DiMichel v. South Buffalo Railway Co.
80 N.Y.2d 184 (1992)
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Rule of Law:
Surveillance films prepared by a defendant in anticipation of litigation are subject to a qualified privilege but are discoverable upon a showing of substantial need and undue hardship. A plaintiff demonstrates this need for any films the defendant intends to use at trial, and disclosure is required, but only after the plaintiff has been deposed.
Facts:
- On June 6, 1984, Anthony DiMichel, an employee of South Buffalo Railway Company, sustained injuries in a fall while at work.
- On August 22, 1985, David Poole, an employee of Consolidated Rail Corporation (Conrail), was seriously injured after falling from a ladder he alleged was defective.
- Following the incidents, both employers, South Buffalo Railway Company and Conrail, conducted surveillance of their respective injured employees and created films or videotapes.
- In the Poole case, a Conrail foreman allegedly ordered an employee to destroy the ladder from which Poole had fallen.
- This foreman was unable to testify at Poole's trial because he was undergoing open heart surgery at the time.
Procedural Posture:
- In DiMichel, plaintiff Anthony DiMichel sued defendant South Buffalo Railway Company in Supreme Court, Erie County (a state trial court). His motion to compel disclosure of surveillance films was initially denied, but granted upon reargument.
- South Buffalo Railway Company (appellant) appealed to the Appellate Division, Fourth Department, which modified the trial court's order, requiring disclosure of only those tapes the defendant intended to use at trial. DiMichel was the respondent.
- The Appellate Division granted South Buffalo Railway Company leave to appeal to the Court of Appeals (New York's highest court).
- In Poole, plaintiff David Poole sued defendant Consolidated Rail Corporation (Conrail) in Supreme Court, Erie County. The trial court granted Poole's motion to compel disclosure of all surveillance films.
- Following a trial, the jury found in favor of Poole and awarded him over $4 million in damages.
- Conrail (appellant) appealed to the Appellate Division, Fourth Department, which affirmed the judgment, deeming the overbroad discovery order to be harmless error. Poole was the respondent. Two justices dissented.
- Conrail appealed as of right to the Court of Appeals due to the dissent in the Appellate Division.
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Issue:
Does New York's civil procedure law require a defendant in a personal injury action to disclose surveillance films of the plaintiff that the defendant intends to use at trial?
Opinions:
Majority - Chief Judge Wachtler
Yes. New York's civil procedure law requires a defendant to disclose surveillance films it intends to introduce at trial because they constitute material prepared for litigation for which the plaintiff has a substantial need. Surveillance films are not considered a party's own 'statement' under CPLR 3101(e), but rather are 'material prepared in anticipation of litigation' under CPLR 3101(d)(2). This material is discoverable only upon a showing of 'substantial need' and the inability to obtain its 'substantial equivalent' without 'undue hardship.' The court found that plaintiffs have a substantial need to view these materials before trial because visual media are easily manipulated and can be deceptive; pretrial review is necessary to verify authenticity and prepare a defense. Likewise, plaintiffs cannot obtain the substantial equivalent because the films capture a unique moment in time that cannot be replicated. To balance the defendant's legitimate concern that plaintiffs might tailor their testimony after viewing the films, the court held that disclosure should occur only after the plaintiff has been deposed.
Analysis:
This decision resolves a conflict among New York's appellate departments, establishing a uniform, statewide rule for the discoverability of surveillance films. The court's holding strikes a critical balance between New York's policy of liberal pretrial disclosure and the protection of materials prepared for litigation. By classifying films as privileged work product rather than simple 'party statements,' the court gives them protection. However, by finding that the 'substantial need' and 'undue hardship' tests are inherently met for films intended for use at trial, it ensures plaintiffs can challenge potentially deceptive evidence. The procedural requirement that disclosure occur only after the plaintiff's deposition creates a practical safeguard against witness coaching and becomes a key part of trial strategy in personal injury cases.
