Court of Appeals Decides - Surveillance Tapes Must Be Disclosed Before Depositions
January, 2003
As we have been reporting throughout the past year, the First Department in Tran v. New Rochelle Hospital Medical Center, 740 N.Y.S.2d 11, issued a defense-friendly ruling on the issue of disclosure of surveillance tapes of a plaintiff. In Tran, the First Department ruled that where a defendant obtained post-deposition surveillance footage of plaintiff, plaintiff would have to submit to a second deposition before defendant would be required to turn over the surveillance video. The First Department reasoned that such a result “serves an important truth-finding function in view of the newly-discovered facts, and meets the concern of possibly tailored testimony when conducted prior to disclosure....This outcome does not present the risk of sandbagging or trial by ambush, inasmuch as plaintiff [is] already fortified with the knowledge of the existence of video surveillance materials, and will have the tapes for examination prior to trial.”
As we reported, the First Department’s decision in Tran was in direct conflict with decisions of the Second, Third and Fourth Departments on the same issue. Those departments have held that surveillance videos of plaintiff must be disclosed upon demand regardless of whether or not plaintiff has been deposed, thus leaving open “the risk of sandbagging.” As expected, given this direct split among the appellate departments, the Court of Appeals took up Tran for review. In an opinion which it acknowledged “re-introduces the prospect of tailored testimony,” the State’s highest court reversed Tran and agreed with the Second, Third and Fourth Departments that surveillance videos must be disclosed upon demand regardless of whether plaintiff has yet been deposed.
The Tran Facts
In Tran, plaintiff was a hibachi chef at a Japanese restaurant who fell on the job and lacerated his left palm. After emergency treatment at the defendant hospital, the defendant doctor removed plaintiff’s sutures two weeks later and cleared him to return to work. A few months later, while trimming steak, plaintiff suffered another left hand injury which he blamed on weakness resulting from the treatment of his previous injury.
At plaintiff’s initial deposition, he claimed that his physician cautioned him against returning to work as a hibachi chef and suggested he look for a different type of job. Then, when plaintiff delayed turning over employment records and tax releases, defendant learned, by way of surveillance, that plaintiff had returned to work. As such, defendants sought a further deposition. Plaintiff demanded the tape as a condition precedent to submitting to a further examination; defendants argued that they were not required to produce the tape until plaintiff submitted to the second deposition. Plaintiff moved for disclosure of the tape prior to the second deposition, a motion which the trial court granted.
The First Department’s Analysis
The First Department reversed the trial court and found that defendant was not required to turn over the tape to plaintiff until after the second deposition. In reaching this conclusion, the court relied upon the Court of Appeals’ decision in DiMichel v. South Buffalo Ry. Co., 590 N.Y.S.2d 1 (1992). “The question of priority in the discovery of video surveillance materials – which rests on a balance of protecting a plaintiff, on the one hand, from crafty manipulation of potentially devastating evidence, versus protecting the defendant from tailored testimony – was addressed 10 years ago in DiMichel,” the First Department wrote. “Relying upon the ‘substantial need’ test of CPLR 3101(d)(2), the Court of Appeals held, in DiMichel, that the plaintiff should be entitled to disclosure of all video surveillance materials in the defendant’s possession which the latter intends to use at trial. But to address the defendant’s ‘tailoring’ concern, the Court directed that such material be turned over only after a plaintiff has been deposed.”
The court then addressed the position adopted by the Third and Fourth (and later the Second) Departments that CPLR 3101(i), enacted after DiMichel, overrules DiMichel. CPLR 3101 (i) requires full disclosure of “all portions of [video] material, including out-takes, rather than only those portions a party intends to use.” The statute makes no reference to the timing of the disclosure. “Some authorities have viewed this 1993 enactment as rendering DiMichel a nullity,” the First Department stated. “Clearly, the DiMichel decision was the impetus for the CPLR amendment, but there are no legislative memoranda indicating an intent to ‘supersede’ the entirety of that decision. CPLR 3101(i) does not expand the scope of the discovery to which the plaintiff is entitled, but it fails to address the question at the crux of this appeal, which the Court of Appeals specifically confronted in DiMichel, namely, the order of priority in disclosing the video materials. To conclude, without focused analysis, that CPLR 3101(i) superseded all of DiMichel would be an unwarranted interpretation of the legislative intent. The Legislature did redress the legitimate concern of injured tort victims by mandating the turnover of all surveillance evidence, including “out-takes,” thus protecting plaintiffs against the possibility of deceptive alteration and the covert suppression or editing of any part of such evidence. But the possibility of tailored testimony by the plaintiff, which is still a genuine concern for defendants herein, was not even mentioned in CPLR 3101(i). A decade after its issuance, the unanimous DiMichel decision, balancing the conflicting interests in a fair use of surveillance tapes at trial, still remains viable to this extent: surveillance materials created by defendants must be disclosed only after the plaintiff has been deposed.”
