Robert S. Kelner and Gail S. Kelner
Robert S. Kelner and Gail S. Kelner (NYLJ/Rick Kopstein)

Nowadays, security films are so commonly being used by landlords and businesses that many tort cases are “on film.” What the jury sees will clearly trump what they hear from witnesses. These films may become critical evidence unless they are accidentally or intentionally destroyed by the party possessing them.

When a party negligently or intentionally destroys key evidence, depriving a non-responsible party from being able to prove his claim, the responsible party may be sanctioned for the spoliation of evidence. If the non-responsible party is totally deprived of the opportunity to prove its case by the loss of the evidence or in some way impeded, sanctions may range from striking a pleading to a lesser sanction such as permitting a jury to draw a negative inference from the destruction of the evidence.

Security footage may frequently have a fleeting life cycle where the tape is routinely overwritten on a periodic basis, such as 21 or 30 days, so that the tape may be reused. Spoliation sanctions may be imposed even when the failure to prevent the automatic erasure of relevant recordings was negligent rather than willful, provided that the spoliator was on notice that those recordings would be relevant to anticipated litigation and should have been preserved. It is essential for counsel to take active steps to properly demand such recordings as early as possible to ensure that they are preserved.

It is also important to carefully draft the notice to preserve these recordings such that the demand is broad enough in its scope to protect against the unwarranted destruction of vital evidence. The courts have examined the common law doctrine of spoliation and sanctions under CPLR 3126 specifically as it applies to the destruction of audio and video surveillance tapes, most recently in Dulac v. AC & L Food Corp., 2014 WL 3360328 (1st Dept. July 10, 2014).

Notice to Preserve

Preservation and spoliation of video footage were previously examined in Gogos v. Modell’s Sporting Goods, 87 A.D.3d 248, 926 N.Y.S.2d 53 (1st Dept. 2011), where plaintiff fell on a slippery condition in defendant’s premises. After initiating litigation and prior to deposition of defense witnesses, plaintiff made a demand for surveillance tapes showing the accident site and then obtained a court order for this footage. Defendant failed to comply. Thereafter, the store general manager testified at his deposition that, in general, a tape for a particular day would effectively be destroyed in the ordinary course of business by being reused 30 days later.

What was significant in this case was the manager’s testimony that the procedures for retaining videotapes on uneventful days differed from the procedures on days when a patron was injured on the premises. The manager testified that the videotape for the particular accident date in Gogos was in a safe at the store. Thus, his testimony verified that the tape was still extant after the court order was issued. After the deposition, however, defendant’s president stated in a subsequent affidavit that defendant no longer retained the tapes and there was no relevant footage of the accident site.

The court rejected the self-serving affidavit and found that the surveillance materials were spoliated after defendant was put on notice to preserve and produce the tapes by both the court order and plaintiff’s notice to produce. It upheld the trial court’s sanction of directing that an adverse inference charge be given against defendant at trial. The Appellate Division, First Department, stated that the “subsequent destruction of the tapes was a direct violation of the mandate of the court and deprived plaintiffs of the opportunity to view possible material evidence.”

The Gogos court further held:

Plaintiffs were entitled to inspect the tapes to determine for themselves whether the area of the accident was depicted. They should not be compelled to accept defendant’s self-serving statement concerning the contents of the destroyed tapes, particularly in view of the conflicting evidence in this case.

Given the often short life of security footage, Gogos illustrates the importance of early service by counsel of a notice on the property owner or tenant to preserve any such recordings and early court intervention if needed. It is essential that the demand be broad enough to impose an obligation on a property owner to preserve all potentially relevant recordings, and not just short clips. There should be a realization that there may be multiple cameras which may show different angles and different locations. The demand should be comprehensive and specifically tailored to the particular case and the particular premises involved.

Gogos also demonstrates the importance of obtaining during discovery either documentation and/or testimony concerning the business practices with respect to the retention of footage and not merely accepting a representation that all tapes are overwritten after a finite period of time.

