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New York Bridge the Gap Session C

Introduction to Video Evidence: Legal Standards and Practical Considerations

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Carmen Giordano

Eric Grimes

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NEW YORK BRIDGE THE GAP SESSION C:

INTRODUCTION TO VIDEO EVIDENCE:

LEGAL STANDARDS AND PRACTICAL

CONSIDERATIONS

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for January 25, 2016

Faculty: Carmen Giordano, Giordano Law Offices, PLLC; Eric D. Grimes, Video Extraction, Inc.

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 4 Transitional and Non-Transitional credit hours: 0.5 Ethics; 3.5 Professional Practice.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 4 hours of total CLE credits. Of these, 1.0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

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Information Regarding CLE Credits and Certification

New York Bridge the Gap Session C Introduction of Video Evidence: Legal Standards and Practical Considerations

January 25, 2016; 5:30 PM to 9:00 PM

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

New York Bridge the Gap Session C Introduction to Video Evidence: Legal Standards and Practical

Considerations

Monday, January 25, 2016 5:30 PM to 9:00 PM

Faculty: Carmen Giordano, Giordano Law Offices, PLLC; Eric D. Grimes, Video

Extraction, Inc.

AGENDA

5:00 PM – 5:30 PM Registration 5:30 PM – 5:40 PM Introductions and Announcements 5:40 PM – 9:00 PM Presentation and Discussion . ***There will be a 10 minute break during the program

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GIORDANO LAW OFFICES, PLLC & VIDEO EXTRACTION, INC.

VIDEO EVIDENCE: LEGAL STANDARDS &

PRACTICAL CONSIDERATIONS

I. INTRODUCTION, VIDEO EVIDENCE, THE GAME CHANGER

The network of governmental and private video surveillance in New York

City, the U.S.A. and the world has increased astronomically. Since 9/11, the number

of surveillance cameras in the city, including those in the New York City Police

Department’s Argus system and in thousands of private systems, has substantially

multiplied the quantity of available video evidence for use in litigation.

Continuous advances in technology have also significantly improved the

quality and types of available video evidence. Despite these quantitative and

qualitative advances, however, attorneys have yet to make maximum use of

available video surveillance materials. The material provided here is designed to

assist attorneys in taking advantage, where beneficial to do so, of perhaps the best

evidence available to prove a case.

Immediate acquisition of available video from both private and governmental

sources is an essential element in developing a case at the investigative stage. Once

obtained, authenticating, or laying a proper evidentiary foundation for, video

evidence is essential.

An overview of applicable rules, procedures and case law relating to various

aspects of use of both private and public video surveillance is provided hereafter.

New York State and federal rules, procedures and case law are discussed. To explain

the importance of rapid action to obtain surveillance video, mechanisms to preserve

and obtain both public and private video surveillance will be reviewed. Substantive

evidentiary issues are explored. Finally, Detective Grimes will cover practical

considerations for attorneys working with investigators and video technicians in the

extraction and obtainment process.

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II. TYPES AND CAPABILITIES OF VIDEO SURVEILLANCE

An increasing number and variety of video surveillance systems are currently

available. In the city, many different types of cameras are used. For example, the

N.Y.P.D. Argus system,1 outdoor long-range, vandal proof, dome, mid-range, indoor

recessed, Infrared or night vision, pan tilt, and zoom surveillance cameras, and

cameras with gunshot detectors, are all common examples of camera types used in

the city.

Surveillance cameras are generally wired into a recording device or IP

network. Automated software, which organizes digital video data into a searchable

database, has made surveillance camera systems far more efficient and less

expensive to install and operate than formerly was the case. Additionally, video

analysis software, including biometric software,2 has increased efficiency for law

enforcement purposes. In addition, many cameras are equipped with motion sensors,

which greatly reduce the volume of collected data, recording only when motion is

detected, thus further increasing the efficiency of surveillance data collection.

Less expensive manufacturing processes and increased simplicity has greatly

contributed to a proliferation of private surveillance systems everywhere.

Additionally, surveillance systems may readily be customized for particular needs

and surroundings.

1 The increasingly ubiquitous white boxes with cameras (approximately 870 citywide to date) are

clearly labeled NYPD security cameras. Each device includes two cameras from the Pelco

Corporation (owned by Schneider Electronic). They are mounted on poles known as a “Tsunami

QuickBridges” manufactured by the Proxim Corporation, which includes a proprietary point-to-

point wireless system. Feeds from the cameras are monitored from a central command center in

New York’s Financial District, which forms part of the “Domain Awareness System”, which was

co-developed with Microsoft. 2 Biometric surveillance in the video surveillance context is generally defined as any technology

that analyzes the physical and/or behavioral characteristics, including facial patterns and walking

manner, of the subject captured on the surveillance. Facial recognition utilizes a person's facial

features to identify them. The Los Angeles Police Department has installed automated facial

recognition and license plate recognition devices in its squad cars, and handheld face scanners.

See: http://www.lapdonline.org/february_2005/news_view/19849

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Detective Grimes, formerly of the N.Y.P.D. Technical Assistance Response

Unit (“TARU”),3 who has extracted and downloaded thousands of private and

government videos over the course of his tenure with TARU, has encountered a

virtually equal number of varying camera and recording configurations, including

systems with magnification capacities approaching 1,500 feet. Night vision or

Infrared (“IR”) capacity is also commonly used in surveillance systems. Generally,

these systems differ in range, infrared capability, indoor or outdoor customization,

IP (internet base), pan and tilt technology, and other variables.

In addition to governmental and private surveillance cameras in interior and

exterior spaces, the significance of private cell phone video recordings has recently

been publicized in a number of high-profile police action cases. Private camera-

equipped drones, with varying configurations and capabilities, present yet another

example of video surveillance.4

There has been a marked increase in cooperation between the private sector

and government since 9/11 and an increasing flow of data to the government from

private sources. See Larry Ellison, Digital IDs Can Help Prevent Terrorism, Wall

Street Journal, Oct. 8, 2001, at A26

3 TARU provides investigative technical equipment and tactical support, including private and

public video extractions, to all NYPD bureaus, as well as other city, state and federal agencies.

TARU also deals with several forms of video and computer forensics. Other activities of TARU

include assistance in hostage negotiations (Detective Grimes operated the mobile hostage

negotiation command center), and recording police and protestors during demonstrations. The

“Handschu Agreement,” however, restricts the recording of protest activities. Unless there is an

indication that unlawful activities are occurring, routine recording of legal protests are prohibited

by the Agreement. 4 © Giordano Law Offices, PLLC.

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Examples of Available & Increasingly Improving Video Surveillance

Technology

A. Biometrics & Facial Recognition Software

According to the National Institute of Standards and Technology (NIST)

2013, testing of facial recognition algorithms showed that the accuracy of the

software has improved as much as 30 percent since 2010, and it is continuing to

improve.

To take one example, “nViso” is a leading provider of emotion recognition

software that interprets human facial micro-expressions and eye movements

captured through video. 3D facial imaging technology with artificial intelligence is

utilized to track hundreds of different facial points to recognize human emotions.

The company combines the latest advancements in computer science, engineering

and behavioral sciences for automatic emotion recognition in video surveillance.

According to nViso, emotions can be precisely recognized by minor changes in

micro-expressions in a person’s face. nViso is based at the Swiss Federal Institute

of Technology in Lausanne, Switzerland (EPFL). (See athttp://www.nviso.ch)

The FBI's Next Generation Identification System began as a pilot program in

2009. The system allows the identification of suspects in real time. The enormous

federal database is constantly developing and increasing.

The following examples from the media also illustrate the increase in

development and use of this software:

Deranged, hammer-wielding assailant identified with NYPD facial

recognition database from video surveillance data.

http://nypost.com/2015/05/13/cops-shoot-hammer-wielding-suspect-

in-midtown/

Facial recognition technology used to determine James Foley’s killer,

“Jihadi John.” (See http://www.nydailynews.com/news/world/experts-

facial-recognition-unmask-james-foley-killer-article-1.1918524)

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Facial recognition software developed as password protector for phone

(http://nypost.com/2013/11/26/new-password-app-recognizes-faces/)

B. Drones

Drone availability continues to expand as technology continues to improve

and drones become increasingly less expensive to own, easier to operate and more

powerful. With increasing access to military level surveillance technology, drones

have the potential to become a vital tool for local law enforcement in crime

prevention and intervention. Private sector application is potentially as expansive as

the individual user can imagine and effectively implement. While obviously a

powerful potential tool in public and private video surveillance, the thorny legal,

logistical and constitutional issues are equally evident.

Timothy Takahashi, Professor of Aerospace Engineering at Arizona State

University provides the most thorough and cutting edge discussion of drone

technology and the FAA’s efforts to regulate drones. With his permission, his

article: “Game of Drones: The Uses and Potential Abuses of Unmanned Aerial

Vehicles in the U.S. and Abroad: The Rise of the Drones --- The Need for

Comprehensive Federal Regulation of Robot Aircraft, 8 Alb. Gov't L. Rev. 63

(2/6/2015), is reprinted here in its entirety and annexed as “Reference Material A.”

C. Patent Litigation Relating to Cutting Edge Surveillance System Technology

In 3rd Eye Surveillance Inc. v. the United States, 1:15-cv-00501 (U.S. Court

of Fed. Claims), plaintiffs argue that the FBI, NSA and other federal agencies are

utilizing surveillance systems that infringe three U.S. patents (numbers 6,778,085;

6,798,344; and 7,323,980) by developing and deploying unlicensed surveillance

systems through internal sources without proper licensing.

The patented technology invention includes an application that sends real-

time surveillance video to emergency personnel through a communications link, as

well as facial and voice recognition software. 3rd Eye argues that the federal

agencies are using the patents to provide real-time surveillance video, audio

recognition, facial recognition and infrared images to emergency responders and

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defense agencies. The patents were issued in 2004 and 2008 to James Otis Faulkner,

who sold the exclusive licensing rights to Texas-based 3rd Eye in 2012.

III. LEGAL AUTHORIZATION FOR AND RESTRICTION OF

PRIVATE VIDEO SURVEILLANCE

A number of legal restrictions both authorize and constrain the

implementation and use of video surveillance.

Under Penal Law 250.65, no restrictions are placed on law enforcement

surveillance. Private surveillance is legal so long as notice is posted that surveillance

is being conducted or the security cameras or other devices are readily visible.

The Penal Law proscribes video surveillance that is invasive of privacy.

Private individuals making use of video surveillance must be mindful of N.Y. Penal

Law Article 250 and N.Y. General Business Law § 395-b.

The First Amendment of the federal constitution protects photographers’ use

of video to a certain degree. Generally, however, the courts have not constrained

governmental use of public video surveillance within constantly developing

constitutional parameters.5

A. New York Penal Law, Article 250, Unlawful Surveillance:

Private individuals are not permitted to hide a video camera and film people

in areas where they have a reasonable expectation of privacy. The relevant statutory

provisions are designed to prevent the use of video for private purposes unrelated to

a reasonable need for surveillance, such as for personal gratification, private profit,

harrassment or blackmail.

