Not long ago, I saw a football player working out hard in a gym during the offseason. He was wearing a t-shirt that read, “Championships are won in the offseason.” I found the sentiment profound and surprisingly applicable to the defense of personal injury cases. Our cases are often won or lost before a lawsuit is ever filed, depending on how our client preserves the evidence, most importantly video.
Video cameras are everywhere these days. Surveillance cameras are in most commercial and residential establishments, dash cams are in most commercial vehicles, and social media is everywhere. There is no better evidence of what happened in an incident than video capturing the incident. Without video, we may not have a witness to rebut plaintiff’s claims. However, due to system limitations, video is often copied over if it’s not immediately preserved. In such circumstances, failing to preserve this critical evidence not only deprives us from potentially dispositive evidence, it may subject us to unwarranted liability just because we didn’t preserve it.
New York, and most other states, have a “spoliation of evidence” rule. In a nutshell, the rule allows a Judge to sanction a party for failing to preserve the video, whether the failure to preserve was intentional or just by accident. The sanction takes different forms, but most frequently results in the trial Judge advising the jury that they may infer that the restaurant did not preserve the video because it did not support their position. This “negative inference charge” will be compounded by inflammatory arguments made by plaintiff’s counsel, which are difficult to overcome. What are they hiding?
So when should we preserve video? If one of your workers becomes aware of an allegation of an incident in your establishment or the abutting sidewalk, even if plaintiff doesn’t appear injured, copy and save the video. If an incident report is prepared, the video must be preserved. If the police or an ambulance responds, the video must be preserved.
How much video should be preserved? The general rule of thumb is to preserve at least 30 minutes before and 30 minutes after the incident. If plaintiff claims she slipped because the floor was wet, we need at least 30 minutes before to see what, if anything, made the floor wet, and when. If a worker mopped or conducted a travel path shortly before the incident, that’s valuable evidence.