This was in NYLJ and it interesting from different perspectives.
1) From a practice point of view, we should include in our initial claim letter to NYCTA a request to preserve ” video footage taken from cameras aboard the bus and a printout of data retrieved from the engine control module of the bus.”
Additonally, you should make a formal demand once the action is commenced (and make repeated requests at the Preliminary Conference and subsequent compliance conferences. This will enable you to either obtain the evidence or pave the way to a “spoliation charge.”
Insist on a witness with knowledge of the video and “black box” evidence. (Your “Notice of EBT” should list “Custodian of records at NYCTA that maintains video and engine control module data”).
2) In making a motion for summary judgement, it seems as though you would need deposition testimony of a NYCTA witness that states that the video and data from the engine control module are copies of the original and are clear and accurate depictions of the scene at the time of the occurrence.
Shaniya B. v. New York City Transit Authority & Manhattan 156620/2013, NYLJ 1202717821904, at *1 (Sup., NY, Decided January 26, 2015)
156620/2013 by Justice Michael Stallman
Excerpt from Shaniya B. v. NYCTA :
The New York City Transit Authority (NYCTA) has met its prima facie burden of entitlement to summary judgment as a matter of law. The Court agrees with the NYCTA that Grant’s vehicle abruptly turned in front of the bus, which was lawfully traveling in a lane of traffic. The video footage shows that the bus was traveling in a lane of traffic, when, at 18:01:31, a vehicle to the left of the bus crosses into the bus’s lane of traffic, and makes a right turn in front of the bus at 18:01:32. At 18:01:33, the footage shows the Grant vehicle with an impact to its rear right door. Thus, the impact occurs within 2 seconds after the Grant vehicle crosses into the bus’s lane of traffic. The video footage conclusively establishes, as a matter of law, that defendant Hernandez had no opportunity to avoid the impact. The data from the engine control module indicates that bus was not traveling in excess of the speed limit before impact.
Another example of how we can use today’s technology to successfully represent our clients.