N.Y. Penal Law § 250.40

This section provides that the following definitions apply to sections

NYPL §§ 250.45, 250.50, 250.55 and 250.60 of Article 250:

1. “Place and time when a person has a reasonable expectation of privacy”

means a place and time when a reasonable person would believe that he or she could

fully disrobe in privacy.

5 See Section C, below, for a discussion of the constitutionality of government video surveillance.

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2. “Imaging device” means any mechanical, digital or electronic

viewing device, camera, cellular phone or any other instrument capable of

recording, storing or transmitting visual images that can be utilized to observe

a person.

3. “Sexual or other intimate parts” means the human male or female

genitals, pubic area or buttocks, or the female breast below the top of the

nipple, and shall include such part or parts which are covered only by an

undergarment.

4. “Broadcast” means electronically transmitting a visual image with

the intent that it be viewed by a person.

5. “Disseminate” means to give, provide, lend, deliver, mail, send,

forward, transfer or transmit, electronically or otherwise to another person.

6. “Publish” means to (a) disseminate, as defined in subdivision five of

this section, with the intent that such image or images be disseminated to ten

or more persons; or (b) disseminate with the intent that such images be sold

by another person; or (c) post, present, display, exhibit, circulate, advertise or

allows access, electronically or otherwise, so as to make an image or images

available to the public; or (d) disseminate with the intent that an image or

images be posted, presented, displayed, exhibited, circulated, advertised or

made accessible, electronically or otherwise and to make such image or

images available to the public.

7. “Sell” means to disseminate to another person, as defined in

subdivision five of this section, or to publish, as defined in subdivision six of

this section, in exchange for something of value.

N.Y. Penal Law § 250.45

A person is guilty of unlawful surveillance in the second degree when:

1. For his or her own, or another person’s amusement, entertainment,

or profit, or for the purpose of degrading or abusing a person, he or she

intentionally uses or installs, or permits the utilization or installation of an

imaging device to surreptitiously view, broadcast or record a person dressing

or undressing or the sexual or other intimate parts of such person at a place

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and time when such person has a reasonable expectation of privacy, without

such person's knowledge or consent; or

2. For his or her own, or another person’s sexual arousal or sexual

gratification, he or she intentionally uses or installs, or permits the utilization

or installation of an imaging device to surreptitiously view, broadcast or

record a person dressing or undressing or the sexual or other intimate parts of

such person at a place and time when such person has a reasonable expectation

of privacy, without such person's knowledge or consent; or

3. (a) For no legitimate purpose, he or she intentionally uses or installs,

or permits the utilization or installation of an imaging device to surreptitiously

view, broadcast or record a person in a bedroom, changing room, fitting room,

restroom, toilet, bathroom, washroom, shower or any room assigned to guests

or patrons in a motel, hotel or inn, without such person's knowledge or

consent. (b) For the purposes of this subdivision, when a person uses or

installs, or permits the utilization or installation of an imaging device in a

bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom,

shower or any room assigned to guests or patrons in a hotel, motel or inn, there

is a rebuttable presumption that such person did so for no legitimate purpose;

or

4. Without the knowledge or consent of a person, he or she intentionally

uses or installs, or permits the utilization or installation of an imaging device

to surreptitiously view, broadcast or record, under the clothing being worn by

such person, the sexual or other intimate parts of such person. Unlawful

surveillance in the second degree is a class E felony.

N.Y. Penal Law § 250.50

A person is guilty of unlawful surveillance in the first degree when he

or she commits the crime of unlawful surveillance in the second degree and

has been previously convicted within the past ten years of unlawful

surveillance in the first or second degree. Unlawful surveillance in the first

degree is a class D felony.

N.Y. Penal Law § 250.55

A person is guilty of dissemination of an unlawful surveillance image

in the second degree when he or she, with knowledge of the unlawful conduct

by which an image or images of the sexual or other intimate parts of another

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person or persons were obtained and such unlawful conduct would satisfy the

essential elements of the crime of unlawful surveillance in the first or second

degree, intentionally disseminates such image or images. Dissemination of an

unlawful surveillance image in the second degree is a class A misdemeanor.

N.Y. Penal Law § 250.60

A person is guilty of dissemination of an unlawful surveillance image

in the first degree when:

1. He or she, with knowledge of the unlawful conduct by which an

image or images of the sexual or other intimate parts of another person or

persons were obtained and such unlawful conduct would satisfy the essential

elements of the crime of unlawful surveillance in the first or second degree,

sells or publishes such image or images; or

2. Having created a surveillance image in violation of section 250.45 or

250.50 of this article, or in violation of the law in any other jurisdiction which

includes all of the essential elements of either such crime, or having acted as

an accomplice to such crime, or acting as an agent to the person who

committed such crime, he or she intentionally disseminates such unlawfully

created image; or

3. He or she commits the crime of dissemination of an unlawful

surveillance image in the second degree and has been previously convicted

within the past ten years of dissemination of an unlawful surveillance image

in the first or second degree. Dissemination of an unlawful surveillance image

in the first degree is a class E felony.

N.Y. Penal Law § 250.65

1. The provisions of sections 250.45, 250.50, 250.55 and 250.60 of this

article do not apply with respect to any: (a) law enforcement personnel

engaged in the conduct of their authorized duties; (b) security system wherein

a written notice is conspicuously posted on the premises stating that a video

surveillance system has been installed for the purpose of security; or (c) video

surveillance devices installed in such a manner that their presence is clearly

and immediately obvious.

2. With respect to sections 250.55 and 250.60 of this article, the

provisions of subdivision two of section 235.15 and subdivisions one and two

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of section 235.24 of this chapter shall apply. [P.L. 235.15(2) provides an

affirmative defense to theatre employees under the obscenity statute. P.L.

235.24(1)&(2) provide affirmative defenses to the incidental involvement in

the transmission of indecent material to minors.]

B. New York General Business Law §395-b: Unlawfully installing or

maintaining a video recording device.

GBL § 395-b. Unlawfully installing or maintaining a two-way mirror or other

viewing device

1. As used in this section, the phrase “two-way mirror or other viewing

device” shall mean a mirror, peep hole, mechanical viewing device, camera

or any other instrument or method that can be utilized to surreptitiously

observe a person.

2. A person is guilty of unlawfully installing or maintaining a two-way

mirror or other viewing device when, being the owner or manager of any

premises, he knowingly permits or allows such a device to be installed or

maintained in or upon such premises, for the purpose of surreptitiously

observing the interior of any fitting room, restroom, toilet, bathroom,

washroom, shower, or any room assigned to guests or patrons in a motel, hotel

or inn.

2-a. A person is guilty of unlawfully installing or maintaining a video

recording device when, being the owner or manager of any premises, he

knowingly permits or allows such a device to be installed or maintained in or

upon such premises, for purpose of surreptitiously recording a visual image

of the interior of any fitting room, restroom, toilet, bathroom, washroom,

shower, or any other room assigned to guests or patrons in a motel, hotel or

inn.

3.a. The provisions of this section shall not apply with respect to

premises which comprise, or are a part of any

(i) public correctional or custodial facility, or public or private

medical facility which is used for the treatment of persons

pursuant to medical directive, or

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(ii) public or private treatment facility which is used for the

treatment of persons who are committed or are voluntarily

confined to such facility or are voluntarily receiving

treatment thereat, or

(iii) facility operated by any federal, state or local law

enforcement agency, or

(iv) private dwelling.

b. The provisions of this section shall further not apply with respect to

any fitting room, otherwise subject to the provisions of this section, wherein

the person who is the owner or manager of such premises has caused written

notice to be conspicuously posted at the entrance to the fitting room stating

that a two-way mirror or other viewing device has been installed for the

purpose of observing the interior of such room. In cities with a population of

one million or more, the written notice shall be in both English and Spanish.

4. Whenever there shall be a violation of this section, an application may also

be made by the attorney general in the name of the people of the state of New

York or by the corporation counsel for any city or by the appropriate attorney

of any other political subdivision as shall be designated by the governing body

of such political subdivision to a court or justice having jurisdiction to issue

an injunction, and upon notice to the defendant of not less than five days, to

enjoin and restrain the continuance of such violation; and if it shall appear to

the satisfaction of the court or justice that the defendant has, in fact, violated

this section, an injunction may be issued by such court or justice, enjoining

and restraining any further violation, without requiring proof that any person

has, in fact, been injured or damaged thereby. In connection with any such

proposed application, the attorney general, corporation counsel or other

appropriate attorney, as the case may be, is authorized to take proof and make

a determination of the relevant facts and to issue subpoenas in accordance

with the civil practice law and rules.

5. A violation of the provisions of this section shall constitute a

violation, and upon conviction thereof shall be punishable by a term of

imprisonment not to exceed fifteen days, or by a fine of not more than

three hundred dollars, or by both such fine and imprisonment, except that a

violation of subdivision two-a of this section shall constitute a felony. In

addition, a violation of the provisions of this section shall be punishable by a

civil penalty of not more than three hundred dollars recoverable in an action

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by the attorney general in the name of the people of the state or by the

corporation counsel for any city or by the appropriate attorney of any other

political subdivision as shall be designated by the governing body of such

political subdivision. Each unlawfully installed or maintained mirror or

viewing or recording device shall constitute a separate and distinct

violation.

* * *

Although the GBL provision does not explicitly provide a private cause of

action for persons allegedly harmed by violation of its video surveillance provisions,

its terms as well as the above Penal Law provisions create statutory constraints and

duties that may serve as a basis for a claim of intentional, reckless or negligent

infliction of emotional distress.

See Hering v Lighthouse, 21 A.D.3d 449, 799 N.Y.S.2d 825 (2nd Dept. 2005)

(defendants’ motion for summary judgment denied as to negligent infliction claims

where jury could reasonably infer that appellants had constructive notice of holes in

ladies’ restroom, that holes were used as, or intended to be used as peepholes, and

that incident proximately caused alleged damage). See also Sawicka v Catena, 79

A.D.3d 848 (2nd Dep’t 2010); Thomas v. Northeast Theatre Corp., 51 A.D.3d 588

(1st Dep’t 2008).

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IV. CONSTITUTIONAL CONCERNS

A. Government Surveillance

When we discuss the usefulness of government video surveillance in its many

forms, we enter the debate regarding the value of surveillance pitted against privacy

concerns. The necessity of government video surveillance is obvious and extremely

valuable in deterring terrorism and criminal activity. Public video surveillance, if

obtained from government sources before it is destroyed, can also be extremely

useful in civil litigation. In fact, it can be a complete game changer. Before delving

further into the practical issues and consequences of video surveillance, privacy

issues and the need for accountability and checks and balances as government

operated networks of surveillance, drone technology and additional technology

continue to increase and advance must be acknowledged.

