Smile- You’re on Candid Court Camera-Video Taping as a Litigation ToolSmile- You’re on Candid Court Camera-Video Taping as a Litigation Tool
by Robert S. Kelner and Gail S. Kelner
The deposition of the parties is probably the single most important discovery device in a personal injury action. Deposition testimony is also a critical tool at trial for impeachment, as well as evidence-in-chief. Typically, a deposition is stenographically transcribed. As such, when used at trial, the transcript is read to the jurors. They do not view the witness’ demeanor and expressions. The ability to convey to the jury the testimony of the witness with all its nuances and cadences is especially significant where a deponent will not be available for the trial due to death, illness or being out of the jurisdiction of the court as specified in CPLR §3117(a)(3). In this context, the preservation of the testimony through a videotaped deposition may be especially useful, although the use of depositions is clearly not limited to this purpose. CPLR §3113(b), as amended in 1977, permits the transcription of depositions by methods other than the traditional stenographic means. It provides that the testimony shall be recorded “by stenographic or other means.”
The courts have concluded that CPLR §3113(b) freely permits a deposition to be videotaped without a showing of “special circumstances” such as a compelling need to preserve testimony where a witness may not be available at the time of trial. However, the introduction of videotaped deposition testimony requires compliance with all applicable rules governing the taking of depositions and use of deposition testimony at trial. It is mandatory to adhere to the rules specifically applicable to videotaped and audiotaped depositions.
Pursuant to CPLR §3113(b), procedures governing videotaped civil depositions were promulgated under 22 NYCRR §202.15, to direct the manner in which videotaped and audiotaped depositions must be noticed and conducted. They dictate the type of identifying information which must be provided on the film, the technical data, such as recording speeds and other information needed to replay or copy the tape which must be included on copies of the videotaped deposition, as well as procedures for review by the witness. The process for judicial review of objections made during the deposition, and for custody of the tape prior to trial are delineated. The rules provide that, upon review of objections interposed at the deposition, the court may order editing of the tape. It is specifically stated in §202.15 that the use of the deposition tape is governed by the CPLR and all other relevant statutes, court rules and decisional law relating to depositions and to the admissibility of evidence. The cost of videotaping or audio recording is to be borne by the party who served the notice for the videotaped or audio recording of the deposition. A party who also desires to have a stenographic transcription may do so at his or her own expense.
The failure to follow the applicable rules may result in the inability to use the deposition at the time of trial. For example, in Cox v. Jeffers, 222 A.D.2d 395, 634 N.Y.S.2d 519(2nd Dept. 1995) the court suppressed the transcripts of an audiotaped deposition where they were certified by a notary public who was not present at the deposition, in violation of 22NYCRR 202.15(f) and CPLR §3116(b).
Where counsel perceives that there is a likelihood of abuse or prejudice in proceeding with a videotaped deposition, objections may be made and recourse may be sought through an application for a protective order under CPLR 3103(a) or 3113(b). Many of the issues relevant to videotaped depositions were cogently analyzed in Roche v. Udell, 155 Misc 2d 329, 588 N.Y.S.2d 76(Nassau Sup. 1992), where defendants sought to preclude plaintiff from conducting their videotaped depositions. They asserted that videotaping was only permissible to preserve testimony. Insofar as they would be available to testify at trial, they should not be subjected to videotaping. The court rejected this argument, noting that videotaped depositions are expressly permitted by CPLR §3113(b)and that rules had been promulgated(22 NYCRR 202.15) specifically to regulate the procedures. Defendants further contended that plaintiff might utilize the depositions in a prejudicial manner before the jury at trial by arranging a monitor to demonstrate the defendants' potentially inconsistent answers. The court rejected this argument by noting the limitations placed upon the use of a videotaped deposition at trial would provide protection against potential abuse, stating:
The rules are clear that no deposition may be put to any use except so far as admissible under the rules of evidence. Thus, the trial court has broad discretion to prevent the utilization of the video deposition as an improper tactic at trial before a jury.
The court further noted that an aggrieved party has recourse under CPLR §3113(b) not only to make objections during the deposition which would be reviewed by the court in accordance with the procedures outlined in the rules, but also to seek a protective order. The court in Roche concluded that videotaped depositions are not limited to special circumstances:
Plaintiff has a statutory right, notwithstanding a bashful witness, to employ this methodology, at her expense, provided she complies with the procedural mandates of 22 NYCRR §202.15[CPLR 3113(b)]. Moreover, although frequently used to perpetuate the testimony of ill or non-resident witnesses, neither court permission nor a showing of ‘special circumstances’ is required...”
Every notice, subpoena, or application, for the taking of a videotaped deposition must state that it is to be videotaped. This issue was addressed in Fajardo v. St. Joseph's Medical Center, 192 Misc.2d 369, 746 N.Y.S.2d 779 ( Bronx County 2002), where the terminally ill plaintiff served a proper notice, pursuant to § 202.15, stating that her deposition would be videotaped. Defendant had served a notice to take a deposition pursuant to CPLR 3106, thus establishing the priority of the order of depositions. At the time of deposition, plaintiff’s testimony under the questioning of her own counsel was videotaped. Defense counsel refused to conduct its portion of the deposition on videotape, contending that CPLR § 3106 gave defendant the priority in determining not only the order but also the method and manner of deposing the party provided with the notice. The court disagreed, holding that the method and manner in which testimony is recorded does not change the priority of deposition. It was clear that plaintiff complied with defendant’s notice in that she appeared for her deposition before any defendant was deposed. The court further held that video recording of a deposition did not limit or infringe upon the defendants’ right under §202.15(e) to also have a stenographic transcription made of the deposition at their own expense. The court refused to segment the recording of plaintiff's deposition into a videotaped portion when she was deposed by her attorney and a transcript when deposed by defendants' attorneys.
