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Dimichel v. South Buffalo Ry. Co

    Brief Fact Summary. Plaintiff railroader sued Defendant railroad company for injuries sustained on the job. During pretrial discovery, Plaintiff moved to compel and the district court ordered production of surveillance tapes. The Appeals Court modified the order to disclosure only of those tapes Defendant intended to use at trial and Defendant appealed.

    Synopsis of Rule of Law. Surveillance tapes, being material prepared in anticipation of litigation, is protected by the work product privilege. The party in possession of the surveillance tapes must produce them if the moving party can demonstrate a substantial need for the tapes and an undue hardship if they do not have the tapes before trial.

    Facts. Dimichel (Plaintiff), a railroad employee, sued South Buffalo (Defendant), a railroad company and Plaintiff’s employer under the Federal Employee’s Liability Act (FELA) and various federal safety statutes for injuries sustained on the job. During pretrial discovery, Plaintiff moved to compel and the trial court ordered production of all surveillance tapes Defendant had of Plaintiff. Defendant appealed the trial court’s order and the Appeals Court modified the order to disclosure only of those tapes Defendant intended to use at trial. Defendant appealed.

    Issue. Should Plaintiff be required to demonstrate a substantial need for Defendant’s surveilance tapes and that Plaintiff will suffer undue hardship if the tapes are not produced?
    Assuming that Plaintiff must make such a demonstration, has P met that burden?

    Held. Yes to both issues as to tapes that D intends to use at trial. The order of the Appellate decision is affirmed.
    A Surveillance tapes are unique in that they can be highly probative yet can be easily manipulated to distort the truth or otherwise mislead. Their production before trial must be evaluated in light of New York’s policy of favoring open and far-reaching pretrial discovery.
    Because defendants usually take surveillance tapes of their employees in order to document any conduct of the employees at work for purposes of future litigation, surveillance tapes are made in anticipation of litigation and are thus subject to a qualified privilege. The films are therefore discoverable only after a showing of substantial need and undue hardship.
    Plaintiff has shown a substantial need for the tapes because authenticating the tapes is a slow and painstaking process. By ascertaining the tapes’ accuracy and authenticity prior to trial, Plaintiff would not have to ask for a continuance during trial in order to obtain an expert to analyze the tapes to determine if they are properly authenticated.
    Furthermore, Plaintiff has a substantial need to examine the tapes prior to trial because it must be allowed to challenge authenticity of the tapes before the jury is allowed to see them.
    Plaintiff has shown undue hardship because Plaintiff would not be able to obtain the substantial equivalent of the video tapes. Only by viewing the tapes can Plaintiff prepare to respondent to Defendant’s likely arguments at trial.

    Discussion. The general rule is that although surveillance tapes are subject to a qualified privilege, the party seeking production can easily overcome the burden due to the unique nature of video tape.


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