United States: Constructing A Template For "Deconstructive Testing"

In addition to skillfully managing the time-consuming Compliance Part and energetically piloting the challenging Settlement Part in Supreme Court, Westchester County, Justice Joan Lefkowitz also regularly and routinely finds time to write meticulous decisions on complicated legal matters.1 Two recent (and representative) examples follow:

In Fischer v. Pollack, 2015 NY Slip Op 51427(U) (October 2, 2015), a construction litigation, Justice Lefkowitz was called upon to determine whether or not the Court should grant motions "for orders directing destructive testing of metal and concrete support columns" and applications for protective orders against such relief – which adjudication required the review, analysis and determination of a vast sub-set of factual and legal issues.

The Court summarized the background and the roles of the various and numerous parties:

[T]hese actions arise from a partial building collapse that occurred on June 4, 2012, at the premises known as 266 Purchase Street, Rye, New York. On that premises was a three-story commercial office building owned by Gloria Pollack, in which a number of medical and dental offices were tenants. Among those tenants were Elise Fischer, DDS (hereinafter "Fischer"), and Deborah Troy, DDS (hereinafter "Troy"). As plaintiffs allege in their respective complaints, Troy was undertaking certain interior renovations of her dental office based on architectural plans drawn by defendant Steven Secon Architect P.C. (hereinafter "Secon") and implemented by defendants Andrew Sackett (Troy's husband) and Andrew Sackett Contracting (hereinafter collectively "Sackett"), and South East Construction Group, Inc. (hereinafter "South East"). When the Troy renovation work allegedly deflected a support column, Sackett and South East hired defendant Bond E. Davis, III (hereinafter "Davis") and his firm, Griggs & Davis Engineers, P.C. (hereinafter "G & D"), as structural engineers to examine the column. Shortly thereafter, however, the building partially collapsed, which resulted in condemnation of the building, evacuation of building tenants, dislocation of the medical and dental building tenants, and damage to the Fischer and Troy dental practices.

The pending actions:

By letter dated July 25, 2012, defendant Travelers Casualty Insurance Company of America (hereinafter "Travelers"), insurance carrier for Fischer's dental practice, denied Fischer's insurance claim for the resulting damage to her practice, on grounds that the column defect that allegedly was the proximate cause of the collapse constituted a pre-existing condition under the operative insurance policy. Alleging damage to her dental practice, on February 15, 2013, Fischer commenced an action under Index Number 52037/2013 (hereinafter "Fischer action") against Pollack, into which action Secon, Sackett, South East, Davis, G & D and Travelers were impleaded. On February 28, 2013, Pollack commenced a separate action under Index Number 52654/2013 (hereinafter "Pollack action") against Sackett, into which action were impleaded the same additional defendants and third-party defendants as in the Fischer action.

The prior proceedings:

By Decision and Order dated January 10, 2014, this Court (Giacomo, J.) granted Fischer's CPLR 602(a) motion to consolidate the Fischer and Pollack actions for discovery purposes and for joint trial as to non-insurance coverage issues. Pursuant thereto, those parties entered a Preliminary Conference stipulation on February 11, 2014, then proceeded through substantial documentary discovery and depositions during 2014 and early 2015.

The discovery dispute:

The instant discovery motions in the Fischer and Pollack actions concern destructive testing of support columns. This matter has been the subject of extensive proceedings before Court Attorney-Referee David Evan Markus, whom this Court (Lefkowitz, J.) appointed pursuant to CPLR 3104 to hear and report in all three actions. Pursuant thereto, by Compliance Conference Order dated May 15, 2015, this Court directed the Fischer and Pollack parties to "negotiate in good faith to stipulate as to a joint protocol" for testing the support columns. After the parties failed to reach such an agreement, this Court entered a further Compliance Conference Order dated June 1, 2015, which ordered the parties to conduct certain enumerated non-destructive testing (e.g. photography, weighing) according to Court-directed protocols specified in such order. The Compliance Conference Order of June 1, 2015, also directed that:

  1. Any party seeking destructive testing of the subject column[s] shall serve on all parties, and on the parties in Deborah Troy DDS v Travelers Indemnity Co. (Index No. 58530/2014), a proposed protocol for such testing on or before June 15, 2015. Any party failing timely to serve such proposed protocol thereby will be deemed to have waived such destructive testing. Determination as to such destructive inspection and testing is reserved.
  2. Nothing in this order takes any position on testing of the subject column[s] for purposes of Deborah Troy DDS v Travelers Indemnity Co. (Index No. 58530/2014).

The subsequent proposals for destructive testing of the columns:

By letter dated June 9, 2015, counsel for G & D and Davis proposed to Referee Markus protocols for destructive testing of the columns ...The three-page submission proposed, in pertinent part, that LPI, Inc., their expert metallurgist, would transport the columns from the Pollack home in Westchester County, where the columns have been held in the Pollack garage, to an LPI-affiliated testing facility in New York City or to an "independent third-party forensic evidence entity (such as Ferasco in Bound Brook, New Jersey)." At such testing location, the G & D submission proposed the following testing protocol:

Sectioning and extraction of specimens for testing. Sectioning of metallurgical specimens from the columns using a reciprocating saw or similar saw as feasible, locations for sectioning to be agreed upon by all parties present. Specimens would be conducted "to remove fracture surfaces (if present at the base of the column) and material for tensile test specimens, a compositional analysis specimen, and cross-sectioned metallographic specimens. The material for the tensile test specimens and compositional analysis specimen will be removed from areas near the base of the column that have not deformed in service. Metallographic specimens will be prepared from material removed from both the deformed region and near the base of the column. On at least one of the additional columns, sectioning will be conducted to remove materials for tensile test specimens, compositional analysis specimens, and cross-sectioned metallographic specimens.

Laboratory testing. Laboratory analysis would be conducted at LPI's facilities in Manhattan and would comprise: (1) "Visual, stereomicroscopic, and scanning electron microscopic (SEM) examination of the buckled column fracture surfaces (if present). Cleaning of the fracture surfaces may be conducted, as needed, and is expected to include ultrasonic cleaning and nylon-bristle brush cleaning in methanol and/or Alconox solutions to remove corrosion products. In addition, due to size restrictions in the specimen chamber, sectioning of fracture surfaces may be required for SEM examination. If necessary, a dry band saw will be used, with the locations for sectioning agreed upon by all parties present..."Tensile testing will be conducted on specimens machined from the material removed from the columns. Due to safety issues in the machine shop, outside parties will not be able to witness test specimen machining; however, the test material will be photographically documented as-removed, after machining, and after testing. Tensile testing can be witnessed, if requested. Specimen preparation and testing will be conducted in accordance with ASTM E8/E8M and A370." (3) "Metallographic analysis will be conducted on cross-sectioned specimens from the material removed from the columns. Specimens will be mounted, ground, and polished by LPI using standard metallographic preparation techniques. The specimens will be examined using optical microscopy in both the as-polished and etched conditions. Micro-hardness indentation testing may be conducted on specimens as needed." (4) "Compositional analysis will be conducted on specimens from the material removed from the columns. Final preparation of these specimens will be conducted by LPI. This analysis is expected to utilize optical emission spectroscopy (OES) and combustion spectroscopy (CS), as-needed, and will be conducted by an accredited, independent third-party laboratory."

