A recent case published in the New York Law Journal illustrates the importance of personal injury lawyers promptly demanding that surveillance videos be preserved. Surveillance cameras are virtually everywhere now: In our streets, stores, businesses, banks, schools and traffic lights. So almost every time a new case comes into your office, your first thoughts ought to be, “might there be surveillance videos? Who might have them?”
The importance of promptly demanding that surveillance tapes be preserved is illustrated in the recent case of Rodriguez v City of New York. In that case, a child was assaulted at school. The victim’s lawyer claimed the school provided negligent or insufficient supervision, thus facilitating the attack. After suit was commenced, during the deposition of one of the school employees, the employee testified that she had reviewed a surveillance video taken the day of the incident. She claimed it did not show the attack, but did show kids leaving the school.
Right after the deposition, the injured child’s attorney sent out a “Notice for Discovery and Inspection” demanding a copy of the surveillance video. The School’s lawyer sent a response indicating the video had been automatically taped over about 60 days after the incident and that, in any event, it had not shown the attack.
The plaintiff’s lawyer moved for sanctions against the defendant, arguing that the video would have, at the very least, shown the amount of supervision going on as the students left the school.
While the judge faulted the School for having failed to preserve the video when it knew litigation was afoot, the fact that the video was destroyed BEFORE plaintiff’s attorney asked that it be preserved certainly did not help plaintiff’s argument that the defendant should be severely punished for having allowed the video to be over-written. The judge refused to preclude defendant’s defense of the case, and instead meted out the less severe sanction of charging the jury that it could draw an “adverse inference” from the fact that the School let the video be taped over. The judge also noted that, if the video-tape had shown the attack itself, he might have issued a more severe sanction because the loss of that evidence would have more seriously prejudiced the plaintiff’s case.
Moral of the story: As soon as you represent an injured plaintiff, think about whether the incident happened in an area where there might have been surveillance cameras (almost everywhere these days!) and immediately send out a letter asking that all surveillance videos be preserved.
By the way, the “adverse inference” charge to the jury will read something like this:
Plaintiff claims that defendant has failed to produce in court a surveillance tape and that defendant has failed to offer a reasonable explanation for not producing it. Defendant claims that the video did not show the incident itself, but merely showed students exiting the school, and that the video was inadvertently taped over. If you believe that defendant has not offered a reasonable explanation for having failed to preserve the video, you must decide what weight it would have had in your deliberations, if any. If you find that the video would have been important or significant in your deliberations, you may, but you are not required to, conclude that if it had been produced it would have supported plaintiff’s position on the issue of lack of adequate supervision.
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Michael G. Bersani, Esq.
michaels-smolak.com Central and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.