The Furnishing Of A Mere Copy Of A Surveillance Tape Is Sufficient
September, 2004
The New York Court of Appeals recently stated that “full disclosure” required by the New York Civil Practice Law and Rules Section 3101(i) is simply “the disclosure normally required by the CPLR for relevant, non-privileged materials.” Zegarelli v. Hughes, 3 N.Y.3d 64, 814 N.E.2d 795, 781 N.Y.S.2d 488 (2004). In Zegarelli, the Court held that the obligation to disclose a video tape is satisfied by delivering a complete copy of the tape to opposing counsel and giving opposing counsel the opportunity to examine the original copy of the tape if counsel chooses to do so. Zegarelli, at 489.
Zegarelli involved an automobile accident in which Plaintiff, John Zegarelli, sought recovery for injuries he sustained when his vehicle was forced into a snowbank by a vehicle driven by Defendant. Plaintiff sought recovery for a back injury sustained as a result of the accident which caused significant pain and “limited his daily activities.” Id. Plaintiff served discovery demands requesting the production of “any and all video tapes . . . purporting to depict the plaintiff’s activities.” Id. Following such demands, Defendant hired an investigator who used an eight-millimeter video camera to tape Mr. Zegarelli shoveling snow. Subsequently, the investigator copied the eight-millimeter video onto a VHS tape. Approximately one year prior to trial, pursuant to CPLR 3101(i) which requires “full disclosure of any films, photographs, video tapes . . .”, Defendant provided a copy of the VHS tape to Plaintiff. Id.
At trial, Plaintiff and Plaintiff’s witnesses testified that since the accident, Plaintiff could barely move and that the accident had totally disabled Plaintiff from working as a restaurateur. Furthermore, Plaintiff testified that he could only manage “two or three swipes” of his snow shovel on the day the investigator recorded Plaintiff’s activities. Id. Defendant called the investigator in an effort to authenticate the video tape. The investigator testified that the video tape was a copy of the video tape he made of his personal observations that day and that the tape fairly and adequately depicted what he observed. Furthermore, the investigator testified that the tape had not been edited. Plaintiff’s counsel objected to the admissibility of the video tape asserting: “I don’t know if the 8 millimeter correctly reflects what is on this tape because I haven’t had an opportunity to see it.” Id. The trial court sustained the objection on the ground that “the tape was not made available to plaintiff by defendant in anticipation of trial or during the discovery period.” Id. Subsequently, during closing arguments, Plaintiff’s attorney used this ruling to his client’s advantage and stated: “Where’s this phantom video?” Id. The jury returned a verdict in the amount of $131,919.44, including a $55,000 award for pain and suffering. Id. at 490. Defendant appealed the court’s exclusion of the video tape at trial.
The Appellate Division held that the exclusion of the video tape was proper because the original eight-millimeter video tape had not been disclosed to Plaintiff. Additionally, the Appellate Division held that even if the preclusion of the video tape was error, it was harmless error. Id.
The Court of Appeals took a different view. “We hold here that the ‘full disclosure’ required by this statute [CPLR 3101(i)] is simply the disclosure normally required by the CPLR for relevant, non-privileged materials.” Id. at 489. Furthermore, the Court held that Defendant complied with CPLR 3101(i)’s requirement to disclose the video tape by delivering a complete copy of the tape to Plaintiff’s attorney well in advance of trial. The Court found that Plaintiff was afforded every opportunity to view the original video tape as the copy was produced approximately one year prior to trial. Plaintiff’s failure to request that defense counsel allow him an opportunity to view the original video tape does not override the fact that Defendant was in compliance with discovery. Furthermore, the Court stated that Defendant followed “customary procedure” by producing a copy of the video tape along with a cover letter identifying the tape as a “copy.” Id. at 491. Additionally, the Court held that the videographer’s testimony was sufficient to authenticate the video tape.
The Court next addressed the issue of whether the video tape’s preclusion was harmless error. The Court of Appeals disagreed with the lower courts’ contentions. “The tape shows plaintiff shoveling for about three minutes without obvious discomfort, though for most of that time he uses one hand to shovel, perhaps favoring his back. The tape may not be inconsistent with the existence of back pain, but it is flatly inconsistent with plaintiff’s testimony that he ‘took two or three swipes . . . and . . . cleared off the little debris that was on the first step.’” Id. Furthermore, the Court held that the “[a]dmission of the tape would have enabled defendant to attack the credibility of plaintiff’s statement that he shoveled snow ‘very, very rarely.’” Id. Interestingly, the Court held that by not allowing the video tape to be shown, Plaintiff’s counsel was able to ask rhetorically during closing arguments: “Where’s this phantom video?” Id. Thus, the Court reversed the order of the Appellate Division and ordered a new trial.
Learning Point:
As a result of the Court of Appeal’s decision in Zegarelli, in New York, a defendant is not required to provide an original video tape to plaintiff’s counsel. Defense attorneys are merely required to provide a copy and allow plaintiff’s counsel to view the original copy of the video tape. Importantly, the Court of Appeals specifically relied on the fact that the defense attorney identified the copy of the video tape as a “copy” in a cover letter sent to plaintiff’s counsel. Additionally, the Court specifically relied on the fact that plaintiff’s counsel never sought to view the original video tape prior to trial. Attorneys and insurers should keep this in mind when receiving the original copy of a surveillance video tape sent by an investigator. •
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