Furnishing Copy of a Surveillance Tape is Sufficient Disclosure
September, 2004
In Zegarelli v. Hughes, 3 N.Y.3d 64 (2004), the New York Court of Appeals - New York’s highest court - holds that furnishing a mere copy of a surveillance tape is sufficient disclosure under New York law.
Facts
Plaintiff John Zegarelli sued Hughes seeking recovery for a back injury that allegedly caused him significant pain and limited his daily activities. Plaintiff served demands for discovery on defendant Hughes requesting production of “any and all video tapes…reporting to depict the plaintiff’s activities.” An investigator employed by defendant’s counsel subsequently videotaped plaintiff while he was shoveling snow. The taping was done with a hand-held 8-MM camera which the investigator copied onto a VHS tape.
On August 18, 2000, defense counsel sent the VHS copy of the surveillance tape to plaintiff’s counsel with a cover letter saying: “Enclosed herewith, please find a copy of a videotape depicting the plaintiff in the above matter, which I recently received.” The record indicated no more communication about the tape between the parties until trial, which began more than a year later, on August 21, 2001.
At trial, plaintiff testified about the limited activity resulting from his injury. Specifically, he testified that after the accident, he shoveled snow “very, very rarely.” When asked by plaintiff’s counsel regarding the “one occasion” reflected on the videotape, plaintiff explained that he took two or three swipes in the area where he parked his car and cleared off a little debris that was on the first step.
The investigator who recorded the event testified that he personally observed the plaintiff, that the exhibit shown to him was a VHS copy of the 8-MM videotape, and that the tape fairly and accurately depicted what he observed. He further indicated that the tape had not been edited. Plaintiff’s counsel objected to the admissibility of the tape saying, “I don’t know if the 8-MM correctly reflects what is on this tape because I haven’t an opportunity to see it.” However, he admitted he had seen the VHS copy of the tape.
The trial court sustained the objection, holding that the tape was not made available to the plaintiff by defendant in anticipation of trial or during the discovery period. Plaintiff capitalized on the ruling in closing argument stating, “Where’s this phantom video? It’s not here, is it? What did that tell you?” The jury returned a verdict for the plaintiff including a $55,000.00 award for pain and suffering.
The Appellate Division affirmed, concluding that if the exclusion of the videotape was error, the error was harmless.
Analysis
The New York Court of Appeals granted leave to appeal and reversed, reasoning that CPLR 3101 does not require parties making disclosure of surveillance tapes to be more forthcoming than they would with any ordinary discovery material. Citing CPLR 3120[1][i], it held that in the case of documents and things, including a videotape, a party’s obligation is to produce and permit the parties seeking discovery, or someone acting on his or behalf, to inspect, copy, test or photograph the items produced. CPLR 3120 may be satisfied by telling the parties seeking discovery where the materials are and providing a reasonable opportunity for that party to review them and make copies. However, it is very common, the Court reasoned, 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.
Defense counsel followed this customary procedure and sent a copy of the tape to plaintiff’s counsel. His letter indicated that he was disclosing a copy of the tape and plaintiff had more than a year to view the original if he chose to do so. Moreover, plaintiff did not show that there was a significant difference in format between the 8-MM original and the VHS copy. Therefore, defendant complied with his obligation to make “full disclosure” of the videotape and the Supreme Court and Appellate Division holdings stating otherwise were in error.
Plaintiff alternatively argued the tape was rightly excluded because defendant failed to properly authenticate it. However, the Court held that testimony from the videographer that he took the video, it correctly reflected what he saw, and it had not been altered or edited, was sufficient to authenticate a videotape.
Finally, the Court ruled that the Appellate Division erred when it held that excluding the videotape was harmless. The Court reasoned that admission of the tape would have allowed defendant to attack the credibility of plaintiff’s statement that he shoveled snow “very, very rarely.” It also enabled the plaintiff’s attorney in closing argument to ask rhetorically, “Where’s this phantom videotape?” Thus, the Court could not conclude with confidence that plaintiff would have obtained the same verdict if the tape had been admitted into evidence.
Learning Points:
Zegarelli confirms that disclosure of surveillance tapes is not held to a higher standard than disclosure of other “documents or things.” Accordingly, it is appropriate to produce a copy of a surveillance videotape as long as the receiving party is allowed to view the original. In light of the Zegarelli decision, however, it is recommended that counsel indicate in its production that the receiving party is receiving a copy of the video surveillance tape. This puts the receiving party on notice that it has received a copy and should make the appropriate arrangements to view the original if necessary.
Back to CM Report of Recent Decisions (2004v3) 2004 Volume 3 Table of Contents
