A Digital Picture May or May Not Be Worth a Thousand Words

Digital images taken from whatever source, including surveillance cameras, personal digital cameras and cellphones, are now ubiquitous, with shots taken for reasons of security, to memorialize social events, and to document accidents. Such demonstrative evidence can often be conclusive of a material issue in a case, and that is likely why a famous New York sportscaster used the catchphrase "Let’s go to the videotape!" when reviewing a controversial play. However, digitally stored images for litigation purposes are only as good as their having actually recorded the entirety of the specific event at issue¹ and thereafter preserved so that they can be produced in discovery, and then, of course, properly authenticated for evidentiary purposes. Such electronically stored information (ESI) in digital form, however, is as potentially fleeting as emails, and can easily be deleted, overwritten, lost or destroyed for the best or worst reasons.

More and more decisions, as addressed below, are being issued that necessarily address spoliation sanctions for the failure to preserve such digital videos and photographs, and courts are having to weigh the equities of the circumstances under which such images have been "lost" when determining the appropriate sanction. Specifically, the "intent" of the spoliator and the degree of actual "legal" prejudice suffered by the movant are carefully scrutinized by courts, which are skeptical of such motions and struggle to balance the appropriate level of spoliation sanction based on the specific facts of the case. Frequently, courts order that the spoliation sanction be an adverse inference charge at trial, but such decisions often do not note whether such charge would require that an adverse inference be taken or merely permits the jury to make such inference. In either case, as most cases settle, an adverse inference charge due to "lost" ESI often will not necessarily have the desired salutatory effect, and the spoliator will not be appropriately "punished" for being "unable" to produce the often dispositive piece of ESI evidence.