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In Camera Review For Discovery of YouTube Video of Decedent


A man being treated by a neurosurgeon was hospitalized and died. At some point, the man’s brother posted a video compilation to his personal YouTube account. The video compilation purportedly contained several video clips depicting the man’s lifestyle prior to the man’s final hospitalization. His estate filed a medical malpractice and wrongful death suit against the neurosurgeon and his practice group.

 

During discovery, the neurosurgeon and his practice group sought to compel the discovery and inspection of the video compilation and its sources and sought to compel the plaintiff to obtain and furnish an authorization for the brother's YouTube account. They argued that the requested discovery may be relevant to issues of pecuniary loss and life expectancy. The Westchester County Supreme Court denied the physician and practice group’s motion to compel discovery.

 

The New York Supreme Court, Appellate Division, Second Department, reversed and remanded. The court held that the trial court should have examined the YouTube video compilation in camera prior to determining whether to compel discovery.

 

The court noted that the statute providing that there shall be full disclosure of all evidence material and necessary in prosecution or defense of an action, regardless of the burden of proof, is to be liberally construed to require disclosure, upon request, of any facts bearing on the controversy that will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The party seeking discovery must first satisfy the threshold requirement that the disclosure sought is material and necessary, whether the request is directed to a party or a nonparty. A party seeking disclosure from a nonparty must set forth the circumstances or reasons why disclosure is sought or required from the nonparty witness. More than mere relevance and materiality is necessary to warrant disclosure from a nonparty.

 

The appellate court found that the papers submitted in support of, and in opposition to, the motion to compel discovery were insufficient to make a determination as to whether the requested discovery was in fact relevant to issues of pecuniary loss and life expectancy. Therefore, the trial court should have examined the brother’s video compilation in camera prior to determining whether to compel discovery.

 

The New York Supreme Court, Appellate Division, Second Department, reversed the trial court’s denial of the physician and practice group’s motion to compel discovery of the brother’s YouTube video compilation and remitted the matter to schedule an in camera review of the subject videotape compilation.

 

See: Reid v. Soults, 2014 WL 715539, 2014 N.Y. Slip Op. 01307 (N.Y.A.D. 2 Dept., February 26, 2014) (not designated for publication).

 

See also Medical Law Perspectives, November 2012 Report: Liability for Electronic and Other Medical Record Information Disclosure

 

 

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