of equipment; the rationale and purpose of the specific locations of equipment and fields of vision selected; which personnel are authorized to operate the system; the times when surveillance will be in effect; whether and when recording will take place; the place where signals from the equipment will be received and monitored, and the fair information principles applying to recordings, including security, use, disclosure, retention and destruction, rights of individual access to personal information captured, and rights to challenge compliance.
The policy should identify a person accountable for privacy compliance and privacy rights associated with the system. The policy should require officers, employees and contractors to adhere to it, and provide sanctions if they do not. It should provide a process to be followed in the event of inadvertent privacy and security breaches. Finally, it should provide procedures for individuals to challenge compliance with the policy.
15. The public should have a right to know about the video surveillance system that has been adopted. Police forces and public authorities should recognize that individuals will want information about video surveillance systems. They may seek to know, for example, who has authorized the recording, whether and why their images have been recorded, what the images are used for, who has access to them, and how long they are retained. Police forces and public authorities should be prepared to provide this information.
Canadian Guidelines for use of surveillance equipment in Federal Correctional Facilities (aka Federal Prisons)
Government of Canada through Commissioner’s Directive of the Correctional Service acknowledges that even in federal correctional facilities inmates have the right to privacy.
“PROCEDURES
Surveillance through video recording must not be used where individuals have a reasonable expectation of privacy (e.g. a private office, a change room or a single office in an open office environment).
If the alleged conduct under investigation is believed to be criminal, the police will be asked to investigate.
To the extent possible, covert video surveillance should not intrude on the privacy of persons other than the individual(s) under investigation.
The surveillance must not continue longer than is reasonably necessary to conduct the investigation.
The individual(s) placed under covert surveillance must be notified of the surveillance after the surveillance period has terminated. This notification includes the place the recording occurred, when it occurred, and the justification for the surveillance, unless there are compelling reasons not to do so.
Access to the video recording and any information generated by the recording is to be strictly limited to those with a need to know. The list of persons will be defined in each situation.
The video recording is not to be used as a means for monitoring employee performance.
Evidence
Only those portions of a video recording believed to contain evidence pertinent to a serious misconduct are to be viewed. Every effort will be made to respect the privacy of, and minimize the impact on, persons not specifically involved in the investigation.
When a recording is to be disclosed to a law enforcement agency, only that portion relating to the incident(s) will be provided.
The authenticity and integrity of the recording system will be established and the copy of the recording will be protected in order for the electronic document to be used as evidence.
Retention
Overt video recordings are to be retained for a minimum of 144 hours (6 days). The Institutional Head has the authority to order their retention for an extended period in case the recordings are required:
- as evidence in a potential criminal investigation
- as evidence in a potential CSC investigation at the national, regional or local levels, or for reasons other than an investigation.
Covert video surveillance recordings are to be retained for a minimum of 30 days. If no incident is recorded, they must be overwritten or destroyed after that time.
When evidence in a video recording is used for an investigation, or an administrative action and decision, the evidence must be retained by the Departmental Security Officer for a period of two years starting from the date of the last action taken.”
HIPPA and Health Care Privacy
Video surveillance is generally legal unless the subject of the surveillance has a “reasonable expectation of privacy” under the circumstances. The law says that when individuals are in an area that is open to the public, they generally have no reasonable expectation of privacy from being photographed or videotaped. This means that hospitals are legally allowed to post video surveillance cameras in common areas such as parking lots, parking garages, reception areas and cafeterias. This same rationale also applies to other areas that are open to the public, such as emergency department waiting rooms and public hallways, and hospitals can legally post surveillance cameras in such areas. If surveillance cameras are used in these areas, the hospital should post signs stating that video surveillance is being used to put individuals on notice that they should not have an expectation of privacy in that area.
Video surveillance in areas where patient care is being delivered raises additional legal issues. Patient care areas are not generally open to the public and individuals in some patient areas will have a heightened expectation of privacy and could file a lawsuit against a hospital for invasion of privacy if they are subject to video surveillance. For example, courts have held that patients can have a reasonable expectation of privacy in their private hospital rooms. Because of these privacy concerns, video surveillance generally should not be used in areas where patients have a heightened expectation of privacy, such as restrooms, showers, and changing areas, private rooms, or other similar areas. Video surveillance in other patient areas where there is a lowered expectation of privacy, such as emergency departments or operating rooms (this includes also ICUs), does not create the same legal risk of invasion of privacy when a hospital can demonstrate a particular need for surveillance in the area, such as problems with violence in the emergency department, or specific concerns about inappropriate conduct by practitioners or staff in an operating room. When surveillance is used in such areas, it is recommended that hospitals have patients who may be subject to surveillance sign a consent form acknowledging that surveillance is being used. This consent language can be on a separate form or it can be incorporated into existing forms. This will serve to notify patients that they do not have an expectation of privacy, as well as ensure compliance with guidance from CMS which expressly states that video recording of patients receiving medical treatment in a Medicare participating hospital requires the consent of the patient or his/her representative. There can be some rare instances where surveillance of patients can be legally justified without their consent. Some court opinions have upheld hidden surveillance in private patient rooms when there was sufficient suspicion of criminal activity and the surveillance was used to further patient safety.
