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COMMONWEALTH OF MASSACHUSETTS
UD
ESSEX, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 1677CV1587A
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST
Plaintiff,
Vv,
JOHN F. O’BRIEN and
BONITA J. O’BRIEN
Defendants.
DEFENDANTS’ MOTION IN LIMINE
TO PRECLUDE THE USE OF VIDEO EVIDENCE
NOW COME the Defendants, John F. O’Brien and Bonita O’Brien, by and through their
counsel, and respectfully request this Honorable Court to exclude any use of or reference to
video footage from the Plaintiff's security cameras. As grounds for this motion, the Defendants
state as follows:
The Plaintiff has testified that he installed three video cameras at his property on or about
June or July of 2016.! Footage from these cameras is likely to be submitted as evidence in this
trial. These videos cannot be authenticated, as shown below. Even a reference to video footage
1 For purposes of this motion, a section of Mr. Mazzola's deposition is attached hereto as Exhibit A and shall be
referred to as PM XX:XX.
Page 1 of 5
t
in front of the jury would be unfairly prejudicial to the Defendants.
Photographs and videos “are authenticated directly through competent testimony that the
scene they show is a fair and accurate representation of something the witness actually saw.”
Com. v. Figueroa, 56 Mass.App.Ct., 641, 646 (2002). They can also be authenticated by
circumstantial evidence showing “that the matter in question is what its proponent claims.” Jd.
In the Figueroa case, for example, there was a seamless chain of custody and sworn testimony
from people with direct evidence of the process by which the film was handled. Com v. Figueroa
at 673-674. Thus, videotape can be admitted if it is authenticated by someone who personally
saw what was being filmed or the circumstances surrounding the creation of the videotape
present sufficient support that the videotape is reliable. Com. v. Leneski, 66 Mass.App.Ct. 291,
294 (2006). ?
In this matter, the Plaintiff will be offering footage from three security cameras. The
Plaintiff does not live full-time at the Gloucester house and he could not have personally viewed
many of the events captured on the security cameras at the time the events occurred. Ms.
Mazzola testified that she watched the videos on her cell phone, presumably away from the
Gloucester house. ? RM 53:23-24. The question is whether circumstantial evidence is sufficient
to make this evidence reliable.
As the first red flag of how unreliable these videos are, Mr. and Ms. Mazzola do not
agree on what triggers the cameras. He testified that the cameras do not capture pedestrians, they
only film vehicles. PM 227:15-18. In her deposition, his wife, Roberta, said the opposite — that
the cameras take videos of people walking along the easement. RM 55:1-2, 57:19-22.
2 See also Com. v. Weichel, 390 Mass. 62 (1983), where photographs were excluded in part because the
photographer had not personally witnessed the crime scene at the time of the crime.
3 For purposes of this motion, a section of Ms. Mazzola’s deposition is attached hereto as Exhibit B and shall be
referred to as RM XX:XX.
Page 2 of 5
In addition, the Plaintiff cannot accurately date the videos. The videos themselves are not
dated. The discs on which he submitted his discovery documents contain directories of the video
images. In one of the directories attached here as Exhibit C, the dates on the images are February
1, 2017, showing images of people clearly wearing beach clothes. Mr. Mazzola cannot explain
why some of the videos are dated February 1, 2017. PM 239:16-24. In another directory, there
are several instances where only one video is listed per incident, even though there were three
video cameras shooting the same general location at the same time. Mr. Mazzola cannot explain
why only one camera would capture an image. PM 229;9-22; 230:13-231:1; 231:12-232:15,. lf
the dates of the videos cannot be authenticated, they are useless to these proceedings.
The Plaintiff also admitted that he and his wife curated the selection of videos presented
to the Defendant. PM 234:11-19. In their Request for Production of Documents, the Defendants
demanded the following:
All documents in the Plaintiffs possession showing use of the
access easement in dispute in this matter, including but not limited
to all video footage from July, August, and September 2017 from
the Plaintiff's security cameras at 17 Wingaersheek Road.
The Plaintiff acknowledged in his deposition that he did not disclose all
the video requested; he disclosed only the videos that he believed showed the
Defendants in a bad light. PM 233:23-234:2. By purposely disclosing only a
selected number of videos, the Plaintiff acted in bad faith and should forfeit the
chance to use any of the videos.
Furthermore, the Plaintiff's wife admitted that she could and did edit’the
videos:
Q. How are the files saved?
A. They go into the Cloud, the magical Cloud. You can download
them.
Page
3 of 5
Q. And can you erase them?
A. You can erase them, mm-hmm. You can delete them, just like
you can delete picture off your camera.
Q. ... Have you kept them all?
A. I haven’t kept every single one. Some of them were the weather
and insects, and ] mean, I don’t keep all of them.
RM 54:7-17,
The Plaintiff has not offered any expert testimony or documentation
supporting the accuracy or reliability of these videos. Instead, the evidence points
to the opposite: that videos have been deleted, selectively disclosed, and subject to
manipulation.
