New Cases Bring Lessons On Video Surveillance Preservation

By Donna Fisher and Matthew Hamilton (June 17, 2020, 5:25 PM EDT) -- Video surveillance is ubiquitous today and often sought in connection with injuries or litigation. As a result, courts are increasingly presented with disputes relating to the preservation and production of surveillance video.

Recently, in Charoff v. MarMaxx Operating Corp.,[1] the U.S. District Court for the Eastern District of Pennsylvania — without reference to Federal Rule of Civil Procedure 37(e), which governs the imposition of sanctions for the loss of electronically stored information, or ESI — held that MarMaxx's failure to produce the requested video, or articulate a reason why there was none, warranted a negative inference instruction.

Other recent decisions, however,...

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