I. SURVEILLANCE EXCHANGES, HISTORICALLY
a. How surveillance exchanges work, historically.
Surveillance exchanges date back, statutorily, to 1993 with the expansion of Article 31 of the C.P.L.R., which added subsection (i) to § 3101, to require full disclosure of various films and tapes of the parties, and notably reached far to include not only that which was intended to be used for trial, but ancillary materials as well. Pre-1993, there is little information regarding the exchange of surveillance tapes.
b. Rising popularity among defense counsel through 1993.
The art of videotaping or conducting an “activity check” on an adversary, especially among defendants with plaintiff as the subject, had developed a loyal following pre-1993. Defense counsel pine for the days of opening such a report containing photographs or video footage of plaintiffs engaged in activities which they expressly stated they are prohibited completely from doing, or are limited in doing due to pain.
c. Historically protected as attorney work-product or prepared in anticipation of litigation.
Historically, defendants enjoyed the protections of C.P.L.R. § 3101(d)(2), which served as a shield from full disclosure under the C.P.L.R. Originally, pertaining to surveillance footage, under subsection (d)(2), plaintiffs were first required to show a “substantial need” for the footage, and that “undue hardship” would result in attempting to obtain the substantial equivalent of those materials by other means.
d. The new rules under DiMichel.
Approximately one year prior to the passage of C.P.L.R. § 3101(i), the Court of Appeals decided DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 590 N.Y.S.2d 1 (1992), which dealt primarily with the timing of disclosure of surveillance footage. In that matter, an injured railway employee sought discovery from the railroad of videotapes and surveillance films. The Supreme Court, Erie County ordered the railroad to provide the tapes or films.
In DiMichel, the Court of Appeals noted that the courts in the State of New York had relied mainly on two separate subdivisions of the C.P.L.R. when considering the discoverability of surveillance tapes: C.P.L.R. § 3101(d)(2) and C.P.L.R. § 3101(e).
C.P.L.R. § 3101(d)(2) provides that materials prepared in anticipation of litigation or for trial are obtainable only upon a showing that the “party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means” (emphasis as in original case). C.P.L.R. § 3101(e) is in no way qualified like § 3101(d)(2), and gives a party an absolute right to obtain a copy of his or her own statement.
The Court noted the fracture between the four departments:
[T]he First Department would treat surveillance films as discoverable in their entirety pursuant to C.P.L.R. § 3101(e), which governs party statements. The Second Department followed the lead of the Fourth Department in DiMichel by treating surveillance films as material prepared for litigation and by holding that substantial need and undue hardship inhered in the nature of the films themselves. Finally, the Third Department, while also treating these films as material prepared for litigation, held that such films were discoverable only upon a showing of substantial need and undue hardship.
In summation, the First Department viewed surveillance as a party statement that is discoverable on its face. The Second and Fourth Departments viewed surveillance as protected by § 3101(d)(2), but created a pass-through by reasoning that the nature of surveillance footage in and of itself creates “undue hardship”, meaning plaintiff did not have to meet that burden to obtain surveillance footage. The “undue hardship” burden is, in effect, met automatically by the nature of the surveillance footage. The Third Department viewed surveillance footage also as protected by § 3101(d)(2), but required plaintiff to meet the “undue hardship” burden in order to obtain the surveillance footage.
In deciding DiMichel, the Court of Appeals then held:
Having considered the different approaches, we agree with the Second, Third and Fourth Departments that surveillance films should be treated as material prepared in anticipation of litigation, and as such, are subject to a qualified privilege that can be overcome only by a factual showing of substantial need and undue hardship.
DiMichel is also relevant because the Court of Appeals determined that plaintiff was entitled to production of the materials but must first submit to a deposition and narrate his injuries, under the premise that any inconsistencies between the footage and plaintiff’s testimony can be explored. See SIEGEL-NYPRAC § 348.
e. Passage of C.P.L.R. § 3101(i)
The New York State Legislature responded to DiMichel with the addition of section (i) to C.P.L.R. § 3101 in 1993. The addition is far-reaching, providing for full disclosure of all “films, photographs, video tapes or audio tapes, including transcripts and memoranda thereof” and also encompasses disclosure “of all portions of such material, including out-takes, rather than only those portions a party intends to use.” As Seigel notes, the newly added section (i) overrides any protection afforded to the above-enumerated items as work product under C.P.L.R. § 3101(d)(2). See SIEGEL-NYPRAC § 348.
f. Language of the statute.
