The Spoils of Video Evidence

by Rachel L. Stewart, Esq.

Edited by Brian A. Cafritz, Esq.

There is possibly no clearer evidence of how an accident happened than that of video.  While many retail and restaurants utilize video to deter theft or other possible criminal activity in their establishments, the retention of store video footage is often the source of many fights in litigation.  Plaintiff’s counsel often attempt to use an establishment’s surveillance video in support of their case, and if it is not preserved, argue that the failure to preserve such evidence justifies spoliation instructions to the jury.  Below we discuss how to protect yourselves from such claims and how our knowledge and experience with such issues and applicable law can help you.

If your establishment utilizes video surveillance cameras, it is important to establish a procedure for securing such video if an incident occurs in your store or restaurant.  While a camera may not have actually been located in the vicinity of the area where an incident occurred, plaintiff’s often believe there was a camera due to observation of fake or dummy cameras and will later make a claim that the retailer or restaurant failed to preserve such evidence.  Accordingly, when an incident occurs, if no camera actually captured the incident, a record should be made that video surveillance of the incident was not captured, and if a fake or dummy camera is located near the incident, it should also be noted to avoid potential claims of destruction or failure to preserve.  This is especially helpful if the plaintiff does not file a lawsuit for several years given the applicable statute of limitations (three years in Maryland and D.C. / two years in Virginia and West Virginia).  Moreover, camera locations or active cameras can change from the time of the incident to the time of filing or investigation of the claims during the pendency of the lawsuit.

While capturing the incident on video may be important to refute or establish evidence of how the incident occurred, attempts should be made to preserve video of the customer entering the store, their actions while inside the store, and exiting the store.  Such evidence can be used to establish a time line of the plaintiff’s activities, especially if the incident was not immediately reported by the customer.  For example, if the customer came in to the store limping and subsequently claimed he slipped and fell in the store causing an injury which resulted in a limp, the video evidence can be used to place doubt on the cause of plaintiff’s claimed injury.  Further, if the severity of the injury seems to change from what was observed at the time of the incident, video evidence of the plaintiff having no sign of injury while shopping in the store after the incident can be used to place doubt on the injury.

In Maryland, neither the existence of nor the actual surveillance evidence of a plaintiff has to be disclosed to the opposing party until after the plaintiff’s deposition has been taken.  See Shenk v. Berger, 86 Md. App. 498 (1990).  Accordingly, while the video surveillance should be properly preserved as soon as notice of the incident or claim is made, a party can wait until the plaintiff, under oath, has provided his or her version of what occurred in the store before a defendant has to reveal the video giving defendants a better opportunity to impeach the plaintiff with the video evidence.  Therefore, if you receive a request from a claimant’s counsel for video or a letter of notice to preserve the video, you are not required to provide it to the claimant or his/her counsel and may be in a better position to withhold the video evidence until the plaintiff has filed suit and his/her deposition has been taken.

Finally, plaintiff’s counsel often try to use the failure to preserve video evidence by seeking a court to instruct the jury that the defendant spoliated evidence and thus the jury may or must infer that the evidence was unfavorable to the defendant.  The ability to obtain a spoliation instruction rests first on proof that the evidence previously existed.  Maryland’s appellate courts have not addressed the issue of a failure to preserve video evidence or how much video to preserve in the context of the granting of a spoliation instruction.  While a failure to follow one’s own procedure for safety in a store may be evidence of negligence under Maryland law, arguably, preservation of video surveillance in a retail or restaurant is not a safety procedure, but rather, a claim handling procedure.  Thus, it should not be entitled to the same consideration in determining the availability of a spoliation instruction as the destruction of an item related to the incident itself.  If your business has encountered issues with the preservation or use of video surveillance evidence in litigation or claims, the attorneys at KPM are here to help you navigate and defend them.

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