Surveillance cameras in public spaces, not long ago the stuff of sci-fi films and Orwellian visions, have now become commonplace. Today, one would be surprised indeed to learn that the security protocol of a major department store or supermarket chain did not include surveillance; ubiquity of cameras has affected our world in ways both meaningful (identification of the Boston Marathon bombing suspects) and trivial (the online videos kids watch while putting off their homework), and litigators have increasingly utilized surveillance camera footage of the events that form the basis of the litigation. While courts have long considered surveillance footage to be appropriate, and in many cases even the “best,” evidence, what happens when an event should have been captured by surveillance cameras, but the footage is not (or has not been made) available?
Most businesses and security providers routinely destroy or discard footage after a given period of time. There is little controversy that, absent pending litigation or notice of a specific claim, surveillance footage may be destroyed or discarded by a party in good faith and pursuant to its normal practice and procedure, Conderman v. Rochester Gas & Elec., 262 A.D.2d 1068, 693 N.Y.S.2d 787 (4th Dept., 1999). Where, however, a party is on notice of potential legal action or has been served a notice to preserve the footage, any intentional or negligent destruction of footage will normally result in spoliation sanctions. Striking of a pleading or preclusion of claims or defenses has, however, generally been considered too harsh a remedy; instead, courts typically direct that an adverse inference be charged at trial, Mendez v. La Guacatala, 95 A.D.3d 1084, 944 N.Y.S.2d 313 (2d Dept., 2012); Minaya v. Duane Reade International, 66 A.D.3d 402, 886 N.Y.S.2d 154 (1st Dept., 2009).
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