ICUs are considered on a case by case bases. If normally ICU "patient cells” are partially open, then there is reduced expectation of privacy and corroborated with the severity of the Medicare provided it should be no issue of deploying audio-video surveillance. In case of “hi-end” facilities where the ICU has individual “brick and mortar” rooms for each patient, including washroom (looks like the washroom is the definitive differentiator) there is a high expectance of privacy. This would render surveillance illegal.
A related legal issue is whether hospitals can conduct video surveillance of their employees in the workplace. Employees do not have a general right to privacy in the workplace that prohibits video surveillance, except in certain specific situations where there is a higher expectation of privacy. Thus, employers can generally use video surveillance of employees in most areas in the workplace, such as hallways, break rooms, etc. Courts have held, however, that employees have a right to privacy in certain areas and while engaged in certain activities in the workplace. For example, courts have held that employees have a reasonable expectation of privacy in employer restrooms, and in locker rooms where employees change clothes, and video surveillance generally should not be used in such areas. As discussed above with regard to video in patient care areas, video surveillance might be justified even in areas where employees have a reasonable expectation of privacy when there is a sufficient suspicion of illegal or improper activity. Again, prior to placing video surveillance cameras in such areas, hospitals should consult with legal counsel. Also, except in unusual circumstances, a hospital should notify its employees when video surveillance is being used in the workplace to put employees on notice that they do not have a reasonable expectation of privacy in the area being recorded.
Although video surveillance in a hospital can violate patients privacy rights by intruding on their privacy, such surveillance will generally not constitute a HIPAA violation and HIPAA does not prohibit such surveillance. The mere fact that protected health information is recorded by a hospital surveillance camera, is not in itself a violation of HIPAA. PHI captured on surveillance camera will generally be an “incidental” access or use of PHI which would not violate HIPAA as long as the access to, use and disclosure of the captured PHI otherwise complies with the Privacy Rule. To ensure HIPAA compliance, hospitals that use video surveillance cameras in a way that might record PHI should limit access to the recordings to individuals who need the information for legitimate hospital operations and any recorded PHI should be kept secure and only disclosed as allowed by the Privacy Rule.
Nursing Homes
Only Oklahoma, New Mexico, and Texas explicitly permit a nursing home resident or the resident’s legal representative to place surveillance cameras in a resident’s room. These statutes allow monitoring only if certain requirements are met, such as obtaining consent from the resident or the resident’s representative, and from the resident’s roommate. The majority of states (and the federal government) do not have laws explicitly permitting or forbidding resident monitoring.
In the absence of state statutory guidance, if a nursing home decides to allow a family member to video-record a resident, the nursing home should consider the following issues to ensure the recording does not violate a resident’s privacy and rights under the Health Insurance Portability and Accountability Act (HIPAA), or violate any state laws, such as invasion of privacy, eavesdropping, or wiretapping.
Consent: Has the resident, if competent, consented to the recording? If the resident is not competent, has the resident’s medical power of attorney or guardian consented? Nursing homes should consider how to document consent, such as in the resident’s chart or on a consent form. Failure to obtain consent could result in violation of the resident’s privacy and HIPAA rights.
Roommate: If the resident has a roommate, the roommate likely will end up on the video. Facilities should consider whether to obtain proper consent from the roommate, as discussed above, or only allow video-recording in the absence of any roommate.
Visitors: Facilities should consider whether visitors should be notified that video-recording is occurring to avoid violating the privacy rights of visitors, who could include other facility residents. For example, the facility could post a sign on the resident’s door indicating that recording is in progress.
Other residents: Facilities should consider how the video-recording device is aimed and whether it records sound or images from the hallway or resident care areas. Again, recording video of the hallway or other resident care areas could violate the privacy and HIPAA rights of other residents. While it is easier to aim the video-recording device into the room to avoid hallway images, it is difficult to ensure that hallway conversations are not recorded. Thus, facilities should consider whether to forbid any audio on the video.
Violation of specific state statutes: Depending upon the state, video-recording could result in criminal invasion of privacy or a violation of eavesdropping or wiretapping statutes. For example, in Colorado a person commits criminal invasion of privacy under C.R.S. § 18-7-801 if that person knowingly observes or takes a photograph (including video) of another person’s “intimate parts” without consent where the person photographed has a reasonable expectation of privacy. Also in Colorado, a violation of C.R.S. § 18-9-304, the eavesdropping statute, can occur if a person not visibly present during a conversation or discussion knowingly overhears or records the conversation or discussion without the consent of at least one of the principal parties to the conversation. Thus, if the resident does not consent or if another resident is picked up on the audio portion of the video without consent, this could constitute illegal eavesdropping.
