DiMichel v. South Buffalo Railway Co., 80 N.Y.2d 184 (1992)

Surveillance films created by a defendant in a personal injury case are considered materials prepared in anticipation of litigation, discoverable by the plaintiff only upon a showing of substantial need and undue hardship, typically after the plaintiff’s deposition.

Summary

This case addresses whether surveillance films prepared by a defendant in a personal injury action are discoverable by the plaintiff before trial. The Court of Appeals held that such films are materials prepared for litigation and thus subject to a qualified privilege. This privilege can be overcome only by demonstrating a substantial need for the materials and an inability to obtain their equivalent without undue hardship. The court reasoned that surveillance films are easily manipulated and can be deceptively presented, necessitating pretrial review by the plaintiff to ensure accuracy and fairness. The court also addressed improper trial tactics when a defendant chooses not to use disclosed surveillance films.

Facts

In DiMichel, the plaintiff sued the railway company for injuries sustained in a fall. The plaintiff sought to discover any surveillance films the defendant may have taken. The defendant initially refused, arguing such materials were not discoverable. In Poole, the plaintiff sued his employer, Conrail, for injuries sustained from a fall. The plaintiff requested all surveillance films. In both cases, the central issue concerned the discoverability of these films.

Procedural History

In DiMichel, the trial court initially denied the motion to compel disclosure, but later granted it upon reargument after an Appellate Division ruling in another case found such films discoverable. The Appellate Division modified the order, requiring disclosure only of films the defendant intended to use at trial. The defendant appealed to the Court of Appeals. In Poole, the trial court granted the plaintiff’s request to view all surveillance films. The jury found for the plaintiff. The Appellate Division affirmed but deemed the lower court’s order (requiring full disclosure) overly broad and harmless error. The defendant appealed to the Court of Appeals.

Issue(s)

Whether surveillance films prepared by a defendant in a personal injury action are discoverable by the plaintiff before trial, and if so, under what conditions?

Holding

Yes, but only under specific circumstances. The films are considered materials prepared in anticipation of litigation, and are discoverable if the plaintiff demonstrates a substantial need for the materials and an inability to obtain the substantial equivalent without undue hardship, typically after the plaintiff has been deposed.

Court’s Reasoning

The Court reasoned that New York favors open pretrial discovery to prevent surprise evidence. CPLR 3101(a) mandates “full disclosure of all evidence material and necessary in the prosecution or defense of an action.” While surveillance films can be powerful evidence, they are also easily manipulated, raising concerns about accuracy. The court rejected the argument that films should be disclosed only if the defendant intends to use them at trial, stating that such a rule would be a return to an earlier time, when subterfuge and surprise were common trial strategies. The Court found that a plaintiff has a substantial need to view the tapes before trial to ascertain their accuracy and authenticity. The Court also determined that the plaintiff cannot obtain the substantial equivalent of surveillance materials by other means. The court emphasized that the plaintiff should be deposed before the films are turned over to prevent tailoring of testimony based on the surveillance. The court also addressed improper trial tactics in Poole, where the plaintiff’s counsel alluded to the existence of surveillance films that the defense did not introduce, creating prejudice. In Poole, the court found additional errors in preventing defense experts from testifying and in the plaintiff’s counsel’s summation comments about a missing witness.