Cell phones and tablets have become the modern day Swiss Army Knife, the key to survival when navigating the treacherous trails of daily life. Not only can these devices guide you through the vast array of potential restaurants, transit systems, social events and shopping centers, they can also capture these moments in digital images and videos, creating a play by play of your every day adventures to be retold to the world through social media outlets such as Facebook, Twitter and Instagram. But what happens when these digital images and video are sought later to gauge the veracity of your client’s claim in a potential lawsuit? Can you simply wipe out this digital storyboard and erase any shred of evidence? Of course not.
In any litigation one of the first issues confronted by counsel is the necessity of identifying and preserving relevant electronically stored information (“ESI”). The mountain of potentially pertinent ESI can seem insurmountable at times, however, it is important to remember that ESI extends beyond emails, spreadsheets and databases, and includes digital images and videos. The seminal case, Zubulake v. UBS, 220 F.R.D. 212 (S.D.N.Y. 2003), serves as guide in determining the scope of a parties e-discovery obligations. The Zubulake standard requires that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” In maneuvering through the potential sea of “relevant” information it is vital to remember that digitally stored videos and images must also be preserved.
All too often important images are lost because its potential relevance is not fully appreciated until it’s too late. Recently, in Jennings v. Orange Regional Medical Center, 102 A.D.3d 654 (2013) a patient at the medical center was allegedly assaulted by another patient, and potentially dispositive videotape footage of the incident was overwritten. In response to the loss of information Plaintiff moved to strike the defendant’s answer on the grounds of spoliation of evidence. While not granting the complete relief sought, the Court sanctioned the defendant by requiring a negative inference charge to be given at trial. A conscious effort to preserve the pertinent footage would have proved essential in preventing potential sanctions. Images and videos stored on cell phones or tablets are by no means immune from discovery and it is vitally important to consider the ramifications of deleting such information when litigation looms on the horizon.
If you or your company has any questions or concerns regarding e-discovery related issue, contact James G. Ryan at jryan@cullenanddykman.com or via his direct line at 516-357-3750.
A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman, for help with this post.