A jury member may assume, incorrectly, that video footage is static and
unassailable when, in fact, this video footage is clearly unreliable. There are
ample fact witnesses and deposition testimony through which the Plaintiff can try
make his case. The Plaintiff did not personally witness many of the events
presented in the videos and the circumstantial evidence of reliability is
exceedingly weak. The cause of justice is not served by allowing evidence that
does not meet the criteria for admissibility to be presented to a jury.
NOW THEREFORE, the Defendants respectfully ask this Honorable
Court to prohibit the use of security camera footage.
Respectfully submitted,
THE DEFENDANTS
John F. O’Brien and
Bonita J. O’Brien
By their attorney,
Page 4 of 5
Ciel A. fury
Meredith Fine, Esq.
BBO No. 669248
46 Middle Street Suite 2
Gloucester, MA 01930
978-515-7224
meredith@attorneymeredithfine.com
Dated: January 3, 2019
Page 5 of §
CERTIFICATE OF SERVICE
Thereby certify under the penalties of perjury that a true copy of the following document:
DEFENDANTS’ MOTIONS IN LIMINE
TO PRECLUDE THE USE OF VIDEO EVIDENCE
was served by first-class mail, postage prepaid, and electronic mail on January 3, 2019, upon the
Plaintiff's counsel of record:
William H. Sheehan III, Esq.
Thomas J. Flannagan, Esq.
MacLean Holloway Doherty and Sheehan, P.C.
8 Essex Center Drive
Peabody, MA 01960
tflannagan@mhdpc.com
ois be hie
Meredith A. Fine, Esq.
\!
Ex fo
if
222
Q If I said the word "discovery," i
would you know what I mean? The pretrial
exchange of information between attorneys and
parties.
A Okay.
Q At some point, we asked for and
{|
received copies of all the videos from your
security camera for -~ I'11 read you the exact
question.
10 "All documents in the plaintiff's
11 possession showing use of the access easement
12 in dispute in this matter, including, but not
13 limited to, all video footage from July, August
14 and September 2017, from the plaintiff's
15 security camera at 17 Wingaersheek Road."
16 So that is what I asked for. And in
17 response, [I received a number of videos, and
hy
18 this is a directory of some of those videos |
I
19 that I received. And I've set up my computer
20 so if you want to see what the exact videos are
21 to confirm that this is part of the directory
22 of what I received, I can show them to you.
23 Mr. Flannagan, do you need me to
24 show you the videos?
hh
223
|
MR. FLANNAGAN: Are you going to show
him videos or ask questions about the --
MS. FINE: I'm going to ask questions
about the dates.
MR. FLANNAGAN: Depending on what you
ask, he may need to see the video.
MS. FINE: That's why the computer is
here.
(Marked, Exhibit No. 13, Directory of
10 Videos.)
11 Q So let me draw your attention to the
12 column on this page that's marked Date
13 Modified.
14 Do you see that column?
15 A Yes.
16 Q For the entirety of this page that's
17 marked Exhibit 13, what is the date of these
18 videos?
19 MR. FLANNAGAN: What's the date
20 listed in this column?
21 MS. FINE: Correct.
22 Q Do you need to borrow someone's
23 glasses?
24 A No. Just trying to understand the
224
question.
MR. FLANNAGAN: What's the date in
this column for all those that are listed on
there?
A 9/4/2017.
Q Did you have a working video camera
system on September 4, 2017?
A Yes.
Q Do you happen to know whether
10 September 4, 2017, was Labor Day?
11 A September 4? Yes.
12 Q I can show it to you on a calendar.
13 I'm going to represent to you --
14 A I believe the 4th is Labor Day, yes.
15 Q I'm representing to you that 1
16 September 4, 2017, was Labor Day.
17 A Correct.
18 Q So can you take a look at this list
19 of dates and times just for a second and
20 familiarize yourself with them.
21 (Pause.)
22 A Okay.
23 Q So how many cameras, video cameras
24 did you have on Labor Day 2017?
225
A I believe we had at that time three.
Q What were they pointed toward?
A One was pointed to the driveway from
the front of my house; and the other two were
pointed to the path, to the beach.
Q From the back of your house?
A Correct.
Q And so would it be true that every
time somebody either walked or drove from
10 Wingaersheek Beach, sorry, from Wingaersheek
11 Road to the path, that -- let me rephrase it.
12 Every time somebody walked or drove
13 from Wingaersheek Road to the path, how many
14 cameras would pick up that activity?
15 A Three.
16 Q Isn't it true then that if all the
17 cameras were working properly, I would have
18 three videos of each pedestrian or vehicle who
19 used the easement on Labor Day 2017?
20 A The only ones that we provided were the
21 ones which were the vehicles going over the sand
22 dune. That was our particular issue.
23 Q Shouldn't there be three videos of
24 each of those incidents?
226
A There could be, yes.
MR. FLANNAGAN: Objection.
Q Why wouldn't there be three videos
of each one?
A Well, it would be a video of showing
people walking up the driveway. And it all
depends on where they are walking up the path,
whether that camera would go off or not. It
doesn't go off all the time. It predominantly
10 would go off if a vehicle drove up the driveway.
11 Q Why wouldn't it go off every time
12 somebody walked up the driveway?
13 A Because of the angle of the camera, the
14 sensitivity of the angle.
