We are surrounded by recording devices: smart phones, dashboard cameras, recording doorbells, smart home devices, surveillance cameras, and drones. Chances are that if an accident happened, one of these devices captured it. Video of an employee’s accident can be a key piece of evidence, but we cannot use that evidence if it was erased.
Failing to preserve video evidence is called ‘‘ spoliation .’’ Preserving evidence is an important part of defending a workers’ compensation claim. In 2019, a statute was enacted governing spoliation. It states that a “party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation.” Va. Code § 8.01-379.2:1
If evidence that should have been preserved is lost because a party did not take reasonable steps to preserve it, or it is destroyed or altered, then an adverse inference may apply. If the court finds that another party was prejudiced by the loss of evidence, the court may presume that the missing evidence was unfavorable to the party who failed to preserve the evidence.
This new code section is not part of the Virginia Workers’ Compensation Act , but the Commission may look to it for guidance when dealing with spoliation issues.
Tips to Preserve Video Evidence
(details below)
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- How to preserve video evidence of an accident
- Know the video retention policy
- Create a video retention policy
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Why it’s important to preserve video - an example:
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The employee alleges a minor injury to her knee but doesn’t seek medical treatment initially. The employer reviews video of the accident. It looks like the employee tripped over an object in the hallway. She did not fall down and she walks normally down the rest of the hallway after she trips. The employer determines the accident is legitimate and minor. The employer immediately reports the accident to their insurance carrier. Thirty days after the accident, the video records over itself. Six months later, the claimant files a workers’ compensation claim alleging she needs a total knee replacement because of the accident. She claims she fell down after tripping and hit both knees on the ground. The video that disproves this lie is gone, making it much more difficult to defend the total knee replacement. Further, the Commission may look to the spoliation statute for guidance and make a finding that the missing video must have been bad for the employer.
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Tips to help you preserve important video* evidence.
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* Spoliation applies to all types of evidence, not just videos. Missing video is the most common scenario we see when claims get referred to us.
How to preserve video evidence after an accident
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Review video from ALL nearby cameras.
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Notify the person responsible for storing the video that it will be needed.
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Save the video in its native format, as soon as you can, to ensure it is not recorded over.
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Make a copy of the video and save the copy as well.
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Ensure you back up both the original and copy of the video files along with your other backups.
Know the video retention policy
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How quickly does video erase itself?
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Where is the video stored?
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Who has access to it?
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Who do you need to contact to ensure the video is not recorded over? How soon do you need to contact them?
Don't have a video retention policy? Create one.
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Who should be responsible for preserving video?
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Where it should be stored?
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How it should be backed up?
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Who should have access to view video?
What if a camera you do not control caught the accident on video? We can file a motion to preserve this evidence, even if the business or person that recorded the video is not a party to the case. Contact us quickly so we can file the motion before the evidence is destroyed.
Jessica Hacker Trivizas is a litigator who focuses her practice on workers’ compensation, defending employers and carriers at the trial and appellate levels. She works with insurance carriers, third-party administrators, and self-insureds. Jessica worked on some of the largest settlements in the country, including the historic NFL Concussion Settlement Program, the BP Oil Spill settlement, and the Reglan/MCP Settlement Program. Her background on these mass claims resolution programs gives her unique insight into the work of claims adjusters.