Preservation of Surveillance Footage
Recent developments in digital surveillance technology have made surveillance systems much more affordable for premises owners and much more common-place. Many premises owners now add surveillance systems or additional video cameras to monitor all areas of their premises and all types of activities. With an increased number of premises owners conducting surveillance, the number of incidents caught on tape has also increased. Likewise, claimants now expect that owners have caught their incidents on tape and request copies of the surveillance footage. Despite the recent developments in surveillance technology, “there are many uncertainties regarding this video technology as it relates to the resolution of legal disputes.” Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 393 (Fla. 2012). For example, the recording systems may vary greatly in quality as well as methodology. Some recordings may be erased automatically, and some may be erased manually. Some recordings may not be in the immediate control of the ultimate defendant. The recording may or may not contain information that is critical to the civil action. In addition, [m]any steps essential to computer operation may alter or destroy information, for reasons that have nothing to do with how that information might relate to litigation. As a result, the ordinary operation of computer systems creates a risk that a party may lose potentially discoverable information without culpable conduct on its part. Fed. R. Civ. P. 37(e) (2006), advisory committee’s note.
When relevant surveillance footage is lost or destroyed, a claimant may seek sanctions or, in some jurisdictions, a separate cause of action for spoliation or “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Essenter v. Cumberland Farms, Inc., No. 1:09-CV- 0539, 2011 WL 124505, at *3 (N.D. N.Y. Jan. 14, 2011). These uncertainties and the possibility of sanctions for spoliation present a premises owner with many practical and legal considerations.
When does a premises owner have a duty to preserve surveillance footage?
What happens if a premises owner fails to preserve the surveillance footage?
What steps should premises owners and counsel take to ensure the surveillance footage is not lost or destroyed?
How much surveillance footage should be preserved?
When must the premises owner produce the surveillance footage?
It is clear that a premises owner has a duty to preserve evidence that is relevant to an underlying claim. What is less clear, however, is when that duty arises. As explained below, courts across the country have identified a wide range of legal standards to make that determination.
A few courts hold that a duty to preserve surveillance footage arises when a premises owner receives a request to preserve or produce the surveillance. For example, courts in Florida and Louisiana have held that a premises owner did not have a duty to preserve surveillance when the plaintiff did not make a written request to obtain and preserve the evidence. Osmulski, 93 So. 3d at 389; Lucas v. Old Navy, L.L.C., No. 07-571-C, 2011 WL 1172710 (M.D. La. Apr. 28, 2009). In these jurisdictions, once a premises owner receives a request to preserve or produce surveillance footage, the owner should take immediate steps to preserve the footage. Many surveillance systems in use today automatically erase or record over footage after a set number of days. For example, if a premises owner receives a request to preserve footage a few days before the system is set to record over footage automatically, but fails to take steps to preserve the footage before the data is lost, a court would likely find that the premises owner breached its duty to preserve the surveillance footage. See Baynes v. The Home Depot U.S.A., Inc., No. 09-3686, 2011 WL 2313658 (E.D. Pa. June 9, 2011) (finding sanctions warranted when a store received a request to preserve data nine days before a system automatically would record over the previous data but failed to preserve footage before the nine days expired and data was lost).
On the other hand, many jurisdictions have found that the duty to preserve arises much earlier or as soon as litigation is “reasonably foreseeable.” See Demena v. Smith’s Food & Drug Centers, Inc., No. 2:12-CV- 00626-MMD-CWH, 2012 WL 3962381 (D. Nev. Sept. 10, 2012); Zhi Chen v. District of Colombia, 839 F. Supp. 2d 7 (D. D.C. 2011); Bright v. United Corp., No. 2007/80, 2008 WL 2971769 (V.I. July 22, 2008); Essenter, 2011 WL 124505. As one court in Colorado explained: The undeniable reality is that litigation is an ever-present possibility in our society. While a party should not be permitted to destroy potential evidence after receiving unequivocal notice of impending litigation, the duty to preserve documents should require more than a mere possibility of litigation.
An appellate court in Georgia attempted to clarify the issue of “reasonable foreseeability” by distinguishing between potential liability and potential litigation, stating: “notice of potential liability is not the same as notice of potential litigation.... The simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation....” Paggett v. Kroger Company, 716 S.E. 2d 792, 795 (Ga. Ct. App. 2011) (emphasis added). Most courts in California find that the duty to preserve evidence generally arises when a party reasonably anticipates litigation; however, other courts in California have found that the duty arises “as soon as a potential claim is identified.” Compare Housing Rights Center v. Sterling, 2005 WL 3320739 (C.D. Cal. 2005), and Apple Inc. v. Samsung Elec. Co., Ltd., No. 11-CV-01846-LHK, 2012 WL 3627731 (N.D. Cal. Aug. 21, 2012) (cit- ing In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060,1067 (N.D. Cal. 2006)).
In jurisdictions where documents created in “anticipation of litigation” are protected by the work product doctrine and the duty to preserve evidence arises as soon as litigation is “reasonably foreseeable,” counsel may face special problems. For example, if a premises owner loses the video surveillance, counsel for the premises owner would have difficulty convincingly arguing on one hand that litigation was not reasonably foreseeable when the footage was lost while arguing on the other hand that an incident report was prepared on the date of the incident in anticipation of litigation. In comparison, if a plaintiff’s counsel seeks to impose spoliation sanctions for surveillance that was lost within 24 hours of an incident because litigation was reasonably foreseeable, the plaintiff’s counsel would have difficulty later arguing that an incident report is not protected by the work-product doctrine because the manager could not have anticipated the litigation immediately after the incident.