15 Q Are you saying that you only
16 provided videos of vehicles from Labor Day
17 2017?
18 A Going over the sand dune, yes.
19 Q Isn't true then that you did not
20 provide all video footage that I requested?
21 MR. FLANNAGAN: Objection. Based on
22 this document?
23 MS. FINE: No, He's saying he only
24 provided selected videos. I'm saying that I
227
asked for all.
Q So I want to understand that on
Labor Day of 2017, are you saying that you have
video footage that you have not provided to us?
A No. I think we provided everything we
did have on video.
Q That's not what you just said. You
just said we --
MR. FLANNAGAN: Objection.
10 You're characterizing what he just
11 said. Go ahead.
12 Q Isn't it true, though, that you just
13 said you only provided the video of vehicles?
14 A I only provided the vehicles going over
15 the sand dune. The only time that the front
16 camera goes off is if somebody drives a vehicle
17 in front of our garage. That's the only time
18 that that camera goes off.
19 Q But isn't it true that you have not
20 provided all the video from September, Labor
21 Day 2017?
22 MR. FLANNAGAN: Objection.
23 Q Aren't you just saying that?
24 MR. FLANNAGAN: Objection. He just
228
said he did.
MS. FINE: No. He just said he
didn't.
MR. FLANNAGAN: He said he did. And
so now you're asking didn't you just say you
didn't. Is that what your question is?
Q Have you provided all of the video
footage from July, August and September of
20177
10 A Yes.
11 Qa All of it?
12 A Yes.
13 Q If you could turn to Exhibit 13, and
14 if you could look at, see where it says, about
15 a third of the way down, September 4, 7:09
16 p.m.?
17 A Yes.
18 Q Why is there only one video?
19 Shouldn't there be two or three?
20 MR. FLANNAGAN: Objection.
21 You can answer. Go ahead.
22 t A I provided you video of only ATVs going
23 over the sand dune.
24 Q How did you answer this request to
229
provide all the videos? Did you go through
them one by one or just put them all on a disk?
A My wife put it together, so I think she
just put them all on a disk.
Qa But you don't know?
A No.
Q Bear with me one second.
(Pause. )
Q I'm going to show you the video
10 that's marked IMG_0119(1), which was purported
11 to be taken on September 4, 2017, at 7:09 p.m.
12 That's what the information that
13 you've given us says. I'm going to show you
14 that video.
15 (Video Played.)
16 Q Do you see that video, sir?
17 A Yes.
18 Q Shouldn't there be another video at
19 the same time from the back of the property?
20 A Probably.
21 Q Why wouldn't there be one?
22 A I don't know.
23 Q The next video is at 7:17 p.m.
24 That's the next video on your directory and it
230
shows a cart leaving.
(Video Played.)
A Right.
Q So between 7:09 and 7:17, there's no
video of a cart going onto the beach from the
back of your property.
Why would there be a video not
showing that?
MR. FLANNAGAN: Objection.
10 You can answer.
11 A Could you rephrase that question,
12 please?
13 Q Sure. At 7:09, you provided a video
14 that shows a motorized vehicle going past your
15 driveway toward the easement.
16 A Right.
17 Q But you have not provided a video at
18 the same time showing that cart on the easement
19 heading toward the beach.
20 A That's right.
21 Q Why would you not have a video
22 showing that cart from the back of your
23 property?
24 MR. FLANNAGAN: Objection.
231
A I don't know.
Q I'm going to turn your attention to
6:09,
Do you see on Exhibit 13 where it
says 9/4/17, at 4:09 p.m.? On September 4,
2017, at 6:09 p.m.?
A Yes, I see it.
Q Do you see that there's not a
corresponding second video at 6:09?
10 Do you see that?
11 A Right.
12 Q So I'm showing you video IMG_0109,
13 which you've provided to me.
14 (Video Played.)
15 Q Where was this video shot from?
16 A The back of the house, facing the
17 beach.
18 Q What's happening in the video here?
19 A John, Jr., was driving up over the sand
20 dune.
21 Q This is at ten seconds. How do you
22 know that was John, Jr.?
23 A Because I could tell by whose ATV it
24 was.
232
Can you see who is driving it?
(Video Played.)
A No. Not where the picture is stopped,
no
Q Shouldn't there be a video of this
cart coming past the garage on the other
camera?
MR. FLANNAGAN: Objection.
A There could have been. I don't know.
10 Q But if all the cameras were working,
11 wouldn't you have multiple views of the same
12 incident?
13 MR. FLANNAGAN: Objection.
14 A I don't know. I don't know why we
15 didn't supply it.
16 Q Are you representing to me today
17 that you have provided all of the videos from
18 July, August and September of 2017?
19 A Yes. That I'm aware of, yes.
20 Q But isn't it true that all the
21 videos that you provided from September 4,
22 2017, are of people that you think are the
23 O'Brien family and no one else?
24 A Yes. There wasn't anybody else using
233
an ATV then.
Q I'm talking about walking.
A People walking?
Right.
There were plenty of people walking.
Would your cameras have captured
them?
Sure.
