new york bridge the gap session c introduction to video … bridge the gap 4 evening progra… ·...
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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: [email protected]
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.