Big Brother is Watching

Jan Trendowski, Trendowski & Allen, P.C. Legal Solutions

Trendowski & Allen, P.C. Legal Solutions

401 Center Street

Wallingford, CT 06492

Tel. 203-678-4376

Fax 203-793-7348

Jan Trendowski

[email protected]

With the advent of inexpensive video recorders, there is rarely an incident on the face of the planet that is not videotaped in some fashion. Instead of interviewing witnesses, many police investigations now begin with collecting videos from variety of sources ranging from cell phones to 24 hour surveillance cameras. On the positive side, perpetrators are identified who often would have escaped completely; the Boston terrorists for example. On the negative side, everyone is caught doing everything. I’m sure there are events in everyone’s lives that they don’t want to share with the world. My last Supreme Court argument, for example, was 45 minutes of slowly spinning over 5 blow torches that I just as soon forget. I later learned that the event is available for all to enjoy again and again on CTN.  I refuse to watch it.  Whether one believes universal video recording is the dystopian hell of an always vigilant Big Brother or the mindless heaven of living vicariously through the Kardashians, very little occurs in public that is not recorded in some fashion.

The impact on litigation of all types is significant as the trial is less a question of various recollections than piecing together the footage. With liquor establishments, surveillance video equipment has been used for some time, but in two different ways: checking IDs and premises surveillance. The “Electronic Bouncer” equipment has been around for years for checking IDs, retaining a photo of the patron with their ID. At trial, the door equipment is used to show the patron’s condition on entering and whether they were present at all.  Inside premises video equipment was generally focused on cash registers as a theft deterrent. To the extent that video equipment focused on other areas of the premises, it was usually automatically erased by the time a notice of suit was received. As most liquor related injuries occur off premises, whether assaults or car accidents, police rarely came back to the bar to seize footage. To the extent that videos were retained, they’ve been a two edged sword. Surveillance equipment almost never has an audio track, so the interpretation relies solely on movements. Any exaggerated or odd movement is a sign of intoxication, though in the context of a conversation may simply be an illustration of a point. Describing the size of the fish that got away can easily be interpreted as drunkenly slapping someone. Laughing, making faces, and even simply looking at someone too long have all been presented as signs of intoxication or aggression. The liability of a bar relies on notice, whether for over service or an assault. Without sound, any gesture that varies even slightly from the norm is notice. For example, watch Seinfeld with the sound off and count the gestures that would be notice of intoxication or an impending assault.  In a case I tried a few years ago, a video of someone making a gesture behind someone’s back was interpreted as the first notice of an assault, though by all descriptions the two people weren’t even aware of each other’s presence.

If the bar owner requires video surveillance, here are a couple of logistical pointers for the surveillance system as well as tips on how to potentially reduce Video Surveillance Legal Liabilities:

1. Make sure the camera is angled properly. We’ve had videos of feet, ceilings, and every person other than the one who is presenting the ID.
2. Make sure the equipment records. At my last firm we had an expensive backup system that had flashing lights and made happy whirring noises whenever it turned on. When we actually had to go to it to recover a backup, we discovered that it hadn’t recorded a single thing since the day it was installed. Once the equipment is installed, wait 30 days, then pull up a recording to check whether it is accurate and whether it in fact exists.
3. If the purpose of the surveillance is to create evidence for lawsuits, match the erasing time to the statutory notice requirements. If the notice has a 6 month limit, but the system clears itself every 30 days, the video will not be there when the notice is received. Given that all systems are digital now and digital storage is cheap, this should not be a problem.
4. To the extent that a system does erase itself after a certain period, make sure that the system reset is automatic. If the system only resets when the owner remembers to do it, any information which the owner removes will lead to a spoliation of evidence claim. I’ve had a number of cases with separate claims for spoliation of evidence. The claims were never substantiated, but the penalty is that every issue that could have been on the tape is deemed admitted.
5. If the purpose of the surveillance is only to keep an eye on things with monitors in a back room, make sure there is no recording equipment attached. If there is recording equipment attached, your client will be asked on the stand why it was off, why it was broken, why it wasn’t fixed, and whether it ever worked properly. This all goes back to the spoliation of evidence claim and if you can avoid the issue entirely, it’s certainly worth avoiding.
6. If the purpose of the equipment is to make a record that can be used at trial, make sure it does just that. Older videotape equipment often recorded at 2X and 4X speeds that could not be played on standard equipment. There are various forms of electronic bouncers with various recording systems, some of which could not produce a still shot with the license and photo showed together. Finally, if it’s going to be used at trial, make sure the resolution is adequate to show faces.

Assuming that videos exist and are pertinent to the trial, keep in mind that surveillance equipment not only records at various speeds, but in different methods.  In a recent case the video surveillance in a parking lot created rather murky images that were of little use. A police expert examined the system, not the video, and found that it actually recorded in a series of photos.  He was able to enhance the quality of the individual photos and create a much better video. In the age of YouTube we tend to think of all video as being the same, but surveillance systems come in all ages and types with various quirks that need to be considered. A lot of these systems were installed years ago with no upgrades.

From a purely practical perspective, some courts have video equipment and some don’t. If cost is not a consideration, most attorneys will retain a videographer with their own equipment to present the videos. In a recent case, however, I had to put together my own equipment in a pinch as the plaintiff’s equipment left with the videographer and I had additional videos I wanted to show. I used a standard laptop connected to a 28 inch monitor that I took off a desk at the office. I put the monitor on the jury rail and it worked great. All of the eight jurors were able to see the video in detail. In fact, the clarity was much better that the wall projector that the plaintiff had used. Bring a power strip and an extension cord as you never know where the power outlets are. Also, video connectors change every couple of years. Every laptop has a plug for a monitor, just make sure the plug on the laptop matches the monitor. New laptops use newer types of connectors and may not match the monitor. Finally, remember that personal computers are just that, personal. If you’re going to use your own laptop, make sure to turn on the separate monitor after you’ve cued up the video. Pictures that are terribly amusing as screen savers are often less so with juries in a serious injury case.

Written by Jan Trendowski of Trendowski & Allen, P.C. Legal Solutions for RMS Hospitality Group