Q So when I asked you for all the
10 video, you're telling me -- and I think this is
11 where the confusion lies -- when I said in my
12 discovery request all the video from July,
13 August and September 2017, you took that to
14 mean no pedestrians, just vehicles?
15 A Just vehicles, yes,
16 Q Is that all the video?
17 A No. There would have been videos of
18 people walking up and down the sand dune.
19 Q Right. Is that not what I asked
20 for?
21 A I don't believe -- I don't know what
22 you asked for.
'
23 Q What do you think "all" means?
24 A I thought you wanted videos pertaining
234
to vehicle, John, Jr., driving his ATV onto the
sand dune.
Q So you think I was asking you to
select the videos you wanted to present?
A Well, I think you were asking for the
ones that pertained to this issue.
Q Is that what “all” means?
MR. FLANNAGAN: Objection.
MS. FINE: He has to answer it.-
10 A No.
11 Q In other words, are you saying that
12 you have selected the videos to give to me?
13 A I gave you the videos pertaining to
14 this situation, to this issue of damage being
15 done to the sand dune by an ATV belonging to
16 John, Jr. 1
17 Q Right. Isn't it true that you
18 selected the videos to give to me?
19 A Yes.
20 Q Who did that? Who did that process
21 of selecting which ones to present?
22 : A I believe my wife did.
23 (Marked, Exhibit No. 14, Directory
24 of Videos.)
235
Q I'm representing to you that this is
a directory of another set of videos that you
sent to me showing the concrete posts,
purportedly showing the concrete posts being
removed.
Do you see this list?
A Uh-huh.
Q Can you see where it says Date
Modified?
10 A Yes.
11 Qa Do you see that the date on three of
12 four of these are February 1, 2017?
13 A Uh-huh.
14 MR. FLANNAGAN: You have to say Yes.
15 A Yes.
16 MR. FLANNAGAN: That's the answer.
17 Q Do you know what that date means,
18 what that date is intended to show, February 1,
19 2017?
20 Does that show the date that the
21 video was taken?
22 A Yes.
23 Q I'm going to show you some more
24 video here.
236
I'm showing you what's been provided
as Video No. 1467317047890.
Can you see it?
A Yes, I see it.
(Video Played.)
Q On February 1, 2017, are you telling
me that this video was shot on February 1,
2017?
A Yes.
10 Q Are you aware that the weather --
11 A Wait a minute. No, no. That wasn't
12 shot in February. It wouldn't have been
13 February.
14 Q Right. What makes you say that?
15 A Well, because just the clothes that
16 they had on. It wasn't the winter.
17 Q When do you think this was shot?
18 A Well, jt would have been in 2017, I
19 know that, but it probably would have been
20 shot -- it had to be during the summer because he
21 dug the poles up, and then after that, John, Jr.,
22 would be driving his ATV. So they were probably
23 done in July, probably.
24 Q Of what year?
237
A 2017.
Q When did you install the concrete
pillars?
A In 2017.
Q Are you sure?
A A lot has happened since 2017.
Q Do you know when you filed suit?
A It was after those pillars were dug.
thought this goes back to, like, 2016 when we
10 filed suit.
11 Q If I represented to you that you
12 filed suit on October 17, 2016, would that
13 sound right to you?
14 A Yes.
15 Q Is it true that the complaint was
16 filed after the concrete pilings were taken
17 out?
18 A That's correct,
19 Q So what year was this video shot?
20 A It would have been 2016.
21 Q So then why would the directory of
22 the videos say that it was taken on February 1,
23 2017?
24 MR. FLANNAGAN: Objection. It says
238
Date Modified.
A Yeah. I don't know.
Q So who modified it? When it says
Date Modified, February 1, 2017, who modified
these videos?
A Is it possible when they were made to
be put on a disk, that would be considered a
modified?
Q I don't Know the answer to that
10 question.
11 A Me neither.
12 Q Do I correctly understand that your
13 wife was the one who put together these video
14 exhibits?
15 A Yes.
16 Q So are you saying that you don't
17 know how and when these videos were modified?
18 A No. I'm trying to understand what the
19 terminology of a date of modification -- I just
20 don't understand it other than that maybe that
21 was the date they were put on a disk. I don't
22 know.
23 Q So if this is not the correct date
24 for this video, how would I know what the date
239
was of this video? Can you tell from looking
at this video when it was taken?
A It had to be in the summer of 2016.
a I'm asking you --
A I'm telling you.
Q -- can you tell from looking at this
video when it was shot?
A Prior to the suit.
Q Okay. So prior to October 2016?
10 A Correct.
11 Q But there's no exact date; is that
12 correct?
13 A Not on that.
14 Q Not on the video?
15 A Not on the video.
16 Q So what you're saying -- I just want
17 to be clear on what I'm understanding -- is
18 that this directory says that these three
19 videos were modified on February 1, 2017, but
20 you don't know how or why; is that correct?
21 MR. FLANNAGAN: Objection.
22 You can answer.
23 A I don't know why that date is there,
24 no
240
Q But it is true that that is not the
date that you believe the video was recorded?
A No, it's not.
Qa One more video. I'm not going to go
through them all.
