State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This discovery dispute raises a novel point regarding the videotaping of depositions. It arises out of a deposition of defendant Cherkis that had been scheduled several months in advance. Two days before it was to take place the plaintiff sent defendants' counsel an amended notice stating that the deposition was to be videotaped. This notice was not in full compliance with 22 NYCRR § 202.15's requirement that the name and the address of the videotape operator be disclosed. This omission was partially remedied the next day by a second amended notice. At no time beforehand had the plaintiff discussed videotaping the deposition.

Defendants' counsel immediately objected to the notice as being untimely, since the CPLR requires that notices for examinations before trial be made 20 days beforehand. On the day of the deposition there was some dispute about the proper course to follow. Plaintiff proposed adjourning the deposition until the court could rule on the videotaping issue, while defendant proposed videotaping the proceedings under objection. The court agreed with the defendant. The deposition was both videotaped and mechanically transcribed, and the videotape was deposited with the court pending a ruling.

There is little precedent on videotaping, especially in New York, and no case law at all on the interplay between CPLR 3113, which permits videotaping as another form of deposition transcription, and 22 NYCRR § 202.15, which details the procedure for noticing, conducting and preserving a videotape. Since the procedures in the Uniform Rules are promulgated under and with respect to the general rules for discovery, though, the court must conclude the notice described in CPLR 3107 is the same thing as the notice of taking a videotaped deposition in 22 NYCRR § 202.15.

This is to say that there is no special "notice of videotaping" that must be given in addition to the CPLR 3107 notice. The other side of this is that the 3107 notice must itself contain the information that the deposition will be videotaped. (New York courts have generally accepted the reasoning in Roche v Udell et al., 155 Misc 2d 329, that neither special circumstances nor court permission are required to justify videotaping.) While the Uniform Rules describe the specific content for a deposition notice that includes videotaping, in other respects the notice must comply with CPLR 3107; it is not an additional notice but an amplified or specialized variant of the general form.

The defendants are therefore correct in demanding that any notice of videotaping meet the time limits in CPLR 3107. If 22 NYCRR § 202.15 had not been promulgated, the law might have developed that videotaping could be done with no notice at all, as simply another form of transcription. But the Uniform Rules make that development impossible. Videotaping is permitted freely, but only upon a certain kind of notice, and this notice is not separate from the CPLR mechanism. It must therefore be timely according to the CPLR, and the present amended notices are clearly untimely. The plaintiff's amended notices are improper. Nor would an adjournment be appropriate, considering the additional time and expense that would have been caused the defendant by the plaintiff's unexplained delay in making its choice. Defendants' motion for a protective order is granted, with costs. Defendants' counsel may prepare the order.

DATED: Rochester, New York

October 8, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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