The objection to the proposal:

By letter dated June 10, 2015, counsel for Pollack served a letter brief opposing the destructive testing protocols...in the Fischer action...a letter brief in opposition by counsel to Fischer followed on June 12, 2015...Pollack's opposition asserted that the destructive testing protocol fails to establish the necessity of such testing under Mattern v Hornell Brewing Co., Inc. (84 AD3d 1323 [2d Dept 2011]) and that the protocol is insufficiently specific to pass muster under Mattern. Pollack asserted that the proposed protocol is invalid for ten reasons: (1) no justification to test the column that did not fail; (2) nondisclosure of relationships with LPI; (3) no basis to transport the columns to LPI; (4) failure to identify the testing laboratory; (5) failure to identify the samples to be removed; (6) failure to identify the cost of such testing; (7) failure to specify which parties would obtain the results of any testing; and (8) failure to provide for post-testing return of the columns. Fischer's opposition adopted Pollack's position with regard to the adequacy of the proposed destructive testing protocols, and added two additional arguments: (9) prejudice to Fischer arising from further delay associated with any destructive testing this Court might authorize; and (10) constructive waiver of the demand for destructive testing on account of failure to pursue the same earlier in discovery. After Referee Markus held a further conference on June 17, 2015, to resolve this dispute, a briefing schedule was issued for the parties to bring these respective motions to compel destructive testing or alternatively enter a protective order against the same. This Court heard oral argument on these motions on August 17, 2015, and on such date engaged in extensive colloquy with counsel on the matters presented for decision.

The standards for destructive testing:

It is axiomatic that parties are entitled to liberal discovery of "all matters material and necessary in the prosecution" of their action (CPLR 3101[a]), and the determination of what is "material and necessary" is within the sound discretion of the trial court[.]  The phrase "material and necessary" is "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason"[.] The foregoing standards vest in the trial court broad discretion to supervise discovery and issue such determinations as necessary to vindicate litigant rights and enforce litigant duties arising in the individual case[.] Where the court determines that the parties have not proceeded with relevant discovery, a typical remedy is a CPLR 3124 order to compel such disclosure. Conversely, where the court determines that a protective order is necessary to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts," the court may enter a protective order "denying, limiting, conditioning or regulating the use of any discovery device"[.]

While the presumptive standard for discovery is "usefulness and reason"...our law establishes a more exacting standard for destructive testing. In Castro v Alden Leeds, Inc. (116 AD2d 549 [2d Dept [*4]1986]), the court narrated:

"Although scientific testing may, in an appropriate case, promote the just determination of legal controversies...testing which destroys or materially alters the item or sample being tested should be permitted only where the court determines, in the exercise of its discretion, that such testing is required in the interest of justice[.]  The party seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested[.]  The court can then determine whether such testing is appropriate and what safeguards may be required in the testing procedure to protect the interests of all parties."

Thereafter, Burley v Sears Roebuck & Co. (226 AD2d 494 [2d Dept 1996]) amplified that destructive testing is appropriate where its proponent demonstrates that it is "the only method by which [the proponent] may obtain the information" sought[.]  A trial court commits reversible error by authorizing destructive testing absent this heightened showing[.] The most recent binding authority on a movant's entitlement to destructive testing is Mattern, on which all instant disputants extensively rely. Mattern, in turn, relied on Castro and Burley to frame the applicable standard as follows:

"The party seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested"[.]

In this most recent explication of the standard for destructive testing, Mattern — like Burley before it — held that the trial court improvidently exercised its discretion to allow destructive testing because its proponent failed to show the extent to which non-destructive testing was inadequate and the extent to which the proposed destructive testing protocol would alter or destroy the physical implement proposed for such testing.

The application of the standards to the pending motions:

From these principles, it follows that G & D and Davis, as the instant proponents of destructive testing, can prevail only if they (1) demonstrate that destructive testing is material and necessary within the meaning of CPLR 3101(a); (2) meet the heightened standard of proffering a specific justification including, inter alia, a basis to conclude that non-destructive testing is inadequate and that destructive testing is necessary within the meaning of Mattern, Castro and Burley; and (3) provide a sufficient enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the column(s) to be tested.

Was destructive testing material?

Turning to the merits of the destructive testing application, this Court accepts movants' threshold demonstration that destructive testing is reasonably calculated to adduce discoverable evidence within the meaning of CPLR 3101(a), and thus that movants satisfy the first prong of the three-prong test for destructive testing. G & D and Davis demonstrated that a measured determination of column tensile strength and load capacity reasonably may tend to establish or rebut one or more of the theories of causation for the building collapse, and thus potentially shift liability among the parties. To the extent that G & D and Davis are entitled to reasonable discovery in relation to their defense, and to seek indemnity and contribution from other parties, they have met the threshold materiality and relevance standard of CPLR 3101(a) for destructive testing.

Was expert proof required?

To be sure, as noted above, this threshold showing is just that — only the initial inquiry, and by its nature far more "liberal" than the second prong of the three-part test for destructive testing. As the trajectory of Mattern, Castro and Burley requires, a movant for destructive testing also must proffer a specific and particularized justification including, inter alia, a basis to conclude that non-destructive testing is inadequate and that destructive testing is necessary. This standard essentially places on movants for destructive testing the burden to show that destructive testing is the only feasible way to obtain discoverable evidence requisite to the prosecution or defense of the action.

In the case at bar, the parties dispute not only the necessity of destructive testing but also the quantum and means of proving such necessity as a matter of law. To that extent, a central plank of plaintiffs' opposition to the destructive testing application is that moving defendants fail to supply an adequate expert affidavit attesting to the "necessity" of destructive testing to adduce measured rather than calculated column load capacity and tensile strength. Plaintiffs offer this Court, however, no authority for the proposition that a sufficient expert affidavit is a firm condition precedent for judicial authorization to conduct destructive testing. To the contrary, in Di Piano v Yamaha Motor Corp. (106 AD2d 367, 368 [2d Dept 1984]), the Second Department suggested otherwise. While Di Piano denied destructive testing, its denial was without prejudice to the movants for destructive testing thereafter providing the trial court with a list of tests and safeguards sufficient to explicate "the basis for their belief that such testing is necessary . [Respondents would] then have an opportunity to oppose the motion" on the basis of such explicated circumstances, and the court thereafter "may determine within [such] more precise factual context whether such testing is appropriate and what safeguards may be required to protect [all parties'] interests"[.] While courts repeatedly have followed Di Piano in requiring movants for destructive testing to posit a clear..."basis" to conclude that non-destructive testing would be inadequate (see e.g. Mattern, 84 AD3d at 1325; Castro, 116 AD2d at 550), no court affirmatively required that a destructive testing movant establish this "basis" only by expert affidavit. Thus, this Court finds no decisional basis on which to accept respondents' argument that movants' application for destructive testing must fail for lacking expert proof of necessity.