So I am showing you a video that's
marked Silver Cart 2. I'm going to show it to
you in a second. I'm going to represent to you
that I renamed that video myself.
10 MR. FLANNAGAN: Which number is it?
11 MS. FINE: I'm going to give it to
12 you.
13 (Marked, Exhibit No. 15, Directory of
14 Videos.)
15 Q I'm showing you now a video called
16 Silver Cart 2. If you look on this Exhibit 15,
17 c
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* COMMONWEALTH OF MASSACHUSETTS UD ESSEX, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 1677CV1587A PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST Plaintiff, Vv, JOHN F. O’BRIEN and BONITA J. O’BRIEN Defendants. DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE THE USE OF VIDEO EVIDENCE NOW COME the Defendants, John F. O’Brien and Bonita O’Brien, by and through their counsel, and respectfully request this Honorable Court to exclude any use of or reference to video footage from the Plaintiff's security cameras. As grounds for this motion, the Defendants state as follows: The Plaintiff has testified that he installed three video cameras at his property on or about June or July of 2016.! Footage from these cameras is likely to be submitted as evidence in this trial. These videos cannot be authenticated, as shown below. Even a reference to video footage 1 For purposes of this motion, a section of Mr. Mazzola's deposition is attached hereto as Exhibit A and shall be referred to as PM XX:XX. Page 1 of 5 t in front of the jury would be unfairly prejudicial to the Defendants. Photographs and videos “are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw.” Com. v. Figueroa, 56 Mass.App.Ct., 641, 646 (2002). They can also be authenticated by circumstantial evidence showing “that the matter in question is what its proponent claims.” Jd. In the Figueroa case, for example, there was a seamless chain of custody and sworn testimony from people with direct evidence of the process by which the film was handled. Com v. Figueroa at 673-674. Thus, videotape can be admitted if it is authenticated by someone who personally saw what was being filmed or the circumstances surrounding the creation of the videotape present sufficient support that the videotape is reliable. Com. v. Leneski, 66 Mass.App.Ct. 291, 294 (2006). ? In this matter, the Plaintiff will be offering footage from three security cameras. The Plaintiff does not live full-time at the Gloucester house and he could not have personally viewed many of the events captured on the security cameras at the time the events occurred. Ms. Mazzola testified that she watched the videos on her cell phone, presumably away from the Gloucester house. ? RM 53:23-24. The question is whether circumstantial evidence is sufficient to make this evidence reliable. As the first red flag of how unreliable these videos are, Mr. and Ms. Mazzola do not agree on what triggers the cameras. He testified that the cameras do not capture pedestrians, they only film vehicles. PM 227:15-18. In her deposition, his wife, Roberta, said the opposite — that the cameras take videos of people walking along the easement. RM 55:1-2, 57:19-22. 2 See also Com. v. Weichel, 390 Mass. 62 (1983), where photographs were excluded in part because the photographer had not personally witnessed the crime scene at the time of the crime. 3 For purposes of this motion, a section of Ms. Mazzola’s deposition is attached hereto as Exhibit B and shall be referred to as RM XX:XX. Page 2 of 5 In addition, the Plaintiff cannot accurately date the videos. The videos themselves are not dated. The discs on which he submitted his discovery documents contain directories of the video images. In one of the directories attached here as Exhibit C, the dates on the images are February 1, 2017, showing images of people clearly wearing beach clothes. Mr. Mazzola cannot explain why some of the videos are dated February 1, 2017. PM 239:16-24. In another directory, there are several instances where only one video is listed per incident, even though there were three video cameras shooting the same general location at the same time. Mr. Mazzola cannot explain why only one camera would capture an image. PM 229;9-22; 230:13-231:1; 231:12-232:15,. lf the dates of the videos cannot be authenticated, they are useless to these proceedings. The Plaintiff also admitted that he and his wife curated the selection of videos presented to the Defendant. PM 234:11-19. In their Request for Production of Documents, the Defendants demanded the following: All documents in the Plaintiffs possession showing use of the access easement in dispute in this matter, including but not limited to all video footage from July, August, and September 2017 from the Plaintiff's security cameras at 17 Wingaersheek Road. The Plaintiff acknowledged in his deposition that he did not disclose all the video requested; he disclosed only the videos that he believed showed the Defendants in a bad light. PM 233:23-234:2. By purposely disclosing only a selected number of videos, the Plaintiff acted in bad faith and should forfeit the chance to use any of the videos. Furthermore, the Plaintiff's wife admitted that she could and did edit’the videos: Q. How are the files saved? A. They go into the Cloud, the magical Cloud. You can download them. Page 3 of 5 Q. And can you erase them? A. You can erase them, mm-hmm. You can delete them, just like you can delete