The video surveillance revolution is changing the extent and nature of

evidence available to trial attorneys. The technology is constantly developing as

surveillance networks are increasing. There are two constants, at least thus far, that

are evident in distilling the various federal and state cases and statutes. First,

although there is a robust academic debate on rights of privacy pitted against

legitimate government interests in video surveillance, courts across the board have

not held that government surveillance in public spaces violates the Fourth

Amendment or rights of privacy. That is, the majority of today’s courts have refused

to find that general (unfocused) public video surveillance would constitute an

unconstitutional invasion of privacy.

Today, even liberal politicians in major metropolitan areas are in favor of

extending the network of government video surveillance primarily for crime

prevention. (http://observer.com/2014/07/not-so-camera-shy/)6 Accordingly, the

issue is not whether government video surveillance should be categorically tolerated

given the potential infringement on our privacy concerns, including the so called

right to anonymity, but rather, what checks and balances can be maintained with

increasing and advancing video surveillance technology.

6 Mayor di Blasio’s plan to install additional cameras throughout Rikers Island, apparently has

been delayed until 2018. See “City delays installation of cameras at Rikers,” Colby Hamilton,

Capital New York, http://www.capitalnewyork.com/article/city-hall/2015/03/8564103/city-

delays-installation-cameras-rikers

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Second, the situation is different in areas where individuals may have a

reasonable expectation of privacy. In private settings, the government would first

need a warrant in order to conduct video surveillance. Utilizing a Katz rationale, the

crucial issue would be whether an individual has a reasonable expectation of privacy

in the area in which he is subjected to surveillance. Katz v. United States, 389 U.S.

347, 350, 351-52 (1967) (audio surveillance of private conversation in a public

phone booth would violate an individual’s reasonable expectation of privacy).

Accountability, checks and balances and oversight will govern the practical

dialogue and development of case law for acceptable video surveillance in the future.

For example, as magnification, tracking and camera pan and tilt technology

continues to advance, situations may arise where the private possessions of

individuals travelling through a public space may become visible or readable on

surveillance systems. In the three aerial surveillance cases the U.S. Supreme Court

has heard, it held that such surveillance of a home’s curtilage or property outside a

commercial building would not constitute a search for purposes of the Fourth

Amendment. However, the Supreme Court has indicated that there may be a

different result if magnification of such video surveillance revealed more “intimate

activity” or revealing personal property that would not otherwise be visible without

magnification. Florida v. Riley, 488 U.S. 445, 449-50 (1989) (plurality opinion)

(curtilage of a home); Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986)

(industrial complex); California v. Ciraolo, 476 U.S. 207, 213 (1986) (curtilage of

a home).

In United States v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012), the Court held

that the Fourth Amendment may be violated when public surveillance (GPS tracking

device) targeting a particular individual is focused and extended (four weeks). The

majority utilized a Fourth Amendment trespass rationale and held that the physical

installation of a GPS tracking device on a car constituted a trespass. The Jones case

leaves open the question of just how long or how focused on a particular individual

public surveillance would have to be in order to constitute a Fourth Amendment

violation. Applying the Jones reasoning (Fourth Amendment trespass jurisprudence

as opposed to privacy jurisprudence), since public video surveillance would not

normally involve a physical trespass or planting of a surveillance device, there is no

issue with public video surveillance. In other words, Jones does not affect the

constitutional parameters of public video surveillance under pre-existing reasonable

expectation of privacy Fourth Amendment jurisprudence.

Some federal district courts have held that a person cannot have a “reasonable

expectation of privacy” in public areas. See, for e.g., Rodriguez v. United States, 878

15

F. Supp. 20, 24 (S.D.N.Y. 1995) (no reasonable expectation of privacy in public

street); McCray v. State, 84 Md. App. 513, 519 (1990) (no reasonable expectation

of privacy when being filmed walking across a street). In the recent case of U.S. v.

Vargas, 2015 U.S. Dist. LEXIS 451 (U.S. District Court, E.D. Washington, 2015),

the court held that an individual may have a reasonable expectation of privacy in the

visible areas of his home (front yard in a rural area) when the video surveillance is

extended and focused on that visible area of private property. The court held that the

Defendant had a reasonable expectation of privacy to not have his front yard

continuously observed and recorded over a six week period by a video camera with

zooming and panning capabilities hidden on a telephone pole over a hundred yards

away. The court found that continuous video monitoring of an individual’s front yard

for six weeks “provokes an immediate negative visceral reaction: indiscriminate

video surveillance raises the specter of the Orwellian state.”

For the purposes of our discussion, the bright line rule that what is readily

observable in public space is not subject to Fourth Amendment restrictions can be

applied to the type of government video surveillance cameras that are currently

installed at busy intersections and city streets.7

B. Private cell phone, camera and video recordings – Rules of engagement

with law enforcement

The ACLU has published the following standards that describe that

organization’s view of the extent of rights possessed under the First Amendment

with regard to photographing and other video recording. The ACLU position does

not represent the law in each and every jurisdiction, but provides a solid standard for

private videotaping of law enforcement.

The ACLU distinguishes private recording of things that are on private

property from things that are plainly visible in public spaces. The latter is

7 © Giordano Law Offices, PLLC. If you are interested in keeping abreast of the developing

constitutional issues implicated from a critical perspective in government video surveillance,

please note that the Electronic Frontier Foundation monitors case law and legislative developments

in this area. (www.eff.org)

16

characterized as a “constitutional right” and necessary as “a form of public oversight

over the government, which is important in a free society. Police officers may not

legitimately confiscate or demand to view a person’s digital photographs or video

without a warrant. Police officers may not legally delete photographs or

video. However, police officers may legitimately order citizens to cease any

activities, including photographing and videotaping that are interfering with

legitimate law enforcement operations. For the complete description of the ACLU

position, see https://www.aclu.org/know-your-rights-photographers?redirect=free-

speech/know-your-rights-photographers .

17

V. EVIDENTIARY ISSUES

A. Laying the Foundation for Authentication of Video Recordings

Generally, surveillance and other types of video recordings may be

authenticated by testimony of a foundational witness with actual knowledge that the

video is what it is claimed to be.

Simply stated, such a witness would identify the event recorded, provide the

basis for the witness's ability to identify the event, and testify that the recording is a

fair and accurate recording of the events depicted in the video. In these situations,

an eyewitness can simply identify that the events depicted on the copy of the

recording are what he or she recalls actually transpired.

However, in some situations eyewitness authentication of a video surveillance

recording may not be possible. For example, if there are no eyewitnesses to an

accident, the plaintiff was either killed or cannot remember the event, and the

defendant will not admit the circumstances, you will not have a witness to clearly

and simply state that the recording is a fair and accurate depiction of what occurred.

Another example would be when the plaintiff or eyewitness may be able to

authenticate the footage of the accident itself, but cannot lay the foundation for

footage of the scene before (notice, creation of a dangerous condition or other

variables of liability) or after the accident (post remedial measures establishing

control or presence at the scene) occurred. In these instances, the individual or

investigator who is familiar with the recording equipment and properly downloaded

and safeguarded the video can provide the appropriate foundation and rebut

allegations of digital manipulation.

In the latter situations, when there is no eyewitness to the video recordings

you are offering in evidence, a more involved foundation is necessary. Attorneys

should take measures to optimize the efficient and effective use of surveillance video

in litigation at the extraction stage. In instances where an eyewitness to the events

recorded is not available, judges may require a more complete showing of how the

recording was made, the chain of custody for the copy of the recording, and proof

that the copy was unedited or unaltered and accurate.8

8 Of course, the parties can always stipulate to the admissibility of a video recording as a fair and

accurate recording of the events depicted.

18

B. New York State Law on Admissibility and Sufficiency of Video Surveillance

Evidence

In People v. Patterson, 93 N.Y.2d 80, 688 N.Y.S.2d 101 (1999), the Court of

Appeals provided general guidelines for the use of video material as evidence:

The decision to admit or exclude videotape

evidence generally rests, to be sure, within a trial court's

founded discretion. Moreover, this type of ruling may be

disturbed by this Court only when no legal foundation has

been proffered or when an abuse of discretion as a matter

of law is demonstrated and by the intermediate appellate

court in the additional circumstance when it exercises its

exclusive and plenary interest of justice power.” 688

N.Y.S.2d at 104.

Similar to a photograph, a videotape may be

authenticated by the testimony of a witness to the recorded

events or of an operator or installer or maintainer of the

equipment that the videotape accurately represents the

subject matter depicted. Testimony, expert or otherwise,

may also establish that a videotape “truly and accurately

represents what was before the camera.” Id.

Evidence establishing the chain of custody of the

videotape may additionally buttress its authenticity and

integrity, and even allow for acceptable inferences of

reasonable accuracy and freedom from tampering. The

availability of these recognized means of authentication

should ordinarily allow for and promote the general, fair

and proper use of new technologies, which can be

pertinent truth–yielding forms of evidence. Correlatively,

however, the obligation and need for responsible accuracy

and careful reliability should not be sacrificed to some of

the whims and weaknesses of fast moving and rapidly

changing technology. Id.

19

People v. Costello, 2015 N.Y. App. Div. LEXIS 4068; 2015 NY Slip Op

04141 (2nd Dept. 2015), provides a practical illustration of the application of

Patterson’s principles. As the Court held:

Contrary to the People's contention, the defendant did not

waive his challenge to the admission of a video recording

purportedly showing him attempting to exit an apartment

building where he had just committed a burglary, and the

issue is preserved for appellate review (see CPL

470.05[2]).

The defendant contends that the Supreme Court

improperly admitted into evidence the video recording

from the building's security camera because it was not

sufficiently authenticated and exhibited a date other than

the date of the burglary. This contention is without merit.

The video recording was sufficiently authenticated with

the testimony of a part-time superintendent who

maintained the building and was familiar with the

operation of the building's video recording surveillance

system, as well as the testimony of a detective who

obtained a copy of the video recording and vouchered it

(see People v Patterson, 93 N.Y. 2d 80, 84, 710 N.E.2d

665, 688 N.Y.S.2d 101). Further, under the circumstances

presented, the discrepancy between the date of the

burglary and the date stamped on the video recording went

to the weight of the evidence, not its admissibility (see

People v McGee, 49 NY2d 48, 60, 399 N.E.2d 1177, 424

N.Y.S.2d 157). Accordingly, the Supreme Court did not

improvidently exercise its discretion in admitting the

video recording.

Read v. Ellenville Nat’l Bank, 20 A.D.3d 408, 799 N.Y.S.2d 78 (2nd Dept.

2005), exemplifies use of a video in defense of a personal injury action and the

standard for authentication:

Plaintiff argued that she injured her hand when making a

night deposit at a bank, claiming that the deposit box door

slammed shut on her. Defendant offered a bank’s closed

20

circuit video surveillance of the plaintiff making the

deposit without incident in support of its motion for

summary judgment.