Finally, the First Department ruled that the DiMichel rule applies even where plaintiff’s second deposition is sought. “[W]e note that an objection is interposed by plaintiffs that Tai has already been deposed, and that he should be compelled to submit to further deposition simply because of his present awareness of the existence of the video surveillance material. We reject that premise. An additional deposition here serves an important truth-finding function in view of the newly-discovered facts, and meets the concern of possibly tailored testimony when conducted prior to disclosure....This outcome does not present the risk of sandbagging or trial by ambush, inasmuch as plaintiff [is] already fortified with the knowledge of the existence of video surveillance materials, and will have the tapes for examination prior to trial.”
The Court of Appeals’ Analysis
The Court of Appeals framed the question before it as “whether section 3101(i) overrules that aspect of DiMichel which allows defendants to withhold surveillance tapes until after a plaintiff has been deposed.” In a three-pronged analysis, the high court found that CPLR 3101(i) did, in fact, overrule that aspect of DiMichel and that video surveillance materials are now discoverable upon demand regardless of whether plaintiff has yet been deposed.
At the outset, the court noted 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...are subject to ‘full disclosure,’” the court wrote. “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’” as was previously required by CPLR 3101(d)(2)."
The court then looked first to the fact that the specific language of CPLR 3101(i) “does not speak to whether a plaintiff must submit to a deposition before obtaining disclosure of any surveillance tapes.” It found that “this silence...mean[s] that the Legislature did not intend to codify the timing aspect of DiMichel.” The court wrote: “Our holding in DiMichel – that once a plaintiff undergoes a deposition the defendant must turn over any surveillance tapes it intends to use at trial – rested heavily on the premise that surveillance tapes were subject to a qualified privilege under section 3101(d)(2)....That privilege, in turn, was one of the two competing interests that informed DiMichel’s timing rule. In removing surveillance tapes from the reach of CPLR 3101(d)(2), the Legislature eliminated the qualified privilege to which videotapes were previously subject. In so doing, it undercut one of the main supports underlying DiMichel. In short, the timing rule lost its statutory moorings when the Legislature removed videotapes and the like from the strictures of section 3101(d)(2).”
Second, the court found that the legislature’s crafting of an entirely new subdivision within CPLR 3101 to deal exclusively with videotapes and similar materials evinced an intent to overrule the timing rule of DiMichel. “We must assume that the Legislature was fully aware that the time rule we announced in DiMichel was premised on surveillance tapes falling within section 3101(d)(2),” the court said. “Indeed, it is evident [from the legislative history] that the Legislature enacted section 3101(i) in reaction to DiMichel. The Legislature’s decision to create this separate subdivision, subject to no qualified privilege and imposing no express timing requirement, satisfies us that the lawmakers did not intend to adopt the DiMichel timing rule.”
Finally, the court noted that two groups opposed enactment of CPLR 3101(i) precisely because it did not contain the DiMichel timing rule and stated that “[h]ad the Legislature wanted to impose any such limitation, it could easily have done so.”
Learning Point:
The Court of Appeals recognized that its interpretation of CPLR 3101(i) as requiring full disclosure of surveillance materials on demand creates a danger of tailored testimony by plaintiffs, specifically noting Professor David Siegel’s comments that CPLR 3101(i) is a “one-sidedly pro-plaintiff statute” that “seems to be an unabashed promotion of total disclosure of all surveillance materials.” However, the court found that resolution of this concern must lie with the legislature and not the courts: “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.”
There can be no doubt that Tran notwithstanding, surveillance videos are still a critical aid to the defense in exposing a malingering or fraudulent plaintiff. In light of Tran, however, renewed emphasis should be placed on thoroughly and exhaustively deposing the plaintiff about his claims, utilizing the medical records and claims of incapacitation in the pleadings. Following such a deposition, the surveillance assignment must be narrowly tailored to ensure that the investigator looks for and captures footage necessary to expose the malingerer. If the questioning at the deposition is not exhaustive, more opportunities are left open for plaintiff to tailor his testimony by simply stating “you never asked me about that.” •
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