Not Up for Dispute: Videotape Evidence at Summary Judgment


A decade after the United States Supreme Court’s holding in Scott v. Harris (2007) 550 U.S. 372 (“Scott”), a California District Court follows suit, finding that a party cannot create a genuine issue of material fact at summary judgment by submitting testimony or declarations that are contradicted by video footage. (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 534 (“Swigart”).

In Scott, the Supreme Court held that summary judgment is appropriate where videotape evidence blatantly contradicts a non-moving party’s version of events. In the context of summary judgment motions, the moving party must support its motion with substantive evidence; whether it be in the form of declarations, discovery responses or other tangible evidence. In general, when a moving party supports its motion with expert declarations, that party is entitled to summary judgment unless the other, non-moving party, presents conflicting evidence sufficient to create a triable issue of fact. Indeed, contradictory expert declarations are often a way for the non-moving party to create a dispute as to the material facts of the case. If a dispute over material facts is established, those facts must be viewed in the light most favorable to the nonmoving party, which most often results in the denial of the motion.

The Scott Court turned this standard on its head in the context of video evidence by opining that facts should be viewed “in the light depicted by the videotape.” (Scott, supra, 550 U.S. at 381.) Through this analysis, the Supreme Court held that summary judgment was appropriate where videotape evidence obviously contracted the non-moving party’s version of events, notwithstanding the presentation of evidence in support of that position.

Expanding upon principles set forth in Scott, the Swigart Court reasoned that, to extent witness testimony was inconsistent with video footage, it could properly decline to consider the inconsistency as a disputed fact. Instead, the Court “relied on the evidence in the video” as dispositive. (Swigart, supra, 13 Cal.App.5th at 534, fn. 4.) Interestingly, neither opinion directly discussed whether the evidence presented to refute the video footage was sufficient to create a triable issue. Like in Scott, the Swigart decision gives California defendants a powerful tool to overcome plaintiffs’ self-serving witness and expert declarations in the face of video evidence to the contrary.

As more and more of daily life is caught on tape - whether by virtue of everyone having a recording device on their person at all times or by the ever-increasing use of CC TV - video footage is poised to be at the heart of many legal disputes to come. With California courts are often reluctant to grant well-founded motions for summary judgment for fear of denying a party her “day in court,” and likely for a fear of being overturned on appeal, Scott and Swigart serve as prime examples that common-sense reasoning is alive and well…if you capture it on tape.

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