California: Authentication of Evidence in a Digital World

Video footage taken from a dashboard video recorder (“dashcam”) or even a body worn video recorder may not be ubiquitous in workers’ compensation proceedings yet, but it isn’t that unusual either, which makes it all the more prudent for practitioners to become familiar with the legal standards for admissibility of such evidence. The recent panel decision, Johnson v. Lexmar Distribution dba LDI Trucking, Inc., 2021 Cal. Wrk. Comp. P.D. LEXIS -- (see PDF below) is most instructive on the admission of dashcam footage. As an added bonus, the decision also discusses the relevant factors that may disqualify a workers’ compensation administrative law judge (WCJ) from conducting proceedings in a case.

Christopher Johnson, a truck driver employed by defendant, claims to have sustained industrial injuries to multiple body parts. Defendant denied the claim of injury and raised the affirmative defense of initial physical aggressor under Labor Code section 3600(a)(7). Defendant then filed a Declaration of Readiness to Proceed (DOR) to a priority conference on the issue of injury AOE/COE. In relevant part, the DOR states that dashcam video footage captures Johnson’s entire encounter with the police and shows that Johnson refused to cooperate with and provoked the police officers, apparently leading to his claimed injuries.

The dispute was not resolved at the priority conference and a trial was held. At the trial, defendant offered four clips from a dashcam video into evidence, but applicant objected to their lack of foundation and the WCJ sustained his objection. Off record the WCJ made certain comments to defense counsel that might be perceived as questioning her competence. Reportedly, the WCJ said, “I suggest you look at your boss’ treatises;” “you clearly don’t understand your boss’ treatises;” and “I think you need to read your boss’ treatises…. That would be helpful for you to review.” Those remarks apparently were in response to her efforts to present the four dashcam video clips into evidence.

Defendant sought removal contending that the WCJ improperly excluded the dashcam footage based on an incorrect authentication standard. Additionally, defendant sought disqualification of the WCJ under Labor Code section 5311, arguing that the remarks the WCJ made off record reflected a bias towards it.

Authentication of Dashcam Video

The panel decision first addresses the issue of authentication of dashcam video by reviewing a prior panel decision, Johnson v. Tennant Company, 2009 Cal. Wrk. Comp. P.D. LEXIS 234. In that case, the applicant objected to the introduction of subrosa video footage taken by several different investigators over a multi-date period because only one of those investigators was present at trial to testify to the authenticity of the video footage. The WCJ reasoned that without testimony from each of the investigators who had filmed portions of the video, there was not a reliable chain of custody that could authenticate the video footage. In rejecting the WCJ’s rationale, the panel relied on Evidence Code provisions that discuss and define the term, “authentication.” Evidence Code section 1401 states that a writing must be authenticated before it can be received in evidence. Evidence Code section 1400 describes authentication as the introduction of sufficient evidence to sustain a finding that it is the writing that the person offering the evidence claims it is, or by establishing that the writing is what it is purported to be by any other means provided by law. The panel then observes that the authenticity of video footage doesn’t rest upon the validity of the process used in its creation, “but may be established by testimony that the motion picture accurately reproduces phenomena actually perceived by the witness.” (Johnson v. Tennant Company, 2009 Cal. Wrk. Comp. P.D. LEXIS 234). While in many instances the actual video photographer might be in the best position to attest to the accuracy of a video recording, he or she isn’t the only one who can “authenticate” the film. It can also be authenticated by any witness who perceived the events filmed. Moreover, workers’ compensation proceedings are not required to follow the common law or statutory rules of evidence and procedure (Lab. Code § 5708).