Neither does this Court accept respondents' invitation to create such a rule now. Plaintiffs are correct that Mattern, Castro and Burley together require a high standard of proof — but not necessarily the rigid one that they invite this Court to require. As with other aspects of the standard of proof for destructive testing, whether a movant for destructive testing offers a supporting expert affidavit is a factor that a court certainly may and in proper cases should consider in weighing the sufficiency of the application. Our law requires a clear demonstration that destructive testing is the only practicable means for the movant to adduce the material and necessary evidence that destructive testing would seek: our law does not, however, impose any exacting means to make this clear demonstration. Nor, in this Court's judgment, would such a rigid rule serve the policy objectives of Mattern, Castro and Burley, which invite a searching inquiry in which expert affirmations may or may not be relevant or dispositive. Indeed, this Court observes that some courts have allowed destructive testing amidst conflicting expert opinions on point...while other courts disallowed destructive testing even given a clear expert affidavit as to its necessity[.]  These cases suggest that, in proving the necessity of destructive testing within the meaning of Mattern, Castro and Burley, an expert affidavit is not necessarily conclusive or sufficient. Against that backdrop, this Court declines plaintiffs' invitation to impose a rigid rule requiring an expert affidavit as a formalistic requirement of a destructive testing motion, and to reject this destructive testing application for failing to meet that requirement.

Was destructive testing necessary?

Instead, this Court undertakes a broad inquiry of the totality of the record to determine whether G & D and Davis present a sufficient basis to conclude that destructive testing is necessary — that is, whether non-destructive testing (including a calculated rather than measured analysis of the columns) would be inadequate to their defense. In the instant action, G & D and Davis rely on LPI, their expert metallurgist, to proffer a lengthy and detailed scientific protocol for destructive testing. Movants state that given the multiple extant theories of causation for the building collapse, and the expert report by Tri-State potentially supporting one or more of such multiple theories of causation, a measured determination of column tensile strength and load capacity is the only feasible way for G & D and Davis to defend this action by sorting among the various theories of causation. Specifically, G & D and Davis argue that denial of this motion would prejudice their defense to the extent that — as the Tri-State report suggests — one of the subject columns was eroded or corroded by a water condition that might make inapposite a routine calculated determination of column strength and load capacity. For their part, plaintiffs assert that a calculated rather than measured determination of column tensile strength and load capacity ought to be sufficient for G & D and Davis' defense of these actions, but plaintiffs offer this Court no technical justification for that position: as with plaintiffs' assertions that destructive testing could further angle the buckled column or result in delays owing to the unconsolidated Troy action, this further argument is unsubstantiated by anything plaintiffs offer in the record. Given the expert derivation of the proposed protocol, as well as the expert Tri-State report at least partly underlying moving the application for destructive testing and plaintiffs' own lack of technical explication in opposing this application — this Court finds, in the totality of the circumstances, that G & D and Davis established that destructive testing is the only feasible means to obtain reliable quantitative data about column tensile strength and load capacity. This Court further concludes that such data reasonably appear necessary to G & D and Davis' defenses of these consolidated actions. Accordingly, this Court concludes that G & D and Davis met the high standard of Mattern, Castro and Burley to establish the necessity of destructive testing.

Was the proposed destructive testing protocol sufficient?

Nevertheless, movants for destructive testing may prevail on such an application only by further establishing that the proposed protocol for destructive testing is "sufficient." This third prong requires a destructive testing movant to offer the court "an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested"[.]  By its nature, this standard vests in the trial court reasonable discretion to consider the technical and other factual circumstances presented, including but not limited to the means and methods proposed for destructive testing, the nature of the item...that would be subject to destructive testing, the extent of specificity of the scientific and other protocols, the reasonable potential for ambiguity in those proposed protocols, the relevance of any such potential ambiguity to the quality of proof sought to be procured, and the prospect of prejudice that reasonably may arise from any such potential ambiguity.

G & D and Davis proposed in their letter brief of June 9, 2015, an extensively detailed scientific protocol reasonably calculated to adduce the evidence described above. After plaintiffs opposed those protocols by their own letter briefs before the Court Attorney-Referee, the instant motion practice ensued and G & D and Davis further explicated the protocols in the motion papers; thereafter at oral argument, this Court entertained substantial colloquy concerning the protocols. The explicated protocols and substantial colloquy address plaintiffs' concerns in the letter briefs and, on balance, this Court is satisfied that movants specifically enumerated and described the tests proposed to be performed and the extent to which each such test would alter the columns within the meaning of Mattern and its progeny. The extent of alteration is clear: of a nine foot column, destructive testing would remove one three-inch patch of interior metal, a second patch of metal approximately nine inches by two inches, and a small amount of interior concrete not otherwise visible to the finder of fact. The proposed protocol explicates the technical manner of sectioning and extracting these specimens, and reasonably identifies the parts of the column from which experts would obtain the specimens (i.e. one from the "deformed region" where the column buckled, and another "near the base of the column" that allegedly was subject to a water condition). The proposed protocol lays out that laboratory testing would be conducted at an LPI facility in either New York City or New Jersey. The protocol goes on to specify with precision the kind of stereomicroscopic and scanning electron microscopic analysis to be performed, the nature of how sample surfaces would be cleaned to facilitate testing, how tensile strength testing would be done and by what scientific standards, how metallographic analysis would be performed via optical microscopy, and how compositional analysis would be performed via optical emission spectroscopy and combustion spectroscopy.

Plaintiffs respond inappositely that this proposed protocol does not a protocol make, that moving defendants failed to submit a protocol much less a specific one, and that this application for destructive testing therefore must be denied. Contrary to plaintiffs' characterization of moving defendants' application, the issue is not whether moving defendants submitted a testing protocol — it is beyond cavil that indeed they did submit a protocol — but whether the protocol is specific enough to pass muster. In that light, plaintiffs muster two remaining arguments against the sufficiency of the protocol: the ostensible lack of independence of the testing entities, and the exact location from which test samples from the columns would be taken.

The independence of the testing entities:

Plaintiffs question whether LPI is sufficiently independent of moving defendants: so far as the argument goes, LPI is moving defendants' metallurgic expert and therefore not sufficiently independent for purposes of the conduct or supervision of destructive testing. Plaintiffs offer this Court no basis — and this Court is unaware of any — to conclude that a movant for destructive testing must contract only with a testing firm or entity with which movants have no relationship, much less an independent third party that would not be called as a witness. G & D and Davis are entitled to retain LPI or other expert metallurgist or testing entity as their expert, no less than plaintiffs are entitled to retain their own experts, and this Court perceives no basis to restrain much less disallow destructive testing on that basis. To whatever extent the independence of the metallurgist or other testing entity may be relevant in this action, any party is entitled to make such arguments concerning the weight of the evidence obtained through destructive testing as may be appropriate to the court at that time.

