Dear Habitat

You’re free to ask for a waiver or indemnification, but I would not propose anything too onerous, because the pedestrian’s lawyer could simply subpoena the footage if the building does not cooperate. No matter what, I would advise you to preserve the footage now that the building is on notice of the incident. If the building does agree to turn over the footage, I would prepare (or ask the pedestrian’s lawyer to prepare) an affidavit authenticating the footage, so that the you might avoid having to sit for a deposition at a future date. As a general matter, I don’t think a waiver of liability would be necessary for most buildings. If a board is truly concerned about turning over the footage to anyone but the police, then it would be better advised to wait for a subpoena to be issued (while preserving the footage, of course). In addition, I would also recommend that the building notify its insurance carrier and keep them informed.

Wiliam D. McCracken

Partner, Ganfer & Shore

The footage from co-op/condo security cameras is usually viewed by the building’s superintendent or resident manager, by other members of the management team, and board members only if an incident has occurred. It is good practice to have a building protocol in place for who can view the security footage and when. This may be especially important if the footage is used as evidence in a legal proceeding. I often recommend that distribution of video footage be limited to law-enforcement personnel investigating a crime, and to others who can either produce a subpoena or a clear legal right for needing it. In this case, I would advise you to produce the footage if the pedestrian’s attorney provided you with a subpoena for it.

Lisa A. Smith

Partner, Smith, Gambrell & Russell

This is an issue which arises frequently, and your concern over indiscriminately sharing the building’s surveillance tapes with outside parties is valid. However, as a practical matter, no outside party will provide you with a liability waiver because they are not under any legal obligation to do so. I typically advise my client buildings to respond to such requests by saying that it is the board’s policy to release surveillance tapes only upon presentation of a subpoena. Production of these records under compunction of a judicial subpoena absolves the building of any legal liability surrounding the release. You may also send a letter with the tapes, disclaiming responsibility for the condition of the tapes or for abuse of their confidential nature.

Bruce Cholst

Shareholder, Anderson Kill