One of my readers is Jeff Reed, who has been involved in e-discovery for a long time. He wrote a very interesting article that I enjoyed reading. I haven't seen a survey of court cases on video spoliation before, so I finally decided to post it on Sensei's site and have Jeff write up a short summary below. The full article can be found here. Thanks Jeff!
The article is a survey of court opinions reported in cases dealing with video evidence. It takes the position that video of all types - from tape to smartphone - is ESI and should be treated as such. It then examines the opinions to see how well, more than six years after the advent of the Federal Rules on ESI, the courts apply the Rules and their method of analysis.
At best, the use of the Federal Rules' framework is spotty. In one unusual case, the Court first imposed an adverse inference instruction and then applied the presumption itself during a non-jury trial. It didn't work out as expected. Other cases serve to point out the ubiquitous nature of video evidence and point out the need to be aware that video evidence can come from many locations and needs to be analyzed properly. Consistency is particularly absent in prisoners' rights cases. The article concludes by providing an outline framework to assist in analyzing video ESI issues.
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