Premises owners can sometime lose relevant data due to the routine, good faith operation of a surveillance system itself. However, in certain circumstances, a claimant may assert that the premises owner improperly lost or destroyed or “spoliated” the relevant footage. Fed. R. Civ. P. 37 addresses the failure to provide electronically stored information. Following the 2006 amendment to Fed. R. Civ. P. 37, the advisory committee wrote: Under Rule 37(f), absent exceptional circumstances, sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.... The “routine operation” of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness.... Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation.... The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Consequently, many courts have hesitated to impose sanctions when a video was overwritten according to routine business practice or other circumstances beyond the spoliator’s control.
Generally, a party asserting charges of spoliation must present evidence demonstrating that (1) the spoliator had a duty to preserve the evidence when it was destroyed, (2) the spoliator had a culpable state of mind, and (3) the missing evidence is relevant to the litigation. Essenter v. Cumberland Farms, Inc., No. 1:09-CV-0539, 2011 WL 124505, at *3 (N.D. N.Y. Jan. 14, 2011). As one U.S. district court in Georgia has noted, [W]henever a serious fall occurs in circumstances such as this, it would be prudent for a company to preserve any video footage that might bear on the incident. Prudence, however, is not the standard here; bad faith is. Presumably, courts have imposed a bad faith standard out of a recognition that mistakes or misjudgments can occur innocently and that it would undermine the truth-seeking function of a trial to robotically require the entry of a verdict, or a negative inference, on a party whose failure to pre- serve evidence was not done out of some calculation, intent, or awareness that preservation of the evidence could be important in a later lawsuit. Watkins, 2011 WL 3875986, at *4.
A party seeking a finding of spoliation must establish that the lost or destroyed evidence is relevant to the pending litigation. Gutierrez-Bonilla, 2009 WL 5062116, at * 5. It is important to note that, in some jurisdictions, “[i]n the spoliation context, relevant ‘means something more than sufficiently probative to satisfy Rule 401’...” Id. Instead, the movant must present sufficient evidence to show that the lost or destroyed evidence was “of the nature alleged.” Id. Other courts permit an inference of relevance when the evidence was destroyed in bad faith. Id. at *6.
Counsel should be aware that the quality and scope of the video footage can affect its relevancy. In Demena, 2012 WL 3962381, a grocery store patron slipped and fell on a jalapeño pepper. Following the incident, the assistant store manager reviewed the surveillance footage, which did not depict the jalapeño on the floor, but still preserved “approximately forty minutes of video— consisting of sixty-five seconds prior to the incident and about thirty-nine minutes after the incident—based on when Plaintiff entered and exited the camera range.” Id. at *1. The court found that although the store had a duty to preserve additional surveillance, the poor quality of the video made it impossible to see whether any item was on the floor, and, thus, the additional footage was not relevant to the plaintiff’s claim that the store had notice of the hazardous substance. Id. at *3.
Once a moving party has shown that spoliation occurred, courts may impose sanctions against the nonmoving party. With the increasing number of incidents caught on tape, the likelihood that relevant surveillance will be lost or destroyed has also increased. Accordingly, premises owners should understand the wide range of sanctions that courts can impose for spoliation.
Courts may use either of two sources of authority to sanction parties for spoliation of evidence: the court’s inherent authority or Fed. R. Civ. P. 37(b). Demena, 2012 WL 3962381. As one court has explained, “[a] court has the inherent power to impose sanctions for the spoliation of evidence, even where there has been no explicit order requiring the production of the missing evidence.” Guiterrez-Bonilla, 2009 WL 5062116, at *2. On the other hand, courts may impose sanctions under Fed. R. Civ. P. 37(b) “when a court order to produce evidence is violated ‘either by destroying evidence when directed to preserve it or failing to produce information because relevant data has been destroyed.’” Essenter, 2011 WL 124505, at *3. Traditionally, the most common sanction awarded by the courts is an adverse inference instruction or “an inference that the evidence would have been unfavorable to the party responsible for its destruction.” Gutierrez-Bonilla, 2009 WL 5062116, at *3. The imposition of the adverse inference is based upon the idea that a party is more likely to destroy evidence that is harmful to their position. Monique C.M. Leahy & Heidi Gilchrist, Sanctions for Spoliation of Electronic Evidence, 1126 Am. Jur. Proof of Facts 3d 1 (Oct. 2012). Other potential sanctions for spoliation range from preclusion of evidence related to the spoliated evidence, assessment of attorneys’ fees and costs, and dismissal or judgment by default. Wal-Mart Stores, Inc. v. Lee, 659 S.E.2d 905 (Ga. Ct. App. 2008) (excluding testimony relating to videotape surveillance after Wal-Mart lost the footage). As explained by the Eleventh Circuit, “[d]ismissal represents the most severe sanction available to a federal court, and therefore should only be exercised where there is a showing of bad faith and where lesser sanctions will not suffice.” Bridgestone/Firestone North American Tire, LLC v. Campbell, 574 S.E. 2d 923 (Ga. Ct. App. 2003).