The bank relied upon an affidavit of a burglar alarm

company to establish the authenticity of the video

recording. The affidavit, in its entirety, indicated only the

following: “As per your request of 7/14/04 at 9:00 a.m., I

am forwarding the following information. A request was

made to … copy a specific segment of video from an

existing tape from your branch. Once queued up on your

CCTV system, an exact copy was created. There are no

deviations from the original night drop camera.”

In opposition to the defendant’s motion for summary

judgment, the plaintiff submitted an affidavit wherein she

swore that the deposit mechanism slammed shut on her

hand and that the defendant’s video recording was not

properly authenticated.

The appellate court affirmed the trial court’s finding that

the defendant failed to lay a proper foundation for the use

of the video recording for the purposes of summary

judgment. The court held that neither the affidavit nor the

attorney affirmation in support of the bank's motion

explained the connection between the burglar alarm

company and the bank with regard to the bank’s

surveillance system. Nor did the affidavit indicate the type

of video equipment used to make the recording.

The court held that the “statements in the affidavit that the

videotape is an exact copy and “[t]here are no deviations

from the original night drop camera,” was insufficient to

establish that the videotape was a true, fair, and accurate

representation of the events depicted. The appellate court

also ruled that the defendant should be given leave to

renew its motion for summary judgment once discovery is

complete.

21

Zegarelli v. Hughes, 3 N.Y.3d 64, 781 N.Y.S.2d 488 (2004): Regarding

authentication of an investigator’s surreptitious recording of the plaintiff, citing

People v. Patterson, 93 N.Y.2d 80, 688 N.Y.S.2d 101 (1999), the Court held that

there was nothing wrong with the methodology utilized by defendant to authenticate

the surreptitious recording. “Testimony from the videographer that he took the

video, that it correctly reflects what he saw, and that it has not been altered or edited,

is normally sufficient to authenticate a videotape. Where the videographer is not

called, [t]estimony, expert or otherwise, may also establish that a videotape truly and

accurately represents what was before the camera. If there was (as Supreme Court

suggested) any discrepancy between the tape and the videographer's description in a

written report of what he saw, that would have been a proper matter for cross-

examination.”

C. Properly Authenticated Video Surveillance Recordings may Constitute a

Sufficient Basis for Summary Judgment

From the United States Supreme Court on down, reviewing courts have

addressed the tendency of video evidence to supplant the trial court’s findings of fact

with respect to the video. See, e.g., Scott v. Harris, 550 U.S. 372 (2007), discussed,

below. See also Note: Snap Judgment: Recognizing the Propriety and Pitfalls of

Direct Judicial Review of Audiovisual Evidence at Summary Judgment, 83 Fordham

L. Rev. 3343, May, 2015, Barry, Denise K.

Franco v. Palmer, 45 Misc. 3d 1223(A); 2014 N.Y. Misc. LEXIS 5132; 2014

NY Slip Op 51693(U) (Sup. Court, Queens County, 12/1/2014), provides a well

reasoned decision where video evidence tipped the scales and provided the

evidentiary basis for summary judgment in favor of the plaintiff.

In this automobile accident case, the plaintiff

submitted a service station video surveillance recording

along with his motion for summary judgment on liability.

Essentially, the video showed the defendant’s vehicle

running a red light and crashing into the plaintiff’s car in

an intersection. In opposing the plaintiff’s motion for

summary judgment, the defendant argued that video

surveillance was inadmissible since plaintiff failed to lay

a proper foundation.

22

Along with the video, the plaintiff supplied an

affidavit of the service station manager in which the

manager stated that the surveillance cameras were fully

operational on the day of the accident, that the cameras

captured the motor vehicle accident, which occurred at the

intersection; that he reviewed the video submitted with

the motion and it was a fair and accurate depiction of the

images on the video taken from the service station on the

accident date; that it was the regular practice of the gas

station to make video surveillance recordings, and the

images contained on the recordings accurately depict the

events he personally observed; that since the date of the

accident the original video surveillance has been in his

possession and the 18 second video that he reviewed was

made during the regular course of business of the service

station and fairly and accurately depicted the images on

the video surveillance cameras.

In arguing that the service station video surveillance

recording was inadmissible for purposes of summary

judgment, defendant stated that there was no proof offered

that the tapes were genuine and had not been altered; that

there was no testimony regarding chain of custody; and,

that the video submitted to the court was not sufficiently

authenticated. Defendant also argued that the recordings

from all of the surveillance cameras at the service station

were not provided and, therefore, plaintiff failed to

establish the accuracy and completeness of the purported

video, freedom from tampering and that the video was not

re-recorded or altered in any way.

The defendant driver submitted his own affidavit in

opposition wherein he swore that he had the green light at

the time of the accident. In plaintiff’s reply affidavit, the

service station manager indicated that the other

surveillance cameras at the location were not facing the

intersection where the accident occurred.

The Franco court held that the video was properly

accepted in evidence and could be relied on by the court

23

in its decision on summary judgment. “Here, based upon

the review of the video, the affidavit of [the manager] and

the report of the plaintiff’s expert accident

reconstructionist, this court finds that the testimony of the

defendant was an attempt to raise a feigned question of

fact. Based upon a review of the surveillance video, the

defendant’s assertion that the light was yellow when he

entered the intersection lacks an evidentiary basis. In

addition, this court finds that the testimony of [the

manager], who was present at the time of the accident and

who reviewed the surveillance video, and who has

maintained possession of the surveillance video is

sufficient to authenticate the surveillance video and to

establish that a video recording submitted with the motion

is a true, fair, and accurate representation of the events

depicted, and is sufficient to establish chain of custody.”

See also Lerner v City of New York, 2012 NY Slip Op 32378[U] (Sup Ct, NY

County 2012) (defendant City’s motion for summary judgment predicated on street

surveillance video recording, which was not properly authenticated, denied);

Cresser v. CDTS, 2015 N.Y. App. Div. LEXIS 3172 | 2015 NY Slip Op 03227 (3d

Dept. 2015) (properly authenticated video surveillance recording of motor vehicle

accident was sufficient factual basis for summary judgment in favor of defendant).

D. Federal Evidentiary Law Regarding Video Surveillance

1. Federal Evidentiary Law and Rules

a) Fed. R. Evid. 901(a):

To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the

item is what proponent claims it is.

Generally, under federal evidentiary rules, a party may provide a proper

foundation for the admission of a videotape at trial by providing testimony

24

1) demonstrating that the videotape fairly and accurately

illustrates the events filmed;

2) regarding the checking, operation, and handling of the

recording equipment;

3) that the videotape admitted at trial is the same as the one the

witness inspected previously, or

4) that the videotape has not been edited and fairly and accurately

recorded the actual appearance of the area and events that transpired.

Video recordings of out-of-court events have been described by an expert on

federal evidence law as

a cross between real evidence and eyewitness testimony.

They are a record of real events, imprinted not in human

memory but on tape or film or some other medium by

mechanical, electronic, or other processes. The recording

reveals what the equipment “saw” or “heard,” perhaps

with less risk of human fallibility than an eyewitness.

Ronald J. Allen, et al., Evidence: Text, Cases, and Problems 224 (2d ed. 1997). Fed.

R. Evid. 901 (b)(1).

An eyewitness to the recorded events may provide testimony “that identifies

the events recorded, that states the basis for the witness's ability to identify the

events, and that affirms that the recording is a ‘fair,’ ‘accurate,’ or ‘true’ record of

the events perceived.” Allen, supra, at 224. In situations where there is no eyewitness

to the events available to authenticate the recording, there is a more involved

authentication process. Generally, most courts do not require an in-depth inquiry and

proof into the recording technology. Trial courts vary regarding requisite proof in

other aspects of the required foundation. Some judges require proof of “an exhibit's

identity, perhaps a minimal chain of custody, but not its accuracy” and others insist

“on a more complete showing of how a recording was made, of its chain of custody,

and of its unchanged condition in order to show accuracy.” Id.

b) F.R.C.P. 56(c)(4) provides that a formal affidavit or a written unsworn

declaration that complies with 28 U.S.C. § 1746 can be used to support or oppose a

motion for summary judgment. Whether an affidavit or a declaration is used, it must

25

be sworn or subscribed to under penalty of perjury, be based on personal knowledge,

present facts that are admissible in evidence, and demonstrate that the affiant or

declarant is competent to testify about the matters stated.

Personal knowledge and the witness’s competency are relatively easy to

satisfy. However, witness statements that are based upon “information and belief”

are inadmissible. Sehll Rocky Mountain Prod., LLC v. Ultra Res., Inc., 415 F.3d

1158, 1169 n.6 (10th Cir. 2005). The affiant must have personal knowledge and be

competent to testify in the same manner as if he were testifying in a court proceeding.

Sufficient factual information to establish first-hand knowledge and

competency must be established. Regarding exhibits, which are attached to the

affidavits, including video recordings, the affiant must be able to lay the proper

foundation for admissibility.

Rule 56(c)(2) indicates that a party may object to evidence used in support or

opposition of a summary-judgment motion on the ground that it “cannot be presented

in a form that would be admissible in evidence.”

c) Federal cases

Leo v. Long Island R.R., 2015 U.S. Dist. LEXIS 56953 (S.D.N.Y.,

4/30/2015):

After a plaintiff’s verdict in a personal injury action, the

defendant moved to set aside the verdict and damages,

arguing, inter alia, that the trial judge abused his discretion

in refusing to allow into evidence surveillance video of the

plaintiff. The defendant argued that it was reversible error

for the judge not to allow into evidence the surveillance

video (an edited version of a surreptitious video of the

plaintiff taken by a private investigator) and that the

recording was “self authenticating” pursuant to FRCP 902.

[Rule 902 pertains to certified public documents and

newspapers, for example, but not videos]

In rejecting a post verdict challenge to the trial ruling, the

court held that “[d]efendant's current challenge to this

ruling is groundless. Rule 901(a) states that, ‘[t]o satisfy

the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient

26

to support a finding that the item is what proponent claims

it is.’ In Rule 901(b), the drafters provide a set of ten

‘examples . . . of evidence that satisfies the requirement’

for various types of exhibits that a party may seek to

introduce. Of these evidentiary examples, two seem

pertinent here. Of principal relevance in this case, the first

listed example refers to ‘testimony of a witness with

knowledge’ that ‘an item is what it is claimed to be’. Fed.

R. Evid. 901(b)(1). The other pertinent example, listed

ninth, refers to ‘[e]vidence describing a process or system

and showing that it produces an accurate result.’ Fed. R.

Evid. 901(b)(9).”

As indicated, the Leo v. Long Island R.R. court referenced

the Advisory Committee Notes for Rule 901, which cited

the New York Court of Appeals decision in Zegarelli v.

Hughes, 3 N.Y.3d 64, 781 N.Y.S.2d 488 (2004) [See

above, authentication of video recordings can be satisfied

by testimony, whether from the videographer or another

competent witness who can testify that the videotape truly

and accurately represents what was before the camera. 781

N.Y.S.2d at 491.

