As defense counsel to multiple retail clients across the United States, one of the most common things we encounter in personal injury claims is the presence (or oftentimes the absence) of video of “the incident.” In today’s world where the general populace expects and anticipates near constant surveillance in the public arena, the general perception is that most retailers have and use video cameras everywhere in the retail establishment. In reality, this simply is not the case. Often, retailers do utilize some surveillance cameras, but whether the cameras are in the area where any given incident may have happened is determined on an incident-by-incident basis.

Unfortunately, dispelling the myth that there should always be video surveillance of an incident falls on the retailer, and this becomes fertile ground for a claim that the retailer failed to preserve or otherwise destroyed important evidence. The often-resulting spoliation claim is the next act of this all too familiar litigation and courthouse drama. Each state and jurisdiction has its own standards and precedent for the duty to preserve evidence, and retailers should be familiar with the current legal standards for each of the states in which they operate.

The point to be taken is that plaintiffs and juries often assume that because an incident happened, it was recorded by surveillance cameras that were on and functioning. The mine field that now presents itself is the determination of what recorded video needs to be kept and what recorded video may be purged, which leads into that nebulous world of “where does the unpreserved digital video go” if it was not saved.

Retail risk management should be aware that when it comes to recorded video, more is better…..usually. We recommend that when possible, retailers preserve as much of both the pre-incident and post-incident video as is reasonably practicable. Pre-incident video is important in defending litigated cases as it helps establish that the retailer had no notice of the condition that the plaintiff invariably claims led to the incident (unless, of course, the video establishes that the retailer did have notice – which is usually a claim that should have been resolved prior to litigation). The post-incident video invariably tends to show that the party claiming an injury is often not nearly as “injured” as the party would lead the rest of the world to believe.

The moral of this story for retailers is that most people (including jurors) do not believe much of anything they are told (think of and thank the “fake” news phenomenon for that). Video evidence as a tool of persuasion is still viewed with a healthy dose of skepticism, so if the video was available at one time but is no longer available, expect the skeptics to decide that what was not retained is something the retail defendant must not have wanted anyone to see!