Opinion
157153/2015
01-04-2019
Kevin SHEEHAN and Erin Sheehan, Plaintiffs v. 30 PARK PLACE RESIDENTIAL LLC, Tishman Construction Corporation of New York, 99 Church Street Investors, LLC, Silverstein Properties, Inc., and Silverstein Properties, New York, Defendants.
For Plaintiffs: Michael David Cassell Esq., 500 North Broadway, Jericho, NY 11753, Douglas J. Fanning Esq., 401 Franklin Avenue, Garden City, NY 11530 For Defendants: Joanne Blair Esq. and Allison A. Snyder Esq., Fabiani Cohen & Hall, LLP, 570 Lexington Avenue, New York, NY 10022
For Plaintiffs: Michael David Cassell Esq., 500 North Broadway, Jericho, NY 11753, Douglas J. Fanning Esq., 401 Franklin Avenue, Garden City, NY 11530
For Defendants: Joanne Blair Esq. and Allison A. Snyder Esq., Fabiani Cohen & Hall, LLP, 570 Lexington Avenue, New York, NY 10022
Lucy Billings, J.
Plaintiffs seek damages for injuries Kevin Sheehan sustained when he hit his head on an exposed pipe. He underwent two examinations by defendants' physicians and both times was accompanied by Shawn Jerrick, an employee of nonparty IME Watchdog Advocate. See Santana v. Johnson , 154 AD3d 452, 452 (1st Dep't 2017) ; Guerra v. McBearn , 127 AD3d 462, 462 (1st Dep't 2017). Defendants served a subpoena duces tecum on IME Watchdog Advocate June 12, 2018, for all records relating to Kevin Sheehan's physical examinations by defendants. Plaintiffs now move to quash defendants' subpoena, C.P.L.R. § 2304, and for a protective order against production of IME Watchdog Advocate's records from Sheehan's physical examinations, C.P.L.R. § 3103(a), because defendants seek attorney work product and materials prepared for litigation. C.P.L.R. § 3101(c) and (d)(2).
I. APPLICABLE PRIVILEGES AND PROTECTIONS
C.P.L.R. § 3101(b) - (d) establishes three categories of materials protected from disclosure: privileged material, attorney work product, and material prepared in anticipation of litigation. Forman v. Henkin , 30 NY3d 656, 661-62 (2018). The protection of privileged material and attorney work product from disclosure is absolute, C.P.L.R. § 3101(b) and (c), but materials prepared in anticipation of litigation are subject to disclosure upon a showing of substantial need for the disclosure and inability to obtain it by other means without undue hardship. C.P.L.R. § 3101(d)(2) ; Forman v. Henkin , 30 NY3d at 661-62. Plaintiffs, as proponents of protection, bear the burden to establish that the documents sought are covered by a protection. Forman v. Henkin , 30 NY3d at 661-62 ; Spectrum Sys. Intl. Corp. v. Chemical Bank , 78 NY2d 371, 377 (1991) ; Ambac Assur. Corp. v. DLJ Mtge. Capital, Inc. , 92 AD3d 451, 452 (1st Dep't 2012) ; 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co. , 62 AD3d 486, 487 (1st Dep't 2009).
Attorney work product derives from attorneys' professional skills and judgment; includes the attorneys' analysis of legal principles, their legal opinions, and their strategic decisions; and is narrowly construed. Spectrum Sys. Intl. Corp. v. Chemical Bank , 78 NY2d at 377 ; Venture v. Preferred Mut. Ins. Co. , 153 AD3d 1155, 1159 (1st Dep't 2017) ; Matter of New York City Asbestos Litig. , 109 AD3d 7, 12 (1st Dep't 2013) ; Fewer v. GFI Group Inc. , 78 AD3d 412, 413 (1st Dep't 2010). The work product protection prevents disclosure of factual information and observations only by an attorney , as they may be clothed with the attorney's mental impressions and personal beliefs. Beach v. Touradji Capital Mgt., LP , 99 AD3d 167, 170 (1st Dep't 2012) ; Netherby Ltd. v. G.V. Trademark Invs., Ltd. , 261 AD2d 161, 161 (1st Dep't 1999) ; Eisic Trading Corp. v. Somerset Marine, Inc. , 212 AD2d 451, 451 (1st Dep't 1995). The work product protection may extend to an attorney's information, impressions, or observations conveyed to experts retained as consultants to assist in analyzing or preparing plaintiffs' action. Beach v. Touradji Capital Mgt., LP , 99 AD3d at 170 ; Hudson Ins. Co. v. Oppenheim , 72 AD3d 489, 490 (1st Dep't 2010).
II. PLAINTIFFS' MOTION BASED ON ATTORNEY WORK PRODUCT
Plaintiffs do not claim that Jerrick is an attorney or was serving as plaintiffs' attorney during Kevin Sheehan's physical examinations. Although Jerrick was acting as an agent of plaintiffs' attorney, no attorney representing plaintiffs attended the examinations. Thus any records prepared of the examinations do not derive from an attorney's professional judgment or involve an attorney's strategic legal analysis and opinion and therefore are not protected by C.P.L.R. § 3101(c). Venture v. Preferred Mut. Ins. Co. , 153 AD3d at 1159 ; Beach v. Touradji Capital Mgt., LP , 99 AD3d at 170-71 ; Netherby Ltd. v. G.V. Trademark Invs., Ltd. , 261 AD2d at 161 ; Eisic Trading Corp. v. Somerset Marine, Inc. , 212 AD2d at 451.