Scott v. Harris, 550 U.S. 372 (2007):

In a case brought pursuant to 42 U.S.C. 1983, the plaintiff

motorist was paralyzed after a high-speed car chase by the

police. The plaintiff/petitioner argued that his rights under

the Fourth Amendment were violated. The

defendant/respondent asserted a qualified immunity

defense. The Court ruled in favor of the police officer

under the doctrine of qualified immunity.

Significantly, the Court relied upon its own viewing of the

video recording of the high speed chase from the patrol

car’s dash camera in making its decision. Based on the

Court's review of the video, Justice Scalia held that

Harris's version of the events was “blatantly contradicted

by the record,” to the extent that no reasonable jury could

believe him. The Court held that Harris’s version of the

27

facts was “utterly discredited” and that the facts should be

viewed in “the light depicted by the videotape.” Therefore,

it was no longer appropriate to adopt Harris's version of

the facts, despite the usual summary judgment procedure.

The Scott Court’s unusual procedure in actually viewing

the video recording and predicating its decision on the

Justices’ own inspection and impression of the evidence

highlights the tendency of appellate courts to make their

own factual determinations, arguably supplanting the

function of the trial courts.

Justice Scalia actually posted the video online, it can be

seen here:

https://www.youtube.com/watch?v=qrVKSgRZ2GY

E. AUTHENTICATION AND THE BEST EVIDENCE RULE

Asociasion De Periodistas De Puerto Rico v. Mueller, 680 F.3d 70, 2012

U.S. App. LEXIS 9877(1st Cir. 2012):

This 42 USC 1983 case was brought by plaintiffs who

alleged that the FBI violated their rights by using

excessive force and causing damages during the execution

of a search warrant. In the defendants’ motion for

summary judgment, video recordings of the search

warrant execution (filmed by a local television news

broadcaster) were filed with the court for consideration in

support of the motion. The court held that the videos were

properly authenticated, and although they were not

original recordings, did not violate the best evidence rule.

The court reasoned as follows:

“In the district court, the judge had before him video

footage of the events in question although they are not

specifically discussed; and the government's brief in this

court cites to these materials. The video clips were

submitted by the FBI in support of its motion and consist

of clips from material aired during local news broadcasts.

Plaintiffs say that the film clips were not properly

28

authenticated, violate the Best Evidence Rule, Fed. R.

Evid. 1001(2), and may not be relied upon in deciding this

case.

“Authentication is a straightforward concept requiring a

‘reasonable probability’ that the item in dispute is what its

proponent claims. Fed. R. Evid. 901(a); United States v.

Cruz, 352 F.3d 499, 506 (1st Cir. 2003). The proponent

‘need not rule out all possibilities inconsistent with

authenticity’; so long as the ‘evidence is sufficient to allow

a reasonable person to believe the evidence is what it

purports to be,’ it is left to the factfinder to determine what

weight it deserves. United States v. Alicea-Cardoza, 132

F.3d 1, 4 (1st Cir. 1997).

“An item’s ‘appearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in

conjunction with the circumstances,’ are all relevant.

United States v. Holmquist, 36 F.3d 154, 167 (1st Cir.

1994); United States v. Paulino, 13 F.3d 20, 23 (1st Cir.

1994). At issue here are clips from multiple news

programs with proprietary production sets and locally-

known television personalities from various stations, each

including clips that indisputably show the same incident

from different camera perspectives--all of which suggests

these are actual news clips with footage from the scene.

“The video clips were accompanied by a declaration of

Jessica Tirado Gonzalez, the general manager of

Publimedia, a company that ‘specializes in monitoring

Puerto Rico media outlets.’ Tirado's declaration said the

FBI hired Publimedia and it recorded seven such programs

about the incident--though ‘only those portions of news

broadcasts that pertained to the FBI's execution of the

search warrant’ and not ‘portions of news programs

concerning other topics.’ Tirado stated that the four DVDs

submitted by the defendants contained true and correct

copies of those recordings. The plaintiffs do not suggest

otherwise.

29

“The plaintiffs describe the videos as ‘incomplete’ and

‘extensively edited’ versions of the original TV broadcasts

but make no claim of (or offer any reason to suspect) fraud

or tampering, nor do they say that the videos do not show

actual footage of the incident in question (in fact their own

expert relied on the video footage in forming his own

opinions). Cf. United States v. Wheeler, 800 F.2d 100, 106

(7th Cir. 1986), overruled on other grounds by United

States v. Sblendorio, 830 F.2d 1382, 1393 (7th Cir. 1987);

Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d

966, 973-74 (2d Cir. 1985).

“Further, the affidavits and depositions of several FBI

agents expressly confirmed the accuracy of the footage on

the four DVDs. For example, Agent Byers, designated as

the FBI's on-scene media representative at the search

warrant execution, said that numerous news outlets were

present filming the incident, and also stated several times

in substance that the media footage accurately reflected

what occurred (e.g., ‘As shown in video footage and

according to my direct observation . . . .’).

In sum, on the facts presented, there is no serious basis for

disputing the authenticity of the videos. While the

plaintiffs could have offered specific reasons why they are

not fair depictions or argued that specific portions (or

omissions) are misleading or prejudicial, they have not

done so. See United States v. Goldin, 311 F.3d 191, 197

(3d Cir. 2002); Louis Vuitton S.A., 765 F.2d at 973-74; 2

Broun et al., McCormick on Evidence § 216, at 27 (6th ed.

2006). The authentication argument thus fails.

“The plaintiffs also repackage their attack as a Best

Evidence Rule challenge, but the rule is a mechanical one

and was satisfied here. The Best Evidence Rule, with some

exceptions, requires the use of an original writing,

recording, or photograph, in proving its material contents,

but a copy of a video recording is a ‘duplicate’ admissible

‘to the same extent as the original,’ Fed. R. Evid. 1001 &

Fed. R. Evid. 1003 advisory committee's note, which

30

largely ends the Best Evidence Rule inquiry in a case like

this one.

“The plaintiffs say that language in an advisory committee

note creates an exception for copies that leave out

important material. See Fed. R. Evid. 1003 advisory

committee's note (citing United States v. Alexander, 326

F.2d 736 (4th Cir. 1963)); Toho Bussan Kaisha, Ltd. v.

Am. President Lines, Ltd., 265 F.2d 418 (2d Cir. 1958)).

Here they say that the videos are incomplete because of

the absence of footage in one video clip showing the

entrance of journalists into the complex, and the absence

in another clip of certain use of pepper spray.

“But this does not show that the videos are inaccurate or

incomplete in the incidents that they depict or that taken

together the tapes fail to include such footage of the

entrance of reporters or the use of pepper spray. The

exception alluded to by the plaintiffs is for extreme

situations where there is reason to suspect extensive

prejudicial manipulation, Alexander, 326 F.2d at 738 &

n.4, or fraud, Toho Bussan, 265 F.2d at 424, and the

plaintiffs’ objections about the videos do not rise to such a

level.” 680 F.3d at 79-80.”

F. LAY OPINION TESTIMONY REGARDING IDENTITIES OF

INDIVIDUALS IN VIDEO SURVEILLANCE – FEDERAL RULE OF

EVIDENCE 701 AND STATE CASES

FRE 701, governing lay opinion testimony, provides as follows:

If a witness is not testifying as an expert, testimony in the

form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and

31

(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

In U.S. v. Robinson, 544 F.2d 110 (2d Cir. 1976), the court held that it was

error to exclude the testimony of two eyewitnesses who stated that the individual

who could be seen in surveillance photographs was the defendant on trial. The court

held that the witnesses’ opinion testimony regarding the identity of the individual in

the surveillance shots was admissible since it was “rationally based on his

perception,” because the witnesses were familiar with the defendant, and because

such opinion testimony would assist the trier of fact.

People v. Fomby, 300 Mich. App. 46, 831 N.W.2d 887 (2013):

The court held that the testimony of a video

forensic technician regarding the identity of an individual

in surveillance videos was properly admitted as lay

opinion testimony. The witness did not identify the person

in the video as the defendant, but merely gave his opinion

that the person seen throughout the various portions of

surveillance video was the same person. Since the

technician was proficient in the acquisition, production

and presentation of video evidence in court, the court

permitted the opinion testimony under MRE 701.

In People v. Ray, 100 A.D.3d 933 (2nd Dept. 2012), the Court permitted lay

opinion of a detective regarding a defendant’s identity:

A detective’s opinion that the person observed in a

surveillance video was the defendant on trial was

admissible where the detective was familiar with the

defendant and had observed him on numerous occasions

in person over a 15 year span. The court held that the

opinion evidence assisted the jury particularly because

defendant had changed his appearance after the

commission of the crime.

Cf. People v. Ruiz, 7 A.D.3d 737, 777 N.Y.S.2d 193 (2d Dept. 2004):

The Supreme Court properly admitted security videotapes

from a certain hospital into evidence to rebut the

defendant's claim that he was at that hospital during the

time of the robbery. . . . Furthermore, the Supreme Court

32

properly admitted the testimony of an arresting police

officer who had personal knowledge of the defendant's

appearance as of the time of his arrest that he did not see

the defendant on the videotapes, as his testimony served to

aid the jury in making an independent assessment as to

whether the defendant appeared on the videotapes.

However, in People v. Coleman, 78 A.D.3d 457, 910 N.Y.S. 2d 69 (1st Dept.

2010), the court held that lay opinion as to the identity of the individual in video

surveillance footage was properly excluded where the jury had ample opportunity

to compare the defendant with the individual in the video and the defendant did not

alter his appearance. Cf. People v. Harte, 29 A.D.3d 475, 815 N.Y.S. 2d (1st Dept.

2006)

VI. DISCLOSURE ISSUES

A. CPLR 3101(i) – Disclosure of Surreptitious Video

§ 3101. Scope of disclosure

(a) Generally. There shall be full disclosure of all matter material and necessary

in the prosecution or defense of an action, regardless of the burden of proof, by:

(1) a party, or the officer, director, member, agent or employee of a party;

(2) a person who possessed a cause of action or defense asserted in the action;

(3) a person about to depart from the state, or without the state, or residing at a

greater distance from the place of trial than one hundred miles, or so sick or infirm

as to afford reasonable grounds of belief that he or she will not be able to attend

the trial, or a person authorized to practice medicine, dentistry or podiatry who

has provided medical, dental or podiatric care or diagnosis to the party

demanding disclosure, or who has been retained by such party as an expert

witness; and

(4) any other person, upon notice stating the circumstances or reasons such

disclosure is sought or required.

* * *

(i) In addition to any other matter which may be subject to disclosure, there

shall be full disclosure of any films, photographs, video tapes or audio tapes,

including transcripts or memoranda thereof, involving a person referred to

33

in paragraph one of subdivision (a) of this section. There shall be disclosure

of all portions of such material, including out-takes, rather than only those

portions a party intends to use. The provisions of this subdivision shall not

apply to materials compiled for law enforcement purposes which are exempt

from disclosure under section eighty-seven of the public officers law.