The location of the columns to be tested:

As to the ostensibly vague description of the location on the columns from which samples would be taken for destructive testing, the protocol makes clear that one sample would be taken from "near the base of the column" and another sample would be taken from "the deformed part" of the column. Plaintiffs offer this Court no basis — and this Court is unaware of any — to more exactly describe the location of the proposed sample site, or why any such ambiguity reasonably may inure to any respondent's prejudice in this action. On a nine-foot column, a rule of reason would appear to suggest that "near the base of the column" where the alleged water condition may have existed, and "the deformed part" of the column that all parties concede buckled, are reasonably specific descriptions to allow this Court — and subsequently, the finder of fact — to determine whether the protocol was followed.

Allocation of the testing costs:

Also arising in opposition to this motion are concerns regarding cost and all parties being able to witness the testing and obtain test results. As to obtaining test results, moving defendants made clear at oral argument that [*9]they would not oppose sharing test results with all parties, and this Court perceives no reason that test results potentially relevant to all parties, arising from columns currently in Fischer's possession and control, should be withheld. As to cost, moving defendants made clear at oral argument that they would bear all costs associated with transporting, testing and returning the subject columns. While recognizing that this Court's authorization of destructive testing may encourage if not impel other parties to retain experts to analyze test results, in the broad context of these complex actions, this Court declines plaintiffs' invitation to decline destructive testing on grounds that plaintiffs may incur costs if they elect to retain their own experts.

The witnesses to be permitted to observe the tests:

Plaintiffs also imply that this Court should deny movants' application on grounds that the proposed protocol is ambiguous or inadequate as to who will witness the tests. Respondents' argument is without merit. Under our law, courts first determine whether a proposed protocol for destructive testing is sufficiently justified and particularized, and then determines what additional "safeguards may be required in the testing procedure to protect the interests of all parties"[.] Stated otherwise, even the total silence of a proposed destructive testing protocol as to witnessing, videotaping or otherwise recording destructive testing does not defeat the sufficiency of such testing protocol. Indeed, in Burley, the Court conformed a proposed destructive testing protocol to allow the opponent of destructive testing to "have a representative present when the inspection and testing is conducted and to examine, photograph and videotape the [implement subject to testing] before and after each state of testing"[.]  In the instant case, moving defendants' proposed protocol specifically provides for all parties to witness the testing protocol except for "test specimen machining" which, "[d]ue to safety issues in the machine shop, outside parties will not be able to witness." As to this limited element, however, the protocol provides that "the test material will be photographically documented as removed, after machining and after testing." With the further provision that this testing element should be videotaped to the extent not inconsistent with applicable safety standards, the Court deems this protocol acceptable to protect the interests of all parties reasonably to witness and record the testing under Burley.

And the laboratory that would undertake spectroscopy:

The one further matter that concerns this Court about the testing protocol is the apparent uncertainty of the laboratory that would undertake optical emission spectroscopy and combustion spectroscopy. The proposed testing protocol provides that this analysis "will be conducted by an accredited independent third-party laboratory" that moving defendants do not identify. While not fatal to moving defendants' application, this Court will not countenance tendering the columns or any samples taken therefrom to an unidentified nonparty. Accordingly, moving defendants must disclose to Court Attorney Referee David Evan Markus, on notice to all parties, the name and location of any independent third-party laboratory that would conduct optical emission spectroscopy and combustion spectroscopy in accordance herewith.

Concluding with an admonition:

All parties are admonished that this Court will closely supervise the conduct of destructive testing hereunder, and that interference with, delay in or unauthorized enlargement of testing authorized hereunder will not be tolerated. While this Court now grants moving defendants' application for destructive testing, subject to the conditions enumerated below, this Court remains mindful that discovery — intended to advance the conduct of litigation — must not be allowed instead to inhibit that cause. Plaintiffs are entitled to timely trials of these actions, and therefore destructive testing must be conducted expeditiously.

In Luciano v. Kennedy 2015 NY Slip Op 32016(U) (July 2, 2015), an action presenting claims for negligence, assault and battery, defamation, libel and slander against Douglas Kennedy, Justice Lefkowitz addressed cross-motions relating to discovery, in general, and privilege, in particular.

The Court briefly summarized the genesis of the dispute:

Plaintiffs, who were nurses at Northern Westchester Hospital (hereinafter "the Hospital") at the time of the alleged incident, allege that they sustained personal injuries as the result of an altercation which occurred at the Hospital on January 2, 2012, when defendant Douglas Kennedy attempted to leave the maternity ward of the Hospital with his newborn baby against plaintiffs' requests.

The discovery proceedings:

Certain discovery has taken place in this action, including six Independent Medical Examinations ("IMEs") of plaintiffs on behalf of defendant in July, 2014. Two of the IME examiners found either no evidence of injury or no causal relationship with the subject incident.  The remaining four IME examiners issued IME reports which found plaintiffs sustained an injury and found either a causal relationship to the subject incident or did not issue an opinion as to causation. Thereafter, those IME examiners issued addendums to their original IME reports modifying their opinions and diagnoses based upon the review of additional information and documents which were provided by defendant's counsel after they examined plaintiffs.  According to the addendums, the additional information included plaintiffs' additional medical records, the decision of the court in defendant's criminal case involving the subject incident, and plaintiffs' deposition transcripts. In one of his addendums, the IME examiner referred to a meeting with defense counsel and defendant at which he was provided with additional documents.

The IME Reports:

Dr. Richard DeBenedetto, a psychologist, examined plaintiff Lane on behalf of defendant on July 2, 2014. Dr. DeBenedetto's IME report...listed the medical records reviewed regarding treatment of plaintiff Lane's physical condition between January 7, 2012 and September 17, 2012, and listed a diagnosis of Adjustment Disorder with Anxiety. The report further stated the following: "Based on my psychological examination of Ms. Lane, Ms. Lane's statement regarding the incident in question and my review of the available records, it is my opinion that the reported symptoms of anxiety, disturbed sleep and decrease[d] efficiency at work are related to the emotional trauma associated with her having been assaulted at work on 01/07/12".

Thereafter, Dr. DeBenedetto issued an undated addendum to his IME report (hereinafter "Addendum report"). Therein, he stated that "further information and documents have been forwarded to me for review that [were] not available to me at the time of my evaluation of Ms. Lane"...In the Addendum report Dr. DeBenedetto, listed the additional records reviewed and modified his opinion. The additional records listed in the Addendum report are as follows: (1) plaintiff Lane's deposition testimony...regarding her "non-use of medication since the event"; (2) video surveillance tape; (3) Neurology IME Report dated 07/04/14 by Elliot Gross, M.D.; (4) plaintiff Lane's deposition testimony...regarding unchanged work load since the event; (5) Judge's Decision People v Kennedy dated 11/20/12; (6) deposition testimony...regarding appearance on the Today Show; and (7) Treatment Notes dated 07/12/13 – 01/10/13 of Michael Stem, Ph.D.

