State of New York
Supreme Court : County of Monroe

- against -

Index No. 97/8660

ANDREW V. SIRACUSE, J.

The plaintiff's motion in this personal injury action seeks to compel the defendant to disclose whether or not it has carried out, or is carrying out, videotaped surveillance of the plaintiff. Any such surveillance material is discoverable after the plaintiff's examination before trial, on authority of DiMichel v South Buffalo Ry. Co. (80 NY2d 184) and CPLR 3101(i). Here, however, the plaintiff has not yet been deposed; but she is not seeking the material itself, only the bare assurance or denial that she has been under surveillance.

No Appellate Division court has ruled on this issue. Plaintiff relies on an Erie County Supreme Court case, Fronckowiak v City of Buffalo (162 Misc2d 718), which held that pre-EBT "[d]isclosure of surveillance tapes should keep plaintiffs honest. Those who are inclined to falsify their testimony will be less likely to do so knowing surveillance has occurred. Moreover, knowledge of the existence of surveillance tapes may obviate the need for further discovery in many instances, and may encourage settlements." Because the court felt that permitting the defendant to keep silent about the existence of tapes would also permit "trial by ambush", the defendant was there required to advise plaintiffs as to the existence of any such tapes before examination before trial.

The Fronckowiak case is only persuasive authority, not binding precedent, and with all respect to Justice O'Donnell this court holds for the defendant. In general, surveillance material would be provisionally exempt from disclosure prior to trial because it is, by its very nature, material prepared for litigation (CPLR 3101 [d] [2]), and before DiMichel some courts had held it to be privileged (see, e.g., Careccia v Enstrom, 174 AD2d 48, no longer good law). The very portion of the DiMichel holding cited in Fronckowiak states that the interests to be balanced are "defendant's interests in keeping matter prepared in anticipation of litigation with plaintiff's need to authenticate easily distorted visual evidence " (80 NY2d 184, 198, emphasis added). Early disclosure of the fact of surveillance obviously serves certain of the plaintiff's interests, but not the one weighed by the Court of Appeals. The reasoning of DiMichel and, by implication, its partial codification in CPLR 3101(i), cannot be extended to the present request.

This is not to say that the result reached in Fronckowiak is necessarily wrong. The reasons adduced in that decision, though, are insufficiently weighty to justify even a partial invasion of the defendant's rights. Since tapes will be disclosed some time after the EBT, there will be no "ambush" at trial. It is likely true that knowledge of the existence of surveillance tapes might "keep plaintiffs honest", but so should the knowledge that tapes might exist -- and so would disclosure of all of the defendant's case, which is obviously impermissible. Besides, the court hesitates to place burdens on one party on the assumption that the other might be willing to commit perjury. No party has a cognizable interest in knowing how far it may dissemble without being caught in a lie.

The Fronckowiak court also argued that the early disclosure would not prejudice the defendant, and "in many cases is likely to strengthen defendant's position". If this is indeed the case, defendants would not need a court order to make disclosure. The issue is not the court's evaluation of the utility of disclosure from a tactical point of view; that is a question which lies outside the court's consideration. It is the right of the plaintiff to material that the defendant does not wish to disclose. Furthermore, giving the plaintiff the right requested in this motion creates other problems. Since covert surveillance is an accepted tool in litigation, courts must guard the defendant's interest in securing surveillance material, and for that reason must protect the secrecy of the surveillance process until it is completed. Courts have therefore left the timing of post-EBT disclosure to the defendant, restricting it only to the extent necessary for the plaintiff to authenticate the material. Allowing the plaintiff to find out if surveillance has taken place before his or her deposition places the defendant in the uncomfortable position of being forced to choose between a prompt examination or completion of its surveillance. The issue becomes even more troubled if the plaintiff were held to be entitled to disclosure on demand.

Because no protectable interest exists which would justify the plaintiff's request, and because too-early disclosure of the fact of surveillance creates unacceptable problems for the defendant, the court rules that the plaintiff is not entitled to the relief she seeks.

The defendant's counsel may prepare the order, without costs or disbursements. The cross-motion is also dismissed, as defendant has failed to show any basis for disputing plaintiff's contention that she has disclosed and authorized releases regarding all treatment for earlier accidents.

DATED: Rochester, New York

March 20, 1998

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

HOME GUIDES CASES ISSUES INDEX