In addition to the sanctions identified above, a few states recognize a separate cause of action for the intentional spoliation of evidence. Such claims are based on the theory of intentional interference with prospective economic advantage. While the precise elements of intentional spoliation remain unclear, it is likely that a party must prove (1) that a potential lawsuit existed, (2) that the defendant had knowledge of the potential lawsuit, (3) that the evidence was destroyed, (4) the evidence destruction has hindered the party’s ability to prove its case in the potential lawsuit, and (5) damages.
Once the duty to preserve evidence arises, a premises owner should immediately suspend any routine document destruction policy and implement a litigation hold to ensure that the owner preserves all relevant evidence, including relevant surveillance footage. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D. N.Y. 2003). See also McCargo, 2011 WL 1638992 (D. Colo. May 2, 2011). To avoid evidence spoliation issues, counsel should advise their clients to develop and implement strong policies for document destruction and retention and litigation holds with specific instructions related to surveillance footage. Leahy, supra (citing Electronic Spoliation of Evidence, 3 A.LR. 6th 13 and Black’s Law Dictionary (9th ed.)).
Importantly, the duty to preserve evidence is not owed solely by the premises owner. In fact, some courts have held that the duty runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.
In addition, if the premises owner or counsel knows of footage depicting the accident but they do not possess it, they may still have a duty to notify the claimant of the existence of the video or of its possible destruction. See Jain v. Memphis Shelby Co. Airport Authority, No. 08-2119-STA-dkv, 2010 WL 711328 (W.D. Tenn. Feb. 25, 2010). Courts increasingly expect counsel to initiate evidence preservation and to remain involved in the process of electronic discovery. Leahy, supra. In addition, some courts now impose sanctions on counsel, as well as the party itself. Id.
Regardless of the policies implemented, premises owners should educate their employees and staff on those policies and take the appropriate steps to ensure that employees follow them. At least two courts have found that a store’s failure to follow its own internal policy suggested a culpable state of mind. Bright, 2008 WL 2971769, at *7; Matteo, 2012 WL 760317. In addition to ensuring that premises owners and store managers generally educate employees and staff on any litigation hold or retention policies, counsel should review the actual policies for litigation hold and document retention with any employee who may testify in a case. For instance, if an employee testifies that the store policy is to retain all footage depicting the claimant yet the store policy actually is to retain footage of the slip-and- fall area only, counsel would have to rebut the testimony of its own witness, the employee, when explaining to opposing counsel that the store does not have any footage of the claimant entering or leaving the store.
Premises owners and store managers should understand how their video surveillance systems operate, including when a video surveillance system resets or rerecords and how the video is time-stamped. See Kratsov v. Town of Green- burgh, No. 10-CV-3142 (CS), 2012 WL 2719663 (S.D. N.Y. July 9, 2012) (imposing sanctions when Town Hall recorded and produced a video requested by the plaintiff for the requested time period based on the video time-stamp and did not learn that video was set with Pacific Standard Time stamp rather than Eastern Standard Time stamp until the video was automatically destroyed). It is imperative that premises owners and counsel alike take steps to ensure that any DVD or other recording purportedly containing surveillance footage does indeed contain a proper, workable copy of the surveillance. These principles are illustrated in Zhi Chen v. District of Columbia, 839 F. Supp. 2d 7 (D. D.C. 2011). There, a woman was detained by a hotel security guard who believed that she left the hotel without paying for her room. The incident was recorded by a security camera, but when the hotel reviewed the footage, it found only a blank disc. In analyzing whether the hotel had a culpable state of mind, the court considered the following facts: the hotel had possession of the footage and the ability to preserve it; the hotel should have inspected the contents of the disc to ensure that it was copied; and there was no evidence that the hotel’s management discussed the hotel’s obligation to preserve evidence with the staff. Based on the facts, the court found that the hotel was grossly negligent and possessed a culpable state of mind warranting an adverse inference instruction. See also Essenter, 2011 WL 124505 (N.D. N.Y. Jan. 14, 2011 (permitting an adverse inference when a party made a copy of a video that was submitted to corporate headquarters yet corporate headquarters did not review the disc purportedly containing the video upon receiving it and later discovered that the DVD was blank). Thus, counsel and premises owners should make it a practice to review surveillance footage as soon as it arrives at corporate headquarters to ensure that the discs or DVDs function properly.
Another important issue to consider carefully is which portions of surveillance footage should be retained. Often, “the more difficult question” is how much of the surveillance footage is relevant and should be preserved to meet a premises owner’s duty to preserve the evidence. Demena, 2012 WL 3962381, at *3. A premises owner will want to remember that “[o]nly at its own risk does [a defendant] make a ‘unilateral decision’ as to what evidence is relevant.” Id. In some instances, premises owners may not have any video evidence that reflects the incidents or the areas where the incidents occurred. Nonetheless, in some jurisdictions, this may not completely abrogate an owner’s duty to preserve video evidence.
