Risk Management Tips for the Preservation of Video Surveillance

By April C. W. Collins, Esq.*

Retail locations often utilize video surveillance for anti-theft and loss management purposes. These videos tend to be useful in circumstances of potential liability, including the capture of slip-and-fall and/or trip-and-fall incidents. These videos often assist defense counsel in defending a negligence action. Retail locations differ in the type of video surveillance equipment utilized, and, if not acted upon quickly, video surveillance of an incident may be lost or recorded over.

How does risk management know when to preserve video surveillance?

Florida courts have held that video surveillance should be preserved when a defendant is either notified of a claim or can reasonably foresee that a claim will be made. When determining whether or not a claim is reasonably foreseeable, risk management should take into consideration the type of incident and alleged injuries resulting from that incident. For example, if a customer slips and falls and sustains a broken arm that requires an ambulance and transport to the hospital for treatment, one could reasonably infer the customer may bring an action for damages. At that point, the video surveillance of the incident should be preserved.

It is important to note that, many times, a customer will assure a retailer that he or she is uninjured on the date of the incident, only to later make a claim for injuries after consulting with an attorney. If an incident is reported to risk management, every effort should be made to preserve video surveillance in the event a claim does ultimately arise. If video surveillance is not preserved when a defendant has been found to have had the duty to do so, the plaintiff may then assert a claim for spoliation (destruction or loss) of evidence. In determining whether spoliation exists, courts takes into consideration whether: “(1) the evidence existed at one time; (2) the spoliator had a duty to preserve the evidence; and (3) the evidence was crucial to an opposing party being able to prove its prima face case or defense.” Osmulski v. Oldsmar Fine Wine, Inc., 93 So. 3d 389, 392 (Fla. 2nd DCA 2012), citing Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006), citing Jordan ex. Rel. Shealey v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002). A spoliation finding could cause a defendant to suffer adverse consequences in litigation and the defense of a claim to be negatively impacted.

Tips for preservation

As soon as an incident is reported by a retailer to risk management, the following steps should be taken to preserve the video surveillance:

• If video surveillance is recorded in-house at the particular retail location, risk management should: (1) advise the appropriate retail personnel to immediately take steps to prevent the loss or destruction of the video; (2) have the pertinent portions of the video copied onto a CD or DVD; (3) have the appropriate viewing software copied; and (4) have a copy of surveillance and software forwarded to risk management.
• If video surveillance is recorded at a corporate office, risk management should take the necessary steps to transfer the recording to CD or DVD, along with the appropriate software, so the footage can be accessed in the future.
• Video surveillance should also be preserved, if possible, at the time that a request for preservation is made by the potential plaintiff, or plaintiff’s counsel.

What portion of the video should be preserved?

In addition to preserving footage of an incident, there are also other portions of the video surveillance that should be preserved.

• At a minimum, preserve the portion of the video beginning from the time the customer enters the store and is first seen on the video until the customer exits the store. This portion should include coverage of the alleged incident.
• If possible, preserve the additional portion of the video showing the last inspection of the sales floor prior to the customer’s alleged incident through the time the customer exits the store.
• All camera angles should be preserved, and date and time stamps should be included.

How long should the video be preserved?

All surveillance videos should be preserved until the statute of limitations (time deadline to assert a claim) has expired or the plaintiff’s claim and/or case has concluded.

Work product privilege

In Florida, video surveillance does not enjoy the same protection as an incident report. Normally, an incident report prepared in anticipation of litigation is considered to be protected by the “work product privilege” and is protected from discovery until the defendant determines it will be used as an exhibit at trial. While in-store video surveillance generally does not have the same protection, defense counsel may be able to delay the production of the video until after the plaintiff’s deposition. Delaying the production of the video is a matter of judicial discretion, and the decisions tend to vary from judge to judge. In McClure v. Publix, 124 So. 3d 998 (Fla. 4th DCA 2013), the court held that there was no abuse of discretion by the trial court in permitting the defendant to delay the production of the in-store surveillance video until after the plaintiff’s deposition had been completed. Delaying the production gives the defendant the opportunity to have the plaintiff describe the events of the incident exactly as he or she recalls it, without having the plaintiff’s memory bolstered or influenced.

Again, in-store video surveillance should be preserved as soon as it is reasonably foreseeable that a claim will be made, or once notification of a claim has been received. The video should include, at a minimum, footage of the incident and the necessary viewing software. Preservation of the video surveillance should ensure that the defense of a claim is not hampered by allegations of spoliation.

*April is an associate in our Orlando, Florida office. She can be reached at 407.420.4409 or accollins@mdwcg.com.

Defense Digest, Vol. 20, No. 2, June 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.