B. State Court Rulings on Video Surveillance Disclosure Issues

Zegarelli v. Hughes, 3 N.Y.3d 64; 814 N.E.2d 795; 781 N.Y.S.2d 488 (2004),

discussed, supra:

The trial court excluded private investigator’s

surreptitiously recorded video surveillance recording of

plaintiff shoveling snow well after the accident. A copy

of the recording was provided during discovery pursuant

to CPLR 3101(i). However, the original tape was not

provided, nor did the plaintiff ask to view it during

discovery. The Court of Appeals reversed and held that

CPLR 3101(i) does not impose a more affirmative

obligation on the disclosing party to produce the original

video recording. Simply making the original recording

available to inspect is all that is required.

Tran v. New Rochelle Hospital Medical Center, 99 N.Y.2d 383, 756

N.Y.S.2d 509 (2003):

The Court held that a plaintiff was entitled to surreptitious

surveillance recordings on demand and did not have to be

deposed before the surveillance was produced in response

to a proper demand.

Lowe v. 557 Chicken Corp. (Supreme Court, Bronx County, Justice Laura

Douglas, NYLJ, 11/7/2013):

In a slip and fall case, the plaintiff demanded all video

recordings of the accident or of plaintiff in discovery

pursuant to CPLR 3101(i). The defendants responded

indicating that they did not possess any such recordings.

Subsequent to the plaintiff’s deposition, the defendants

34

disclosed a video of the accident. The plaintiff moved to

preclude and the court, per Justice Douglas, held that the

video recording should not be precluded for use at trial

since the defendants obtained such recording only after the

plaintiff’s deposition and the plaintiff was free to further

explain the video to the jury.

The court also held that “the defendants shall provide the

plaintiff with the entire video recording, not just selections

and/or snippets, along with an affidavit from someone

with personal knowledge that the recording exchanged is

the entire video.”

Finally, the court precluded the defendants from using the

plaintiff’s deposition testimony to impeach him on matters

depicted in the video recording. The ruling was made pre

note of issue and the court reasoned that the plaintiff was

able to conduct additional discovery regarding the video if

necessary prior to trial.

Vigio v. New York Hospital, 264 AD2d 668 (1st Dept. 1999):

The court held that the defendants were unduly prejudiced

by the plaintiff’s disclosure of a “day in the life” video of

the plaintiff shortly before the trial was scheduled to begin.

In precluding the use of the video at trial, the Appellate

Division emphasized that the defendants' ability to refute

the video was significantly curtailed by the deaths of both

the plaintiff and the defendants' examining physician prior

to disclosure of the video.

Savino v. Great Atlantic & Pacific Tea Co., Inc., 22 Misc. 3d 792 (Sup. Ct.

Queens Cnty. 2008):

Justice Markey held that defendant was required to

disclose the full, unredacted video surveillance recording,

starting three hours before the accident through the arrival

and departure of emergency medical service personnel

35

from the scene of the accident along with a complete list

of the names, addresses, and telephone numbers of all

store employees, managers, or any of its agents shown on

the video surveillance. The court ordered that this

production be completed prior to the commencement of

depositions.

C. Spoliation of Video Surveillance Recordings

New York State and federal cases are considered collectively given the

mutually inclusive relevance of precedents.

In Suazo v. Linden Plaza Assoc., L.P., 102 A.D.3d 570, 958 N.Y.S.2d 389

(1st Dept. 2013), the court reversed the trial court’s sanction of striking the

defendant’s answer as a spoliation sanction and held:

Since defendants were “on notice of a credible probability

that [they would] become involved in litigation”, plaintiff

demonstrated that defendants’ failure to take active steps

to halt the process of automatically recording over 30- to

45-day-old surveillance video and to preserve it for

litigation constituted spoliation of evidence ([Voom HD

Holdings LLC v. EchoStar Satellite L.L.C., 93 AD3d 33,

43, 939 NYS2d 321 [1st Dept. 2012], at 41, 45). However,

spoliation of the video did not “leave [plaintiff]

prejudicially bereft of appropriate means to confront a

claim [or defense] with incisive evidence”. At trial

plaintiff may present testimony of the two deponents who

viewed the video to establish that the assailants were not

allowed into the building by a tenant. Therefore, the

motion court erred in striking defendants’ answer.

Accordingly, the appropriate sanction is an adverse

inference charge.

Gogos v. Modell's Sporting Goods, Inc., 87 A.D.3d 248 (1st Dept. 2011):

Adverse inference charge was the appropriate sanction for

spoliation of store video surveillance tapes, which were

36

preserved after the slip and fall accident, but were later lost

or destroyed.

Centeno v. Century 21 Dept. Stores, LLC, 2014 N.Y. Misc. LEXIS 1276

(Sup. Ct., N.Y. Cnty 2014):

The plaintiff slipped and fell in the Century 21 Department

store. She reported the accident to store employees, a store

incident report was created and an ambulance transported

the plaintiff from the scene to the hospital. It is not clear

when the plaintiff retained counsel, but counsel did not

send Century 21 a Notice to Preserve surveillance video.

Several months later, during the deposition of the store

manager, he testified and acknowledged that surveillance

cameras were positioned throughout the store and in the

area where the plaintiff’s accident occurred. The plaintiff

then issued a discovery demand for the video surveillance

recordings. The defendant responded that there was “no

known video” of the accident.

The court denied the plaintiff’s motion for spoliation

sanctions finding “no showing of negligence, willfulness,

or spoliation.” Despite the store manager’s having actual

knowledge of the accident at the time it occurred, the court

held that plaintiff failed to show that the defendant was on

notice that the subject video might be necessary for future

litigation since the action was commenced until well over

30 days after the accident and that the store had a 30 day

video retention policy. The court pointed out that the

plaintiff’s counsel did not file a motion for pre-action

discovery or even send the store a letter notifying them of

the need to preserve the tapes. However, the court also

ruled that “[w]hether Defendant's erasure of the video

tapes gives rise to a missing evidence charge is a matter

reserved for the trial court.” Id.

Duluc v. AC & L Food Corp., 119 A.D.3d 450, 990 N.Y.S.2d 24 (1st Dept.

2014), is discussed, infra, in section on Demand Letters and Notices to Preserve.

37

Simoes v. Target Corp., 2013 U.S. Dist. LEXIS 83896, *1, 2013 WL 2948083

(E.D.N.Y. June 14, 2013):

The case involved a slip and fall in a Target store. The

defendant moved for summary judgment. The plaintiff

opposed and cross moved for spoliation sanctions, arguing

that Target only preserved the few seconds of the

plaintiff’s actual fall and did not preserve additional

footage prior to the accident, which would have revealed

how the spill occurred, how long the spill had been on the

floor prior to the fall and whether anyone else had slipped

of fallen prior to the plaintiff’s fall.

The Simoes court conducted a detailed analysis of Target’s

video retention procedures and the actual process followed

in this particular case. Ultimately, the court found that

while Target may have been negligent in failing to

maintain the prior video footage, it was not grossly

negligent, a minimal finding for spoliation sanctions such

as an adverse inference charge.

The court reasoned: “[A] party seeking an adverse

inference instruction based on the destruction of evidence

must establish (1) that the party having control over the

evidence had an obligation to preserve it at the time it was

destroyed; (2) that the records were destroyed ‘with a

culpable state of mind’; and (3) that the destroyed

evidence was ‘relevant’ to the party’s claim or defense

such that a reasonable trier of fact could find that it would

support that claim or defense.” Simoes, citing Residential

Funding Corp., 306 F.3d at 107.

Acknowledging that spoliation sanctions in the form of an

adverse inference jury charge would be “an extreme

sanction and should not be imposed lightly,” the Simoes

court held that although Target had a duty to preserve the

additional footage and was negligent in failing to do so,

ultimately plaintiff was unable to meet his burden to prove

a sufficient degree of culpable state of mind in the

38

destruction of the recording and was also unable to

establish that the prior recording was “relevant.”

Weissman v. TD Bank, N.A., 2013 N.Y. Misc. LEXIS 6411, 2013 NY Slip

Op 33550(U) (Sup. Ct. N.Y. Cnty. 2013), discussed infra. An adverse inference jury

charge is the appropriate sanction for the failure to preserve surveillance recordings

from the time period prior to the accident.

Lowe v. Fairmont Manor Co., LLC, 2014 N.Y. Misc. LEXIS 5646, 2014 NY

Slip Op 33358(U) (Sup. Ct. N.Y. Cnty. 2014). An adverse inference charge is the

appropriate sanction for the failure to preserve surveillance video recording in a case

involving negligent security.

Taylor v. City of New York, 293 F.R.D. 601, 2013 U.S. Dist. LEXIS 126359

(S.D.N.Y. 2013):

This case was brought pursuant to 42 USC § 1983 on

behalf of an inmate held on Rikers Island who was

assaulted by fellow inmates. The plaintiff alleged that

Bloods Gang members, with whom he was incarcerated,

assaulted him and fractured his jaw as part of a widespread

practice called “the Program.” The plaintiff alleged that,

as a means of controlling inmates on held on Rikers,

Department of Corrections (DOC) officers permitted

Bloods Gang members to attack other inmates who were

not affiliated with the gang.

Plaintiff brought three principal claims including a Monell

claim against the City of New York, a failure to intervene

and/or protect claim against the individual DOC officers,

and a negligence claim against all of the defendants.

On the same day that the plaintiff was assaulted, a Deputy

Warden reviewed several hours of video footage including

the assault on the plaintiff. However, she downloaded and

preserved only a small portion of the recording, two four-

minute segments, but not the extensive period of time in

between the plaintiff’s assault and DOC’s intervention.

The plaintiff argued for spoliation sanctions for the failure

to place a litigation hold on the full surveillance recording.

39

Ruling in the plaintiff’s favor, Judge Robert P. Patterson

of the Southern District first described the applicable

standard for spoliation: “The Second Circuit defines

spoliation as ‘the destruction or significant alteration of

evidence, or the failure to preserve property for another’s

use as evidence in pending or reasonably foreseeable

litigation.’ West v. Goodyear Tire & Rubber Co., 167 F.3d

776, 779 (2d Cir. 1999). A party seeking sanctions for

spoliation of evidence must establish the following three

elements: ‘(1) that the party having control over the

evidence had an obligation to preserve it at the time it was

destroyed; (2) that the records were destroyed with a

culpable state of mind; and (3) that the destroyed evidence

was relevant to the party's claim . . . such that a reasonable

trier of fact could find that it would support that claim.’

Residential Funding Corp. v. DeGeorge Fin. Corp., 306

F.3d 99, 107 (2d Cir. 2002). If the moving party proves

each of these elements in the context of a discovery order

violation, then a court has authority to impose sanctions

under Rule 37 of the Federal Rules of Civil Procedure.

Fed. R. Civ. P. 37(b). Absent a discovery order violation,

a court may impose sanctions for the spoliation of

evidence pursuant to ‘its inherent power to manage its own

affairs.’ See Residential Funding, 306 F.3d at 106-07.”