When preserving video surveillance, a premises owner should consider preserving footage both before and following an incident. As the Supreme Court of the U.S. Virgin Islands explained in a well- publicized case: Store managers should retain recorded footage of the area in which an accident occurred both prior to and following the accident. Obviously, such footage is likely to provide relevant and valuable evidence regarding the cause or timing of a spill resulting in a slip and fall accident. It is certainly not within the discretion of a store manager to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation.... While this Court does not find any statutory or case law indicating precisely what portion of surveillance footage capturing a slip and fall accident should be retained, common sense dictates the retention of comprehensive surveillance footage of any accident, including a reasonable period of time preceding and following the accident. Bright, 2008 WL 2971769, at *7. See Can- ton v. K-Mart Corporation, No. 1:05-cv-143, 2009 WL 2058908 (V.I. July 13, 2009) (citing and distinguishing Bright, 2008 WL 297176, and finding an adverse inference was not warranted when two store employees testified that they were uncertain whether a camera was positioned on the incident area at the time and on the date of the incident). In Bright, the store manager was notified of a slip-and-fall incident involving a customer and immediately reviewed the surveillance footage. 2008 WL 297176, at *1. The footage depicted the fall but did not depict any substance on the floor at the time of the accident. The manager “conclud[ed] that Bright ‘probably tripped on herself’” and copied the footage of the fall itself. Id. However, the manager chose not to review or copy any of the footage before or after the fall. Id. In that case, the court concluded that the store’s failure to preserve footage before and after the accident indicated bad faith. Id. See also Baynes, 2011 WL 2313658 (E.D. Pa. June 9, 2011) (finding a spoliation adverse inference warranted when a store retained footage of a fall but discarded footage that may have depicted how long the hazardous substance was present before the fall), and Clark v. Randall’s Food, No. 01-08-00732, 2010 WL 670554 (Tex. App. Houston 1st Dist., Feb. 25, 2010) (finding a supermarket was aware that footage leading up to the incident was relevant to notice issues and had a duty to preserve that surveillance even though the footage showed only a portion of the fall and the floor itself was not visible).
Authentication of Surveillance Video
State v. Cannon, 92 N.C. App. 246 (1988) (citations and internal quotation marks omitted), rev’d on other grounds, 326 N.C. 37 (1990) [parallel citations omitted].
When reviewing the foundation for admissibility of a video recording, our precedents have defined three significant areas of inquiry: “(1) whether the camera and [recording] system in question were properly maintained and were properly operating when the [recording] was made, (2) whether the video [recording] accurately presents the events depicted, and (3) whether there is an unbroken chain of custody.” State v. Mason, 144 N.C. App. 20 (2001) [parallel citations omitted].
The court then explained why it viewed the recording in this case as inadequately authenticated. First, it emphasized that although the loss prevention manager had testified that the recording system was “working properly” on the date in question, he wasn’t at the store on that day and wasn’t in charge of maintaining the system. Second, the court noted that there was no evidence of the chain of custody of the video between the time it was burned to a CD and the time it was shown at trial. The loss prevention manager testified that the video shown at trial was the same one he had viewed shortly after the incident, but the court ruled that this was insufficient.
State v. Cook, 218 N.C. App. 245 (2012), where the court ruled that a surveillance video recording was properly authenticated by a facilities manager who appeared not to have been on duty at the time the recording was made, who testified that he didn’t “know anything” about how the recording system worked, and who acknowledged that the system was operated by a third party. The principal evidence of authenticity in the case was the manager’s testimony that “he viewed the surveillance video as [a] technician made a copy of the footage immediately following the incident, and further testified that the footage presented in court was the same as that which he viewed when the copy was being made from the surveillance system’s server a few days after the theft.” Such testimony appears to be very similar to the testimony that the Snead court found inadequate, suggesting that the law in this area may still be evolving.
Expert Video Witness
It is not sufficient to take video evidence into court, hit ‘play’ and assume that the jury will fully understand what they are seeing. To ensure that they do, you need to have the video explained to them by one or more qualified expert witnesses.
The reason: “Relying on video evidence without expert interpretation risks failure to reach the correct conclusions based on the evidence or worse, reaching the wrong conclusions. “Expert analysis and interpretation will assist in understanding the impact of such technical and practical issues as multiple camera views, frame rated, aspect ratios, compression, the tracking of people, vehicles and objects, and the alignment of audio to video images.”
“The Supreme Court of Canada, recognized and endorsed the analysis of video evidence at the image by image level, clearly accepting that merely playing surveillance video evidence will not maximize the value of such evidence,” A properly trained and qualified expert will have spent many hours examining the video evidence and can assist the Trier of fact in appreciating not only the overall events that are depicted but the fine details that are often otherwise overlooked or misunderstood.”
Admissibility of Surveillance Video
The purported evidence is relevant to the ultimate fact to be proved and the extent to which it weighs on the probability of that fact.
Probative versus Prejudicial
A long-time crime scene videographer with the Texas Department of Public Safety, who documented the Branch Davidian compound in Waco where 76 people died, including 20 children and two pregnant women. Even in this horrific carnage, he shot his video in a methodical, factual and non-sensational manner. “I am not trying to make an impact with my footage, save the actual impact of what is being shot,” he explains.
