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what's your responsibility to retrieve, produce and testify re video / comment on authenticating video October 5, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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what's your responsibility to retrieve, produce and testify re video / comment on authenticating video
October 5, 2017
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what's your responsibility to retrieve, produce and testify re video
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    There are two ways you can be asked to assist with your subscriber's video data.  
  • a request by your subscriber, police or someone else
  • a subpoena directing your compliance
    My client was served with a subpoena requiring that the client [alarm company] put all personal and business matters aside and appear in court with certified copies to video footage for a 6 month period and be prepared to testify regarding the video data.  The dilemma presented by the subpoena is that subpoenas are issued by lawyers [yes we have the legal authority to issue summons and subpoenas]; subpoenas don't have to be issued by a judge after good cause is shown for compelling the testimony. The problem is that once served with a subpoena you only have two options, comply or engage in motion practice before the court seeking a protective order, quashing the subpoena.  You can reach out the attorney and hope that the lawyer will release you from the subpoena, or you can ignore the subpoena and risk being held in contempt of court.  So the lawyer who issued the subpoena to my client assumed that:
  • the alarm company had access to and control of the video data
  • the alarm company had the responsibility to spend hours retrieving the data
  • the alarm company had the duty to provide testimony regarding the video data
    What obligation does the alarm company actually have to retrieve, assemble, deliver and testify?  Well, that duty would come from the contract with the subscriber.  The Standard Form All in One covers cameras, the installation, service and monitoring options.  Cameras can come with
  • recording to local DVR or NVR
  • permit remote viewing on subscriber's internet connected device
  • record to cloud, retrievable by subscriber
  • record to cloud, stored on alarm company's [or its central station] server, retrievable by alarm company 
    Only in the last option would the alarm company have exclusive access to the video data.  The other options all permit the subscriber to access and retrieve the data.  Unless the contract with the subscriber calls for the alarm company to assist with the retrieval, or perform the retrieval, there would be no obligation.     You cannot be compelled to perform services, here spending time on the video without having some obligation to do so.  Also, you cannot be compelled to offer expert testimony without being paid for your expert testimony.  Unless you personally witnessed what is captured on the video data, and asked to testify that the data accurately reflects what you personally witnessed, you are not a "fact" witness who can be compelled to testify in a civil or criminal case.  
    If you want to be responsible for data management, storage, retrieval and testifying, make sure your contract covers those issues.  
    Requests or subpoenas for alarm company assistance or testimony is not new, but newer technology, particularly the camera data, increases the chances of alarm companies being called upon to provide assistance.  When central stations are asked about response to signals, inquiring attorneys are usually satisfied with a copy of the Activity Report.  But video data is not as easily retrieved and explained, so subpoenas requiring appearance may become more common.  Explaining that the subscriber's cameras record to a local DVR over which you have no control or involvement may resolve your required participation, but interactive and cloud based recording and storage may be more problematic and you may be asked or required to assist.
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comment on authenticating video re article on September 30, 2017
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Ken
    re Video copying.
    One of my clients had an incident of domestic violence. (Apartment Complex) We were called out to pull a copy for the sheriff.  Had issues and could not pull a copy of the event. The sheriff asked the property manager/owner if he could take the DVR and they agreed. There is always a way depending on what the event is. It was good for us, I sold my client a new DVR for cost.  We have now worked with them on about 12 properties.
    Just my 2cents
    Thank You and Have a Great Day
Van Mayorga, President
Great White Solutions, Inc.
Orchard, Texas
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com