Defendant’s Knowledge

Because of the short life cycle of audio and video tapes, it is not always possible to serve a notice to preserve within the period of time before the tapes are recycled. Thus, it is frequently important to show that defendant knew or should have known that litigation was likely and, as such, had an obligation to preserve footage that was germane to the impending litigation.

In Strong v. City of New York, 112 A.D.3d 15,973 N.Y.S.2d 152 (1st Dept. 2013), a city police vehicle collided with a private car, then mounted the sidewalk and struck pedestrians. Plaintiff demonstrated that defendant city negligently failed to halt the automatic deletion of a specific audio recording which was relevant to the accident, despite the fact that it was on notice of impending litigation.

Plaintiff Kevin Strong had filed his notice of claim and served an order to show cause to compel the city to provide copies of Sprint reports, radio calls, and the call log for the 30 minutes preceding the accident. After suit was commenced, the city interposed an answer asserting an “emergency operation” affirmative defense asserting that it could only be held liable for reckless disregard for the safety of others. The recordings, which were never produced, could have either confirmed or called into question the city’s defense.

In subsequent proceedings, a city witness claimed that any recording of communications between a patrol unit and its commanding officer would be maintained for 180 days and then deleted. As such, she could not locate any such recording. She testified that any such audio run would have been deleted 180 days after the date of the accident.

The court held in Strong that the negligent erasure of audiotapes could give rise to the imposition of spoliation sanctions if the alleged spoliator was on notice that the tapes might be needed for future litigation. It was very clear in this case that the city was on notice within the 180-day time period that the recording might be important in impending litigation.

Plaintiff’s notice of claim, his 50-h hearing, and defendant’s answer alleging an affirmative defense which would have strongly relied upon the missing tape all occurred within the 180-day period. The court determined that the city was clearly on notice that the recording might be needed for future litigation before it was erased. It held:

The City therefore had the obligation to take steps to prevent the automatic erasure of any audio recording from that incident, and its failure to do so constituted spoliation.

As such, the city could not introduce testimony of the contents of the tape in support of its affirmative defense. The court further held that, if warranted, an adverse inference charge at trial might be an appropriate additional sanction.

‘Dulac’ and Duty to Preserve

The duty to preserve video footage was construed far more restrictively in the very recent decision in Dulac v. AC & L Food, 2014 WL 3360328 (1st Dept., July 10, 2014). This decision makes it clear that even if a notice to preserve is served early in the case, the demand to preserve security footage must be comprehensive and specific to the facts in the case. In Dulac, there was a striking disagreement between the majority decision and the dissent of Justice David Saxe over the breadth of the demand made by plaintiff and the scope of defendant’s obligation to preserve records.

In Dulac, plaintiff fell on defendant’s premises. One week later, plaintiff’s counsel sent a notice to defendant “to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident” on the date and time in question. This notice was received by defendant’s employee in charge of these recordings within a 21-day window before the tapes would be overwritten.

After reviewing the tapes from all of the cameras, she chose to preserve only an 84-second portion of tape from one camera that depicted plaintiff’s accident, starting from one minute preceding her fall and sent a copy of this clip to defendant’s insurance carrier. She claimed that after a search of all cameras, the 84-second portion of the one camera tape was found to be the only footage depicting the accident. She further stated that the insurance carrier never asked her to send anything more than the short clip of the accident.

Additionally, she testified that the computer system in use at that time automatically erased all footage every 21 days due to limited storage capacity. She also stated that the system later broke and was replaced but did not know when the old system had been discarded.

Subsequently, after the expiration of the 21-day window, plaintiff’s counsel expanded his demand to six hours of footage leading up to the accident, for all 32 cameras in the store. After completion of discovery, defendant moved for summary judgment, asserting that it did not have notice of the condition which caused plaintiff to fall.

