Secretly Taped Interviews

by Stephen E. Kesselman and David R. Ehrlich


A private investigator is interviewing a witness who will likely be a party to an action. The investigator records the interview without the interviewee's knowledge. The next week, after an action has been commenced, the investigator interviews a non-party witness to the action and records the interview without the interviewee's knowledge. Depositions of the party and the non-party witness are approaching. The following question arises: Must these tapes be disclosed to opposing counsel?

CPLR 3101(i) was enacted in 1993 to prevent the "unfair" surprise of a defendant whisking out a surveillance tape, previously unseen or unheard by the plaintiff, on the eve of trial to show a jury that a plaintiff was not as injured as he or she has claimed to be.

The statute directs that any films, photographs, videotapes or audiotapes of a party be subject to full disclosure. The breadth of the recorded material that is subject to full disclosure includes the entire spectrum of civil cases, and is not just limited to personal injury cases.

However, the application of the statute is limited to recorded material of parties to an action, which compels two separate forms of analysis regarding the disclosure of recorded material of parties as compared to non-parties.

The "secret" recording of interviews or the "secret" videotaping of one's daily activities was universally cloaked with the "qualified" privilege under the theory that such material was prepared in anticipation of litigation or for trial.

The qualified privilege under the above theory allows a party to withhold the production of such materials until or unless the party seeking the discovery can demonstrate a substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. See, CPLR 3101(d)(2); DeGourney v. Mulzac, 287 AD2d 680 (2d Dept. 2001) and Rochford v. Long Island R.R., 273 AD2d 291 (2d Dept. 2000).

The enactment of CPLR 3101(i) has seemingly eliminated the qualified privilege regarding the recorded material of a party, whether it be a video tape, audio tape or photograph, and such material must be disclosed to opposing counsel.

The question then arises as to when this material is required to be disclosed?

Last year, in Tran v. New Rochelle Hospital Medical Center, 99 NY2d 383 (2003), that precise question was answered by the New York Court of Appeals.

In Tran, the plaintiff, a chef, commenced an action claiming that the defendant hospital's staff failed to properly diagnose and treat his hand injury. The plaintiff testified at his deposition that the condition of his hand had deteriorated to the point that he was unable to work as a chef. However, the defendant learned that the plaintiff did in fact resume working as a chef, and demanded that he appear for another deposition. At this time, the plaintiff learned that the defendant had secretly videotaped the plaintiff at his job and demanded the production of the tape. The defendants refused to provide the tape until after the plaintiff testified.

In support of its position, the defendant argued that the rule which had been set forth by the Court of Appeals prior to CPLR 3101(i) being enacted should be preserved. That rule, as set forth a decade earlier in the case of DiMichel v. South Buffalo Ry. Co., 80 NY2d 184 (1992), provided that the party who secretly videotaped the other would only have to disclose such video after the recorded party's deposition. This result reflected the Court's attempt to balance the desire to allow open disclosure while preventing a witness from tailoring his or her deposition testimony to the "secretly" recorded videotape.

However, the Court of Appeals in Tran rejected this approach by finding that the compromise of DiMichel and pre-CPLR 3101(i) cases was premised on the condition that such recorded material was cloaked with a qualified privilege.

The Tran Court, instead, held that the enactment of CPLR 3101(i) specifically eliminated the qualified privilege, and that therefore the compromise set forth in the previous case law was no longer applicable.

The Court in Tran ultimately held that the recorded material of a party must be disclosed to that party prior to his or her deposition. See also, Huesca v. New York City Fire Dept., 303 AD2d 720 (2nd Dept. 2003), following the Tran decision. Thus, the element of surprise with regard to secretly recorded material of a party has vanished.

Non-Parties
But, what about a non-party? CPLR 3101(i) by its terms does not apply to non-parties.

The "secret" audio or videotaped interview of a non-party witness does not have to be produced to opposing counsel, but rather remains cloaked with the qualified privilege based on the theory that such tapes are materials prepared in anticipation of litigation or for trial. See, DeGourney v. Mulzac and Rojas v. New York Tr. Auth., 276 AD2d 684 (2nd Dept. 2000).

As a result, the party seeking the production of the recorded material would be required to make a showing to overcome the qualified privilege asserted by the party claiming the privilege. To overcome the qualified privilege that materials were prepared in anticipation of litigation or for trial, the party requesting the materials would have to show a substantial need for the material and the inability to obtain its substantial equivalent without due hardship. See, CPLR 3101(d)(2); DeGourney v. Mulzac, and Rochford v. Long Island R.R.

According to this principle, it would appear that so long as the party seeking the disclosure can locate and question the non-party witness, she would not be able to overcome the privilege.

One Catch
However, there is a catch. Where the recorded statement of a non-party witness is inconsistent, in a material respect, with his testimony at a deposition, it has been categorically held that the party requesting such statement would, by definition, have a substantial need for it and would be unable to obtain its substantial equivalent without undue hardship. See, Yasnogordsky v. City of New York, 281 AD2d 541 (2nd Dept. 2001) and Rochford v. Long Island R.R.

For instance, in Rochford, when a non-party witness' handwritten statement contradicted her deposition testimony, the Appellate Division, Second Department, held that the party seeking disclosure overcame the qualified privilege and that the handwritten statement should be disclosed.

Moreover, in order to make that determination, it has been held that the court is required to review the non-party's secretly recorded statement to assess whether such statement is inconsistent in a material respect with his or her deposition testimony. See, Yasnogordsky.

In Yasnogordsky, the Second Department held that the Supreme Court erred when it denied plaintiff's motion to compel the disclosure of a non-party witness' statement without first reviewing the statement in camera to determine whether such statement contradicted the non-party's deposition testimony.

The Yasnogordsky court held that if the statement by the non-party was inconsistent with her deposition testimony, the statement should be disclosed, as the burden associated with the qualified privilege would have been overcome.

In essence, if the non-party witness contradicts his secretly recorded statements in a material way during his deposition, the party in possession of the tape must produce such tape upon request. Thus, it would seem that any time the secretly recorded tape would be of strategic value in a litigation, i.e., to impeach a witness' testimony, such tape would have to be produced upon request.

Nevertheless, a secretly recorded audio or videotape would still be useful and would preserve the element of surprise to some degree. A key difference between a party's secretly recorded tape and the non-party's secretly recorded tape is that the tape of the non-party would not have to be produced until after the non-party witness contradicts himself during his deposition. Thus, as a practical matter, it appears that this difference preserves the element of surprise by forcing the non-party witness to testify at a deposition without having the benefit of listening to his or her recorded statements.

The world of "secretly" recorded material and how to handle the production of such material has evolved in several critical respects over the last decade. In order to ensure that an audio or video recording of a party or a non-party witness will be useful in a litigation, it is important to understand the recent developments in the law with regard to its disclosure.

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Stephen E. Kesselman is of counsel in the litigation department at Ruskin Moscou Faltischek in Uniondale. David R. Ehrlich is a litigation associate at the firm.

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Reprinted with permission from the Monday, June 21, 2004 issue of the New York Law Journal (c) 2004, ALM Properties, Inc.