Never Say Never: The Benefits of Video Data Recovery for Claim and Legal Professionals
Source: Jared Fegan, Senior Project Consultant, IT Hardware, Envista Forensics
The rise in popularity of security cameras on residential and commercial properties has led to a proliferation of video footage and other data. Fueled by their low cost and easy installation, along with smart phone enabled remote monitoring technologies, the home security system market is anticipated to be near $55 billion USD by 2026. With these systems now being ubiquitous, the data recorded by security cameras on private and public properties will inevitably grow to play a key role in providing integral evidence following vandalism, arson, and other criminal acts.
The recovery of data stored on various technologies, such as Digital Video Recorders (DVRs) or Network Video Recorders (NVRs), can be the difference between proving if a slip and fall occurred, where a fire started, how it was started, or what caused a structural collapse. Footage prior to the claimed event can also assist with providing what was located onsite or confirming contents in the impacted areas. Additionally, despite damage frequently occurring to the cameras and recording equipment itself, data can often be recovered to provide crucial evidence to support a claim or case.
Utilizing Video Data Recovery in Claim Investigations
Although many assume that all video footage is recorded in a readable format, there are a few key points to understand that may pose challenges when attempting to use this data in a claim investigation. First, it is important to know that video surveillance equipment does not have unlimited capacity, and when the storage is full, the data overwrites itself by default. This means that time is of the essence, and it is important to obtain all video evidence quickly and preserve it for extraction.
In addition, raw video data is in a proprietary format which often requires specialized decoding, called a CODEC, so that the information is readable and understandable. A CODEC, which is short for coder-decoder (think of it as a digital Rosetta Stone), translates the raw data into a format readable and understandable by a host computer. Without the CODEC or working recording equipment, the data will not be viewable. Add to that the possibility that data is encrypted and the equipment or a key is needed to decrypt the data. In these situations, it is important to partner with experts who are experienced with recovering critical data and converting it into a usable format.
Why Is Conversion Needed and Why Do You Need an Expert?
The proprietary format used by recording devices can make the data images that comprise a "video" only viewable by using specific software, typically video player software provided by the manufacturer. Other generic video software may not play the data at all, return errors that need to be resolved, or the software may open the initial image file but not play any video. Without data conversion, the video quality and one's ability to review footage will be extremely restricted.
For claim and legal professionals involved in investigations where data plays a critical role, having properly recovered and converted video footage can greatly aid in providing the cause of an event, establish a non-biased timeline, and afford supporting evidence to what occurred. The data can verify statements, confirm contents prior to the event, and often show what caused the loss or transpired that led up to the event.
Damaged Digital Video Recorder Devices
Depending on the type of incident that may have occurred, the recording equipment may be visibly damaged and thought to be unrecoverable. For example, following fires or extreme vandalism, if cameras are damaged but the data is stored elsewhere, or the recording devices are retrievable, experienced video forensic experts can assist with locating the equipment and making the determination if data recovery is possible. Obtaining data from a damaged recording device may require equipment restoration, obtaining an exemplar recording device to transplant the storage media into, or adapting to the situation to retrieve the data.
Digital Video Enhancement Requirements
Sometimes, in addition to recovery and converting data, video evidence requires enhancement to provide the necessary answers. Not all video or photo evidence can be enhanced and as a general rule, the higher the resolution of the raw data, the better the end result. Resolution is a measurement of the output quality of an image, usually in terms of pixels, dots, or lines per inch. Most commonly, this is expressed in Dots Per Inch (DPI) or Pixels Per Inch (PPI).
Utilizing Video Data Recovery
The best way to understand the value of utilizing video data recovery is to walk through a common claim scenario. Using a commercial fire loss as an example, you will often have expert fire cause and origin investigators arrive at the scene shortly after law enforcement opens the scene. In their initial scan of the evidence, the fire investigation team notices a smoke-damaged DVR and power cord. The evidence is tagged and retained for further analysis, with the DVR and Hard Disk Drive (HDD) being stabilized. Because the video footage was quickly flagged as evidence, video forensic experts were able to access the data and extract the footage. Further, as the data was not in a viewable format, conversion was necessary.
Another situation where video evidence can be extremely valuable is when looking to gain insights into suspicious fires or events. Take for example a small fire in a physician's office where an employee is suspected of arson. Forensic fire investigation staff conduct their investigation and locate a fire-damaged DVR containing surveillance footage. Following professional decontamination and restoration to stabilize the HDD, including sourcing an exemplar DVR to install the HDD into, expert video forensics professionals were able to access data on the drive and extract the footage. Still shots taken from the video show an individual, the suspected employee, entering prior to the time the fire was initially observed. Key features of the suspect were provided, verifying identity, and video of the suspect's activities onsite at the location and time of departure was provided on portable media, directly aligning with the timeline of the fire.
In summary, video footage is widely available today due to the popularity of low-cost, mobile-friendly security monitoring systems. This data, while extremely valuable to claim and legal professionals must be properly and promptly handled by skilled forensic data recovery experts. Even if there is visible damage to the equipment, expert data analysts can recover and preserve the data. |
Perrier & Lacoste, LLC Hires New Attorneys, Sean M. McCallister and Paul W. Freese
April 5, 2022 • Source: Perrier & Lacoste, LLC
Perrier & Lacoste, LLC is pleased to announce that Sean M. McCallister and Paul W. Freese have joined its firm.
Sean has a Bachelor of Science in Psychology and Juris Doctor from Louisiana State University. Sean has experience managing insurance claim files from inception to trial, with a specific focus on defending claims involving trucking and commercial insurance policies.
Paul was born and raised in New Orleans, Louisiana and received his law degree from Loyola University New Orleans College of Law. Paul serves as counsel for insurance carriers and corporations in the fields of transportation, personal injury, wrongful death and premises liability.
P&L is thrilled to have Sean and Paul as part of their team. Please join in welcoming them to the firm. |
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Zarwin Attorneys Secure Dismissal of Catastrophic Injury and Wrongful Death Claim
July 13, 2022 • Source: Ted Schaer, Zarwin Baum DeVito Kaplan Schaer Toddy
Ted Schaer, and Noah Shapiro of the regional law firm of Zarwin Baum, recently secured dismissal of a Philadelphia civil action against their client, a local Fortune 100 Company (the “Company”), involving multiple catastrophic personal injury and wrongful death claims.
The action arose out of a motor vehicle accident on I-95 in late 2019 that occurred when a former employee of a subsidiary of the Company operated his personal vehicle while intoxicated, having a blood alcohol level nearly twice the legal limit. The former employee rear-ended another vehicle while traveling close to 100 mph, killing two and severely injuring two others. Prior to the accident, the former employee had attended a holiday party held by a vendor of the Company at a restaurant where he consumed alcohol. Following the holiday party, the former employee continued to drink, first at the restaurant, then at a nearby local bar. The Plaintiffs sued the former employee for negligence and the restaurant and bar for violations of the Pennsylvania Dram Shop Act, alleging the former employee was visibly intoxicated when served. Plaintiffs brought suit against the Company and its vendor, alleging that both had co-sponsored the holiday party and were therefore liable for serving the former employee while visibly intoxicated, for failing to monitor his consumption of alcohol, and for failing to prevent him from driving while intoxicated.
Zarwin was retained shortly after the accident, prior to suit, to coordinate an investigation and develop a litigation strategy. When suit was filed, Zarwin filed preliminary objections in the form of a demurrer, seeking dismissal of the Plaintiffs’ claims against the Company for failure to state a claim for which relief could be granted. Zarwin’s arguments on behalf of the Company were: (1) that under Pennsylvania law a non-liquor licensee could not be held liable under the Pennsylvania Dram Shop Act; and (2) that Pennsylvania courts do not recognize social host liability for the service of alcohol to non-minors. In support of its arguments on behalf of the Company, Zarwin relied on a long line of Pennsylvania case law beginning with the Supreme Court’s holding in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and ending with the recent Superior Court holding in Klar v. Dairy Farmers of America, Inc., et al, 2021 PA Super 252 (2021). In response, the Plaintiffs argued that the issue was one of vicarious liability and common law negligence for failure to monitor and control an employee’s consumption of alcohol. The court rejected Plaintiff’s arguments and granted the Company’s preliminary objections in full, dismissing all claims against them.
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DOT Proposes Oral Fluid Testing For Controlled Substances
Source: Gallagher Sharp LLP
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On February 28, 2022, The United States Department of Transportation (DOT) published a proposed rule for new drug testing guidelines, to include the use of oral fluid samples as an alternative to urine testing for controlled substances. The proposed rule does not affect alcohol testing, which must be conducted by blood or breath samples. The proposed rule covers all testing situations, generally described as Pre-Employment, Random, Reasonable Suspicion, and Post Accident testing.
If accepted, the Rule will revise part 40 of title 49 of the Code of Federal Regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” The comment period for this proposal ends March 30, 2022.
According to the DOT announcement in the Federal Register, which can be viewed in its entirety at federalregister.gov/d/2022-02364, “[t]his will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program.” Unfortunately some employees have figured out how to use fake urine and prostheses, both readily available.
Notably, the Department is not proposing the elimination of urine drug testing, but only that oral fluid testing be offered as an alternative. “Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use, and no single specimen type is perfect for every situation.” Further, according to the proposal, the U.S. Department of Health and Human Services (“HHS”) has determined that proper oral fluid testing provides “the same scientific and forensic supportability of drug test results as the Mandatory Guidelines for Federal Workplace Drug Testing Programs using urine.”
The proposal is in large part purposed with seeking a balance between the safety concerns of trucking companies, the motoring public and safety advocates on the one hand, and the driver’s right to privacy, which may be invaded by a company’s need to directly observe urine sample collection to ensure against cheating, on the other. The proposal expresses a concern that urine collections “are potentially invasive searches and seizures of private citizens, subject to scrutiny under the Fourth Amendment of the United States Constitution.” The DOT has sought to protect individual rights by ensuring visual and aural privacy, except for “cause”, such as “suspicious activity at the collection site or as determined by the laboratory testing of a specimen.”
The proposal describes additional policy considerations. Oral fluid testing is generally more cost effective than urine testing. The collection of oral fluid may be conducted at the scene of an accident. The proposal notes that it also provides windows of detection distinct from urine sampling. Oral fluids generally allow for effective detection of more recent drug use, while urine, which allows for more delayed detection, is likely more appropriately suited to detect intermittent drug use through pre-employment, random, return-to-duty, and follow-up testing.
The proposed rule does not address hair testing, which is used by some employers as a condition of employment and is generally viewed as far more accurate than other testing methods. It is not mandatory, however, and currently is not permitted as satisfying any testing prescribed by the FMCSRs.
The addition of oral fluid testing is a major step forward in that it permits flexibility and convenience. It is expected that the trucking industry will welcome this rule if it goes into effect. Indeed, the American Trucking Associations said, “We are elated that DOT is proposing the inclusion of oral fluids as an approved testing method for DOT purposes, ATA has long advocated for its inclusion, and the notice today is another step closer in getting it done.”
As always, we will continue to monitor this update and provide additional information as it is disseminated.
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