There’s a very good reason why he and other crime scene shooters resist the temptation to shock their viewers: They know that if their video is too upsetting to the viewer, it could be ruled as prejudicial by the judge, and not allowed as evidence.
“The key is striking the balance between probative value and prejudicial effect,” says Goldstein. “If the video is too gruesome, even if it accurately portrays the crime scene, it can be excluded by the trial judge on the grounds of being overly prejudicial.
The reason is that the graphic nature of the video affects the jurors’ emotions, ‘arouses the sympathy and passions of the jury,’ and biases their impressions, which is precisely what the trial judge is trying to avoid.”
On the other hand, some crime scenes are unavoidably gory by nature. As a result, they cannot be ‘cleaned up’ to spare the jury’s feelings for fear of compromising the evidence.
So how do you strike the balance; either in the Crown or Defense roles? “An over-riding test for admissibility provides that the probative value of the evidence must outweigh the prejudicial effect,”
“‘Prejudice’ in this context means evidence that may operate unfairly against the defendant or that may be used incorrectly by the Trier of fact. Video evidence that is graphic in nature is not excluded for that reason alone. It depends on the issues in the case and the purpose for which the video evidence is tendered.”
Video Enhancement
Police call it ‘The CSI Effect’: It’s the expectation on the part of some judges and juries that fuzzy video evidence can be infinitely resolved down to the smallest detail; just like the Hollywood detectives do on TV’s CSI: Crime Scene Investigation.
In real life, this doesn’t happen. It is possible to enhance the brightness, contrast, and color of a video image to bring out more detail by using computer programs such as Ocean Systems’ dTective. It must also be noted that dTective can also clarify an image by removing video noise and graininess, revealing details hidden beneath. But that’s about it.
However such “enhancement” comes with a risk: The more you enhance video, the more the admissibility of your final product can be challenged in court on the ground that the image has been altered and is no longer accurate or fair.
“I see this as a before-and-after situation.. “You need to bring both the original un-enhanced (source) video — the before — and the enhanced (altered) version — the after — to court, so that the judge and jury can see what you’ve done and hear you explain why you did it. This may forestall an objection from opposing counsel.”
Disclosure of Surveillance Video
With today’s improving technology, surveillance is a very effective tool in defending personal injury lawsuits. The disclosure of video surveillance plays a very important role in such cases. Surveillance can corroborate or refute testimony about extent of an injury. surveillance can be used at trial in two different manners. When used as “impeachment”, the defense uses surveillance during cross-examination of the plaintiff or one of her witnesses. When used as “direct evidence”, a defendant uses surveillance video as substantive evidence in its own case-in-chief. Generally, substantive evidence can form the foundation of the opinion of an expert witness who, based on the activity demonstrated in the video, opines on a person’s ability to work or perform activities of daily living. Impeachment evidence erodes a witness’ credibility. The value of surveillance is its ability to rebut false or exaggerated claims of disability or dysfunction. If video is revealed before trial, the images can keep the plaintiff honest on the witness stand, but defendants would often prefer to introduce the footage to expose - rather than prevent - a lie.
Increasingly, however, weather used as impeachment or as direct evidence, courts require that surveillance must be disclosed before it is used at trial. Some judges require disclosure even if the adverse party hasn’t asked about surveillance. The question for defendants is when should the surveillance be disclosed to the opposing party? When is the disclosure too late?
“The need to know is but the converse of need to keep secret. The only time there will be a substantial need to know about surveillance will be in those instances where there would be a major discrepancy between the testimony the plaintiff will give and that which the footage would seem to portray. By the same token this would be the only instance where there is a substantial need to withhold that information from plaintiff’s counsel.” Snead v. American Export-Isbrantsen Lines, Inc., 59 F.R.D. 148, 151 (E.D. Pa. 1973)
Historically, the federal courts have required a party to disclose the existence of surveillance tapes during discovery, even if they were not going to be used by the defense at time of trial. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973); DiGiacobbe v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-534, 1987 U.S. Dist. LEXIS 4029 (E.D. Pa. 1987); Carlton v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-5215, 1987 U.S. Dist. LEXIS 1675 (E.D. Pa. 1987); Gibson v. The Nat’l Railroad Passenger Corp., 170 F.R.D. 408 (E.D. Pa. 1997); Williams v. Picker Internat’l, Inc., No. 99-3035, 1999 U.S. Dist. LEXIS 19107 (E.D. Pa. 1999). Furthermore, the federal courts historically have required defense counsel to provide a copy of the surveillance video to opposing counsel if defense counsel intends to use the surveillance video at trial. Failure to turn over the surveillance video results in preclusion of its use at trial. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973); DiGiacobbe v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-534, 1987 U.S. Dist. LEXIS 4029 (E.D. Pa. 1987); Carlton v. National Railroad Passenger Corp., Memorandum Opinion, No. 86-5215, 1987 U.S. Dist. LEXIS 1675 (E.D. Pa. 1987); Gibson v. The Nat’l Railroad Passenger Corp., 170 F.R.D. 408 (E.D. Pa. 1997); Williams v. Picker Internat’l, Inc., No. 99-3035, 1999 U.S. Dist. LEXIS 19107 (E.D. Pa. 1999). However, disclosure and production are not required until after the defense has the opportunity to depose the plaintiff regarding his injuries and disabilities. See, e.g., Snead, 59 F.R.D. 148.
