Videotaped surveillance of plaintiffs is now standard practice in the defense of a personal injury action. Litigants have been admonished that “[they] must assume in every case that surveillance is occurring and should routinely obtain discovery of such material.”[1]� When, and under what conditions, defendants are required to turn surveillance tapes over, remains a vexing question in New York practice, as recently demonstrated by the First Department’s decision in Tran v. New Rochelle Hospital Medical Center, (NYLJ March 27, 2002, p. 17, col. 2).
In Tran, plaintiffs’ attorneys learned defendants had surreptitiously conducted video surveillance of their client and moved for production of the surveillance materials. Defendants espoused the position that they were not required to produce any tapes until after the subject had submitted to a further deposition, in order to prevent him from tailoring his testimony. The trial court granted that motion for a further examination of plaintiff limiting the scope to damages. There was no appeal from that order. In a separate order, the trial court granted plaintiffs’ motion for disclosure of the surveillance tapes prior to the second deposition, holding that immediate production was compelled by CPLR �3101(i).
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