Although the work product protection may extend to experts retained as consultants to assist in analyzing or preparing plaintiffs' action, plaintiffs do not claim that Jerrick or IME Watchdog Advocate was or will be retained as an expert. Plaintiffs admit that Jerrick was retained to observe what transpired at the examinations and relay this information to plaintiffs' attorneys. Aff. of Douglas J. Fanning ¶¶ 10, 24. Even if Jerrick or IME Watchdog Advocate was retained as an expert, the protection still is limited to the facts, observations, or impressions the attorney conveys to the expert. Beach v. Touradji Capital Mgt., LP , 99 AD3d at 170 ; Hudson Ins. Co. v. Oppenheim , 72 AD3d at 490. Plaintiffs do not claim that Jerrick's observations, notes, or reports from the examinations include any facts, observations, or impressions conveyed by plaintiffs' attorneys, nor would Jerrick's records likely include any such information, since no attorney for plaintiffs attended the examinations. For these reasons as well, the attorney work product protection does not apply. Beach v. Touradji Capital Mgt., LP , 99 AD3d at 170 ; Hudson Ins. Co. v. Oppenheim , 72 AD3d at 490.
III. PLAINTIFFS' MOTION BASED ON MATERIAL PREPARED FOR LITIGATION
Jerrick's records, notes, and reports from the physical examinations are protected, however, as materials prepared for this litigation and in anticipation of the trial. C.P.L.R. § 3101(d)(2)'s very terms protect materials prepared in anticipation of trial for the party by the party's agent. Plaintiffs' attorney retained IME Watchdog Advocate to accompany Kevin Sheehan to the physical examinations, observe the examinations, take notes of what transpired, and prepare reports for plaintiffs' attorney to assist in the prosecution of plaintiffs' action. These records, notes, and reports from the examinations thus fall under C.P.L.R. § 3101(d)(2)'s protection. Beach v. Touradji Capital Mgt., LP , 99 AD3d at 170 ; MBIA Ins. Corp. v. Countrywide Home Loans, Inc. , 93 AD3d 574, 574 (1st Dep't 2012).
Nevertheless, C.P.L.R. § 3101(d)(2)'s protection is not absolute. Section 3101(d)(2) requires plaintiffs to disclose these records, notes, and reports if defendants show a substantial need for the materials and an inability to obtain equivalent materials without undue hardship. Forman v. Henkin , 30 NY3d at 661-62 ; Beach v. Touradji Capital Mgt., LP , 99 AD3d at 171 ; Drizin v. Sprint Corp. , 3 AD3d 388, 390 (1st Dep't 2004). Defendants' request for disclosure from a nonparty, however, does not require any showing of other "special circumstances." Kapon v. Koch , 23 NY3d 32, 36 (2014).
Defendants maintain that they need Jerrick's records, notes, and reports from the physical examinations to prepare adequately for Jerrick's potential testimony at trial, which may attempt to impeach defendants' expert witnesses who conducted the examinations. Plaintiffs admit that they may call Jerrick to testify at trial to rebut any inaccurate testimony from defendants' examining physicians. Fanning Aff. ¶ 24. Jerrick's records, notes, and reports may allow defendants to impeach Jerrick's rebuttal testimony if plaintiffs attempt to impeach defendants' examining physicians with his testimony, thus demonstrating defendants' substantial need to review his records, notes, and reports in advance of the trial. Beach v. Touradji Capital Mgt., LP , 99 AD3d at 171 ; Drizin v. Sprint Corp. , 3 AD3d at 390 ; Sands v. News Am. Publ. , 161 AD2d 30, 39 (1st Dep't 1990).
Defendants also establish their inability to obtain the substantial equivalent of Jerrick's records, notes, and reports, as only Jerrick and IME Watchdog Advocate are in possession of these materials or anything equivalent. Although plaintiffs maintain that defendants may gain insight into Jerrick's materials from the examining physicians' own records or notes, they are not a substantial equivalent. They do not represent Jerrick's observations during the examinations and thus would not reveal any potential inconsistencies between his observations during the examinations and his testimony at trial. Defendants therefore establish both their substantial need for the materials and their inability to obtain a substantial equivalent of the materials by any other means, entitling defendants to production of Jerrick's records, notes, and reports. Beach v. Touradji Capital Mgt., LP , 99 AD3d at 171 ; Drizin v. Sprint Corp. , 3 AD3d at 390 ; Sands v. News Am. Publ. , 161 AD2d at 39.
IV. CONCLUSION
For all the reasons explained above, the court denies plaintiffs' motion to quash and for a protective order against defendants' subpoena duces tecum served on IME Watchdog Advocate. C.P.L.R. §§ 2304, 3103(a).