
    [786 NE2d 444, 756 NYS2d 509]
    Tai Tran et al., Appellants, v New Rochelle Hospital Medical Center et al., Respondents.
    Argued January 15, 2003;
    decided February 20, 2003
    
      POINTS OF COUNSEL
    
      Kelner & Kelner, New York City (Gerard K. Ryan, Jr., of counsel), for appellants.
    I. Surveillance tapes under CPLR 3101 (i) are not attorney work product, and no qualified privilege attaches to the discovery of such material. (Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1; Pajak v Pajak, 56 NY2d 394; Boulware v Triborough Bridge & Tunnel Auth., 161 Misc 2d 435; Rotundi v Massachusetts Mut. Life Ins. Co., 263 AD2d 84; DiMichel v South Buffalo Ry. Co., 80 NY2d 184; DiNardo v Koronowski, 252 AD2d 69; Hawkins v Lucier, 255 AD2d 553.) II. Decisional law that presumes dishonesty in a segment of the population should be unacceptable in a free society. (DiMichel v South Buffalo Ry. Co., 80 NY2d 184.)
    
      Schiavetti, Corgan, Soscia, DiEdwards and Nicholson, LLP, New York City (Samantha E. Quinn of counsel), for respondents.
    I. Video surveillance should not be disclosed prior to the deposition of a plaintiff where such disclosure will afford plaintiff the opportunity to tailor his testimony. (DiMichel v South Buffalo Ry. Co., 80 NY2d 184; DiNardo v Koronowski, 252 AD2d 69; Rotundi v Massachusetts Mut. Life Ins. Co., 263 AD2d 84; Hawkins v Lucier, 255 AD2d 553; Simon v Krueger Intl., 169 Misc 2d 331; Boulware v Triborough Bridge & Tunnel Auth., 161 Misc 2d 435; Rankin v Waldbaum, Inc., 176 Misc 2d 184; Takayesu v Chuckry, 164 Misc 2d 470; Kosovsky v Zahl, 165 Misc 2d 164.) II. Appellants’ arguments misinterpret the issues in dispute. (Boulware v Triborough Bridge & Tunnel 
      
      Auth., 161 Misc 2d 435; DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Hawkins v Lucier, 255 AD2d 553.) III. Respondents should be entitled to a further deposition of appellant before disclosure of the surveillance tape to best ensure forthright testimony. (DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Simon v Krueger Intl., 169 Misc 2d 331.)
   OPINION OF THE COURT

Rosenblatt, J.

In the world of personal injury litigation, defendants will sometimes conduct videotaped surveillance seeking to verify the extent of plaintiffs’ injuries or to establish that plaintiffs have feigned or exaggerated them. We addressed these kinds of surveillance tapes in DiMichel v South Buffalo Ry. Co. (80 NY2d 184 [1992]) and concluded that the plaintiffs could gain pretrial access to them, but only after they had submitted to depositions. Soon after our decision in DiMichel, the Legislature enacted CPLR 3101 (i), which mandates “full disclosure of any films, photographs, video tapes or audio tapes” involving a party to the action. On this appeal we must decide whether DiMichel’s pronouncement as to the timing of videotape disclosure survives the enactment of section 3101 (i).

I.

According to the complaint and deposition testimony, plaintiff Tai Tran, a hibachi chef, injured his left palm when he fell while working at a restaurant. He received emergency medical care at defendant New Rochelle Hospital Medical Center. The Hospital then referred plaintiff to defendant William D. Mahoney, a surgeon who performed follow-up treatment and eventually advised plaintiff that he could return to work, which he did. About two years later, plaintiff allegedly suffered another on-the-job injury to his left hand. Attributing this second injury to weakness caused by the initial injury, plaintiff, and his wife derivatively, commenced this action against New Rochelle Hospital, Dr. Mahoney and others, claiming that they failed properly to diagnose and treat his original injury.

At a pretrial examination, plaintiff testified that the condition of his hand had deteriorated to the point where he could no longer work at the restaurant, and that one of his treating physicians advised him against doing so. Based on this testimony, defendants sought plaintiffs income and employment records to determine whether he had returned to work 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, 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.

II.

In 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 need and undue hardship” (id. at 196). We recognized that surveillance tapes, when properly authenticated, can be powerful evidence against plaintiffs who are videotaped while engaging in physical activities that contradict their claimed injuries. Graphic depictions of that type will undo the plaintiff who complains that he can’t walk, unaware that he has been filmed playing rugby. We observed that defendants have a strong interest in withholding these evidentiary materials until trial to eliminate the possibility that plaintiffs will tailor their testimony to conform to the tapes.

The Court was equally sensitive, however, to the danger that surveillance tapes can be easily altered and therefore contaminate the trial process, much to the detriment of plaintiffs. Moreover, denying plaintiffs pretrial access to the videotapes creates undue hardship because “[o]nly by observing the conditions as they appear on film can the plaintiffs respond to possible distortions or prepare to explain seeming inconsistencies to the jury” (id. at 197). These particular concerns led us to conclude that the plaintiffs in DiMichel had made the requisite showing under CPLR 3101 (d) (2) of substantial need and undue hardship, and were thus entitled to view the tapes before trial.

To balance the competing interests at stake — namely, a defendant’s desire to withhold tapes to prevent tailored testimony and a plaintiff’s need to obtain pretrial access for authentication — we crafted an accommodation by which surveillance tapes should be turned over before trial, but only after a plaintiff has been deposed.

Less than a year after DiMichel, the Legislature enacted CPLR 3101 (i). It provides, in relevant part:

“In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a [party]. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use.”

The question now before us is whether section 3101 (i) overrules that aspect of DiMichel which allows defendants to withhold surveillance tapes until after a plaintiff has been deposed. Plaintiff argues that section 3101 (i)’s “full disclosure” requirement gives him the right to obtain any surveillance material on demand. Defendants contend that in enacting section 3101 (i) the Legislature sought to expand the scope of discovery, but not to override DiMichel’s timing rule.

III.

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]).

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. 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 no limitation as to timing, unless and until the Legislature declares otherwise.

Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated, and the certified question answered in the negative.

Chief Judge Kaye and Judges Smith, Ciparick, Wesley and Read concur; Judge Graffeo taking no part.

Order reversed, etc. 
      
      . See Rotundi v Massachusetts Mut. Life Ins. Co., 263 AD2d 84 (3d Dept 2000) and DiNardo v Koronowski, 252 AD2d 69 (4th Dept 1998). The Second Department has since joined the Third and Fourth Departments (see Falk v Inzinna, 299 AD2d 120 [2002]).
     
      
      . Furthermore, the subdivision does not contain any limitation even as to relevancy or subject matter. We note, however, that a party is still free to seek a protective order to restrict disclosure based on grounds that justify the issuance of such an order (see CPLR 3103).
     
      
      . See Sponsors’ Mem in Support, Bill Jacket, L 1993, ch 574, at 9; see» also Falk, 299 AD2d at 122; Tai Tran v New Rochelle Hosp. Med. Ctr., 291 AD2d 121, 123-124 (2002); Rotundi, 263 AD2d at 86; DiNardo, 252 AD2d at 71.
     