When dealing with video that might be used in a malpractice or premises liability case, the risk of spoliation arises when the owner of the evidence knows it could be relevant to the case and destroys it anyway, says Adam Peoples, JD, partner with Hall Booth Smith in Asheville, NC.

When that happens, the court may order the jury to assume that whatever was on the video was damaging to the party that destroyed it.

“That can be a fatal blow when you get a spoliation instruction in a civil case,” he says. “Every facility is going to be destroying video on a regular basis, but you have a duty to preserve evidence when you have knowledge that it could be relevant to any investigation or litigation.”

However, the loss of the video does not automatically create a spoliation issue. If the hospital can convince the court that it had no reason to suspect litigation involving the video, the court might not issue the spoliation instruction.

But the bar for anticipating litigation is low. Any communication from a potential plaintiff’s counsel, even hinting that a lawsuit might be filed, could be enough to trigger the need for preservation, Peoples says. He recalls one example in which an employer was charged with violations by the Equal Employment Opportunity Commission.

“No lawsuit had been filed, no letter had been received, but the duty to preserve arose based upon other pertinent facts,” he says.

Generally, the duty to preserve information arises when litigation is reasonably anticipated, or you know or should have known there is a credible threat of litigation.

“At that point, your in-house counsel would send out a message to everyone involved, telling them not to change or delete any evidence — and that would include surveillance video,” Peoples says. “You would tell your IT department to save the video along with the metadata.”

If there was nothing to trigger the preservation of the video before it would be erased under the organization’s policies, the court probably will not accept the plaintiff’s claim the footage would have supported his or her allegation. But following policy is extremely important. If policy states videos should be deleted after one month, but it is not performed routinely and video is available from the past year, the one-month policy cannot be used to delete old video when litigation arises.

“You cannot go back and delete that video because it’s past the date at which you should have deleted it. It doesn’t work that way,” Peoples says. “I’ve seen organizations that were negligent in following their own policy, and then when litigation was imminent, their local counsel wanted to delete, delete, delete. They say, ‘You’ve never done it before, but you have to do it now.’ That creates an exception to the policy, and the spoliation instruction goes to the intent of the party destroying the evidence.”

Courts often look to the culpability of the party destroying the evidence. If an IT vendor deleted video as part of a routine process, there likely is no culpability.

“It’s different from the risk management team rushing into the IT department and ordering them to delete that video now,” Peoples explains. “If the IT vendor has no knowledge of any reason to not follow the deletion policy as a routine matter, it’s unlikely anyone would conclude it was done in bad faith.”

The risk of spoliation is not to be taken lightly. The federal rules of civil procedure were recently eased to reduce the need to show culpability, no longer requiring courts to find “exceptional circumstances,” Peoples says. The resulting sanctions can be significant.

If a court finds electronic information should have been preserved, but is gone, it can instruct the jury to presume the missing information was unfavorable to the party that lost it, dismiss the entire case, or enter a default judgment.

“The default judgment would be really bad for a hospital. That would be a default finding of liability, leaving the only question to be the amount of damages,” Peoples says. “That would be the worst-case result, and a pretty severe case in the world of medical malpractice where the damages can be so high.”