The First Department in Markel v. Pure Power Boot Camp, 171 A.D.3d 28 (1st Dept. 2019), recently held that the notes, reports and other materials prepared by an individual hired by an attorney for a plaintiff in a personal injury action to be an observer at an independent medical examination (IME) of the plaintiff were protected from disclosure pursuant to CPLR 3101(d)(2). The decision at a basic level is significant because it addressed and resolved an issue of discoverability which had not been uniformly analyzed and decided by the trial courts, as the First Department recognized. Id. at 30.

However, the decision is more than a mere resolution of a limited pre-trial discovery issue. Rather, the First Department, in a thoughtful and carefully crafted opinion authored by Justice Judith Gische, has alerted and educated the bench and bar to the discovery “privileges” which may preclude requested discovery, and their assertion at trial.

In view of the significance of Markel, this column will address the decision and its takeaways.

'Markel' Facts

Plaintiff was allegedly injured while participating in an exercise drill at defendant's gym. An IME of plaintiff by an orthopedist designated by defendant was scheduled. Plaintiff's attorney hired an individual from IME Watchdog to be present with plaintiff while she was examined. (It is well established that a plaintiff is entitled to have a representative of his or her choice present during the IME, provided the person does not interfere with the IME or prevent the defendant's doctor from conducting a meaningful examination. See, e.g., Santana v. Johnson, 154 A.D.3d 452, 452 (1st Dept. 2017).)

Subsequently, defendant served a subpoena deuces tecum on the IME observer for the production of her notes, reports, memoranda, photographs, and “any other relevant material” in her possession. Plaintiff moved for a protective order, arguing the notes were protected against disclosure pursuant to CPLR 3101. In so moving, plaintiff recognized that she had placed her physical condition in issue, thus entitling defendant to an IME. Markel, 171 A.D.3d at 29.

The First Department granted the motion for a protective order and quashed the subpoena duces tecum. In the opinion for the court, Justice Gische explained that the basis for its ruling was that the observer's notes, etc. were protected from discovery under the conditional privilege applicable to materials prepared for litigation, CPLR 3101(d)(2), but not the privileges set forth in CPLR 3101(b) and (c). Id. at 31-32. Gische noted in support that the IME observer was hired to assist in advancing the litigation and preparing for trial; and that she would not be testifying as an expert, and, indeed, was not at all expected to testify. Id. at 31.

Thus, the notes qualified as “trial preparation materials,” and were subject to disclosure only upon a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means, a showing defendant did not establish. Id. at 32. (In fact, Gische pointed out that the requisite showing could not be made as it was the defendant's own doctor who conducted plaintiff's examination who was able to communicate to defendant what occurred at the IME and what he did at the IME. Id.)

Discovery 'Privileges'

Disclosure in civil actions is generally governed by CPLR 3101(a) which directs that “there shall be full disclosure of all evidence material and necessary in the prosecution and defense of an action.” The Court of Appeals in Forman v. Henkin, 30 N.Y.3d 656, 661 (2018), recently emphasized that “[t]he words, 'material and necessary,' are…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.” See generally Siegel and Connor, New York Practice (6th ed) §344 (January 2019 Supplement); Connors, “Court of Appeals Addresses Disclosure of Materials Posted on Social Media,” NYLJ, March 20, 2018, p. 3, col. 3.

However, this broad right of disclosure is not unlimited as CPLR 3101 itself establishes three categories of materials protected from disclosure: “privileged matter,” governed by CPLR 3101(b) (“Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.”); “attorney's work product,” governed by CPLR 3101(c) (“The work product of an attorney shall not be obtainable.”); and “trial preparation materials,” governed by CPLR 3101(d)(2) (in pertinent part: “[M]aterials 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 far 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 substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”).

Notably, each of these provisions govern different types of materials and information, and provide differing protections against discovery. As Judge Gische made clear in Markel, when an attorney seeks to preclude disclosure of demanded materials, a determination must be made as to which CPLR 3101 category, if any, is applicable. This determination requires in turn a sui generis analysis of the material and information sought and of the purposes for which such disclosure is sought.

As to these categories, “privileged matter” refers to the evidentiary privileges recognized by New York evidence law. Siegel, supra §346. The most frequently asserted privilege is the attorney-client privilege as codified in CPLR 4503(a). This privilege shields from disclosure any confidential communication between a client and his or her attorney, including persons necessary to facilitate or clarify communications between the attorney and the client, which were made for the purpose of obtaining or facilitating legal advice, irrespective of the existence of litigation or threat thereof. Ambac Assur. Corp. v. Countrywide Home Loans, 27 N.Y.3d 616, 623 (2016); Galasso v. Cobleskill Stone Prods., 169 A.D.3d 1344, 1347 (3d Dept. 2019).

The protection against disclosure provided by the privilege is not necessarily absolute in the sense that it must always preclude discovery of the underlying privileged communication. See Priest v. Hennessey, 51 N.Y.2d 62, 68 (1980). Rather, the privilege must yield in a proper case, namely, where public policy requires disclosure, e.g., disclosure of the communication to a third-party, communication made in furtherance of criminal activity. Id. at 69; see Barker & Alexander, Evidence in New York State and Federal Courts (2d ed.) §§5:9-5:10.

With respect to “attorney work product,” this provision only encompasses information and material derived from an attorney's professional skills and judgment, such as those reflecting an attorney's legal research, analysis, conclusory legal theory or strategy. See Central Buffalo Project v. Rainbow Salads, 140 A.D.2d 943, 945 (4th Dept. 1988); see also CPLR 3101(d)(2) (second sentence). It applies to materials prepared by an attorney, acting as an attorney, as well as by experts retained as consultants to assist in analyzing the case “as an adjunct to the lawyer's strategic thought processes.” See NYAHSA Services v. People Care, 155 A.D.3d 1208, 1211 (3d Dept. 2017).