picture off your camera. Q. ... Have you kept them all? A. I haven’t kept every single one. Some of them were the weather and insects, and ] mean, I don’t keep all of them. RM 54:7-17, The Plaintiff has not offered any expert testimony or documentation supporting the accuracy or reliability of these videos. Instead, the evidence points to the opposite: that videos have been deleted, selectively disclosed, and subject to manipulation. A jury member may assume, incorrectly, that video footage is static and unassailable when, in fact, this video footage is clearly unreliable. There are ample fact witnesses and deposition testimony through which the Plaintiff can try make his case. The Plaintiff did not personally witness many of the events presented in the videos and the circumstantial evidence of reliability is exceedingly weak. The cause of justice is not served by allowing evidence that does not meet the criteria for admissibility to be presented to a jury. NOW THEREFORE, the Defendants respectfully ask this Honorable Court to prohibit the use of security camera footage. Respectfully submitted, THE DEFENDANTS John F. O’Brien and Bonita J. O’Brien By their attorney, Page 4 of 5 Ciel A. fury Meredith Fine, Esq. BBO No. 669248 46 Middle Street Suite 2 Gloucester, MA 01930 978-515-7224 meredith@attorneymeredithfine.com Dated: January 3, 2019 Page 5 of § CERTIFICATE OF SERVICE Thereby certify under the penalties of perjury that a true copy of the following document: DEFENDANTS’ MOTIONS IN LIMINE TO PRECLUDE THE USE OF VIDEO EVIDENCE was served by first-class mail, postage prepaid, and electronic mail on January 3, 2019, upon the Plaintiff's counsel of record: William H. Sheehan III, Esq. Thomas J. Flannagan, Esq. MacLean Holloway Doherty and Sheehan, P.C. 8 Essex Center Drive Peabody, MA 01960 tflannagan@mhdpc.com ois be hie Meredith A. Fine, Esq. \! Ex fo if 222 Q If I said the word "discovery," i would you know what I mean? The pretrial exchange of information between attorneys and parties. A Okay. Q At some point, we asked for and {| received copies of all the videos from your security camera for -~ I'11 read you the exact question. 10 "All documents in the plaintiff's 11 possession showing use of the access easement 12 in dispute in this matter, including, but not 13 limited to, all video footage from July, August 14 and September 2017, from the plaintiff's 15 security camera at 17 Wingaersheek Road." 16 So that is what I asked for. And in 17 response, [I received a number of videos, and hy 18 this is a directory of some of those videos | I 19 that I received. And I've set up my computer 20 so if you want to see what the exact videos are 21 to confirm that this is part of the directory 22 of what I received, I can show them to you. 23 Mr. Flannagan, do you need me to 24 show you the videos? hh 223 | MR. FLANNAGAN: Are you going to show him videos or ask questions about the -- MS. FINE: I'm going to ask questions about the dates. MR. FLANNAGAN: Depending on what you ask, he may need to see the video. MS. FINE: That's why the computer is here. (Marked, Exhibit No. 13, Directory of 10 Videos.) 11 Q So let me draw your attention to the 12 column on this page that's marked Date 13 Modified. 14 Do you see that column? 15 A Yes. 16 Q For the entirety of this page that's 17 marked Exhibit 13, what is the date of these 18 videos? 19 MR. FLANNAGAN: What's the date 20 listed in this column? 21 MS. FINE: Correct. 22 Q Do you need to borrow someone's 23 glasses? 24 A No. Just trying to understand the 224 question. MR. FLANNAGAN: What's the date in this column for all those that are listed on there? A 9/4/2017. Q Did you have a working video camera system on September 4, 2017? A Yes. Q Do you happen to know whether 10 September 4, 2017, was Labor Day? 11 A September 4? Yes. 12 Q I can show it to you on a calendar. 13 I'm going to represent to you -- 14 A I believe the 4th is Labor Day, yes. 15 Q I'm representing to you that 1 16 September 4, 2017, was Labor Day. 17 A Correct. 18 Q So can you take a look at this list 19 of dates and times just for a second and 20 familiarize yourself with them. 21 (Pause.) 22 A Okay. 23 Q So how many cameras, video cameras 24 did you have on Labor Day 2017? 225 A I believe we had at that time three. Q What were they pointed toward? A One was pointed to the driveway from the front of my house; and the other two were pointed to the path, to the beach. Q From the back of your house? A Correct. Q And so would it be true that every time somebody either walked or drove from 10 Wingaersheek Beach, sorry, from Wingaersheek 11 Road to the path, that -- let me rephrase it. 12 Every time somebody walked or drove 13 from Wingaersheek Road to the path, how many 14 cameras would pick up that activity? 15 A Three. 16 Q Isn't it true then that if all the 17 cameras were working properly, I would have 18 three videos of each pedestrian or vehicle who 19 used the easement on Labor Day 2017? 20 A The only ones that we provided were the 21 ones which were the vehicles going over the sand 22 dune. That was our particular issue. 23 Q Shouldn't there be three videos of 24 each of those incidents? 226 A There could be, yes. MR. FLANNAGAN: Objection. Q Why wouldn't there be three videos of each one? A Well, it would be a video of showing people walking up the driveway. And it all depends on where they are walking up the path, whether that camera would go off or not. It doesn't go off all the time. It predominantly 10 would go off if a vehicle drove up the driveway. 