The language of C.P.L.R. § 3101(i) is not particularly Shakespearean. It states:
(i) In addition to any other matter which may be subject to disclosure, there shall be a full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only the portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law.
There are subdivisions of Article 31 of the C.P.L.R. working in conjunction with subsection (i). Notably, subdivision (a) of C.P.L.R. § 3101 states:
(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof, by:
1. A party, or the officer, director, member, agent or employee of a party;
2. A person who possessed a cause of action or defense asserted in the action;
3. A person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable gounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and
4. Any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.
Subsection (b) is one other such section, which states:
(b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.
Subsection (c) is also noteworthy, as it governs attorney work product:
(c) Attorney’s work product. The work product of an attorney shall not be obtainable.
For the reasons discussed herein, subsection (d)(2), prior to relatively recent developments was important:
(d) Trial Preparation.
. . .
(2) Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial or for another party, or by or for that other party’s representative (including attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.
II. TIME FOR DISCLOSURE
a. There is no time limitation for disclosure under the C.P.L.R. § 3101(i) statute as confirmed by Tran.
With the implementation of C.P.L.R. § 3101(i), and surveillance tapes no longer protected as work product, the timing of disclosure became an issue that needed to be resolved by the Court of Appeals.
When the parties need to make disclosures under C.P.L.R. § 3101(i) is absent from the language of the statute. Illustrative of the issue, is the common practice of surveilling plaintiff at the beginning of a case, proceeding to the deposition of plaintiff, and then later exchanging footage highlighting inconsistencies in plaintiff’s claims. Further, the Court of Appeals in DiMichel had directed that plaintiff must submit to a deposition before such disclosure is required by defendants.
Approximately ten (10) years after the addition of section (i), the Court of Appeals decided Tran v. New Rochelle Hospital Medical Center, 99 N.Y.2d 383, 756 N.Y.S.2d 509 (2003). In Tran, plaintiff brought suit against the defendant hospital claiming the defendant failed to properly diagnose and treat a hand injury. The lower court, Supreme Court, Bronx County, granted plaintiff’s motion to compel defendants to produce surveillance tapes of plaintiff prior to his appearing for a further deposition. Defendants appealed and the First Department reversed. The Court of Appeals then reversed the First Department, making two key points in the opinion. The first deals with any question remaining that plaintiff needs to show “substantial need” or “undue hardship”:
We note, at the outset of our analysis, that the plain language of section 3101(i) eliminates any qualified privilege that previously attached to surveillance tapes under DiMichel. Under the new provision, surveillance tapes (and other specified material) are subject to “full disclosure.” Thus, parties seeking disclosure of any of the specified items under section 3101(i) need not make a showing of “substantial need” and “undue hardship.’ See Tran v. New Rochelle Hospital Medical Center, 99 N.Y.2d 383, 387 (2003).
The second point outlined the timing of the disclosures as it relates to the deposition of plaintiff, wiping out the requirement left over from DiMichel that plaintiff submit to a deposition prior to the disclosure. The Court of Appeals recognized the plight of defendants, but ultimately held that it was constrained to interpret a timing qualification absent the legislative intent to include one in the statute:
We recognize, as have all of the Appellate Divisions, that requiring full disclosure of surveillance tapes before a plaintiff is deposed reintroduces the prospect of tailored testimony. Defendants complain of this danger, and indeed one commentator has characterized section 3101(i) as a “one-sidedly pro-plaintiff statute” that “seems to be an unabashed promotion of total disclosure of all surveillance materials ” (Siegel, 1993 Supp. Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C3101:50, 2003 Pocket Part, at 36–37). While we articulated our solution to the tailored-testimony problem in DiMichel, we are not now free to impose a timing requirement under section 3101(i) given the Legislature’s pointed recasting of the relevant discovery provisions and its mandate for “full disclosure.” We agree with the Second, Third and Fourth Departments that notwithstanding the danger of tailored testimony, section 3101(i) requires full disclosure with no limitation as to timing, unless and until the Legislature declares otherwise. Id at 389.
