Opinion
No. CV03-0350117 S
January 27, 2005
MEMORANDUM OF DECISION
The case presently before the court arises out of a September 19, 2001 automobile/tractor-trailer accident on I-84 in Waterbury, Connecticut. On December 13, 2004, the plaintiffs moved for permission to file additional discovery with regard to any photographs or videos of the plaintiffs taken by or on behalf of the defendants, for the reasons that the materials are needed by the plaintiffs to adequately prosecute the claim and the plaintiffs have no other means by which to obtain the information. The defendants objected on the basis that the plaintiffs have not demonstrated good cause why the standard request for disclosure and production is inappropriate or inadequate. In their objection dated December 17, 2004, the defendants argue that the plaintiff is aware of any public physical activity in which she has participated since the filing of the lawsuit, so no prejudice would result should the materials not be produced. Additionally, the defendants argue that standing orders for civil court trials require that parties mark all exhibits prior to the commencement of trial. The plaintiffs, in their reply brief, claim a substantial need for the disclosure to address any possible deception or distortion in the surveillance tapes or photographs.
Although the discovery request is directed against both plaintiffs, the motions in large part focus on the personal injury plaintiff Jone Sigovich; the plaintiff David Sigovicla makes a claim for loss of consortium.
Practice Book § 13-2 states in relevant part as follows:
Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure.
Practice Book §§ 13-6(b) and 13-9(a) limit the discovery requests allowed in motor vehicle matters unless, upon motion, the court determines that the standard interrogatory or production request is inappropriate or inadequate in the particular action.
The issue then in this motor vehicle matter is whether the standard request for disclosure and production is inappropriate or inadequate in this particular action, where the plaintiffs claim the surveillance tapes and photographs are needed for an adequate prosecution, they have no other means by which to obtain the information, and the disclosure is needed for the plaintiffs to address any possible deception or distortion of the surveillance materials.
There is no appellate authority in Connecticut on this issue. The trial courts in Connecticut are evenly split on the issue. Cases precluding the discovery have done so where the defendants have claimed that the surveillance materials were obtained at the direction of counsel in anticipation of litigation, on the basis that the plaintiffs had failed to make the requisite showing of substantial need as required by the Connecticut Practice Book. See Mulvey v. Brennan, 34 Conn. L. Rptr. 530; Judson v. Drost, Superior Court, judicial district of New Britain, Docket No. CV99-0493618 (September 10, 1999, Gaffney, J.); Sponner v. Champney, 7 Conn. L. Rptr. 25 (1992); Kriskey v. Chestnut Hill Bus Company, 1 Conn. L. Rptr. 610 (1990). See also Dzurenda v. Burdo, 9 Conn. L. Rptr. 60 (1993) (denying motion for additional discovery on the additional basis that the plaintiff had failed to justify her request which was overly broad). The courts in the aforementioned cases focused on the claimed need of the plaintiff to determine the extent and subject matter of the surveillance rather than the central issue raised by the plaintiffs in this case, that is, that the discovery was necessary to afford the plaintiffs the opportunity to verify the authenticity of the materials.
The cases permitting the disclosure have addressed the issue of authenticity and have recognized it as a legitimate need. See Dorsey v. Shanok, Superior Court, judicial district of New Haven at Meriden, Docket No. CV04-02866620 (May 21, 2004, Frazzini J.) ( 37 Conn. L. Rptr. 90) (requiring the disclosure at the commencement of jury selection); Torre v. New Haven Orthopaedic Group, Superior Court, judicial district of New Haven, Docket No. CV93-0355129 (April 11, 1996, Corradino, J.) (providing for a deposition of the plaintiff prior to disclosure); Labonte v. Grossman's Inc., 15 Conn. L. Rptr. 445 (1995); Pappalardo v. Pellicci, 14 Conn. L. Rptr. 320 (1995) (provide the defense an opportunity for a limited deposition of the plaintiff prior to the disclosure, with the disclosure to be made twenty days post-deposition, where the deposition of the plaintiff had already been taken); Jiser v. Boroway, 13 Conn. L. Rptr. 75 (1994).
As indicated above, the issue before this court is not one of a substantial need to determine what public activities the defendants have discovered the plaintiffs may have been carrying on but, rather, a substantial need for the plaintiffs to verify the authenticity and accuracy of the surveillance film. This court recognizes a legitimate need on the part of the plaintiffs to examine and verify the films, particularly in these sophisticated technological times where it is increasingly easy to manipulate photographic and computer images and increasingly difficult to distinguish what is real and what is not. The court also recognizes that surveillance photographs and tapes can be a critical piece of evidence with regard to impeachment of the plaintiff thus making it even more important that the plaintiffs have an opportunity to carefully examine them. If the plaintiffs were not afforded the opportunity to examine and authenticate the films prior to trial, the result could lead to continuance requests for additional experts and unworkable delays.
The motion is therefore granted, and the defendants are ordered to respond to the plaintiffs' request for disclosure and production. Based upon the motions contained in the file, it appears that the deposition of the plaintiff Jone Sigovich has been conducted, and this court will not now address the issue of any further right of the defendants to depose the plaintiff again in the event that any of the surveillance took place after the date the defendants chose to depose the plaintiff.
Bellis, J.