11 Q Why wouldn't it go off every time 12 somebody walked up the driveway? 13 A Because of the angle of the camera, the 14 sensitivity of the angle. 15 Q Are you saying that you only 16 provided videos of vehicles from Labor Day 17 2017? 18 A Going over the sand dune, yes. 19 Q Isn't true then that you did not 20 provide all video footage that I requested? 21 MR. FLANNAGAN: Objection. Based on 22 this document? 23 MS. FINE: No, He's saying he only 24 provided selected videos. I'm saying that I 227 asked for all. Q So I want to understand that on Labor Day of 2017, are you saying that you have video footage that you have not provided to us? A No. I think we provided everything we did have on video. Q That's not what you just said. You just said we -- MR. FLANNAGAN: Objection. 10 You're characterizing what he just 11 said. Go ahead. 12 Q Isn't it true, though, that you just 13 said you only provided the video of vehicles? 14 A I only provided the vehicles going over 15 the sand dune. The only time that the front 16 camera goes off is if somebody drives a vehicle 17 in front of our garage. That's the only time 18 that that camera goes off. 19 Q But isn't it true that you have not 20 provided all the video from September, Labor 21 Day 2017? 22 MR. FLANNAGAN: Objection. 23 Q Aren't you just saying that? 24 MR. FLANNAGAN: Objection. He just 228 said he did. MS. FINE: No. He just said he didn't. MR. FLANNAGAN: He said he did. And so now you're asking didn't you just say you didn't. Is that what your question is? Q Have you provided all of the video footage from July, August and September of 20177 10 A Yes. 11 Qa All of it? 12 A Yes. 13 Q If you could turn to Exhibit 13, and 14 if you could look at, see where it says, about 15 a third of the way down, September 4, 7:09 16 p.m.? 17 A Yes. 18 Q Why is there only one video? 19 Shouldn't there be two or three? 20 MR. FLANNAGAN: Objection. 21 You can answer. Go ahead. 22 t A I provided you video of only ATVs going 23 over the sand dune. 24 Q How did you answer this request to 229 provide all the videos? Did you go through them one by one or just put them all on a disk? A My wife put it together, so I think she just put them all on a disk. Qa But you don't know? A No. Q Bear with me one second. (Pause. ) Q I'm going to show you the video 10 that's marked IMG_0119(1), which was purported 11 to be taken on September 4, 2017, at 7:09 p.m. 12 That's what the information that 13 you've given us says. I'm going to show you 14 that video. 15 (Video Played.) 16 Q Do you see that video, sir? 17 A Yes. 18 Q Shouldn't there be another video at 19 the same time from the back of the property? 20 A Probably. 21 Q Why wouldn't there be one? 22 A I don't know. 23 Q The next video is at 7:17 p.m. 24 That's the next video on your directory and it 230 shows a cart leaving. (Video Played.) A Right. Q So between 7:09 and 7:17, there's no video of a cart going onto the beach from the back of your property. Why would there be a video not showing that? MR. FLANNAGAN: Objection. 10 You can answer. 11 A Could you rephrase that question, 12 please? 13 Q Sure. At 7:09, you provided a video 14 that shows a motorized vehicle going past your 15 driveway toward the easement. 16 A Right. 17 Q But you have not provided a video at 18 the same time showing that cart on the easement 19 heading toward the beach. 20 A That's right. 21 Q Why would you not have a video 22 showing that cart from the back of your 23 property? 24 MR. FLANNAGAN: Objection. 231 A I don't know. Q I'm going to turn your attention to 6:09, Do you see on Exhibit 13 where it says 9/4/17, at 4:09 p.m.? On September 4, 2017, at 6:09 p.m.? A Yes, I see it. Q Do you see that there's not a corresponding second video at 6:09? 10 Do you see that? 11 A Right. 12 Q So I'm showing you video IMG_0109, 13 which you've provided to me. 14 (Video Played.) 15 Q Where was this video shot from? 16 A The back of the house, facing the 17 beach. 18 Q What's happening in the video here? 19 A John, Jr., was driving up over the sand 20 dune. 21 Q This is at ten seconds. How do you 22 know that was John, Jr.? 23 A Because I could tell by whose ATV it 24 was. 232 Can you see who is driving it? (Video Played.) A No. Not where the picture is stopped, no Q Shouldn't there be a video of this cart coming past the garage on the other camera? MR. FLANNAGAN: Objection. A There could have been. I don't know. 10 Q But if all the cameras were working, 11 wouldn't you have multiple views of the same 12 incident? 13 MR. FLANNAGAN: Objection. 14 A I don't know. I don't know why we 15 didn't supply it. 16 Q Are you representing to me today 17 that you have provided all of the videos from 18 July, August and September of 2017? 19 A Yes. That I'm aware of, yes. 20 Q But isn't it true that all the 21 videos that you provided from September 4, 22 2017, are of people that you think are the 23 O'Brien family and no one else? 24 A Yes. There wasn't anybody else using 233 an ATV then. Q I'm talking about walking. A People walking? Right. There were plenty of people walking. Would your cameras have captured them? Sure. Q So when I asked you for all the 10 video, you're telling me -- and I think this is 11 where the confusion lies -- when I said in my 12 discovery request all the video from July, 13 August and September 2017, you took that to 14 mean no pedestrians, just vehicles? 