I was reading a well researched news story in the aftermath of the Fort Lauderdale protests that turned into a violent confrontation between police and protesters. Several items caught my attention that could have impact on events that result in litigation/discovery during this time of discord. Body Worn Cameras (BWC) and video surveillance are more commonplace now than ever. Many of my industrial clients require that certain employees wear BWCs or have vehicle/facility cameras that operate on similar technologies. I intend to stay away from politics on essays in the eDiscovery Journal. As a former police criminalist I am very interested in evolving technologies to record and reconstruct incidents. In this and many other recent confrontations, police departments state that BWC footage is not available because the cameras were not turned on. Let’s discuss what data is available to an investigator or requesting party.

Part of my consulting role for corporations is to role play plaintiff requests and expert reviews of my client’s policies, protocols and data sources. Although I have taken a few plaintiff expert gigs in the almost three decades since I left the Houston Police Department, I have never liked the win/lose mentality of front line prosecutors/litigators. I always preferred development of defensible, practical solutions that give clients the key data to resolve disputes before trial. So hearing police departments telling reporters and counsel that ‘there is no footage’ just does not ring true to me. There is ALWAYS relevant ESI in one form or another. The Miami Herald reporters did a good job of comparing the police scenario against evidence from photojournalists, dispatch records, and videos posted to social media. When I support deposition or witness prep, we try to build timelines with attached email, messages, video, etc. that need to be reconciled to the witness statement. I was happy to see this authentication step from the article.

“(Reporters ensured the accuracy of the timestamps by comparing metadata from camera and cell phone photos taken simultaneously.)”

Even with this new narrative supported by multiple time stamped sources of evidence, where is the body camera evidence? One of the officers has reportedly reviewed his own body camera footage before filing his incident report four days afterward.

Let’s cover some BWC device basics first. Although there are more that 70 providers of BWC’s in the market, in 2018 Axon acquired its largest rival, VieVu, to create a near monopoly on police contracts. So we can base our exploration on the Axon camera features and options. Like its competitors, Axon uses a cloud based software (Evidence Sync) to managed, edit, delete and export ESI from cameras. This article by the National Association of Criminal Defense Lawyers does a good job of explaining how officers can ‘activate’ or ‘deactivate’ the cameras in an incident. These systems can be configured to automatically activate when an officer draws his firearm or Tazer. Axon’s latest devices can be configured to support live video streamed to supervisors. All of that is a matter of policy, configuration and training – the playground of plaintiff expert’s could have, would have, should have arguments.

So police are ‘forgetting’ to activate their BWCs during extended confrontations. But are they forgetting or is someone reviewing the footage and deleting it? The truth is in the device and system audit logs.  Although I have not done a forensic deep dive into Axon’s products, I do not believe that any company with this history of litigation would allow end users to edit or delete the audit logs. It appears that their default configuration allows officers to review, edit and delete footage in the field via a mobile app. The supervisors and admins can definitely access, export, delete, etc. footage via Evidence Sync when the BWC is docked.  The practical explanation is that these BWCs only have so much capacity and have to be offloaded periodically. If I were making policy/protocol recommendations to protect the department and public trust, I would export the logs and videos to a secured repository automatically at the end of every shift when the device was docked.

So what could the audit logs tell us? Axon gives us a nifty list of device and software audit events recorded. The key user actions include event button actions, video access, recording start/end and GPS coordinates. Yep. Time, action and location to build the event sequence. None of this contains PII or touches on any privacy issues that I can imagine. Compiling and making sense of all these videos and logs obviously takes effort. Counsel and investigators now triage hundreds of thousands of email from key players in disputes with minimal effort.

This is where discovery (criminal and civil) is going. As practitioners, we have to keep up with new ESI sources and what can be extracted from them. Does your company require incident response personnel to wear BWCs or have video surveillance systems on key public areas? If so, you should review your policies and run a discovery request test scenario to see what you can retrieve. On an onsite collection a while back I spotted a contractor at a hardhat site with a BWC. Turns out his company knew that there was a potential dispute brewing and gave them to all their team leads. The next generation of discovery data sources is here.

Have you run into BWCs in discovery or corporate settings?

Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.

Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer a journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being posted. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations. 


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