First Department Sets Up Appellate Division Conflict on the Law of Surveillance Tapes Disclosure
April, 2002
The use of surveillance videos by the defense bar has long been a double-edged sword. While strategic investigation and taping often yields evidence of a malingering plaintiff, the rules of discovery in New York have always required prompt disclosure of any and all tapes, including “out-takes” and notes regarding those tapes. Where the taping occurs after the plaintiff’s deposition, and the goal is to avoid having plaintiff tailor future testimony in conformance with what is shown on tape, defendants often try to compel a second deposition before the tape is disclosed. The Third and Fourth Departments have ruled that strategy out. In a recent unanimous opinion, the First Department has ruled just the opposite and established a defense-friendly rule: plaintiff’s deposition first and video turnover afterward. In Tran v. New Rochelle Hospital Medical Center, 740 N.Y.S.2d 11, which should set the stage for a ruling by the Court of Appeals, the First Department has held that its sister courts’ decisions on the issue of surveillance disclosure “needlessly upset the desirable balance of competing interests in personal injury litigation.”
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 in 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.
Analysis
The First Department reversed 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 first looked to 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 Court 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 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 Court 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 Court 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 not 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.” (italics in original)
Learning Point:
The Tran court specifically rejected Third and Fourth Department rulings on point. “We disagree with the contrary conclusion reached by the Third and Fourth Departments of the Appellate Division....In our view, those decisions needlessly upset the desirable balance of competing interests in personal injury litigation, and improperly restrict the judicial exercise of discretion in discovery matters.” A Court of Appeals resolution of this conflict therefore seems likely.
In the meantime, Tran is an important aid to the defense bar in its attempts to verify claims that an individual is suffering the effects of personal injuries. However, the surveillance assignment must be narrowly tailored after a thorough initial deposition so as to ensure that the investigator looks for and captures footage necessary to expose the malingerer. If the questioning at the initial deposition is not exhaustive, utilizing the medical records and pleading claims of incapacitation, subsequent tape may prove fruitless because a plaintiff could simply state “you never asked me about that.”
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