15 A Just vehicles, yes, 16 Q Is that all the video? 17 A No. There would have been videos of 18 people walking up and down the sand dune. 19 Q Right. Is that not what I asked 20 for? 21 A I don't believe -- I don't know what 22 you asked for. ' 23 Q What do you think "all" means? 24 A I thought you wanted videos pertaining 234 to vehicle, John, Jr., driving his ATV onto the sand dune. Q So you think I was asking you to select the videos you wanted to present? A Well, I think you were asking for the ones that pertained to this issue. Q Is that what “all” means? MR. FLANNAGAN: Objection. MS. FINE: He has to answer it.- 10 A No. 11 Q In other words, are you saying that 12 you have selected the videos to give to me? 13 A I gave you the videos pertaining to 14 this situation, to this issue of damage being 15 done to the sand dune by an ATV belonging to 16 John, Jr. 1 17 Q Right. Isn't it true that you 18 selected the videos to give to me? 19 A Yes. 20 Q Who did that? Who did that process 21 of selecting which ones to present? 22 : A I believe my wife did. 23 (Marked, Exhibit No. 14, Directory 24 of Videos.) 235 Q I'm representing to you that this is a directory of another set of videos that you sent to me showing the concrete posts, purportedly showing the concrete posts being removed. Do you see this list? A Uh-huh. Q Can you see where it says Date Modified? 10 A Yes. 11 Qa Do you see that the date on three of 12 four of these are February 1, 2017? 13 A Uh-huh. 14 MR. FLANNAGAN: You have to say Yes. 15 A Yes. 16 MR. FLANNAGAN: That's the answer. 17 Q Do you know what that date means, 18 what that date is intended to show, February 1, 19 2017? 20 Does that show the date that the 21 video was taken? 22 A Yes. 23 Q I'm going to show you some more 24 video here. 236 I'm showing you what's been provided as Video No. 1467317047890. Can you see it? A Yes, I see it. (Video Played.) Q On February 1, 2017, are you telling me that this video was shot on February 1, 2017? A Yes. 10 Q Are you aware that the weather -- 11 A Wait a minute. No, no. That wasn't 12 shot in February. It wouldn't have been 13 February. 14 Q Right. What makes you say that? 15 A Well, because just the clothes that 16 they had on. It wasn't the winter. 17 Q When do you think this was shot? 18 A Well, jt would have been in 2017, I 19 know that, but it probably would have been 20 shot -- it had to be during the summer because he 21 dug the poles up, and then after that, John, Jr., 22 would be driving his ATV. So they were probably 23 done in July, probably. 24 Q Of what year? 237 A 2017. Q When did you install the concrete pillars? A In 2017. Q Are you sure? A A lot has happened since 2017. Q Do you know when you filed suit? A It was after those pillars were dug. thought this goes back to, like, 2016 when we 10 filed suit. 11 Q If I represented to you that you 12 filed suit on October 17, 2016, would that 13 sound right to you? 14 A Yes. 15 Q Is it true that the complaint was 16 filed after the concrete pilings were taken 17 out? 18 A That's correct, 19 Q So what year was this video shot? 20 A It would have been 2016. 21 Q So then why would the directory of 22 the videos say that it was taken on February 1, 23 2017? 24 MR. FLANNAGAN: Objection. It says 238 Date Modified. A Yeah. I don't know. Q So who modified it? When it says Date Modified, February 1, 2017, who modified these videos? A Is it possible when they were made to be put on a disk, that would be considered a modified? Q I don't Know the answer to that 10 question. 11 A Me neither. 12 Q Do I correctly understand that your 13 wife was the one who put together these video 14 exhibits? 15 A Yes. 16 Q So are you saying that you don't 17 know how and when these videos were modified? 18 A No. I'm trying to understand what the 19 terminology of a date of modification -- I just 20 don't understand it other than that maybe that 21 was the date they were put on a disk. I don't 22 know. 23 Q So if this is not the correct date 24 for this video, how would I know what the date 239 was of this video? Can you tell from looking at this video when it was taken? A It had to be in the summer of 2016. a I'm asking you -- A I'm telling you. Q -- can you tell from looking at this video when it was shot? A Prior to the suit. Q Okay. So prior to October 2016? 10 A Correct. 11 Q But there's no exact date; is that 12 correct? 13 A Not on that. 14 Q Not on the video? 15 A Not on the video. 16 Q So what you're saying -- I just want 17 to be clear on what I'm understanding -- is 18 that this directory says that these three 19 videos were modified on February 1, 2017, but 20 you don't know how or why; is that correct? 21 MR. FLANNAGAN: Objection. 22 You can answer. 23 A I don't know why that date is there, 24 no 240 Q But it is true that that is not the date that you believe the video was recorded? A No, it's not. Qa One more video. I'm not going to go through them all. So I am showing you a video that's marked Silver Cart 2. I'm going to show it to you in a second. I'm going to represent to you that I renamed that video myself. 10 MR. FLANNAGAN: Which number is it? 11 MS. FINE: I'm going to give it to 12 you. 13 (Marked, Exhibit No. 15, Directory of 14 Videos.) 15 Q I'm showing you now a video called 16 Silver Cart 2. If you look on this Exhibit 15, 17 c