Next, the panel in the instant case looked to Milla v. United Guard Security, Inc. (2020) 86 Cal. Comp. Cases 71, 2020 Cal. Wrk. Comp. P.D. LEXIS 330 (Board Panel Decision) for additional guidance. In that case the applicant offered dated Instagram photo images of himself in his security guard uniform to establish his length of employment with defendant. The decision recognizes that Instagram photos like video recordings are “writings” that are typically authenticated by showing that the photo is a fair and accurate representation of the scene depicted. This can be accomplished by testimony from the person who took the photo/video or by a person who witnessed the event being recorded. Further, under WCAB Rule 10680, there is a presumption that a printed representation of images stored on a video or digital medium is an accurate representation of the image it purports to represent. (8 Cal. Code Reg. § 10680(c).) If a party introduces evidence that the recorded image is inaccurate or unreliable, the burden shifts to the proponent of the evidence to prove by a preponderance of the evidence that the image is an accurate representation of the image it is claimed to represent. (Id.)

The panel found the earlier Johnson decision and the Milla decision persuasive and concluded that the dashcam video was improperly excluded and that defendant should be allowed to authenticate it through other means, including the testimony of applicant.

There is a key difference, however, between the video footage in each of the Johnson cases and the Instagram photos in Milla. Unlike the subrosa video in Johnson v. Tennant Company and the Instagram photos in Milla, the proffered evidence in the instant case was not recorded by an investigator or filmed as “selfies” by the applicant, but rather a video recording taken by a recorder installed on the dashboard of a car. Should that distinction make a difference? The panel doesn’t appear to think so. Rather, it relies on Evidence Code section 1400, case law, and WCAB Rule 10680 to support its conclusion that any person who perceived the events filmed, including the applicant, can authenticate the recorded footage.

Disqualification of WCJ

Defendant also petitioned the Appeals Board for an order disqualifying the WCJ from conducting further proceedings in the matter under Labor Code section 5311. That section allows a party to object to the assignment of a case to a particular WCJ on any of the grounds specified in Code of Civil Procedure section 641. Here, defense counsel argued that the WCJ’s off-record comments reflect the formation of a qualified opinion as to the merits of the case, which is a basis for disqualification in Code of Civil Procedure section 641(f). Additionally, defense counsel contended that the WCJ’s off-record comments demonstrate the existence of a state of mind evincing enmity against or bias toward either party, which is also a basis for disqualification in Code of Civil Procedure section 641(g). Defendant further argued that the WCJ’s comments warrant disqualification under Administrative Director rule 9721.12(a)(11) based on the appearance of bias.

The defense attorney supported the petition for disqualification with an affidavit that lays out the comments she attributes to the WCJ. The panel agreed that the comments could be construed as belittling of defense counsel and her abilities as a litigator. Since WCJ’s are statutorily bound to adhere to the Code of Judicial Ethics (Lab. Code § 123.6) and that Code requires WCJs to preserve the integrity and independence of the judiciary (Canon 1) and avoid even the appearance of impropriety (Canon 2), the panel concludes that the WCJ should be disqualified from conducting further proceedings because a reasonable person with knowledge of the facts might entertain doubts as to the WCJ’s ability to be fair and impartial. Thus, disqualification of the WCJ serves to maintain the independence and promote the honor of the WCAB as a fair and impartial tribunal. Generally, there is a 10-day period from assignment of a case to a WCJ to petition for disqualification. (8 Cal. Code Reg. § 10960). That 10-day time limit is not applicable here because the circumstances giving rise to the petition to disqualify were not known until the date of trial when admissibility of the dashcam video was disputed and the WCJ made the comments that became the subject of the petition for disqualification.

Takeaways

As we can see from this case, one consequence of living in an increasingly digital world is that workers’ compensation practitioners and WCJs will inevitably be required to continue to grapple with the admissibility of various forms of recorded and digital medium—YouTube videos, CCTV footage, Bodycam recordings and dashcam video are only a few current examples. When admissibility of a particular form of medium is challenged, authentication is likely not as daunting as it might seem. The panel decision here instructs us that providing the foundation to authenticate any form of medium simply requires that there be sufficient evidence for the trier of fact to find that the medium offered is what it purports to be. This can be shown through the testimony of the person who created the medium (i.e., recorded the video footage), or it can be shown by a person who witnessed the event.

Reminder: Panel decisions are not binding precedent.

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