Tai Tran v. New Rochelle Hospital Medical Center

despite the doctor’s advice. When they learned that plaintiff had in fact resumed work, defendants sought an order compelling him to appear for another deposition, to which plaintiff objected.

At about the same time, plaintiff learned that defendants had videotaped him surreptitiously, and he moved for disclosure of the tapes. Defendants resisted, arguing that they should not be required to produce the tapes until after plaintiff submitted to a further deposition. Supreme Court granted defendants’ motion to depose plaintiff, but in a second order granted plaintiff’s motion for disclosure of the videotapes before the deposition, determining that CPLR 3101 (i) compelled immediate disclosure. Defendants appealed from Supreme Court’s second order.

The Appellate Division reversed and ruled that the tapes were discoverable only after plaintiff was deposed. Acknowledging that two of the other Appellate Division Departments had held that plaintiffs were entitled to discovery on demand,^[1] the Court determined that the enactment of CPLR 3101 (i) did nothing to upset DiMichel’s conclusion that surveillance tapes need not be produced until after a plaintiff is deposed. In its order of reversal, the Court directed that plaintiff submit to a second deposition before gaining access to the surveillance tapes.

The Appellate Division thereafter granted plaintiff leave to appeal to this Court pursuant to CPLR 5602 (b) (1), and certified the following question pursuant to CPLR 5713: “Was the order of this Court, which reversed the order of the Supreme Court, properly made?” For the reasons that follow, we answer the certified question in the negative.

I

n deciding DiMichel, we addressed whether “surveillance films prepared by a defendant in a personal injury action are discoverable by the plaintiff before trial” ( 80 NY2d at 189-190 ). The Court first concluded that pursuant to CPLR 3101 (d) (2) surveillance tapes are materials “prepared in anticipation of litigation” and are therefore subject to a qualified privilege “that can be overcome only by a factual showing of substantial

(i) the Legislature sought to expand the scope of discovery, but not to override DiMichel’s timing rule.

We note, at the outset of our analysis, that the plain language of section 3101 (i) eliminates any qualified privilege that previously attached to surveillance tapes under DiMichel. Under the new provision, surveillance tapes (and other specified materials) are subject to “full disclosure.” Thus, parties seeking disclosure of any of the specified items under section 3101 (i) need not make a showing of “substantial need” and “undue hardship.” Moreover, section 3101 (i)’s “full disclosure” requirement is not limited to materials a party intends to use at trial. The provision compels disclosure of all the listed materials — including “out-takes” — whether or not they will be used at trial (see CPLR 3101 [i]).^[2]

On its face, therefore, CPLR 3101 (i) significantly alters DiMichel. Critical to this appeal, however, is what section 3101 (i) does not articulate, notably, the timing of disclosure. In particular, subdivision (i) does not speak to whether a plaintiff must submit to a deposition before obtaining disclosure of any surveillance tapes.

The Second, Third and Fourth Departments have all interpreted this silence to mean that the Legislature did not intend to codify the timing aspect of DiMichel (see Falk, 299 AD2d 120 ; Rotundi, 263 AD2d 84 ; DiNardo, 252 AD2d 69 ). We agree. Our holding in DiMichel — that once a plaintiff undergoes a deposition the defendant must turn over any surveillance tapes it intends to use at trial — rested heavily on the premise that surveillance tapes were subject to a qualified privilege under section 3101 (d) (2) (see DiMichel, 80 NY2d at 190 ). That privilege, in turn, was one of the two competing interests that informed DiMicheVs timing rule. In removing surveillance tapes from the reach of CPLR 3101 (d) (2), the Legislature eliminated the qualified privilege to which videotapes were previously subject. In so doing, it undercut one of the main supports underlying DiMichel. In short, the timing rule lost its statutory moorings when the Legislature removed videotapes and the like from the strictures of section 3101 (d) (2).

Even more revealing, however, is the placement of subdivision (i) within the statutory scheme. After DiMichel, the Legislature chose to create an entirely new subdivision within section 3101 to deal exclusively with videotapes and similar materials. We must assume that the Legislature was fully aware that the timing rule we announced in DiMichel was premised on surveillance tapes falling within section 3101 (d) (2) (see Hammelburger v Foursome Inn Corp., 54 NY2d 580 [1981]; McKinney’s Cons Laws of NY, Book 1, Statutes § 191). Indeed, it is evident that the Legislature enacted section 3101 (i) in reaction to DiMichel.^[3] The Legislature’s decision to create this separate subdivision, subject to no qualified privilege and imposing no express timing requirement, satisfies us that the lawmakers did not intend to adopt the DiMichel timing rule.

Moreover, two groups opposed enactment of section 3101 (i) precisely because “nothing in [that provision] would limit disclosure, as the Court of Appeals held was appropriate, until after [a] plaintiff has been deposed” (Mem of Comm on Civil Practice Law and Rules, Bill Jacket, L 1993, ch 574; see also Mem of Glenn Valle, Div of State Police, Bill Jacket, L 1993, ch 574). Had the Legislature wanted to impose any such limitation, it could have easily done so (see Bluebird Partners v First Fid. Bank, 97 NY2d 456 , 461 [2002]).

We recognize, as have all of the Appellate Divisions, that requiring full disclosure of surveillance tapes before a plaintiff is deposed reintroduces the prospect of tailored testimony. Defendants complain of this danger, and indeed one commentator has characterized section 3101 (i) as a “one-sidedly pro-plaintiff statute” that “seems to be an unabashed promotion of total disclosure of all surveillance materials * * *” (Siegel, 1993 Supp Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, CPLR C310L50, 2003 Pocket Part, at 36-37). While we articulated our solution to the tailored-testimony problem in DiMichel, we are not now free to impose a timing requirement under section 3101 (i) given the Legislature’s pointed recasting of the relevant discovery provisions and its mandate for “full disclosure.” We agree with the Second, Third and Fourth Departments that notwithstanding the danger of tailored testimony, section 3101 (i) requires full disclosure with