What to do if a company destroys video evidence

[Zigner]

The point of the video is to prove that the company never took the investigation seriously and was biased towards the statements of the employee. So basically the employee had one witness claiming I threatened him and I had two stating I didn't with one being a manager. I also mentioned that he was following me around the building harrasing me and I tried to avoid him. The company has mentioned incorrectly stated my clothes that I was armed with a box cutter and that I took no desclation having the video and the witness statements will prove that this

If THAT is what you have, then you have no proof that your termination was based on illegal discrimination. I suspect they just didn't like your attitude.

 

[quincy]

If that is what you consider rude then we really must from two different walks of life. Until now you have not answered my question ontop of that you have claimed twice now that I should speak to an attorney when the nj division of civil rights is already pending an investigation. I was actually being very tolerant with you I knew from my past experience that people were going to ask for more information so I included it all and when you asked questions that were already in the original post I answered them even though they had nothing to do with the question I asked.

Again with the rudeness.

Here is a link to information on “spoliation of evidence,” which may (or may not) apply here:

https://acmjif.org/wp-content/uploads/2017/11/8.-Spoliation-of-Evidence-Final.pdf

 

[Taxing Matters]

Unless or until you file a legal action and move to have all evidence preserved, the employer is under no legal obligation to save video or audio tapes.

Not exactly correct. There are circumstances in which evidence must be preserved prior to any legal claim being filed. In NJ, the standard is:

A duty to preserve evidence “arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence.” Cockerline v. Menendez, 411 N.J.Super. 596, 620, 988 A.2d 575 (App.Div.) (citing Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J.Super. 358, 366, 707 A.2d 180 (App.Div.1998)), certif. denied, 201 N.J. 499, 992 A.2d 793 (2010).​

​

Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 471–72, 38 A.3d 644, 658 (App. Div. 2012)(bolding added). Thus, for example, where an employer knows from the circumstances that litigation may be likely between it and an employee that may trigger the requirement to preserve evidence even prior to any litigation being filed. Note too that it is not necessary to file to move to have evidence preserved for that duty to arise; simply the filing of the litigation would do that even if the duty did not arise before the litigation started.

Destruction of evidence that should have been preserved is known in the law as spoliation. If spoliation can be proven there are a variety of remedies for that depending on when the spoliation was discovered.

I recommend you speak to an attorney in your area for a personal review.

I agree that's a good idea.

 

[quincy]

Not exactly correct. There are circumstances in which evidence must be preserved prior to any legal claim being filed. In NJ, the standard is:

A duty to preserve evidence “arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence.” Cockerline v. Menendez, 411 N.J.Super. 596, 620, 988 A.2d 575 (App.Div.) (citing Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J.Super. 358, 366, 707 A.2d 180 (App.Div.1998)), certif. denied, 201 N.J. 499, 992 A.2d 793 (2010).​

​

Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 471–72, 38 A.3d 644, 658 (App. Div. 2012)(bolding added). Thus, for example, where an employer knows from the circumstances that litigation may be likely between it and an employee that may trigger the requirement to preserve evidence even prior to any litigation being filed. Note too that it is not necessary to file to move to have evidence preserved for that duty to arise; simply the filing of the litigation would do that even if the duty did not arise before the litigation started.

Destruction of evidence that should have been preserved is known in the law as spoliation. If spoliation can be proven there are a variety of remedies for that depending on when the spoliation was discovered.



I agree that's a good idea.

I previously linked to a pamphlet on spoliation of evidence.

 

[Rubio acero]

If THAT is what you have, then you have no proof that your termination was based on illegal discrimination. I suspect they just didn't like your attitude.

The investigation was never handled by someone that I have ever met it was handled by HR also the managers of the facility wanted me back. I fail to see how they could have disliked my attitude when they don't even know me and going off the manger feedback and the 2 witness statements it is clear that HR was racially motivated.

 

[Taxing Matters]

The point of the video is to prove that the company never took the investigation seriously and was biased towards the statements of the employee.

I'm not seeing how the video would do that. The video just shows who was there at the time. What help is there to the company in investigating this incident when it doesn't tell them what was said? After all, the whole basis for the conflict here was what was said, right?

The company has mentioned incorrectly stated my clothes that I was armed with a box cutter and that I took no desclation having the video and the witness statements will prove that this

It might show whether you had the box cutter. A lot depends on the angle in which the video was shot and how you were alleged to have been holding it.

Your claims of illegal discrimination by the employer in this instance are not going to be easy to prove. I'm not saying you can't do it, just that it won't be a simple matter. You'll need the assistance of a lawyer who litigates employment discrimination cases to do it.

