80 N.Y.2d 184
SYNOPSIS: Appellant railroad companies sought review of the orders of the Appellate Division of the Supreme Court in the Fourth Judicial Department (New York) regarding surveillance tapes in a person injury lawsuit.
FACTS: The railroad companies sought a determination as to whether the surveillance films it had prepared in a personal injury action were discoverable by the former employees before trial. The railroad companies contended that only by permitting it to spring these films on the former employee at trial would the truthseeking function of cross examination have been safeguarded.
The court was of the belief that surveillance evidence constituted material obtained in preparation for litigation thus its protected status was overcome by a plaintiff's substantial need to verify the accuracy of the potentially devastating films prior to trial. The court determined that authentication of surveillance films could have been a slow and painstaking process, and because of the potentially devastating effects of such evidence, it would have been improper to curtail a plaintiff's efforts to do so. The court concluded that the surveillance tapes should have been turned over only after the former employees had been deposed.
Surveillance films should be treated as material prepared in anticipation of litigation, and as such, are subject to a qualified privilege that can be overcome only by a factual showing of substantial need and undue hardship.
CONCLUSION: The court held that the order of the appellate division should have been affirmed in the first case, and in the other case the order should have been reversed and a new trial granted.
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