## Facts

- Anthony DiMichel was an employee of South Buffalo Railroad Co. (South Buffalo).
- DiMichel was injured when he fell while working.
- DiMichel sued South Buffalo seeking damages for his injuries.
- During discovery, DiMichel demanded that South Buffalo produce any surveillance films it had of him relating to the accident and his claimed injuries.
- South Buffalo refused, arguing the films were prepared in anticipation of litigation and were not subject to routine disclosure.
- DiMichel moved to compel production of the surveillance films.
- The trial court granted the motion to compel.
- The intermediate appellate court affirmed the order requiring disclosure.
- South Buffalo appealed to New York’s highest court, challenging whether, and to what extent, surveillance films prepared for litigation must be produced before trial.

## Issues

1. Are defense surveillance films prepared in anticipation of litigation discoverable in a personal-injury action before trial?
2. If they are discoverable, is disclosure properly limited to those surveillance films the defendant intends to use at trial?
3. What standard governs pretrial disclosure of such surveillance materials, including any conditions a court may impose on the timing of production?

## Decision

- The court treated surveillance films as materials prepared in anticipation of litigation, not as materials automatically subject to full disclosure.
- Because such films fall within qualified protection for litigation-preparation materials, a plaintiff seeking them must satisfy the statutory standard for overcoming that protection (a showing of substantial need and undue hardship in obtaining the substantial equivalent by other means).
- The court held that when a defendant plans to use surveillance films at trial, pretrial disclosure is generally required so the plaintiff can test authenticity, accuracy, completeness, and context and avoid trial delay over foundational disputes.
- The court approved limiting compelled disclosure to surveillance films the defendant intends to introduce at trial, rather than requiring production of all surveillance materials.
- The court indicated that trial courts may address fairness concerns about impeachment value by controlling the timing of disclosure (for example, directing production after the plaintiff’s deposition).

## Legal Principles

- Surveillance films made by or for a defendant in anticipation of litigation are litigation-preparation materials subject to qualified protection, not absolute immunity and not automatic disclosure.
- Under the governing discovery rule for litigation-preparation materials, a party seeking disclosure must show (1) substantial need for the materials in preparing the case and (2) inability, without undue hardship, to obtain the substantial equivalent by other means.
- If the defendant intends to offer surveillance films at trial, the plaintiff ordinarily demonstrates substantial need for pretrial access to evaluate whether the recording is genuine, complete, and accurately depicts what it claims to show.
- Courts may condition disclosure to protect legitimate impeachment use, including by ordering that surveillance films intended for trial be produced after the plaintiff has been deposed.
- Limiting mandatory production to trial-use surveillance balances liberal disclosure with the defendant’s ability to prepare for trial and preserves qualified protection for materials not intended to be used as evidence.

## Conclusion

In DiMichel v. South Buffalo Railroad Co., the New York Court of Appeals held that defense surveillance films are conditionally protected as materials prepared in anticipation of litigation, but that films the defendant intends to use at trial must be disclosed before trial upon the required showing, with trial courts retaining authority to set conditions—such as post-deposition production—to prevent unfair tailoring while still allowing meaningful testing of the evidence.


DiMichel v. South Buffalo Railroad Co., 604 N.E.2d 63 (1992)