In Careccia v Enstrom ( 174 A.D.2d 48), the Appellate Division, Third Department, agreed with the Fourth Department that surveillance tapes were not party statements for purposes of CPLR 3101 (e), but were instead material prepared in anticipation of litigation under CPLR 3101 (d) (2). The Court held that surveillance videotapes were analogous to the statements and reports of an investigator hired by defendant to observe plaintiff's activities, which fall within the scope of CPLR 3101 (d) (2) (id., at 50).

Thus, Howard's third-party investigation is not attorney work product. The record does establish, however, that the information acquired by Howard during his investigation pursuant to the request of plaintiffs' counsel is material prepared in anticipation of litigation which is exempt from disclosure (CPLR 3101 [d] [2]; see, e.g., Careccia v. Enstrom, 174 A.D.2d 48, 50; Volpicelli v. Westchester County, 102 A.D.2d 853), absent a factual showing of substantial need and undue hardship (DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 196, cert denied sub nom. Poole v. Consolidated Rail Corp., ___ US ___, 114 S Ct 68). Defendants have the burden of proving that their situation comes within this exception (Sullivan v. Smith, 198 A.D.2d 749). The record shows that by the time defendants and the third-party defendants received notice of the actions against them the opportunity no longer existed to conduct a meaningful investigation of the fire scene.

In Careccia v Enstrom ( 174 A.D.2d 48), the Third Department held that the plaintiff had failed to meet the burden of proving the elements necessary to compel disclosure of surveillance videotapes obtained at the direction of defense counsel. The court's analysis was similar to that adopted by the dissenters in DiMichel: "The record in this case contains nothing to show that a pretrial examination or testing of the videotapes would reveal anything relevant to their authenticity or accuracy that could not be revealed through ordinary trial tactics, such as voir dire and cross-examination of the person who made the videotapes.

Prior to the enactment of CPLR 3101 (i) in 1993 (L 1993, ch 574), a party seeking materials related to a surveillance or investigation conducted on behalf of an opponent was required, pursuant to GPLR 3101 (d) (2), to make a showing of substantial need for such materials in the preparation of the case and inability, without undue hardship, to obtain the substantial equivalent of the materials by other means. ( See, e.g., Careccia v Enstrom, 174 A.D.2d 48, 50; but cf., Kane v Her-Pet Refrig., 181 A.D.2d 257.) Even after enactment of CPLR 3101 (i), some courts continued to impose the CPLR 3101 (d) (2) requirement for a showing of substantial need and undue hardship before ordering disclosure of surveillance tapes.

Plaintiffs have not met their burden of proof, nor made any showing of substantial need or undue hardship as to any of the material they seek in either the subpoena duces tecum or the notice to produce. As stated in Careccia v Enstrom ( 174 A.D.2d 48 [3d Dept 1992]), the authenticity of a surveillance videotape may be verified through ordinary trial tactics such as voir dire and cross-examination of the person who has made the videotape. The Court of Appeals in DiMichel (supra) broadened the holding in Careccia and required the production of the surveillance tapes prior to the time of trial, recognizing the discretion of the Trial Court Judge to grant a continuance if it determined that one is needed to authenticate the video evidence.

The Court held that such material is a form of visual or photographic statement of a party discoverable as a matter of right under CPLR 3101 (e). In Careccia v Enstrom ( 174 A.D.2d 48 [Jan. 16, 1992]), the Third Department held that plaintiffs should not have access to defense surveillance materials prepared for trial. That Court believed that ordinary trial tactics such as voir dire and cross-examination should be adequate to test authenticity and accuracy of tapes and photos.

On January 16, 1992 in Careccia v Enstrom ( 174 A.D.2d 48) the Appellate Division, Third Department, upon transfer from the Appellate Division, Second Department, declined to follow the First Department's ruling in Marte v Hickok Mfg. Co. (supra). While recognizing the "logic and reasonableness" of "the compromise struck by the First Department" (supra, at 49), the Third Department held that the statutory scheme governing disclosure precludes the result reached by the First Department.