Commercial Division Blog

Posted: December 29, 2019 / Categories Commercial, Privilege/Work Product

Documents Prepared for Uses Other Than Litigation Cannot be Withheld for Production Even if They Also Were Prepared in Anticipation of Litigation

On December 20, 2019, the Fourth Department issued a decision in John Mezzalingua Assoc., LLC v. Travelers Indem. Co., 2019 NY Slip Op. 09157, holding that documents prepared for uses other than litigation cannot be withheld from production even though they also were prepared for litigation, explaining:

CPLR 3101 establishes three categories of protected materials: privileged matter, absolutely immune from discovery; attorney's work product, also absolutely immune; and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship. The burden of establishing a right to protection under these provisions is with the party asserting it— the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity. A court is not required to accept a party's characterization of material as privileged or confidential. Ultimately, resolution of the issue whether a particular document is protected is necessarily a fact-specific determination, most often requiring in camera review.

Here, plaintiff failed to meet its burden of establishing the applicability of any of the categories of protected materials. With respect to those documents that plaintiff contends were not discoverable because they were material prepared in anticipation of litigation, to fall within the conditional privilege of CPLR 3101, the material sought must be prepared soley in anticipation of litigation. Mixed purpose reports are not exempt from disclosure under CPLR 3101. The materials here that were prepared by third parties were mixed purpose reports, and plaintiff failed to establish that they were prepared solely in anticipation of litigation. Because plaintiff did not establish that the requested material was protected by the qualified immunity privilege set forth in CPLR 3101 (d) for material prepared exclusively in anticipation of litigation, the burden did not shift to Campany and the Travelers defendants to establish that they had substantial need for the material and could not obtain it without undue hardship. We therefore modify the order by denying that part of plaintiff's motion seeking a protective order with respect to those documents created on or after October 24, 2016 that plaintiff alleged were not discoverable on the basis of only CPLR 3101(d)(2). Under the circumstances of this case, we further modify the order by granting the motions of Campany and the Travelers defendants insofar as they sought in camera review of those documents, and we remit the matter to Supreme Court for an in camera review and for the redaction of any opinions contained in those documents.

(Internal quotations and citations omitted) (emphasis added).

An issue that arises in almost all complex commercial litigation is identifying evidence that should be withheld from production in evidence because it is subject to the attorney-client or other privilege. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding the attorney-client, common interest, work product or other privileges or exemptions from production of evidence.