 

[Rubio acero]

Not exactly correct. There are circumstances in which evidence must be preserved prior to any legal claim being filed. In NJ, the standard is:

A duty to preserve evidence “arises when there is pending or likely litigation between two parties, knowledge of this fact by the alleged spoliating party, evidence relevant to the litigation, and foreseeability that the opposing party would be prejudiced by the destruction or disposal of this evidence.” Cockerline v. Menendez, 411 N.J.Super. 596, 620, 988 A.2d 575 (App.Div.) (citing Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J.Super. 358, 366, 707 A.2d 180 (App.Div.1998)), certif. denied, 201 N.J. 499, 992 A.2d 793 (2010).​

​

Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 471–72, 38 A.3d 644, 658 (App. Div. 2012)(bolding added). Thus, for example, where an employer knows from the circumstances that litigation may be likely between it and an employee that may trigger the requirement to preserve evidence even prior to any litigation being filed. Note too that it is not necessary to file to move to have evidence preserved for that duty to arise; simply the filing of the litigation would do that even if the duty did not arise before the litigation started.

Destruction of evidence that should have been preserved is known in the law as spoliation. If spoliation can be proven there are a variety of remedies for that depending on when the spoliation was discovered.



I agree that's a good idea.

thank you taxing matters this is why I come to these forums I need to find the exact law.

 

[Taxing Matters]

I previously linked to a pamphlet on spoliation of evidence.

But after I had already started composing my reply, so when I hit send I hadn't seen it yet.

The link you provided does explain that the duty to preserve evidence may be triggered before any litigation is filed, reinforcing the point I made.

 

[Rubio acero]

I'm not seeing how the video would do that. The video just shows who was there at the time. What help is there to the company in investigating this incident when it doesn't tell them what was said? After all, the whole basis for the conflict here was what was said, right?



It might show whether you had the box cutter. A lot depends on the angle in which the video was shot and how you were alleged to have been holding it.

Your claims of illegal discrimination by the employer in this instance are not going to be easy to prove. I'm not saying you can't do it, just that it won't be a simple matter. You'll need the assistance of a lawyer who litigates employment discrimination cases to do it.

So here is the thing I never had a box cutter I was simply working when the worker began harrasing me I walked away to another work area and If I remember correctly this was repeated three times but it was more then once before we got into an argument. The company never mentions that the employee was the aggressor or that he was following me around they also incorrectly state my clothing.

 

[quincy]

The investigation was never handled by someone that I have ever met it was handled by HR also the managers of the facility wanted me back. I fail to see how they could have disliked my attitude when they don't even know me and going off the manger feedback and the 2 witness statements it is clear that HR was racially motivated.

You have a few options. You can wait for the current investigation to conclude or you can consult with an attorney now for a personal review.

But after I had already started composing my reply, so when I hit send I hadn't seen it yet.

The link you provided does explain that the duty to preserve evidence may be triggered before any litigation is filed, reinforcing the point I made.

Fair enough.

 

[Zigner]

The investigation was never handled by someone that I have ever met it was handled by HR ...

Right - exactly as it should be.

... also the managers of the facility wanted me back.

Irrelevant.

I fail to see how they could have disliked my attitude when they don't even know me ...

Ok

... and going off the manger feedback and the 2 witness statements it is clear that HR was racially motivated.

I don't see how you jumped to that conclusion.

 

[Rubio acero]

You have a few options. You can wait for the current investigation to conclude or you can consult with an attorney now for a personal review.

Fair enough.

I don't think I will be doing that I know that I have a good case once I have all the evidence. Now that I think about it there was one other thing that may prove that It was motivated by an illegal characteristic there is just a couple of problems the first is that it is two different characteristics the first is based on the fact that I was from the original warehouse in a ruff neighborhood we had alot of thefts vandalism and fights which were mostly started by spanish people and since I came from that warehouse and i'm hispanic and the employee is neither of those I believe that is what motivated them

 

[Rubio acero]

Right - exactly as it should be.
Irrelevant.
Ok

I don't see how you jumped to that conclusion.

So again how does my attitude apply and i'm not jumping to anything if you have 2 witness to 1 claiming that I never threatened the worker the mangers speak favorable of me the video shows that i am being harrased and I'm trying to avoid him then what made HR make the decision.

 

[quincy]

So again how does my attitude apply and i'm not jumping to anything if you have 2 witness to 1 claiming that I never threatened the worker the mangers speak favorable of me the video shows that i am being harrased and I'm trying to avoid him then what made HR make the decision.

If there is a discrimination case worth pursuing, I am confident that those investigating your claims will see it.

Consult with a local attorney for a review of your options.