In the Addendum report, Dr. DeBenedetto stated, inter alia, that the review of the additional records and information raised "several concerns regarding the veracity of the statements Ms. Lane made to me during her examination regarding the events leading up to her reported state of anxious distress," including her description of the incident as an assault...Dr. DeBenedetto asserted therein that a "[r]eview of the video of the incident as well as the findings of the judge in the [criminal] case suggest that while there was clearly a confrontation between Ms. Lane and Mr. Kennedy the issue of it being an 'assault' is questionable"[.]  Dr. DeBenedetto also noted that plaintiff Lane's statement to him that since the incident she has emotional difficulty in returning to work and, as a result has taken on a light work load, conflicted with her deposition testimony that "would imply no change in her work status as a result of the incident in question and no change in her work load or numbers of hours worked"[.]  Dr. DeBenedetto further found inconsistencies in the Initial Intake Report and PTSD Symptom Questionnaire by Dr. Stem. Theses inconsistencies included the fact that plaintiff Lane exhibited "a full blown symptom picture of PTSD" only four or five days after the incident, although many of the symptoms "typically take weeks to arise and become fixed"[.]  Finally, Dr. DeBenedetto found as follows: "Ms. Lane's endorsement of levels of concern for her safety, personal integrity and future which far exceed that which could reasonably be accounted for on the basis of the actual event which occurred. It is difficult to conceive, especially after reviewing the testimony and the video of the event, how Ms. Lane could realistically be in fear of her life (the essential component in a diagnosis of PTSD)"[.]  Dr. DeBenedetto then gave his opinion as follows: "Given the above facts and the concerns with respect to the likely veracity of some of the information provided to me by Ms. Lane regarding the events which presumably underlie her then state of psychological distress, I cannot state with a reasonable degree of clinical certainty that the initial diagnosis of Adjustment Disorder with Anxiety is true in the present case"[.]  Therein, Dr. DeBenedetto also changed his diagnosis to "RIO Adjustment Disorder with Anxiety, 309.24" and "RIO Malingering-Symptom Magnification, V 65 .2"[.]

Victoria L. Londin, a clinical psychologist, conducted an IME of plaintiff Luciano on behalf of defendant on July 21, 2014. She issued an IME report wherein she diagnosed Posttraumatic Stress Disorder and opined that there are "causally-related psychological symptoms present at this time"...Approximately two months later, after receiving additional documents and information, she issued an addendum to her IME report dated September 14, 2014. The additional documents and information included the following: (1) decision in defendant's criminal case, wherein the trial judge found no evidence of an actual physical injury, and which decision Dr. Londin determined called into question plaintiff Luciano's credibility; (2) plaintiff Luciano's deposition testimony wherein she testified regarding a history of poor sleep, as well as a history of DWI, which Dr. Londin determined indicated alcohol abuse; and (3) information that plaintiff Luciano appeared on The Today Show shortly after the incident. In view of the foregoing additional documents and information, Dr. Londin opined in her addendum that she could not conclude that "the issues related to me are casually related to the incident," and she questioned plaintiff Luciano's credibility and motives[.]

Although, Dr. David H. Elfenbein, an orthopedist, who examined plaintiff Lane on behalf of defendant on July 2, 2014, did not change his diagnosis of left cubital tunnel syndrome after receiving additional information on multiple occasions and meeting with defense counsel and defendant, he did change his opinion regarding causation. In his initial IME report, Dr. Elfenbein diagnosed plaintiff Lane with left cubital tunnel syndrome, but stated that he was unable to confirm a causal relationship between the twisting injury about which plaintiff Lane related to him and the subsequent development of cubital tunnel syndrome without plaintiff Lane's medical records. Dr. Elfenbein further stated that "it would be unusual for a twisting injury as described by the examinee to cause cubital tunnel syndrome, but it is possible"[.]

Dr. Elfenbein issued an addendum to his initial IME report dated July 8, 2014 stating that he had received additional records regarding plaintiff Lane, but that the additional records did not change his opinions.

Dr. Elfenbein then issued a second addendum on August 20, 2014, wherein he stated that he reviewed, inter alia, the records of plaintiff Lane's treating orthopedic-surgeon, EMO report and MRI reports. In his second addendum, Dr. Elfenbein again lists his diagnosis as "Left cubital tunnel syndrome" and states that there was a direct causal relationship between the twisting injury to the left forearm and wrist of January 7, 2012 and the development of the symptoms and signs of cubital syndrome.

In a third addendum dated October 10, 2014, Dr. Elfenbein states that, after reviewing additional medical records, the transcript of plaintiff Lane's deposition, and the judge's decision from the criminal proceedings which "documents a video report showing no evidence of a twisting injury during this event, it is exceedingly unlikely that there is a direct casual relationship between the alleged incident of January 7, 2012 and Ms. Lane's development of a clinical cubital tunnel syndrome"...In the third addendum, Dr. Elfenbein states that he met with defense counsel, his legal assistant and defendant on October 7, 2014 at his office. At the meeting, Dr. Elfenbein was provided with additional records, including the court's decision in defendant's criminal case, IME reports, the transcript of plaintiff Lane's [deposition] and further medical records. Dr. Elfenbein further states that defense counsel reviewed some "key aspects of them"[.]  Dr. Elfenbein also states in his addendum that defense counsel asked him to review the additional records and "readdress my conclusions regarding causation in my Independent Medical Examination"[.] Dr. Elfenbein also notes that the judge in defendant's criminal case found the video of the incident did not show plaintiff Lane's arm being twisted by defendant.

Dr. Elfenbein also examined plaintiff Luciano on behalf of defendant. By IME report dated July 23, 2014, Dr. Elfenbein opined that the trauma of January 7, 2012 was the direct cause of the development of her left shoulder strain and impingement which required subsequent surgery.

Dr. Elfenbein then issued an addendum to his IME report dated October 10, 2014, wherein he states that additional medical and legal records were made available to him at a meeting with defense counsel. Dr. Elfenbein further stated that he met with defense counsel, his legal assistant and defendant on October 7, 2014 at his office. Dr. Elfenbein recited the additional records as including certain medical records, IME reports from Dr. Silverman (neurologic examination) and Dr. Londin (psychological examination), the transcript of plaintiff Luciano's deposition, and the court's decision in defendant's criminal case. Dr. Elfenbein noted that, in the decision, the criminal court found no evidence that plaintiff Luciano was kicked by defendant, but rather found that her fall to the floor was caused by a defensive maneuver by defendant to prevent plaintiff Luciano from removing the baby from his arms. Dr. Elfenbein also noted that Dr. Londin, in her IME report, found plaintiff Luciano not to be credible based upon the criminal court's finding of no actual physical injury, and that plaintiff Luciano's appearance on the Today Show called into question plaintiff Luciano's degree of emotional distress which she had reported. Dr. Elfenbein also reviewed the transcript of plaintiff Luciano's deposition, wherein she testified, inter alia, that she had occasional pains in both shoulders and neck prior to the subject incident, and had injured her neck down to her left shoulder at work in 2004. Dr. Elfenbein further notes in the addendum that defense counsel pointed out the "History and Physical" before her surgery noted "left shoulder pain x several years"...In view of the additional records, Dr. Elfenbein stated in the addendum that his opinion had changed and that he no longer found a significant causal relationship between the alleged trauma on January 7, 2012 and plaintiff Luciano's left shoulder strain and impingement as there were medical records of impingement syndrome present since 2004. Dr. Elfenbein further opined in the addendum that plaintiff Luciano's fall, at the most, represented a temporary exacerbation of her preexisting condition and was not a major cause for her subsequent need for surgery.

