The Obligation to Preserve Footage from Surveillance Cameras

Surveillance cameras are everywhere these days, including the retail environment.

Surveillance technology allows retailers to monitor their premises more thoroughly than ever, thereby enhancing security. At the same time, however, the increased security comes with legal obligations that are still evolving and may vary depending on the jurisdiction.

For example, when must retailers preserve surveillance footage? Many courts have held that a duty to maintain footage begins when the possibility of litigation is “reasonably foreseeable.” Courts have looked at a number of factors in determining when litigation is foreseeable, including whether an accident report was prepared. Other courts have held that the duty to maintain footage does not arise until the footage is requested or a lawsuit commences.

A second question a retailer might face is how much surveillance footage must be preserved? Courts have held that all “relevant” footage must be preserved. But what footage is relevant? Courts have consistently found that the footage which shows conditions before an incident may be relevant to provide context and should be saved. This may be just a few minutes of footage, but also could be much longer in, for example, a case where a fire began at some unknown point overnight. Where multiple cameras record an incident, footage from all angles might be relevant and should be kept. Judges may be skeptical when a party who controls the surveillance footage independently determines what footage is relevant and deletes some footage before the court or opposing parties are able to view it.

What happens if a court determines that surveillance footage was improperly destroyed by a party to litigation? The consequences vary depending upon the seriousness of the violation and the importance of the evidence. A common sanction is directing the jury to assume that the destroyed footage would have been adverse to the party who destroyed it. In more serious instances, courts might prohibit the party that destroyed the footage from introducing some of its evidence, assess fees against that party, and even enter a judgment in favor of the other party.

Since surveillance footage can be valuable evidence, possessing it often creates an obligation to preserve it. Failure to properly secure and preserve footage could cost a party a case. Accordingly, retailers and others who employ surveillance technology should consult with legal counsel before destroying any footage that could potentially become relevant in a legal proceeding.

Related topics: Litigation, Retail