Courts have the power under CPLR §3103(a) to prevent abuse by limiting or preventing videotaped depositions where necessary. For example, in Jones v. Maples, 257A.D.2d 53, 691 N.Y.S.2d 429 (1st Dept. 1999), the court determined that the videotaped deposition of defendant to be conducted by the plaintiff pro se was merely designed to harass or embarrass the defendant, Marla Maples. It held that there was no need to videotape the deposition as there was no reason to believe that she would not be available for trial, and directed that interrogatories be utilized instead of the deposition. However, in Liebman & Charme v. Lanzoni, 164 Misc.2d 302, 624 N.Y.S.2d 752 (N.Y.C. Civ.Ct.,1995), the court refused to issue a protective order barring a videotaped deposition based solely upon the defendant's celebrity status and his unsupported contention that plaintiffs intended to sell the tape to the media.
Videotaped depositions may, in the proper case, prove to be a valuable tool. The process is encumbered with stringent rules which make it unlikely to become routine. However, especially where preservation of testimony is a concern, it remains a useful technique for counsel to keep in mind.
Live video or audio conferencing
C.P.L.R. 3113(d) (effective January 1, 2005) permits the parties to stipulate to take a deposition by telephone, videoconferencing or other remote electronic means. It provides:
(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic means and that a party may participate electronically. The stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of the deposition and the additional costs of conducting the deposition by telephonic or other remote electronic means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.
Videoconferencing has become a viable option in lieu of a physical appearance where a showing has been made that a party is unable to be deposed in one of the counties designated in CPLR §3110, most commonly the county where the action is venued. It is an alternative to more traditional options such as depositions on written questions under CPLR § 3108 or an open commission to take the deposition where the party is located.
CPLR §3113(d) permits videoconferencing when agreed upon by stipulation among the parties. One of the issues that has arisen since the enactment of this section is whether the court may intercede upon a motion for a protective order and direct videoconferencing where the parties do not consent by stipulation. Courts have intervened in the absence of an agreement between the parties. In Rogovin v. Rogovin, 3 A.D.3d 352, 770 N.Y.S.2d 342(1st Dept. 2004), the court permitted a deposition of defendant by live video conferencing where she demonstrated that traveling from her home in Kansas to New York would result in extreme hardship. She was the sole care giver for her infant daughter with special needs as well as her elderly grandmother, who suffered from dementia and required constant care. The court held that these factors were sufficient to warrant an exception to the rule that a nonresident defendant’s deposition should take place in the county where the action was pending.
In Hoffman v. Kraus, 260 A.D.2d 435, 688 N.Y.S.2d 575 (2nd Dept. 1999), the court held that compelling a party who resided in Hungary to attend a deposition in New York would constitute a hardship where the party was over 70 years of age and in failing health. The court issued a protective order under CPLR 3103(a) and directed that, in the interests of justice, the deposition could take place in Hungary either orally or by written questions. These options were offered prior to the 2005 amendment adding CPLR §3113(d). Video conferencing clearly might have provided a viable alternative.
In Karama v. New York Hospital, 13 Misc3d 1246(A), 831 N.Y.S.2d 360 (N.Y. Sup. 2006), plaintiff, alleging negligence in the prenatal care which she received in a New York hospital, returned to her country, Morocco, after giving birth. She subsequently moved for a protective order to compel defendants to take her deposition in Morocco by video conferencing when, despite reasonable efforts, she was unable to obtain a visa to return to New York. The court rejected defendants’ argument that videoconferencing could only be conducted where all parties stipulated to the procedure, citing the Appellate Division, First Department, decision in Rogovin. The court in Karama concluded that plaintiff had demonstrated sufficient hardship to support the remedy of a deposition by video conference. It readily distinguished her case from those which defendants cited to argue that no hardship existed. For example, in the frequently cited Farrakhan v. N.Y.Holdings, 226 A.D.2d 133(1st Dept. 1996), plaintiff claimed that his safety would be jeopardized by returning to New York for a deposition. In rejecting this argument, the court found that because plaintiff traveled frequently to New York, it could not be concluded that his safety would be jeopardized by a deposition here which was much less publicized than his usual appearances in New York.
More recently, in Wygocki v. Milford Plaza Hotel, 38 A.D.3d 237, 831 N.Y.S.2d 381(1st Dept.2007) the court granted the seventy-six year old plaintiff's motion to have her deposition taken in Ireland where she submitted a sworn letter from her doctor that described her physical ailments and concluded that traveling to New York could exacerbate her condition. The motion court determined that she had demonstrated a hardship, thus warranting an exception to the general rule that a nonresident who brings suit in New York must stand ready to be deposed in New York . The court gave the defendant the choice of written questions pursuant to CPLR 3108, an open commission, or a deposition by telephone or video conferencing .
Counsel must remember that there is a likelihood that a video appearance by a witness will be viewed by the jury at trial. It is essential to carefully prepare the witness to testify on video as he or she would at trial. The witness’ appearance, clothing, demeanor and body language will all be seen by the jury. The witness is literally under a microscope “on television.”