The deposition testimony:

During his deposition, defendant testified, inter alia, that he and defense counsel met with Dr. Elfenbein at the doctor's office for just over half an hour. Defendant further testified that, at one point, he participated at the meeting by denying twisting plaintiff Lane's arm and asked Dr. Elfenbein to review the criminal court's decision and the hospital's video. He also testified that additional records were provided to the doctor and the doctor agreed to review them. Defendant denied that defense counsel had asked the doctor to render another report[.]

The discovery demands:

After the IME examiners issued the addendums to their original IME reports, plaintiffs served a Notice for Discovery and Inspection dated October 30, 2014, which demanded the following: (1) expert exchange pursuant to CPLR 3101 for each healthcare provider designated by defendant who performed an IME of plaintiffs in July, 2014 (demand 1); (2) copies of all written correspondence, emails, and text messages between and/or among defendant, defense counsel, and each and every IME provider (demands 2 and 4); (3) copies of all written notes and oral statements reduced to writing between and/or among defendant, defense counsel, and each and every IME provider (demand 3); (4) copies of the IME providers' "raw" notes regarding plaintiffs' IMEs (demand 5); (5) copies of notes made during telephone calls and "in person meetings" between and/or among defendant, his counsel, including Gary Douglas, Esq., and each and every IME provider (demands 6 and 7); and (6) copies of each and every IME providers' annotated medical records, including but not limited to paper and electronic documents and "any and all notes made while each such healthcare provider who conducted an IME reviewed medical records before, during, and after each such IME" (demand 8).

By Compliance Part Conference Order dated November 3, 2014, this court directed defendant to respond by November 24, 2014 to plaintiffs' discovery demands.

The response to the demands:

In response to demand no. 1, defendant responded that he had not yet determined which, if any, of the IME healthcare providers would testify at trial, and defendant would supplement the response with a CPLR 3101 (d) expert exchange once such a determination was made. Defendant further asserted that IME reports for each provider had been provided, and any testimony by these providers would be consistent with the opinions expressed in their IME reports.

As to the remaining demands, defendant objected to the demands, in relevant part, on the basis of work product privilege and/or on the ground that the materials were prepared for litigation pursuant to CPLR 3101 (c), (d). Nevertheless, in response to demand nos. 2 and 4, defendant asserted that he provided, without waiving the objections, copies of all written correspondence, emails, email attachments and text messages between and/or among defendant, his counsel, and each and every IME healthcare provider, which are not subject to the claimed privileges. Copies of correspondence of defense counsel with Dr. Elfenbein was produced.

In response to demand no. 3, defendant responded that he was not in the possession of written notes and/or oral statements reduced to writing which are not the subject of privilege, other than the IME reports and addendums which have been provided.

In response to demand no. 5, defendant responded that the "raw notes" of the IME providers are subject to the privilege of attorney work product or as prepared in anticipation of litigation, and [he] was not in the possession of any IME providers' "raw" notes which are not subject to the claimed privileges (demand no. 5).

In response to demand nos. 6 and 7, defendant responded that he was not in possession of any notes made during telephone calls or in person meetings among defendant, defense counsel, and each and every IME provider, which are not subject to the claimed privileges.

In response to demand no. 8, defendant responded that he was not in the possession of the annotated medical records of the IME providers.

Plaintiff's position as to privilege:

Plaintiffs now seek an order compelling defendant to provide a supplemental response to each and every demand contained in plaintiffs' Notice for Discovery and Inspection dated October 30, 2014, and seek to compel defendant to waive any purported privileges asserted in his prior response. Plaintiffs specifically seek a supplemental response to the demand for expert exchange and the production of the demanded discovery to which defendant asserted a privilege.  Plaintiffs contend that the response was "limited" and failed to provide a response to the majority of the demands claiming attorney work product privilege. Plaintiffs assert that the documents to which defendant has claimed an attorney work product privilege are actually subject to the qualified privilege as material prepared in anticipation of litigation and should be disclosed as plaintiffs have demonstrated a substantial need for the documents in light of defense counsel's conduct towards the IME examiners.

Plaintiffs contend that defense counsel's conduct with respect to the IME examiners gives the "overwhelming appearance of impropriety by an attorney overreaching and attempting to unduly influence and cause a change, modification, or alteration to a previous report for the purposes of obtaining an opinion most helpful to the defense of the case"...Plaintiffs contend that defense counsel's actions are analogous to witness tampering. Plaintiffs further contend, inter alia, that defense counsel improperly provided the IME examiners with the findings and decision of the court in People v Douglas Kennedy, the criminal action brought against defendant as a result of the same incident for which plaintiffs are seeking damages in the present action, [and] was improperly provided to the IME examiners by defense counsel. Plaintiffs assert that the decision in defendant's criminal action "is irrelevant hearsay offered only to exert undue influence over [Dr. DeBenedetto ]" and the other IME providers[.]

*     *     *

With respect to Dr. Londin, plaintiffs assert that defense counsel "coerced her to change her opinion by furnishing her the clearly inadmissible hearsay criminal decision...and other misleading information [which] was an obvious attempt to influence this examiner's opinion"... Plaintiffs contend that Dr. Londin misinterpreted some of the records and changed her diagnosis. Plaintiffs assert that plaintiff Luciano never appeared on the Today Show, despite 7 references to her appearance on the Today Show, and had only submitted to a taped interview with a reporter from WNBC-TV's, a portion of which was aired on the Today Show.

As to Dr. Elfenbein, plaintiffs contend that defense counsel continued to provide additional information and met with the doctor until the doctor issued addendums wherein he changed his opinion as to causation. Plaintiffs assert that defense counsel improperly met with Dr. Elfenbein and improperly provided him with the criminal court's decision and other IME reports. Plaintiffs also assert that Dr. Elfenbein never requested images or films of any diagnostic tests performed on plaintiff Luciano. With respect to plaintiff Lane, plaintiffs contend that Dr. Elfenbein modified his opinion based upon the inadmissible criminal court's decision, which "documents a video report showing no evidence of a twisting injury during this event..." Plaintiffs contend that the videotape did not capture what occurred in the stairwell, and "it's obvious that some type of trauma occurred during the course of the altercation to cause some type of injury to Plaintiffs left upper extremity"[.]

