Barnes v. New York State Thruway Authority

• Decision Date: 04 March 1998
• Docket Number: No. 87297,87297
• Citation: 671 N.Y.S.2d 616,176 Misc.2d 195
• Parties: , 1998 N.Y. Slip Op. 98,199 David BARNES, Claimant, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant. (Claim) Court of Claims of New York
• Court: New York Court of Claims

Page 616

671 N.Y.S.2d 616

176 Misc.2d 195, 1998 N.Y. Slip Op. 98,199

David BARNES, Claimant, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant.

(Claim No. 87297.) Court of Claims of New York.

March 4, 1998.

Harris, Beach & Wilcox, Hamburg (Patrick J. Maxwell and Kevin A. Szanyi, of counsel), for claimant.

Quackenbush, Cessario & Hamlin, Buffalo (John Wallace, of counsel), for defendant.

JOHN P. LANE, Judge.

The underlying claim involves a bridge painter's fall from scaffolding. Liability was found pursuant to Labor Law section 240[1] on a motion for partial summary judgment, and the case is now before the undersigned for assessment of damages. The parties are vigorously disputing the extent of the injuries suffered, and, indeed, at times there appears to be considerable dispute over whether any injuries were suffered at all. The instant motion brought by defendant seeks to quash a trial subpoena duces tecum for videotapes and related materials.

On October 30, 1997, the Court heard a motion, No. M-56297, seeking a further independent medical examination of claimant. In response thereto, claimant's counsel cross-moved for, inter alia, disclosure of an unredacted copy of a four-page confidential investigative report from an agency hired by defense counsel to conduct surveillance of claimant. Pursuant to CPLR 3101(i), defense counsel had previously disclosed the actual surveillance videotapes made by its investigator along with a redacted report of the surveillance. It was defense counsel's position that redacting the name of the investigator the office location from which he commenced the surveillance, the names of informants and one other short entry complied with the requirement of CPLR 3101(i) that "transcripts or memoranda" of the videotapes be disclosed while protecting what counsel characterized as attorney work product, material prepared in anticipation of litigation, and investigative techniques. With respect to the investigative report, the Court's order on M-56297, which was filed November 10, 1997, directed defendant to disclose the name of the person conducting the surveillance operation and otherwise denied claimant's cross-motion for disclosure.

On or about November 21, 1997, claimant's counsel served a subpoena duces tecum on the investigative agency requiring production of "All documents and records regarding David Barnes ... including but not limited to: correspondence; memoranda; notes; reports; surveillance materials and videotapes. (All materials responsive to this request and kept on a computer hard drive and disc should be downloaded to a hard copy so that they can be produced in Court.)" The instant motion to quash ensued. Defense counsel's affirmation states that the materials sought are irrelevant to any proper inquiry, overbroad, neither admissible nor discoverable, and comprise material prepared in anticipation of litigation and attorney work product. Counsel further indicates that all surveillance tapes and transcripts and memoranda thereof have been disclosed in compliance with the order on Motion No. M-56297, and that for tactical and economic reasons he has decided not to use any surveillance materials at trial. Counsel's affirmation states that the videotape in issue shows claimant washing his car, working on his car, putting gas in his car, and going to class. Claimant had admitted his ability to do these activities in his examinations before trial.

In response to the motion to quash, claimant's counsel has argued that the investigative report itself "has raised many questions about the completeness of defendant's disclosure of surveillance materials." Further, counsel argues that in light of what is characterized as "defendant's apparent failure to produce all of the surveillance materials required by this Court's order" claimant is entitled to call the keeper of the records of the investigative agency to testify at trial to authenticate the materials disclosed and to be questioned regarding the completeness of defendant's disclosure. In addition to calling a witness from the investigative agency, counsel also maintains that claimant is entitled to use the surveillance tapes at trial as part of his case in chief.

On December 17, 1997, the Court conducted an evidentiary hearing on the motion and heard testimony from the investigator who conducted the surveillance, Scott Cornell. He testified regarding the number of surveillance tapes made, the noise on the tapes, and the number of times he went to claimant's residence.

Prior to the enactment of CPLR 3101(i) in 1993 (L.1993, ch. 574), a party seeking materials related to a surveillance or investigation conducted on behalf of an opponent was required, pursuant to CPLR 3101(d)(2), to make a showing of substantial need for such materials in the preparation of the case and inability, without undue hardship, to obtain the substantial equivalent of the materials by other means. See, e.g., Careccia v. Enstrom, 174 A.D.2d 48, 50, 578 N.Y.S.2d 678. But cf., Kane v. Her-Pet Refrigeration, Inc., 181 A.D.2d 257, 587 N.Y.S.2d 339. Even after enactment of CPLR 3101(i), some courts continued to impose the CPLR 3101(d)(2) requirement for a showing of substantial need and undue hardship before ordering disclosure of surveillance tapes. See, Boulware v. Triborough Bridge and Tunnel Auth., 161 Misc.2d 435, 613 N.Y.S.2d 580. The Boulware case, however, acknowledged that with respect to surveillance videotapes all that would be required is a "formal deference to the 'material prepared for litigation' concept" and that "as a practical matter, once the proper statements have been made, there is no need for a further factual showing." 161 Misc.2d at 436, 613 N.Y.S.2d 580.

In Marigliano v. Krumholtz, 159 Misc.2d 596, 603 N.Y.S.2d 1020, the Court was presented with the question whether "transcripts or memoranda" should be made available under CPLR 3101(i) as freely as the surveillance tapes themselves. The Court directed defendants' attorney to turn over any existing memoranda of all surveillance tapes in compliance with CPLR 3101(i), but prior to disclosure authorized redaction of "any information contained in the memoranda that constitutes attorney's work product, such as technical notes or confidential communications between attorney and client, as privileged items." 159 Misc.2d at 599, 603 N.Y.S.2d 1020. Following the reasoning of DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 590 N.Y.S.2d 1, 604 N.E.2d 63, cert. denied sub nom. Poole v. Consolidated Rail Corp., 510 U.S. 816, 114 S.Ct. 68, 126 L.Ed.2d 37, that surveillance tapes should be disclosed before trial because they can easily be manipulated and counsel needs time to verify their accuracy, the Court concluded that the transcripts and memoranda referred to in CPLR 3101(i) should similarly be disclosed:

"It is only by examining the memorandum of a tape that an adversary will be able to discover whether the tape has been distorted or manipulated. Though the discovered tape itself may be revealing, it is possible that a review of it may not reveal a subtle distortion. Nuances can conceal easily the true facts. For example, camera angles, lighting and splicing, among other techniques can cause a film or video to be distorted. True images do not always appear paramount on surveillance tapes ... But, by examining the memorandum...