With that, the Court of Appeals eviscerated any requirement that the plaintiff must appear for a deposition prior to receiving surveillance disclosure.
III. SCOPE OF DISCLOSURE
a. What is to be disclosed.
The plain language of the C.P.L.R. § 3101(i) leaves little to the imagination as far as what can be disclosed. There are few items and little information not captured by the following language:
“full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only the portions a party intends to use.
b. How that is to be disclosed.
Fortunately, the disclosure of such materials is encompassed by C.P.L.R. § 3101(a) and is relatively straightforward. The Court of Appeals, as discussed infra, held that C.P.L.R. § 3101(i) does not require parties making disclosure of surveillance tapes to be more forthcoming than they would with any ordinary discovery material.
In Zegarelli v. Hughes, 3 N.Y.3d 64, 781 N.Y.S.2d 488 (2004), plaintiff sought recovery for personal injuries related to an automobile accident, and alleged he sustained a back injury as a result which caused him significant pain and limited his daily activities. Plaintiff served a discovery demand, including a demand for production of video tapes depicting plaintiff’s activities.
Subsequently, an investigator employed by defendant videotaped plaintiff while plaintiff was shoveling snow. The footage was recorded on a handheld eight-millimeter camera tape, which was copied onto a VHS tape[1]. Defendant exchanged the VHS tape, along with correspondence identifying the videotape, without further communication regarding the tape until trial.
At trial, plaintiff objected to the tape’s admissibility, indicating he did not know if the copy of the tape that he received accurately reflected what is on the original because he did not have an opportunity to view the original. He did admit he saw the VHS copy of the tape. The objection was sustained by the Trial Court, and on appeal, the Appellate Division affirmed on the grounds that the original video had not been disclosed.
In its decision, the Court of Appeals reversed, reasoning:
In the case of “documents and things” – a term that includes videotapes – a party’s obligation is “to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph” the items produced (CPLR 3120(1)(i)). This section may be satisfied by telling the party seeking the discovery where the materials are and providing a reasonable opportunity for that party to look at them and make copies; but it is often more convenient, and very common, for counsel for the producing party to make copies and send them to the other side. Where that is done, it is understood that the originals must be available for inspection on request. Id at 68-69.
The Court of Appeals found that the defendant’s counsel followed the customary procedure when he sent a copy of the VHS tape to plaintiff’s counsel, expressly disclosing that it was a copy, and plaintiff had more than enough time to request to view the original but chose not to.
As such, disclosures of footage can be handled in the traditional methods contemplated by C.P.L.R. § 3101(a) and the provision regarding “documents and things,” so long as it is made clear that the material provided is a copy, and that inspection of the original is available upon request.
c. What is exempted from disclosure.
The language of the statute, as outlined supra, is almost all-encompassing. However, to the extent that privileged communications between lawyer and client are in any reports that otherwise qualify for the section (i) disclosure, they can be redacted by the court in an in-camera session if need be.
IV. PRACTICE POINTERS
a. No surveillance until after the deposition of Plaintiff is completed.
A relatively simple solution to the state of the law after the addition of section (i) to C.P.L.R. § 3101 is to obtain surveillance of the plaintiff after their deposition is complete, so as to avoid the pre-deposition disclosure and any potential tailored testimony.
Simply put, if there is no surveillance footage of plaintiff, there is nothing to disclose and C.P.L.R. § 3101(i) remains dormant.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
[1] VHS (short for Video Home System) is a system that uses a videocassette tape to record video and sound, which can be watched on a television. VHS is a standard for consumer-level analog video recording on tape cassettes invented in 1976. For more information visit: https://kodakdigitizing.com/blogs/news/history-of-the-vhs-tape