(original citations included)

With regard to its duty to preserve evidence, the court held

that DOC had a duty to preserve the video recordings since

it “should have known that the evidence may be relevant

to future litigation,” citing Fujitsu Ltd. v. Fed. Exp. Corp.,

247 F.3d 423, 436 (2d Cir. 2001); Zubulake v. UBS

Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) The

court found that DOC’s duty to preserve the full extent of

the video arose within a week of the assault and within the

60-day period that the DOC maintained the surveillance

footage before it would be looped over. The court pointed

out that there were “hundreds of other instances where

inmates have been injured while in DOC custody” and

filed lawsuits thereafter.

40

Judge Patterson reviewed Second Circuit holdings on the

duty to preserve video surveillance recordings, even in

situations where a formal notice to preserve has not been

transmitted. When “a party has knowledge that certain

types of incidents tend to trigger litigation, courts within

the Second Circuit have found that a duty to preserve

relevant video footage may attach as soon as the triggering

incident occurs and prior to when a claim is filed. Pointing

out the “DOC's experience with prior litigation arising

from inmate on inmate assaults,” the Judge held that DOC

should have reasonably anticipated litigation and a duty to

preserve arose prior to when the footage was deleted.

The court defined the scope of the duty to preserve as that

which a party “reasonably should know is relevant” to an

anticipated action. Holding that DOC should have

anticipated a lawsuit for breaching it’s in its duty to protect

plaintiff, defendants “should have reasonably known that

any evidence depicting Plaintiff's treatment in the Pen B-

4 holding cell would be relevant to his lawsuit. Such

evidence should have included the entire three hours of

surveillance footage not only because the footage related

to how Plaintiff's jaw became severely injured while in the

holding cell, but also because it contained evidence of: (1)

the manner in which DOC officers had carried out their

duty to protect the cell inmates before and after Plaintiff

was injured and (2) the identity of potential witnesses to

the assault.” The court found that, in failing to preserve

the full 3 hours of video, the court found that the

defendants breached their preservation duty. 293 F.R.D. at

610-615

[N.B: According to city DOC’s witnesses, the DOC video preservation policy

requires DOC officers to make available video recorded evidence of incidents in

order “to enhance the investigation process of Use of Force and Unusual Incidents.”]

Regarding the level of culpability in the destruction of the

video recording, for the federal court to entertain

spoliation sanctions, Judge Patterson ruled that the DOC

defendants were, at a minimum, negligent in allowing the

footage to be deleted, but were not grossly negligent. Chin

41

v. Port Authority of N.Y. & N.J., 685 F.3d 135 (2d Cir.

2012), (the failure to institute a litigation hold does not

constitute gross negligence per se). The court pointed out

that plaintiff had not yet filed his Notice of Claim prior to

destruction of the three-hour segment of video and that

plaintiff did not establish that any DOC officer willfully

deleted the surveillance footage.

Noting that the DOC “might have troublingly ad hoc video

retention and preservation policies,” the court found that

the destruction of the video footage was nonetheless only

negligent. 293 F.R.D. at 610-615

When the destruction of the video evidence is negligent as

opposed to intentional, the court reasoned that it is

incumbent on the proponent of the spoliation motion to

establish that the evidence destroyed would have been of

some assistive relevance or favorable to the moving party's

claims or defenses. 293 F.R.D. at 610-615

The court found that requiring the plaintiff to provide more

direct proof as to the content of the surveillance footage

would be to hold him to “too strict a standard of proof” in

contravention of controlling precedent, citing Residential

Funding, 306 F.3d at 109; Kronisch, 150 F.3d at 130.

Because the plaintiff showed that “the deleted three hours

of surveillance footage would have been favorable to his

claims and because Defendant Brantley was the only

person to have reviewed this footage before it was

deleted,” the court found that the plaintiff had been

prejudiced by the destruction of the surveillance footage

and that spoliation sanctions were in order.

The court found that preclusion was warranted because

“permitting Defendant to testify about what she observed

on the now-deleted surveillance footage would only serve

to exacerbate the harm that Plaintiff has suffered through

the loss of the surveillance footage. See Chin, 685 F.3d at

162. Defendant Brantley was the only person to review the

entire length of the footage and that footage is now

destroyed and unavailable. Plaintiff's ability to cross-

42

examine Defendant Brantley about the deleted footage is

therefore severely compromised. This fact, combined with

the fact that Defendant Brantley is herself a defendant in

this action and her testimony would bear directly on her

liability, further increases the risk that her testimony might

be unduly colored in some way.”

“Preclusion is also appropriate because permitting

Defendant Brantley to testify about the now-deleted

surveillance footage places the risk of ‘an erroneous

evaluation’ on Plaintiff, who is the injured party, and

not—as it should be—on Defendants. See Chin, 685 F.3d

at 162. During her deposition on April 23, 2013,

Defendant Brantley acknowledged that she had last

reviewed the surveillance footage several years ago and

the lapse in time since then had made some of the footage

details ‘hard to remember.’ (Rosenfeld Decl. Ex. D at 16,

32-33.) Defendant Brantley admitted, for example, that

she could no longer remember whether Plaintiff spoke to

any DOC officers during the three hours that he was in the

Pen B-4 holding cell. (Id. at 9-13, 15-16.) Were Defendant

Brantley to testify at trial, she would be even father

removed in time from her last review of the surveillance

footage and the risk of an erroneous evaluation of what she

observed on the now-deleted surveillance footage would

be only greater.”

For these reasons, and to mitigate the specific prejudice

that Plaintiff might otherwise suffer on account of

Defendants' spoliation, Defendant Brantley is precluded

from testifying about what she observed during the

portions of the surveillance footage that have since been

deleted.

The court also found that a permissive adverse inference

instruction against the individual defendants in this case is

also an appropriate sanction, and also awarded costs and

fees to the plaintiff.

43

D. Freedom of Information Law Requests for Video Surveillance In New York

City:

Freedom of Information Law (“FOIL”) requests for video from the City

Department of Transportation should be directed to:

NYC Department of Transportation

Division of Legal Affairs - FOIL Unit

55 Waters Street - 4th Floor

New York, NY 10041

FOIL requests for video from the NYC Transit Authority should be directed to:

NYCTA, FOIL Dept.

130 Livingston Street, 12th Floor

Brooklyn, NY

718-694-4020

http://web.mta.info/mta/foil.htm (online FOIL Request forms NYCTA, MTA &

LIRR)

FOIL requests for video from the NYC Housing Authority should be directed to:

Records Access Officer

NYCHA

250 Broadway, 9th Floor

New York, NY 10007

Email Address: FOIL@nycha.nyc.gov

Phone: (212) 306-8680

Fax: (212) 306-8710

FOIL requests for video from the NYC Police Department should be directed to:

Records Access Officer

NYC POLICE DEPARTMENT

F.O.I.L. UNIT – LEGAL BUREAU

ONE POLICE PLAZA, ROOM 110-C

NEW YORK, NEW YORK 10038

(http://www.nyc.gov/html/nypd/html/legal_matters/dclm_doc_production_foil.sht

ml)

44

E. Case Law Addressing FOIL Requests for Video Material

Matter of Dilworth v. Westchester County Dept. of Correction, 93 A.D.3d 722 (2d

Dept. 2012):

Plaintiff alleged that he slipped and fell in the county jail

facility. In an effort to obtain the surveillance video

recording of the accident, Plaintiff submitted a FOIL

request under N.Y. Public Officers Law § 87(2)(f). The

court held that the video surveillance from one particular

camera should be disclosed since the Department of

Corrections could not establish that the disclosure of that

particular video would pose a safety risk to other

individuals and employees.

Baines v Port Auth. of New York and New Jersey, 2014 N.Y. Misc. LEXIS 3473

(Sup. Ct., N.Y. Co. 2014):

The court held that records and information detailing the

storing procedures of recorded video data, camera

locations, video storage capacity, length of storage time,

back-up capabilities for video storage, and protocols for

incidents captured by video surveillance cameras fall

under Exemption 4 of the FOI Code, New York Public

Officers Law Section 84 et seq.

Matter of Travelers Prop. Cas. Co. of Am. v Nassau Cnty. Traffic & PV Agency,

34 Misc. 3d 844 (Sup. Ct., Nassau Co. 2011):

The court applied a specific exemption pursuant to Public

Officers Law § 87(2)(k) from FOIL for red light camera

surveillance footage.9 The court noted that the plaintiff

was informed by the third party vendor of the red light

surveillance video that it could provide a copy of the

recording of the motor vehicle accident.

Gilleran v. Twp. of Bloomfield; Public Records, New Jersey Law Journal

5/21/2015:

9 Exempt from general disclosure under subsection k are photographs, microphotographs,

videotape or other recorded images prepared under authority of section eleven hundred eleven-b

of the vehicle and traffic law. Note, under the statute, this exemption expires on December 1,

2019.

45

Plaintiff sought five days of surveillance video recording

from a camera positioned on the municipal building

focused on the designated parking space for the Mayor of

Bloomfield, New Jersey pursuant to the New Jersey Open

Public Records Act. The appellate court reviewed the

municipality’s refusal to disclose the video surveillance

and held that the state’s OPRA does not provide a blanket

exemption to the disclosure of government surveillance

video. Absent a showing (by the municipality) that

disclosure would create a security risk, the video

recordings must be disclosed.

F. Subpoenas

CPLR 3120: Notice for Discovery and Inspection

1. After commencement of an action, any party may serve

on any other party a notice or on any other person a

subpoena duces tecum: (i) to produce and permit the party

seeking discovery, or someone acting on his or her behalf,

to inspect, copy, test or photograph any designated

documents or any things which are in the possession,

custody or control of the party or person served; or (ii) to

permit entry upon designated land or other property in the

possession, custody or control of the party or person

served for the purpose of inspecting, measuring,

surveying, sampling, testing, photographing or recording

by motion pictures or otherwise the property or any

specifically designated object or operation thereon.

2. The notice or subpoena duces tecum shall specify the

time, which shall be not less than twenty days after service

of the notice or subpoena, and the place and manner of

making the inspection, copy, test or photograph, or of the

entry upon the land or other property and, in the case of an

inspection, copying, testing or photographing, shall set

forth the items to be inspected, copied, tested or

photographed by individual item or by category, and shall

46

describe each item and category with reasonable

particularity.

3. The party issuing a subpoena duces tecum as provided

hereinabove shall at the same time serve a copy of the

subpoena upon all other parties and, within five days of

compliance therewith, in whole or in part, give to each

party notice that the items produced in response thereto are

available for inspection and copying, specifying the time

and place thereof.

4. Nothing contained in this section shall be construed to

change the requirement of section 2307 that a subpoena

duces tecum to be served upon a library or a department or

bureau of a municipal corporation, or of the state, or an

officer thereof, requires a motion made on notice to the

library, department, bureau or officer, and the adverse

party, to a justice of the supreme court or a judge of the

court in which the action is triable.

