Party must reveal video surveillance tapes upon request

Law Reporter, Apr 2000

Rotundi v. Massachusetts Mut. Life Ins. Co., 702 N.Y.S.2d 150 (App. Div. 2000).

A New York appellate court held that a party must reveal video surveillance tapes upon request, even if depositions have not yet been taken.

Here, Rotundi sued an insurance company for wrongful termination of disability insurance benefits. Defendant informed plaintiff that it possessed a surveillance video of him, but refused to disclose the video until after plaintiff had been deposed. Plaintiff made a motion to compel disclosure, which the trial court granted.

Affirming, the court cited a recently enacted rule, N.Y. C.PL.R 3101(i), which provides for full disclosure of videotapes. The court found that the rule codifies and expands the holding in Di Michel v. South Buffalo Ry. Co, 604 N.E.2d 63 (N.Y. Ct. App. 1992), which allowed disclosure of videotapes only after plaintiff had been deposed. The court noted that various parties had opposed the bill, partly because it failed to codify the portion of Di Michel's holding that limited disclosure until after a plaintiff had been deposed. Thus, the court concluded, the legislature, aware of the rule's deviation from Di Michel, expressly decided not to codify that aspect of the holding.

Additionally, the court rejected defendant's argument that, in the absence of a specific timing provision in 3101(i), the court should follow the common law rule of Di Michel. The court reasoned that the Di Michel court based its ruling on a disclosure rule that predated 3101(i) and provided for a qualified privilege against disclosure. The legislature, in enacting 3101(i), did not choose to amend or add to any preexisting disclosure rules. Rather, it created a new rule with a liberal disclosure policy for surveillance tapes. Therefore, the court concluded, the new rule supplants and replaces the rule interpreted in Di Michel and provides the new statutory basis for disclosure of surveillance materials.

Finally, the court explained that while it is aware such a liberal disclosure policy may permit a plaintiff to tailor testimony accordingly, the wisdom of omitting such a timing limitation is a matter for the legislature, not the courts, to determine.

Plaintiff's Counsel

John F. Harwick, Latham, N.Y.