However, as the Court of Appeals cautioned in People v. Edney, 39 N.Y.2d 620, 625 (1976), this provision “affords protection only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may thus be subject to trial exclusion.” When the subject material qualifies as attorney work product, the protection against disclosure under this provision is “absolute and unqualified.” See Kenford v. Cty. of Erie, 55 A.D.2d 466, 469 (4th Dept. 1977).

The “trial preparation materials” category encompasses any material prepared exclusively in anticipation of litigation or for trial by a party or the party's representative, including an attorney, consultant, agent or others which do not qualify as attorney work product. See Beach v. Touradji Cap. Mgt., LP, 99 A.D.3d 167, 171-72 (1st Dept. 2012). Thus, multipurpose reports are not protectable. See Madison Mut. Ins. Co. v. Expert Chimney Servs., 103 A.D.3d 995, 996 (3d Dept. 2013). Examples of protected materials include witness statements, investigative reports, and photographs. However, the protection granted is not absolute, as the provision requires the otherwise protected materials to be disclosed if the party seeking disclosure established a substantial need for the materials and the inability to obtain equivalent materials without undue hardship. See Siegel, supra §346 at 640.

'Markel' Analysis

What CPLR 3101 protective category did the IME observer's notes fall within, in any? Justice Gische started out her analysis by noting that plaintiff as the party resisting disclosure has the burden of establishing that the notes were covered by one of the three protective categories. Markel, 171 A.D.3d at 31.

CPLR 3101(b) and (c) were quickly eliminated. The notes could not be protected by the attorney-client privilege as they could not be viewed as a confidential communication. This was because they were not used to communicate with plaintiff herself or convey legal advice to her, necessary elements to establish the existence of the privilege. Id. at 31. Nor could the notes be viewed as attorney work product since the notes did not contain impressions, directions, observations etc., of counsel.

Gische then addressed plaintiff's final argument that the notes were nonetheless protected against disclosure as materials prepared for litigation. Initially, she concluded plaintiff had established prima facie that the notes qualified for protection under this protective category. Id. at 31-32. In this regard, consistent with the view that litigation materials can cover a broad range of information in any form, the notes, albeit of a peripheral matter, were litigation material.

Furthermore, the notes were not prepared by an attorney, the observer was an agent of the plaintiff's attorney. As to the “anticipation” element, it was obvious that the notes were made for litigation, e.g., the possible need for the observer to testify at trial as to what transpired at the IME, and especially since there was no other reason for their making. With this showing, disclosure could still be directed but only if defendant could establish a “substantial need” for the notes and why it was unable to obtain the “substantial equivalent' of the information contained in the notes by other means. The facts showed, however, that the defendant's access to its own IME doctor precluded defendant from making the requisite showing. Id. at 32. Accordingly, the protection accorded by the provision remained intact.

Gische's opinion made clear that disclosure of information sought by a discovery demand may turn upon whether the information is classified as attorney work product or materials prepared for litigation, with the former providing absolute protection against disclosure and the latter conditional protection. Although not an issue present in Markel, the protections may overlap with respect to the sought-after information, e.g., the information overall qualifies as materials prepared for litigation but portions may qualify as attorney work product. In such a situation, there will be a need for an in camera inspection of the information to determine what portion, if any, is subject to absolute protection as attorney work product. See Beach, 99 A.D.3d at 171-72.

'Markel' Takeaways

The immediate takeaway from Markel is that the attorney in reviewing a discovery demand must determine whether discovery can be precluded because the information sought is covered by the attorney-client privilege, constitutes attorney work product, or qualifies as trial litigation material. These categories encompass different types of information and offer different types of protection against disclosure. Information may be protected under one category but not another. The attorney must decide.

Another takeaway comes from Gische's statement that “[a]n important consideration in the court's analysis is plaintiff's representation that the IME observer will not be testifying at trial on plaintiff's affirmative case.” Markel, 171 A.D.3d at 32. What can be gleaned from this statement? Gische seems to be suggesting that if plaintiff were to call the IME observer on her direct case, but not as a rebuttal witness, the notes may have to be disclosed to defendant at that time. Is there evidentiary support for that suggestion?

Certainly, if the observer has her memory refreshed through her notes while testifying, the trial court can direct disclosure of the notes to defendant at that time as the refreshing use of the notes waives the trial litigation material protection. See Hutter, “Review of Privileged Documents in New York,” 38 Pace L. Rev. 437, 474-81 (2018). It is also arguable that the privilege is waived if the observer testifies she reviewed the notes prior to testifying in order to refresh her recollection. Id. at 485-87.

Even if the observer does not use the notes as a refreshing recollection tool, there is authority that indicates the trial court can nonetheless direct disclosure of the notes for use for purposes of cross-examination. See Bloodgood v. Lynch, 293 N.Y. 308, 314 (1944); Echtermacht v. Cohen, 24 A.D.2d 968 (1st Dept. 1965); see also Siegel, supra §387. Such exercise of such power seems proper since, as stated by then Judge Stanley Fuld in People v. Rosario: “[A] right sense of justice entitles the defense to examine a witness's prior statement, whether of not it varies from the testimony on the stand.” 9 N.Y.2d 286, 289 (1961). Such rationale is surely equally applicable in a civil action and to a witness's notes that reflect the substance of the witness's trial testimony.

While fairness supports waiver of the protection where the observer uses the notes to refresh recollection, it is debatable as to whether the same result should occur in the absence of any refreshing effort. A classic stay tuned situation.

Michael J. Hutter is a professor of law at Albany Law School and is special counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence. The Guide is accessible to the bench and bar at www.courts.state.ny.us/JUDGES/evidence.