Victor Valley Union High School District v. Superior Court (2022) 86 Cal. App. 5th 940.
What Duties Does an Association Have to Maintain Video Recordings?
Technology is advancing at an ever-increasing pace. The cellphones in our pockets are not just phones, — they take pictures, send email and text messages, provide GPS navigation, play music, run hundreds of apps that do almost everything, and they have better higher resolution video capability than movie studios had in the 1990s. As technology improved and shrunk (and became much less expensive), video cameras for security surveillance have become so commonplace that most people do not notice them and go about their daily lives as if the cameras were not there. But what happens when one of those cameras – in one of our communities – records activity that leads to an inquiry that does not get resolved which turns into a dispute and ultimately becomes a lawsuit? What duties does an association have to maintain those video recordings or face possible sanctions under the Code of Civil Procedure for spoliation of evidence?
On December 22, 2022, the Fourth District Court of Appeal issued its opinion in the case of Victor Valley Union High School District v. Superior Court (Doe). The court, in a different context, set forth the most current guidance on maintaining video recordings and other potential evidence. The facts of the Victor Valley case are tragic and hopefully extraordinarily rare: two male high school students took a third male student, who was unsupervised, but who typically had full-time adult supervision both in and out of the classroom, from the cafeteria into a bathroom where they sexually assaulted him. The school had video cameras in the cafeteria, and the assistant principal and a security officer reviewed the footage from the cafeteria cameras from a three-day period. The third day of video included the recording of the two students taking the third student from the lunch table toward the locked bathroom. Fourteen days later, because no one took any steps to preserve the video because each thought the other was saving it, the video was recorded over and lost forever.
Importantly, the court set forth the rules clearly and concisely: the safe-harbor provision of the California Code of Civil Procedure section 2023.030, subdivision (f), “shields a party from sanctions for the spoliation [meaning the loss or destruction] of electronic evidence only if the evidence was altered or destroyed when the party was not under a duty to preserve the evidence, and the duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.”
While the court’s words are clear, they leave an important practical question unanswered: when is litigation likely to arise from an incident or dispute and instead of being a mere possibility? That is a question that could be argued and debated before courts for decades without a clear, simple answer. From a lawyer to a client, the simplest and best answer to that question is the age-old advice: better safe than sorry. If there is video footage (or other evidence) that relates to any incident, issue, or dispute, it would be much better to take the steps necessary to preserve that evidence until final resolution is reached rather than to take the chance that an appellate court might decide years later that litigation was likely to arise and, therefore, to impose monetary sanctions against an association for destroying evidence that should have been preserved.