Trial Preparation Rules: Photograph Authentication, Witness Subpoenas, and the Witness-List Myth

Key Takeaways

• In Gonzalez v City of New York, the First Department held the trial court erred in excluding accident-site photographs that the plaintiff had authenticated at his deposition.
• Trial testimony can supply any remaining foundation by explaining how the scene in the photos differed (or not) from the scene on the accident date.
• The court also held it was error to quash subpoenas to the City’s onsite inspector and a contractor principal: nothing in the CPLR requires a party to generate a trial witness list, and a witness need not have been deposed to be called at trial.
• Excluding the photos was no technicality — it prevented the plaintiff from showing the jury the hole into which he allegedly fell.
• The decision is a checklist item for both sides of a personal injury trial: lock in authentication at deposition, and do not assume an undisclosed witness is automatically precluded.

The Decision

Gonzalez v City of New York, 2017 NY Slip Op 05180 (1st Dept. 2017)

(1) “To begin, the trial court erred in precluding pictures of the accident site (see Saporito v City of New York, 14 NY2d 474, 476-477 ). Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident (see Saporito, 14 NY2d at 476-477). Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.”

I am unsure why the trial judge thought there was an insufficient foundation in this regard.

(2) “he court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon (General Elec. Co. v Rabin, 184 AD2d 391, 392 ). Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so (see Hunter v Tryzbinski, 278 AD2d 844 ). Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial.”

This is an interesting blurb. If a party demands all fact witnesses and does not provide same, then shouldn’t preclusion at trial be the correct remedy?

The Legal Framework: Authentication and the Right to Call Witnesses

Photograph authentication in New York is deliberately undemanding. A photograph is admissible once a witness with knowledge testifies that it fairly and accurately depicts the scene or condition at the relevant time. That foundation does not have to come from the photographer, and it does not have to be laid for the first time at trial — deposition testimony authenticating the photos, as in Gonzalez, does the job. If conditions arguably changed between the accident and the photograph, the proponent may explain the differences through testimony; changed conditions go to weight, not automatic exclusion.

The second holding is the one that surprises many litigators. New York’s disclosure article, CPLR 3101(a), requires “full disclosure of all matter material and necessary,” and parties routinely demand the identity of fact witnesses. But the CPLR contains no general requirement that a party serve a trial witness list, and — absent an individual part rule or court order saying otherwise — a party may subpoena and call a witness at trial whom it never named and never deposed. Expert disclosure under CPLR 3101(d) is the notable exception with its own notice regime.

That said, the tension the original post flags is real: where a demand for the identity of fact witnesses to the occurrence (notice witnesses, for example) goes unanswered, trial courts retain discretion to preclude as a discovery sanction. Gonzalez turned on the absence of any rule or order obligating the plaintiff to list the City’s own inspector and the contractor’s principal — people the defense could hardly claim surprise about.

Why This Matters for Trial Lawyers

For plaintiffs, Gonzalez is a reminder to use the deposition affirmatively: mark the scene photographs, have the client authenticate them on the record, and the admissibility fight at trial is largely over. Losing the photographs here meant the jury never saw the defect — the kind of error that wins (and forces) retrials.

For defendants, the case cuts both ways. A defendant cannot count on quashing subpoenas to its own employees or its contractor’s principals simply because the plaintiff never listed them. If witness identity matters, the defense should obtain a pretrial order or invoke a part rule requiring witness exchange, rather than relying on the CPLR alone.

For both sides, the decision sits alongside the broader pretrial toolkit — proper discovery practice, and knowing which preclusion doctrines, like collateral estoppel, actually bar proof at trial and which merely require a foundation.

Practice Pointers

• Authenticate scene photographs at every plaintiff’s deposition as a matter of routine; it costs two minutes and forecloses a trial objection.
• If the scene has changed, prepare the witness to explain how and why — changed conditions can be addressed through testimony rather than suffered as an exclusion.
• Check the assigned justice’s individual part rules. Gonzalez expressly noted the record showed no individual rule requiring a witness list; many parts do require one, and that changes the analysis.
• Serve targeted demands for notice witnesses and occurrence witnesses, and move to compel when they go unanswered — preclusion arguments are far stronger on top of a violated order.
• Remember that a trial subpoena, not a deposition, is the admission ticket for a non-party witness; there is no depose-first prerequisite.

Frequently Asked Questions

How do you authenticate a photograph at trial in New York?

Through testimony from any witness with knowledge that the photograph fairly and accurately depicts the scene or condition at the relevant time. The photographer is not required, and deposition authentication carries over — in Gonzalez, the plaintiff’s deposition testimony was sufficient foundation.

Does New York require parties to exchange trial witness lists?

Not as a matter of statewide law. Nothing in the CPLR requires a party to generate a trial witness list, although individual judges’ part rules or pretrial orders frequently do — and expert witnesses are separately governed by CPLR 3101(d) disclosure.

Can you call a witness at trial who was never deposed?

Yes. There is no requirement that a party depose a witness in order to call that person at trial; a trial subpoena compels attendance, subject to the court’s discretion and any disclosure orders.

Related Resources

• Collateral estoppel in New York personal injury cases — cluster hub
• The firm’s Legal Encyclopedia
• Personal injury practice
• Understanding Foundation Requirements in Medical Malpractice Expert Testimony
• The Court offers some guidance as to the business records exception
• Written opposition – the key to beating people on procedural defects
• Civil Court Decisions in No-Fault Insurance: When Legal Reasoning Goes Wrong
• New York No-Fault Insurance Law