OPINION OF THE COURT
CPLR 3101 (i) рrovides that “[t]here shall be full disclosure of any films, photographs, video tapes or audio tapes” showing the activities of a party to litigation. We hold here that the “full disclosure” required by this stаtute is simply the disclosure normally required by the CPLR for relevant, non-privileged materials. More specifically, we hold that defendant here complied with his obligation to disclose a videotape by delivering a complete copy of the tape to plaintiffs counsel well in advance of trial. Defendant was not required, as a precondition to the tape’s admissibility, tо furnish plaintiff with the original; it is sufficient that plaintiff had an opportunity to examine the original if he chose to do so.
This is an automobile accident case in which plaintiff John Zegarelli (plaintiff) * sоught recovery on the basis of a back injury that allegedly caused him significant pain and limited his daily activities. Plaintiff served demands for discovery requesting production, among other things, of “any and all vidеo tapes . . . purporting to depict the Plaintiffs activities.” Subsequently, an investigator employed by defendant’s counsel videotaped plaintiff while he was shoveling snow. The taping was done with а handheld eight-millimeter camera. The investigator copied the eight-millimeter tape onto a VHS tape, which is convenient for display on a television screen.
On August 18, 2000, defendant’s counsеl sent a VHS copy of the tape to plaintiffs counsel, with a cover letter saying: “En
At the trial, plaintiff testified about the limits on his activity resulting from his injury. He testified that after the accident he shoveled snow “very, very rarely.” Specifically asked by his counsel about “onе occasion,” reflected on “a video,” he said: “I took two or three swipes of our parking area where we park our car, and I got out and I got the shovel, and I cleared off the little debris that was on the first step.”
Defendant called the investigator, who testified that he had observed plaintiff; that the exhibit shown to him was a copy of a videotape he had made оf the observation; that the tape fairly and accurately showed what he had observed; and that the tape had not been edited at all. Plaintiffs counsel objected to the tapе’s admissibility, saying: “I don’t know if the 8-millimeter correctly reflects what is on this tape because I haven’t had an opportunity to see it.” He admitted that he had seen the VHS copy of the tape.
Supreme Court sustained the objection on the ground that “[t]he original tape was not made available to the plaintiff by the defendant in anticipation of trial or during the discovery period.” Plaintiff later took advantage of this ruling, asking the jury in closing argument: “Where’s this phantom video? It’s not here, is it? What did that tell you?” The jury returned a verdict for plaintiff including a $55,000 award for pain and suffering, and judgment was entered accordingly.
The Appellate Division, one Justice dissenting, affirmed, stating that Supreme Court had “properly granted” preclusion of the videotape on the ground “that the original eight-millimeter surveillance tape of plaintiff had not been disclosed.” (
CPLR 3101 (i) provides:
“In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video taрes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section [i.e., a party or a party’s offiсer, director, member, agent or employee]. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officеrs law.”
This statute was enacted in response to our decision in
DiMichel v South Buffalo Ry. Co.
(
Within a year of
DiMichel,
the Legislature enacted CPLR 3101 (i). That statute’s provisiоn for disclosure of “all portions of such material, including out-takes, rather than only those portions a party intends to use” expressly overruled DiMichel’s holding on that subject. We held in
Tai Tran v New Rochelle Hosp. Med. Ctr.
(
Section 3101 (i) went no further than this, however. It did not require parties mаking disclosure of surveillance tapes to be more forthcoming than they would with any ordinary discovery material. In the case of “documents and things”—a term that includes videotapes—a pаrty’s obligation is “to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph” the items
Here, defendant’s counsel followed this customary procedure when he sent a copy of the tape to plaintiffs counsel. His cоver letter expressly disclosed that it was a “copy”—though in any event the recipient would be unlikely to assume that he was being sent the original. Plaintiff has not shown that the difference in format between the eight-millimeter original and the VHS copy was of any significance; but if plaintiffs counsel wanted to see the original, he had only to ask, and he had plenty of time— more than a year—to dо so before trial. Defendant thus complied with his obligation to make “full disclosure” of the videotape, and Supreme Court and the Appellate Division erred in holding otherwise.
Plaintiff argues, in the alternative, that the tape was rightly excluded because defendant failed to authenticate it properly. As we read the record, the courts below did not base their rulings on that ground, but if they did, thеy erred, for there was nothing wrong with the authentication. Testimony from the videographer that he took the video, that it correctly reflects what he saw, and that it has not been altered or edited is normally sufficient to authenticate a videotape. Where the videographer is not called “testimony, expert or otherwise, may also establish that a videotape ‘truly and аccurately represents what was before the camera’ ”
(People v Patterson,
Nor do we agree with the Appellate Division that the error in excluding the videotаpe was harmless. The tape shows plaintiff shoveling for about three minutes without obvious discomfort, though for much of that time he uses one hand to shovel, perhaps favoring his back. The tapе may not be inconsistent with the existence of back pain, but it is flatly inconsistent with plaintiffs testimony that he “took two or three swipes . . . and . . . cleared off the little debris that was on the first
Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered.
Chief Judge Kaye and Judges G.B. Smith, Cipabick, Rosenblatt, Graffeo and Read concur.
Order reversed, etc.
Notes
Mr. Zegarelli’s wife brought a derivative claim that is not relevant to this appeal.