In Snead, defense counsel in a personal injury action refused to answer plaintiff’s interrogatories regarding the existence and nature of motion pictures taken of the plaintiff and information about the date, time and recorder. Snead, 59 F.R.D. at 149. In addressing whether defense counsel should be compelled to respond to the surveillance interrogatories, the court turned to the Federal Rules of Civil Procedure. Specifically, the court examined whether video surveillance would be privileged under Federal Rule of Civil Procedure 26(b)(3), which provides, in pertinent part:
a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Before any of these disclosures, however, the defense must be given an opportunity to depose the plaintiff fully as to his injuries, their effects and his present disabilities. Once his testimony is memorialized in deposition, any variation he may make at trial to conform to the surveillance films can be used to impeach his credibility, and his knowledge at deposition that the films may exist should have a salutary effect on any tendency to be expansive. At the same time, if the plaintiff believes that the films seem to give a false impression, he can then obtain the necessary data to serve as a basis for cross-examination. Id. The court further ruled that such disclosures should be made “as close to the time of trial as possible, but before the final pre-trial conference”. Id. The Eastern District has further interpreted the Snead rule as not requiring a second deposition as a condition for production of surveillance video where the defense already has had the opportunity to depose the plaintiff regarding his injuries. See Carlton v. National Railroad, Memorandum Opinion, No. 86-5215, 1987 U.S. Dist. LEXIS 1675 at *4.
The United States District Court for the Middle District of Pennsylvania recently voiced its opinion on the discoverability of surveillance videos under the Federal Rules of Civil Procedure. Evan v. Estell, No. 3:99-1986, 2001 U.S. Dist. LEXIS 14949 (E.D. Pa. Sept. 18, 2001). The court precluded the defendant in a personal injury action from introducing surveillance video of the plaintiff as substantive evidence at time of trial since defense counsel failed to produce the video prior to trial. In Evans v. Estell, the court imposed discovery deadline was September 30, 2000. Nearly one year later, on September 5, 2001, the defendant advised the plaintiff of the existence of the surveillance video, but refused to produce same until given a second opportunity to depose the plaintiff regarding any intervening changes in plaintiff’s physical status since the completion of the initial discovery deposition. Evan v. Estell, Memorandum Opinion, No. 3:99-1986, 2001 U.S. Dist. LEXIS 14949 at *2. In this regard, the defendant argued that since he only intended to use the video, which was taken some time subsequent to the initial deposition, for impeachment purposes, precluding him from taking a second deposition as to intervening physical changes would diminish the film’s impeachment value. Id. at *2-3. The court disagreed.
There appears to be a unanimity in the federal and state courts with respect to the discoverability of video surveillance materials. Regardless of whether a defendant intends to use the surveillance tapes as substantive evidence, for impeachment purposes, or for no purpose at all, he is required to disclose the existence of such materials to opposing counsel. He is furthermore required to provide a copy of the surveillance materials if he actually intends to use the materials as either substantive or impeachment evidence at time of trial. However, before any disclosure or production is required, the defense must be given the opportunity to fully depose the plaintiff regarding his injuries. If defense counsel has not had the opportunity to explore damages by deposition, it is still questionable whether a second discovery deposition limited to damages will be required before disclosure. As a general rule, disclosure is advisable once damages have been explored through deposition.
References
- Current practices in electronic surveillance in the investigation of serious and organized crime - United Nations Office on Drugs and Crime, New York, 2009 - extracted on July 5, 2015 from https://www.unodc.org
- Legal Implications of video recording devices in hospitals - Craig Carter, Jackson & Carter, PLLC - extracted on July 5, 2015 from http://www.thie.com
- Disclosure of Video Surveillance by Kevin C. Cottone Executive Newsletter White and Williams LLP Summer 2005
- Video Surveillance in Nursing Homes – Consider the Risks by Jennifer Forsyth, Gordon & Rees LLP, published on Colorado Health Care Blog - CMS Nursing Homes Regulatory Guidance.
- Correctional Service Canada - Commissioner’s Directive 568-8 in effect 2013-11-18 - extracted on July 5, 2015 from http://www.csc-scc.gc.ca
- Office of the Privacy Commissioner of Canada - Guidelines for the Use of Video Surveillance of Public Places by Police and Law Enforcement Authorities published on March 2006 and extracted on July 5, 2015 from https://www.priv.gc.ca
- CBA PracticeLink - Video Evidence by James Careless - extracted on July 5, 2015 from http://www.cba.org
- Video Preservation - Caught on Camera— Now What? Practical and legal considerations for the premises owner conducting routine surveillance. By Alexandra Stevens Terry published on February 2013 and extracted on July 5, 2015 from http://www.starneslaw.com