Defendant's response:

Defendant opposes all branches of the motion. Defendant contends that he properly withheld demanded documents since they are protected by the attorney work product privilege and are not discoverable...Defendant asserts that it was proper for defense counsel to go over the case with the IME examiners and provide them with further documentation or evidence beyond that which was considered at the time of the physical examination, including additional medical records pertaining to plaintiffs and new information to which the IME examiners were not privy to at the time of their initial IME reports.

The subsequent proceedings:

At oral argument, plaintiffs' counsel argued that the demanded materials should be disclosed in light of the apparent undue influence of defense counsel over the IME examiners, which resulted in four out of six of defendant's IME examiners issuing one or more addendums to their initial IME reports. Moreover, although defense counsel asserted in opposition papers that plaintiffs could obtain the substantial equivalent of the demanded materials since they are "free to examine the IME doctors, as well as defendant regarding any of the correspondence," defense counsel refused to agree to allow plaintiffs to depose defendant's IME examiners.

After oral argument, this court directed defense counsel to provide documents which defendant withheld as privileged in response to plaintiffs' demands no. 2 through 7 of plaintiffs' Notice for Discovery and Inspection for in camera review with a privilege log.

*     *     *

Defendant has now provided this court with a privilege log and the documents which he withheld from plaintiffs for in camera review. In the privilege log, defendant asserts that all the documents produced. for in camera review are subject to the attorney work product privilege.  The documents provided for in camera review consist exclusively of email correspondence between defense counsel and defendant's IME examiners with some attachments, including correspondence between defense counsel and the IME examiners. Accordingly, the withheld documents which have been provided for in camera review are responsive to demands nos. 2 and 4 of the Notice for Discovery and Inspection, which seek, inter alia, correspondence, emails and email attachments between and among defense counsel, defendant and the IME examiners.

The arguments of the parties:

Plaintiffs also seek a further response to the remaining demands in the Notice for Discovery and Inspection, which seek document discovery. However, in support of the motion, plaintiffs only assert that there has been no disclosure as to what telephone calls, emails, correspondence and/or in person meetings took place to cause the IME examiners to change their opinions. Plaintiffs assert that the demanded discovery is relevant since defense counsel and defendant contacted the IME examiners after their initial IME reports were issued and attempted to influence the IME examiners to change their reports by providing additional medical records, the hospital's videotape, other IME providers' reports, and the decision of the court in defendant's criminal case. As noted earlier, plaintiffs contend that defense counsel's conduct improperly attempted to influence the IME examiners' reports.

Plaintiffs specifically contend that the demanded correspondence, emails and notes regarding telephone calls and in person conversations between defense counsel, defendant and the IME examiners are not attorney's work product and should be discoverable. Plaintiffs contend that those documents are only subject to a qualified privilege as material prepared in anticipation of litigation, and plaintiffs have shown a substantial need for the documents in view of the apparent overreaching, undue influence, and apparent pressure tactics employed by defendant to control the content and limit the damages in the IME reports.

Plaintiffs rely upon CPLR 3101(d)(2) which provides that materials otherwise discoverable and prepared in anticipation of litigation by or for another party, or by or for that other party's representative, including an attorney or consultant, may be obtained upon a showing that the party seeking discovery has a substantial need of the materials and is unable without [un]due hardship to obtain the substantial equivalent of the materials by other means. Plaintiffs contend that they have demonstrated a substantial need for the material based upon the apparent "interactive and coercive relationship between defendant, defendant's counsel and the IME doctors, [which] at the very least, hints at collusion and undue influence"...Plaintiffs further assert that the demanded documents are necessary to provide "a stark insight into the degree of influence the Defendant has on the professional opinions of purportedly independent medical examiners"[.]  Plaintiffs also argue that defendant and defense counsel have opened the door "as to their specious influence over IME doctors"[.]  Plaintiffs assert that defendant has given "the appearance of impropriety by attempting to have four of the six IME reports modified or changed by selectively and separately releasing additional medical records, providing the doctor with the criminal court decision which is obviously hearsay and irrelevant to the action, exchanging reports of other IME examiners, providing false information about Plaintiff [Luciano's] purported alcohol use and appearance on the Today Show, and having an in person meeting with an IME examiner and the defendant"[.]

Defendant opposes that branch of plaintiffs' motion which seeks to compel discovery regarding communications between defense counsel, defendant and the IME examiners, as well as counsel's notes and the IME examiners' notes regarding their communications. Defendant asserts that it was proper for defense counsel to go over the case with the IME examiners and provide them with further documentation or evidence beyond that which was considered at the time of the physical examination, including additional medical records pertaining to plaintiffs and new information to which the IME examiners were not privy to at the time of their initial IME reports. Moreover, defendant contends that where the addendum reports were issued based upon the consideration of new information or documentation, the new information or documentation was outlined in the addendum. Defendant also contends that plaintiffs will have the opportunity to cross-examine the IME examiners at trial regarding the process by which their opinions were formed. Defendant notes that plaintiffs do not argue that it is improper for counsel to provide documentation to the IME examiners. With respect to plaintiffs' contention that defendant improperly provided the IME examiners with the court's decision in defendant's criminal case, defendant contends that plaintiffs fail to cite any law for the proposition that an expert's opinion must be formed only on the basis of admissible materials. Defendant asserts that experts routinely rely on inadmissible documents in forming their opinions.

Defendant further contends that while the IME examiners' notes and annotated medical records are discoverable and no privilege has been claimed, counsel's notes are not discoverable as they are protected as attorney's work product and absolutely immune from discovery.  Defendant asserts that counsel's notes commemorates his thoughts, impressions and legal analysis regarding the case and his discussions with the doctor. Therefore, defendant argues that counsel's notes are not discoverable.

As to the correspondence between defense counsel and the IME examiners, defendant contends that the correspondence is also protected from disclosure under the attorney's work product doctrine as they also reflect counsel's impressions, conclusions, opinions or legal theories regarding the case. Defendant further contends that the attorney's work product privilege applies to both written and oral communications. Defendant asserts that the correspondence between defense counsel and IME examiners that did not contain defense counsel's legal analysis of the case was already produced in response to plaintiffs' Notice of Discover and Inspection.

Defendant contends that plaintiffs failed to address his claim that the demanded material is attorney work product. Defendant also contends that plaintiffs only assert that they are entitled to the documents as prepared in anticipation of litigation since they cannot obtain the substantial equivalent of the materials. Defendant argues that, even if the material was classified as material prepared in anticipation of litigation, plaintiffs have failed to establish an inability to obtain the substantial equivalent of the demanded material since plaintiffs can examine the IME examiners. Defendant notes that plaintiffs have already deposed defendant regarding conversations between defense counsel and Dr. Elfenbein, one of the IME examiners, and defendant testified that defense counsel expressed his opinion on the case and his analysis of the medical records given to Dr. Elfenbein.

Defendant further contends that plaintiffs are free to present their conspiracy theories at trial, if permitted by the trial court. The cross examination of the IME examiners, defendant contends, can include questions about why the IME examiner would need to look at a deposition transcript.

