Key point. Churches that discard potentially relevant records, including video footage, in a pending or threatened lawsuit may be subject to potentially severe sanctions by a court.
Some churches have installed video cameras on their premises as a way to detect criminal activity. In some cases, video cameras are installed in the church office to catch financial improprieties. But the most common use of this technology is to deter incidents of child abuse and to identify perpetrators.
Whatever the reason for using video cameras, church leaders should be aware of their legal obligation to preserve such evidence in the event of litigation.
A Washington state court case illustrates the importance of preserving video camera recordings in the event of litigation.
A student (the “victim”) started first grade at a public school in December 2016. Another student (the “classmate”) was in the victim’s class and they rode the same school bus. On May 22, 2017, the victim told his mother that the classmate sexually abused him “almost every day” at school. He said the abuse had been happening in a school bathroom. The same day, the victim’s parents reported this to his teacher and a school counselor, who then informed the local police department.
During the 2016–2017 school year, the school used eight surveillance cameras. Cameras one through seven were outside the school building, and camera eight was inside a closet. Cameras one through four were not operating during the time the victim and the classmate attended school together.
The school buses also had surveillance cameras. The school installed a new camera system in its buses in April 2017, and that system retained footage for about 30 days. With no action taken to preserve footage, the camera systems automatically overwrote old footage to free up storage capacity. The school cameras retained footage for at least 30 days, but it could retain footage for up to 6 months.
A school-set schedule set forth parameters for retaining camera footage. The schedule prohibits the destruction of any footage subject to “ongoing or reasonably anticipated litigation.”
On June 6, 2017, the principal emailed the victim’s mother, confirming that, based on the principal’s investigation, inappropriate touching occurred. Up to this point in time, the school took no steps to preserve any video footage.
Instructed to preserve documents
On June 19, 2017, the school received a letter from a law firm informing it that it had been retained by the victim’s mother to represent the victim and requesting that it preserve documents related to the victim and the classmate, including surveillance video footage from the school and the buses from December 2016 onward.
On June 21, 2017, school employees received an internal litigation hold letter from its attorney instructing them to preserve documents relating to the victim and to suspend standard document destruction programs. The letter explained that “documents” included electronic information and that failure to preserve documents could lead to “severe sanctions.” Even still, the court noted, the school “did not take any steps to preserve video footage.”
On October 10, 2017, the victim sued the school. On November 9, 2017, the victim sought information, documents, and video recordings related to the victim and the classmate. The victim’s lawyers asked the school to identify:
- “[E]ach document, which you possess or have the legal right to obtain, pertaining to [the victim] or [the classmate].”
- “[E]ach document, which you possess or have the legal right to obtain, pertaining to video or audio recordings of [the victim] or [the classmate] on the premises of [the school] or on your school buses during the 2016–17 school year, including without limitation video recordings, audio recordings, and electronically stored information.”
- “[E]ach document, which you possess or have the legal right to obtain, pertaining to your use of video or audio recording equipment on school buses, including without limitation identification of buses outfitted with recording equipment, procedures for use of the equipment, review processes for recording media, use of the equipment in documenting instances of inappropriate student behavior, and procedures for proper disposal of recording media.”
The law firm requested, “If any such document was, but is no longer, in [the school’s] possession …, please state what disposition was made of the document.” The firm’s request defined “document” to include “video recording[s].” The responses were due December 9, 2017.
For the first time, the school acted on December 8, 2017, to preserve surveillance camera footage. The school responded to the prior discovery requests by simply stating that it had no evidence responsive to the requests.
The plaintiff asked the court to order the school to provide “complete and nonevasive answers,” and on June 7, 2018, the trial court ordered the school to identify and produce all documents, including videos, related to the victim and the classmate by June 27, 2018. The school did not comply with this order.
The school “repeatedly violated discovery rules”
The trial court concluded that the school had “spoliated” school and bus camera footage. Merriam-Webster defines “spoliation” to mean “the act of plundering,” “the state of having been plundered especially in war,” or “the act of injuring especially beyond reclaim.”
The trial court also concluded that the school “repeatedly violated discovery rules and the court’s discovery orders.” The court granted a default judgment against the school and assessed damages at $500,000.
What this means for churches
Churches that operate surveillance cameras are certainly free to delete footage after a reasonable time if no actual lawsuit is pending and none is anticipated.
But once a lawsuit is filed, or one is anticipated based on facts known to church leadership, it is important to preserve all potentially relevant evidence, including documents, emails, videos, and audio recordings. A failure to do so may constitute “spoliation of evidence” which, as this case illustrates, can result in severe penalties, including a default judgment and monetary damages.
J.K. v. Bellevue School District, 500 P.3d 138 (Wash. App. 2021)