Plaintiff cross-moved for sanctions for spoliation of the tapes. However the motion court rejected plaintiff’s contention that defendants should have preserved six hours of footage from all 32 store cameras. The Appellate Division, First Department, in its majority decision, agreed, holding that was an unreasonable burden on property owners and lessees to preserve hours of tapes indefinitely each time an incident occurs on its premises “in anticipation of a plaintiff’s request for them.” The court held plaintiff to the strict confines of the original demand made within 21 days before the tapes were overwritten “to preserve any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident” on the date and time in question. The court noted that this was only later expanded to six hours of footage prior to the accident for all 32 cameras. The portion of the footage that was retained was responsive to the original demand.

The court referred directly to its earlier decision in Gogos in noting that although a plaintiff is entitled to inspect tapes to determine whether the area of an accident is depicted and not be compelled to accept defendant’s self-serving statement as to the contents of destroyed tapes “this principle does not translate into an obligation on a defendant to preserve hours of tapes indefinitely each time an incident occurs on its premises in anticipation of a plaintiff’s request for them.” The court determined that this placed an unreasonable burden on property owners and lessees.

The majority did observe that although it might have been better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants. The court determined that it would be unfair to penalize defendant for not anticipating plaintiff’s additional request.

There was a vigorous dissent by Saxe. After examining prior First Department cases such as Gogos and Strong, he opined that defendant failed in its obligations in several respects. First, the footage that was retained was insufficient. Defendant only preserved a limited clip and failed to retrieve and preserve other footage, from other angles which would have shown the condition of the floor where plaintiff fell and activities in that area during the time preceding the accident. The seconds of footage which defendant retrieved for preservation did not even show the spot on the floor on which plaintiff slipped. He further stated that defendants read plaintiff’s original demand too narrowly and should have retained far more than the 84-second clip in response to it:

The second was the failure of defendant’s insurer or its attorney, who are chargeable with the knowledge that the store’s legal obligation included not only the preservation of that single 84-second clip, but any recording by any of the store’s surveillance cameras from the period leading up to plaintiff’s fall showing the area of the floor on which she fell. We would expect counsel to recognize the applicability of the rule of Gogos requiring preservation of tapes for inspection, and to ensure that defendant’s employee properly fulfilled that obligation. The wording of plaintiff’s demand for “any and all video recordings/surveillance tapes/still photos of any nature that depict the subject slip and fall accident” does not justify the employee’s reading plaintiff’s demand so narrowly as to limit her task to copying only one clip of footage that recorded plaintiff falling.

Testimony

It is important to ensure that when video or audio recordings are provided that they have not been redacted or altered. A party may be precluded from entering the redacted video into evidence or having a witness testify to its contents. New York City Hous. Auth. v. Pro Quest Sec, 108 A.D.3d 471, 970 N.Y.S.2d 21 (1st Dept. 2013). There may be more than one camera taking pictures from different angles and a demand for videos should request preservation of all videos from all cameras being used which have footage relevant to the litigated event. When a videotape is missing, there may be an issue as to whether there may be admissible testimony on the contents of the tape from a person who viewed the tape before it was destroyed. There are cases where such testimony has been allowed.

In Suazo v. Linden Plaza Associates, 102 A.D.3d 570, 958 N.Y.S.2d 389 (1st Dept. 2013), defendants’ failure to halt the automatic erasure of a surveillance tape was found to constitute spoliation. However, the sanction was an adverse inference charge rather than striking the answer as plaintiff could present testimony of two deponents who viewed the video to establish liability.

In Tomasello v. 64 Franklin, Inc., 45 A.D.3d 1287, 845 N.Y.S.2d 643 (4th Dept. 2007), the court concluded that an adverse inference charge against defendant was an appropriate sanction for the spoliation of a surveillance video. The court did afford plaintiff the opportunity to depose the individuals who viewed the surveillance videotape in question without ruling upon whether the contents of the videotape would be admissible at trial. However, in Sada v. Kohl’s Dept. Stores, 79 A.D.3d 1121, 913 N.Y.S.2d 567 (2d Dept. 2010), defendant was precluded from offering any evidence or testimony about the contents of a missing surveillance videotape.

In our Orwellian present, a picture is worth a thousand words. Counsel must remember that audio and video tapes may produce the most critical evidence in their case.