DiMichel v. South Buffalo Railway Company

New York Court of Appeals · 1992 · Civil Procedure

80 N.Y.2d 184 (1992)

Updated July 29, 2026

Civil ProcedureDiscoverySurveillance filmsMaterial prepared for litigationCPLR 3101CPLR 3101(d)(2)work product distinctionsurveillance videotape

Facts

In a personal injury action arising from a workplace fall, DiMichel sought disclosure of all videotapes or surveillance films the defendant may have taken of him. The defendant did not concede it possessed any surveillance materials and argued that any such materials were not discoverable. The trial court initially denied disclosure, but on reargument ordered production of all tapes; the Appellate Division narrowed that order to require disclosure only of materials the defendant intended to use at trial and to preclude use of undisclosed materials. The Court of Appeals addressed whether such surveillance films are discoverable before trial.

Issue

Are surveillance films prepared by a defendant in a personal injury action discoverable by the plaintiff before trial, and if so, under what doctrinal basis and scope? More specifically, are they party statements under CPLR 3101(e) or material prepared for litigation under CPLR 3101(d)(2), and must films intended for trial use be disclosed?

Rule

Surveillance films are not a plaintiff's statements under CPLR 3101(e); they are material prepared in anticipation of litigation under CPLR 3101(d)(2) and are protected by a qualified privilege. That privilege is overcome when the plaintiff makes a factual showing of substantial need and inability without undue hardship to obtain the substantial equivalent by other means, a showing satisfied for surveillance films intended to be used at trial because of their susceptibility to manipulation and unique evidentiary character. To protect against tailoring of testimony, such films should be turned over only after the plaintiff has been deposed.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel sued Lakeview Transit Works in Buffalo for back injuries allegedly caused by a loading-dock fall. During discovery, Nina demanded a copy of a secretly recorded video showing her carrying grocery bags, arguing that the video is her own "statement" because it depicts her conduct.

How should the court classify the video for discovery purposes under the governing rule?

Explanation. The majority held that surveillance films are not the plaintiff's own statements under CPLR 3101(e). Instead, they are material prepared in anticipation of litigation under CPLR 3101(d)(2), protected by a qualified privilege. Disclosure therefore depends on the statutory showing, not an automatic right to production.