Digital images taken from whatever source, including surveillance cameras, personal digital cameras, and cellphones, are now ubiquitous, with shots taken for reasons of security, to memorialize social events, and to document accidents. Such demonstrative evidence can often be conclusive of a material issue in a case. However, digitally stored images for litigation purposes are only good if they actually recorded the entirety of the specific event at issue, and were preserved so that they can be produced in discovery and then properly authenticated for evidentiary purposes. Such electronically stored information (ESI) in digital form is as potentially fleeting as emails, and can easily be deleted, overwritten, lost, or destroyed for the best or worst reasons.
As such, decisions are frequently being issued that address spoliation sanctions for the failure to preserve such digital videos and photographs, and courts are having to weigh the equities of the circumstances under which such images have been "lost" when determining the appropriate sanction. The "intent" of the spoliator and the degree of actual "legal" prejudice suffered by the movant are carefully scrutinized by courts. Frequently, courts order that the spoliation sanction be an adverse inference charge at trial but such decisions often do not note whether such charge would require that an adverse inference be taken or merely permit the jury to make such inference. However, as most cases settle and do not go to trial, an adverse inference charge due to "lost" ESI often will not necessarily have the desired salutatory effect, and the spoliator would not be appropriately "punished" for failing to produce the often dispositive piece of ESI evidence.
