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When Video Evidence Gets Deleted

By George Khoury, Esq. | Last updated on

A recent civil suit involving a South Carolina school and student who was incessantly bullied, attacked, and injured while at school, highlights one critical problem that attorneys can often face when trying to get that holy-grail surveillance camera footage: poor data storage retention policies.

The school claims that by the time they were served with a preservation of evidence letter by the plaintiff, it was already too late. Their system had already deleted and overwritten the relevant time periods several times, essentially rendering the data unrecoverable.

Deducing Improper Deletions

Although data retention policies seem to provide a reasonable excuse for deleting certain types of data, these are not iron-clad, and aren't always enforced properly. As such, you may want to subpoena the data from a third party depending on how the data is stored. Even if the data can be shared by the party, seeking out the relevant data directly from the third party can prevent discovery shenanigans. Also, you may be able to also get log files regarding what files have been deleted, which could potentially tell you whether any of those files are recoverable.

How to Combat Deletions

If evidence has been deleted, it may be near impossible to find out without some sort of admission or forensic analysis. And while you might think an admission is impossible to get, if you get the data retention policy and the log files via written discovery, spend hours reviewing the data (or retaining an expert to help you do so), then strategically noticing depositions, it might be easier than you think.

And in either case, if there's any hint of an improper motive, courts will often be willing to minimally give a specific instruction in your favor, and if the circumstances surrounding the deletion look really bad, a judge might just go the whole way and tell the jury what the deletion of evidence requires them to accept as true, or dispositively rule on an issue.

However, this will likely be something that you need to pursue and might have to pay to do so, as it may require retaining experts out of pocket, and then filing sanctions motions for reimbursement after getting a ruling in your favor on the underlying deletion issue, which will always be a big risk and a big headache.

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