NB.: Subpoenas for video surveillance may be served immediately after the

commencement of an action. A plaintiff need not wait until issue is joined.

G. Demand Letters, Notices to Preserve & Orders to Show Cause

One option to securing video surveillance recordings during the relatively

brief period of time before their destruction is, of course, to file an action

immediately and take advantage of CPLR §3120 subpoena power.

However, if that is not practical, in addition to sending a qualified video

extraction technician to search for, identify sources of, and obtain relevant video

surveillance as quickly as possible, it is important for the attorney to serve the entity

that may have video with a properly drafted Notice to Preserve.

N.B.: Since it is not unusual for surveillance recording to be looped over and

lost after as little as 7 days, it is imperative to move quickly.

We have reviewed cases where practitioners failed to transmit their demand

letters and notices to preserve in a timely fashion or in which counsel neglected to

make their preservation request broad enough to encompass all relevant video

47

recordings. For example, in many situations, it is good practice to request the

preservation of at least a few hours prior to the accident or incident and some time

period afterwards as well.

While footage of the occurrence itself can be powerful evidence, in many

situations, that footage alone may be insufficient to make out all elements of a claim,

including notice of a dangerous condition or control of the area where the accident

or incident occurred.

Additionally, as seen in the cases where counsel have requested spoliation

sanctions for the loss or destruction of video surveillance, the first step in obtaining

such a remedy is proving adequate (timely and broad enough in scope) notice to the

entity in possession of the video recording during the relatively brief window of time

during which it remains available. See, e.g., Duluc v AC & L Food Corp., 119

A.D.3d 450, 990 N.Y.S.2d 24 (1st Dept. 2014).

Preaction discovery is one means of obtaining video evidence before it is

destroyed or tampered with.

CPLR § 3102, Method of obtaining disclosure

(a) Disclosure devices. Information is obtainable by one or

more of the following disclosure devices: depositions

upon oral questions or without the state upon written

questions, interrogatories, demands for addresses,

discovery and inspection of documents or property,

physical and mental examinations of persons, and requests

for admission. (b) Stipulation or notice normal method.

Unless otherwise provided by the civil practice law and

rules or by the court, disclosure shall be obtained by

stipulation or on notice without leave of the court. (c)

Before action commenced. Before an action is

commenced, disclosure to aid in bringing an action, to

preserve information or to aid in arbitration, may be

obtained, but only by court order. The court may appoint

a referee to take testimony. (d) After trial commenced.

Except as provided in section 5223, during and after trial,

disclosure may be obtained only by order of the trial court

on notice. (e) Action pending in another jurisdiction.

When under any mandate, writ or commission issued out

48

of any court of record in any other state, territory, district

or foreign jurisdiction, or whenever upon notice or

agreement, it is required to take the testimony of a witness

in the state, he may be compelled to appear and testify in

the same manner and by the same process as may be

employed for the purpose of taking testimony in actions

pending in the state. The supreme court or a county court

shall make any appropriate order in aid of taking such a

deposition. (f) Action to which state is party. In an action

in which the state is properly a party, whether as plaintiff,

defendant or otherwise, disclosure by the state shall be

available as if the state were a private person.

Generally, pre-action discovery is appropriate and permitted in order to

preserve evidence or to identify potential defendants. Holzman v. Manhattan and

Bronx Surface Transit Operating Auth., 271 A.D.2d 346 (1st Dept. 2000).

A petition for pre-action discovery will only be granted when the petitioner

can establish a meritorious cause of action and that the information sought is material

and necessary to the cause of action. Uddin v. New York City Tr. Auth., 27 A.D.3d

265, 266 (1st Dep’t 2006).

Holosko v. Fairway Supermarket, 2014 N.Y. Misc. LEXIS 2201, 2014 NY

Slip Op 31247(U) (S. Ct., N.Y. Cnty. 2014):

The plaintiff, injured in a slip and fall outside the Fairway

Supermarket on East 86th Street in Manhattan, filed an

Order to Show Cause for pre-action disclosure pursuant to

C.P.L.R. § 3102(c) in order to preserve and obtain the

video surveillance of the accident and the video of the

scene of the accident for a one hour period of time

preceding the accident. The plaintiff’s application was

granted.

However, defendant Fairway argued that although it was

informed of the accident itself and preserved the footage

of the accident, it was not served with the court’s order

requiring preservation of the hour time period before the

accident, and, therefore, that video was destroyed. Fairway

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indicated that it had a 200 day retention policy for video

surveillance.

The court rejected Fairway’s argument that the video

surveillance was not a proper subject for pre-action

disclosure. However, the court also held that since the

plaintiff did not serve Fairway with the prior court order

to preserve the one hour period of video surveillance

before the accident until over 200 days after the accident,

Fairway could not be sanctioned for failing to preserve

such video.

Matter of Kostovski, 2008 N.Y. Misc. LEXIS 10486 (Sup. Ct., N.Y. Co.

2008):

The petitioner brought a special proceeding pursuant to

C.P.L.R. § 3102(c) for pre-action disclosure and to

preserve, inter alia, NYPD Argus system video

surveillance of a police shooting for potential wrongful

death action. The court ordered the preservation and

production of any surveillance video recordings of the

incident. The petitioner’s FOIL request for the video

surveillance had been denied by the NYPD. However, the

court found that the special proceeding was not brought to

challenge the FOIL determination, but was brought under

C.P.L.R. § 3102(c).

Christiano v. Port Auth., 1 A.D.3d 289 (1st Dept. 2003):

The defendant Port Authority appealed Supreme Court’s

order granting pre-action disclosure of video surveillance

recordings from cameras near World Trade Center site as

evidence of an accident. The Appellate Division modified

the order and required an in camera inspection of the

surveillance video prior to disclosure for security

purposes.

N.B. This is a post 9/11 case in the area of the WTC and

the court’s decision was influenced by these factors.

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The court held: “It is recognized that the video recordings,

if they exist, may be protected by a public interest

privilege (citing Cirale v 80 Pine St. Corp., 35 N.Y.2d

113), to the extent that they might compromise security

systems and procedures in the vicinity of the World Trade

Center. Accordingly, the court should first undertake an in

camera review of any existing video materials to

determine if they are covered by the public interest

privilege. (citing Matter of World Trade Ctr. Bombing

Litig., 93 N.Y.2d 1).”

Cueto v. Bogopa-Buckner Inc., 2014 N.Y. Misc. LEXIS 4508 | 2014 NY

Slip Op 32632 (Sup. Ct. Bronx Co. 2014):

Two days after a slip and fall accident inside the

defendants’ store, the plaintiff’s counsel transmitted to the

store, by certified mail return receipt, a demand letter to

preserve any and all video recordings, surveillance tapes,

and still photos of recordings made at the store on the date

of the accident during a specified time frame. Despite

repeated demands for the video surveillance, the

defendants failed to disclose the requested recordings.

Thereafter, the plaintiff filed a motion pursuant to CPLR

§ 3216 requesting an adverse inference charge or, an order

striking the defendants’ answer or, alternatively,

precluding the defendants from testifying or producing

evidence at the time of trial.

The trial court held that the plaintiff was entitled to “an

adverse inference charge at trial in sum and substance as

set forth in Pattern Jury Instruction 1:77.1 (2014) with

respect to the subject video recording(s) unless the

defendants permitted the plaintiff to conduct a discovery

and inspection of the video surveillance system and

equipment of the store in question by the plaintiff's counsel

and an expert of the plaintiff's choosing at a mutually

convenient time and date. The court also held that the

defendants were precluded from calling an expert on their

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behalf to testify at trial regarding any such video

recordings that were not made available to the plaintiff.

Weissman v. TD Bank, N.A., 2013 N.Y. Misc. LEXIS 6411, 2013 NY Slip

Op 33550(U) (Sup. Ct. N.Y. Co. 2013):

Plaintiff’s counsel sent a preservation letter to the bank

seven days after plaintiff slipped and fell inside its

premises. The letter requested that the video recording for

the entire day be preserved. However, the bank only

preserved the period of time of the accident only. The

plaintiff then moved pursuant to CPLR 3126 to strike the

defendant’s answer for failing to preserve the video

recording of the entire day or, in the alternative, for an

adverse inference charge. The court denied the plaintiff’s

request to strike the defendant’s answer, but granted the

request for an appropriate adverse inference charge.

The court noted that the entire video recording requested,

including the time period before the accident, was relevant

to the issue of notice of the dangerous condition upon

which the plaintiff slipped and fell.

Duluc v. AC & L Food Corp., 119 A.D.3d 450, 990 N.Y.S.2d 24 (1st Dept.

2014):

One week after a slip and fall accident inside the

defendant’s store, the plaintiff’s counsel transmitted a

demand letter “to preserve ‘any and all video

recordings/surveillance tapes/still photos of any nature

that depict the subject slip and fall accident’ on the date

and time in question.” The manager of the defendant store

downloaded an 84-second recording of the accident itself

and forwarded the same to her insurance carrier. The

recording device was on a 21-day loop due to storage

capacity (not unusual).

Six weeks after his first demand letter, the plaintiff’s

counsel sent a second amended request expanding his

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demand to six hours of footage leading up to the accident

and “for all 32 cameras in the store.”

In the course of discovery, it was determined that only the

84-second recording was preserved and the additional

video requested was lost after 21 days following the

accident.

Plaintiff’s motion for spoliation sanctions was denied. The

court held that plaintiff's “initial demand for preservation

of videotapes was limited to those that ‘depict the subject

slip and fall accident that took place on the above

referenced date, time and location.’ The portion of

the tape that was preserved complied with this demand.”

The court then granted the defendant’s motion for

summary judgment.

N.B. Judge Saxe persuasively dissented, reasoning that

the plaintiff’s initial notice to preserve was broad enough

and the defendant’s insurance carrier, which was

immediately informed about the accident, had sufficient

notice to conduct a further review and preservation of the

surveillance recording for the time period prior to the

accident. Citing Gogo, supra, Judge Saxe found a

“reasonable preservation obligation” was in order and

dissented from the grant of summary judgment in favor of

defendant. Per Judge Saxe: “The images contained on any

video recordings made on that day and around that time by

surveillance cameras may well be critical in assisting the

injured person in establishing exactly what occurred and

why. Since it is often standard procedure for these

recordings to be overwritten or recorded over in a matter

of weeks or a few months, timely service of a notice on the

property owner to preserve any such recordings [456]

must create an obligation on the part of that property

owner to preserve all potentially relevant recordings. The

property owner is not free to extract from such recordings

a short clip depicting that one moment at that one location

from only one angle and to assert that nothing else on its

recordings is relevant—especially when the preserved

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portion of the recording does not even depict the condition

of the floor on which the slip and fall occurred.”

VII. EXAMPLES OF VIDEO EVIDENCE AS GAME CHANGERS,

VIDEO PRESENTATION10

10 This segment of the program will involve a video presentation utilizing video surveillance

examples for federal and state cases and include both government and private video surveillance.