Audio and Video Recordings in Litigation: Sending an Effective Document Preservation Letter | Practical Law

Audio and Video Recordings in Litigation: Sending an Effective Document Preservation Letter | Practical Law

Audio and video recordings can provide significant evidence of exactly what transpired between the parties to a dispute and can have significant personal and professional consequences for those involved, just ask Donald Sterling and Jay-Z. If a dispute may result in litigation, counsel must promptly and effectively demand that an opposing party or non-party preserve relevant audio and video evidence until a formal document request is served in discovery.

Audio and Video Recordings in Litigation: Sending an Effective Document Preservation Letter

by Practical Law Litigation
Law stated as of 17 Jun 2014 • USA (National/Federal)
Audio and video recordings can provide significant evidence of exactly what transpired between the parties to a dispute and can have significant personal and professional consequences for those involved, just ask Donald Sterling and Jay-Z. If a dispute may result in litigation, counsel must promptly and effectively demand that an opposing party or non-party preserve relevant audio and video evidence until a formal document request is served in discovery.
Quality recording devices are easily accessible and affordable. As a result, the use of audio and video recordings as evidence in disputes, including in civil litigation, is becoming more common. In the last few weeks alone, two public figures have endured intense scrutiny following the release of taped recordings involving themselves and their friends and family members, with one incident leading to litigation:
  • On April 25, 2014, gossip website TMZ.com posted an audio recording of a conversation between Los Angeles Clippers owner Donald Sterling and his friend V. Stiviano, in which Sterling made several inappropriate and racist comments. As a result, the National Basketball Association (NBA) fined Sterling $2.5 million and banned him for life from operating or managing the Clippers and from attending any NBA games. Sterling responded by filing a $1 billion federal lawsuit against the NBA and its commissioner asserting, among other claims, breach of contract and antitrust violations.
  • On May 12, 2014, TMZ.com posted video surveillance footage of Jay-Z being physically attacked by his sister-in-law, Solange Knowles, inside an elevator at the Standard Hotel in New York City. After the video footage was leaked, the hotel fired the employee allegedly responsible for providing the video to TMZ and announced that it would cooperate with any criminal investigation of the matter. Whether a civil lawsuit stemming from this incident is forthcoming remains to be seen.

Drafting an Effective Preservation Letter

If an audio or video recording may have a significant effect on a client's litigation position, counsel must act quickly to ensure that it is preserved. Specifically, counsel must send the party in possession of the recording a document preservation letter requesting preservation of the recording. The letter should:
  • Be sent as close in time to the recorded event as possible.
  • Be sent to:
    • the receiving party's attorney; or
    • the party's senior executives, such as general counsel, the chief financial officer and the chief executive officer, if the party is unrepresented.
  • Unequivocally threaten litigation, if a complaint has not already been filed.
  • Specify the particular audio or video recordings that should be preserved.
Sufficiently identifying the recording to be preserved is critical. If the letter fails to do so:
  • The recording may be deleted or destroyed.
  • The requesting party may be unable to obtain spoliation sanctions.
(See Shakespear v. Wal-Mart Stores, Inc., No. 12-cv-01064, (D. Nev. June 26, 2013) (defendant did not spoliate evidence in a slip and fall case by failing to preserve all surveillance videos for the entire store on the date of the incident, when plaintiff's preservation letter vaguely demanded that defendant preserve only "the surveillance video in question"); United States v. Universal Health Servs., Inc., No. 07-cv-54, (W.D. Va. June 28, 2011) (spoliation sanctions against defendant in a discrimination and False Claims Act case denied when the government never served a preservation letter that specifically mentioned video surveillance recordings or instructed defendants to alter the routine overwriting of video surveillance tapes after 30 days); Mahaffey v. Marriott Int'l, Inc., 898 F. Supp. 2d 54 (D.D.C. 2012) (motion for spoliation sanctions against defendant in a personal injury case denied, when plaintiff's preservation letter was sent over one month after the incident, at which time the video sought had likely been overwritten, and gave insufficient information to put the defendant on notice that the video footage should be preserved).)

Practical Law's Litigation Hold Toolkit Can Help

Practical Law's Litigation Hold Toolkit contains several resources to help counsel preserve relevant audio and video recordings, as well as other documents and information, including: