The USB Drive, the Brightened Clip, and the LinkedIn Post
A plaintiff's lawyer hires you in a slip-and-fall case. The store's assistant manager, a former client of yours, hands you a USB drive with the CCTV file and says, "This is the raw file - don't tell anyone you got it from me." You copy it to your laptop and return the USB. That evening you call his cell from your office and record the 14-minute conversation without telling him. Your intern brightens the 8-second segment showing the wet floor, crops out the timestamp, and exports a new MP4 for the demand package. Two weeks later your laptop's drive fails. The only surviving copy is the intern's edited MP4, which you posted to LinkedIn with the caption "another preventable fall." Defense counsel sends a preservation letter and a subpoena for your entire file. Plaintiff's counsel says the video "speaks for itself."
1. Can the edited clip be authenticated and admitted? Walk through what a court will require and what is now missing.
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As it stands, the clip is not usable, and no amount of testimony fully fixes it.
Authentication requires a witness who can say the exhibit fairly and accurately depicts the 8 seconds in question. Your chain is broken at three points: the source was an unauthorized copy, the USB went back to the manager, and the surviving file has been altered. Brightening can be acceptable if it is disclosed and the original remains available for comparison - enhancement is a technique, not a forgery. Cropping out the timestamp is different, because it removes exactly the metadata a court needs to fix the event in time, and it looks deliberate.
On top of authentication sits the best-evidence problem. You cannot produce the original, and the exception for lost originals depends on loss that is not in bad faith. Losing the drive after litigation was anticipated is at minimum negligence.
The recoverable path runs around your copy, not through it: subpoena the store's CCTV system directly, with a custodian who can testify to how the system records and exports; obtain the store's own copy and any export logs; hash the file the moment you receive it. Offer the edited MP4 only alongside the intern's notes and an explicit description of every change made. Expect a motion to exclude, and expect the loss to support an adverse inference.
2. Assess the preservation and spoliation exposure, and set out the cure steps you would take this week.
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The duty to preserve attached when the client retained counsel and the video came into your hands. A litigation hold should have been issued to yourself the same day. What was lost was in your custody, not the opponent's, which is worse: the plaintiff is now responsible for the gap in the plaintiff's own proof, and the client will look to you for it.
Sanctions can include exclusion of the video, an instruction that the missing original would have been unfavorable, attorney fees, and a malpractice claim. The LinkedIn post compounds it by showing you had the material and used it publicly.
Cure steps, in order:
- Stop using the edited file as though it were the original.
- Get the drive failure documented by a vendor and attempt forensic imaging if any recovery is possible.
- Write a memo listing every copy made, every person who handled it, and every alteration with dates.
- Preserve the intern's working files and the laptop's remaining metadata.
- Disclose the loss to plaintiff's counsel in writing before defense discovers it.
- Get the store's original under subpoena with a custodian declaration, and hash it on receipt.
Do not re-export, re-render, or "restore" anything. Recreation is the one step that turns negligence into misconduct.
3. The recorded call and the LinkedIn post raise issues separate from the video. Analyze both.
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The recording is lawful. Oklahoma is a one-party consent state, so you may record a call you are a party to without telling the other person. Legality is not the whole analysis.
The assistant manager is an employee of a represented defendant, and his statements concern the subject of the litigation. Contacting him directly at the direction of plaintiff's lawyer risks the professional-conduct rule against communicating with a represented person, which the retaining lawyer cannot do through you. Limit contact to witnesses who are not managing agents and whose acts do not bind the organization, or route the contact through the store's counsel. Either way, tell the retaining lawyer what you did so he can make the call - do not let him learn it from a deposition.
The LinkedIn post is the more serious problem. It discloses a client matter, identifies the premises, and states a conclusion about liability, in public, with a caption that reads like your verdict. That is a confidentiality breach. It also hands defense a motion-in-limine argument and a bar complaint against the lawyer who retained you.
Take it down immediately, screenshot what was posted and when for the file, and report it in writing to the client and to counsel. Then review every social media post your firm has made about any active matter.