In view of the foregoing, defendant contends that the court need not decide the issue of substantial need under CPLR 3101(d)(2), which sets forth the privilege for material prepared in anticipation of litigation. Defendant first asserts that the demanded material is attorney work product which is absolutely immune from discovery. Second, defendant asserts that even if it were material prepared in anticipation of litigation, CPLR 3101(d)(2) provides that even when the court orders disclosure of material prepared in anticipation of litigation, the court shall protect from disclosure the "impressions, conclusions, opinions or legal theories of an attorney or other representative of the party concerning the litigation." Accordingly, defendants argue that regardless of plaintiffs substantial need for the demanded material, the material is immune from discovery.

The applicable law:

CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason"...All discovery, however, is subject to protection from discovery if the proponent of a privilege establishes the applicability of a privilege, such as materials prepared solely in anticipation of litigation...The burden of establishing that certain documents are privileged and protected from discovery is on the party asserting the privilege[.]  The burden cannot be satisfied by counsel's conclusory assertions of privilege and competent evidence establishing the privilege must be set forth by the party asserting the privilege[.]  Whether a particular document is or is not protected by a privilege is necessarily a fact-specific determination, usually requiring an in camera review[.]

CPLR 3101 (c) provides that "[t]he work product of an attorney shall not be obtainable." The attorney's work product privilege applies only to documents prepared by counsel, as an attorney, which reflect counsel's learning and professional skills, including legal research, analysis, conclusions, legal theory and strategy[.]  Therefore, "an item will not even begin to qualify as 'work product' merely upon a showing that a lawyer drew it or did it; it must be shown to be something that only a lawyer could draw or do"[.]  Materials which could have been prepared by a layperson are not privileged from disclosure as attorney's work product[.]  Since the attorney's work product privilege affords the material absolute immunity from disclosure, the courts have narrowly construed the work product of an attorney to include only those materials prepared by an attorney which contain his analysis and trial strategy[.]  The work product privilege affords protection to interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs that were held, prepared or conducted by the attorney[.]

"With reference to an attorney's dealing with an expert, it is only the information and observations disclosed by the attorney and conveyed to the expert which are subject to exclusion"[.]  To that end, the courts have held that communications and correspondence between an attorney and expert is protected from disclosure as attorney's work product with respect to the information and observations of the attorney that are conveyed to the expert[.]

As to materials prepared in anticipation of litigation, CPLR 3101 ( d) (2) provides that "materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has a substantial need of the materials in preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means." CPLR 3101 ( d) (2), however, as asserted by defendant, also provides that when ordering discovery of material prepared in anticipation of litigation, the court "shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." To sustain the burden of demonstrating that demanded material was prepared solely in anticipation of litigation, the party asserting the privilege must identify the particular material with respect to  which the privilege is asserted and establish with specificity that the material was prepared exclusively in anticipation of litigation[.]

And the application of the law to the facts:

Initially, the court notes that the documents provided by defendant to the court for in camera review consist solely of emails between defense counsel and the IME examiners with attachments which include correspondence between defense counsel and the IME examiners.  Accordingly, the documents provided for in camera review would be responsive only to demands 2 and 4 of plaintiffs' Notice for Discovery and Inspection. After an in camera review of the documents, this court determines that the majority of emails between defense counsel and the IME examiners are not protected by the attorney's work product privilege. The majority of the emails are administrative in nature as they, inter alia, state that unspecified documents are annexed or had been received, discuss the timing of reports or addendums, and discuss a meeting date and time. Notably, the emails themselves could have been prepared by a lay person and do not contain any information or observations of defense attorney. Although certain emails state that documents are being forwarded to the IME examiners, the documents are not identified in the emails and there is no commentary by defense counsel regarding those documents.  Accordingly, only the documents containing information which defense counsel sent to the IME examiners for review falls within the privilege of attorney work product. The emails which merely state that documents are being forwarded, without identifying the documents, does not qualify as attorney's work product. Notably, it is the actual information conveyed to an expert by an attorney for review which is classified as attorney's work product, not an attorney's act of forwarding such information to an expert. To the extent, however, that the attachments to the emails contain information and the observations of defense counsel, those attachments are privileged as attorney's work product.

The court notes that defendant only asserted the privilege of attorney work product in his privilege log. Moreover, at oral argument and in his opposition papers, defense counsel specifically argued that the withheld documents were privileged from disclosure as attorney work product and not as material prepared in anticipation of litigation. In any event, even if defendant had asserted that the withheld documents were privileged as material prepared in anticipation of litigation, such a privilege is qualified and plaintiffs have established a substantial need for the documents which this court has determined are not privileged as attorney work product.

*     *     *

With respect to demand no. 3, which demands written notes and/or oral statements reduced to writing between and among defendant, defense counsel and the IME examiners, defendant does not need to provide a supplemental response. Defendant correctly contends that any notes taken during conversations between defendant, defense counsel and an IME examiner by defense counsel or counsel's agent, including notes regarding statements made during the conversations, would be protected from discovery as attorney's work product[.]  That branch of plaintiffs' motion seeking to compel a supplemental response, therefore, is denied with respect to demand no. 3.

Defendant responded to demand no. 5, which seeks the "raw notes" of the IME examiners, that such notes were not in his possession, which are not subject to a privilege. Also, no such notes were contained in the privilege log or provided to the court for in camera review.  Accordingly, it appears that no "raw notes" of the IME examiners are in defense counsel's possession. However, since the response was qualified by the language "which are not subject to a privilege," plaintiffs' motion is granted to the extent that defendant shall serve an affirmation of defense counsel stating that no such "raw notes" are in defense counsel's possession.

As to demand nos. 6 and 7, which demands notes made during telephone calls and "in person" meetings between defense counsel, defendant and IME examiners, defendant does not need to provide a supplemental response. As noted earlier, any notes taken by defense counsel or defense counsel's agent would be protected from discovery as attorney's work product as such notes would clearly contain observations of defense counsel or defense counsel's agent.

Although not specifically discussed by plaintiffs on the present motion, the court finds that defendant's responses to demands no. 8, which sought the annotated medical records of the IME examiners, was sufficient. Defendant responded that he was not in the possession of such documents. Accordingly, the branch of plaintiffs' motion seeking to compel defendant to serve a supplemental response to each and every demand in plaintiffs Notice for Discovery and Inspection is denied with respect to demand no. 8.

Lessons learned:  Before a Court will enter an order permitting destructive testing of materials, the proponent of such testing must address the numerous factors that are considered in determining whether or not such relief is both material and necessary.

And claims of attorney and work product privilege often may not be summarily adjudicated; and, instead, may require a meticulous document-by-document in camera review by the Court.

Footnotes

1 See, eg., "Obtaining New York Subpoenas For Out-Of-State Proceedings", LegalVictor.net, October 18, 2011, with respect to Justice Lefkowitz' decision "In the Matter of Out-of-State Subpoenas" (NY Slip Op 21306, July 29, 2011).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.