N.Y. C.P.L.R. § 3101

Section 3101(d)(2) protects reports prepared in anticipation of litigation from disclosure when depositions can provide their substantial equivalent.

Loose v. Penfield Volunteer Emergency Ambulance Service, Inc. · filed 1995-12-22(d)(2)

Those reports were materials prepared in anticipation of litigation, and thus were protected from disclosure under CPLR 3101 (d) (2). The record does not support plaintiffs contention that depositions of the employees who prepared the reports would not provide plaintiff with the substantial equivalent of the information contained in them.

The party resisting disclosure bears the burden of showing that the requested materials were prepared solely for litigation; an unsupported assertion does not meet that burden.

Martino v. Kalbacher · filed 1996-03-07(d)(2)

Initially, the party resisting disclosure has the burden of showing that the materials sought were prepared solely for litigation (see, Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689, 690; Graf v Aldrich, 94 AD2d 823, 824).

Section 3101(d)(2) requires a party opposing disclosure to show that the materials were prepared exclusively for litigation; a conclusory attorney affirmation does not meet that burden.

Agovino v. Taco Bell 5083 · filed 1996-03-11(d)(2)

This affirmation, without more, is insufficient to sustain the appellants’ burden of demonstrating that the interviews and the reports were prepared exclusively for litigation (see, Koump v Smith, 25 NY2d 287; Merrick v Niagara Mohawk Power Corp., 144 AD2d 878). Therefore, the material was not exempt from disclosure (see, CPLR 3101 [d] [2]).

Section 3101(d)(2) does not apply to a report used both to evaluate an insurance claim and to aid anticipated litigation, so disclosure does not require a showing of undue hardship.

Commerce & Industry Insurance v. S.H. Laufer Vision World, Inc. · filed 1996-03-05(d)(2)

Since the report was not prepared solely for litigation, CPLR 3101 (d) (2) does not apply and plaintiffs were under no obligation to justify disclosure of the report with a showing of undue hardship.

Materials prepared for or in anticipation of litigation are discoverable when the requesting party shows substantial need and cannot obtain their substantial equivalent without undue hardship.

Massachusetts Bay Insurancev. Stamm · filed 1996-06-20(d)(2)

Materials prepared for or in anticipation of litigation are discoverable upon a showing that there is a substantial need for the materials and the party seeking discovery is unable without undue hardship to obtain the substantial equivalent of the materials by other means (CPLR 3101 [d] [2]). Appellant has failed to sustain this burden.

Section 3101(d) conditionally shields an A-4 report and its underlying appraisal prepared for litigation from disclosure, but that immunity can be lost if the State adopts the appraisal in dealings with a third party.

Schad v. State · filed 1997-06-09(d)

As a general rule, documents such as the A-4 report and the underlying appraisal enjoy the conditional immunity from disclosure which is conferred on material prepared for litigation by CPLR 3101 (d) (see, First Natl. City Bank v State of New York, 72 AD2d 762; Matter of Town of Oyster Bay [Bruce], 54 AD2d 762). However, such material loses its immunity under circumstances where "the State has adopted the appraisal in question by using it in dealing with some third party in such a way that it can be said to have vouched for its authenticity” (Erie Lackawanna Ry. Co. v State of New York, 54 AD2d 1089; First Natl. City Bank v State of New York, supra; Backer v State of New York, 60 AD2d 996).

Photographs taken in anticipation of litigation are subject to disclosure when the accident scene cannot be duplicated and the requesting party shows substantial need.

Flowers v. Lyell Metal Co. · filed 1997-11-19(d)(2)

Although those photographs were taken in anticipation of litigation, they are subject to disclosure because the accident scene cannot be duplicated ... and plaintiff has demonstrated substantial need for the photographs (see, CPLR 3101 [d] [2]).

Section 3101(d)(2) protects an insurer’s investigation file and related expert reports from disclosure when the requesting party fails to show that nondisclosure would cause injustice or undue hardship.

Rogers v. Sears, Roebuck & Co. · filed 1998-03-05(d)(2)

Moreover, upon our review of the record, we find that movant Worthington Cylinders has failed to show that nondisclosure of the requested information would result in some injustice or undue hardship (CPLR 3101 [d] [2]).

A conclusory attorney affirmation that materials were prepared in anticipation of litigation does not satisfy the responding party’s burden to establish protection from disclosure.

Santana v. Seagrave Fire Apparatus, Inc. · filed 1998-03-09(d)(2)

However, the conclusory assertion contained in the affirmation of the respondents’ attorney to this effect was insufficient to satisfy the respondents’ burden of proving that such materials are privileged (see, Agovino v Taco Bell 5083, 225 AD2d 569, 571).

Section 3101(d)(2) permits disclosure of material prepared in contemplation of litigation when a party shows substantial need and cannot otherwise obtain the material or its equivalent.

Dempski v. State Farm Mutual Automobile Insurance · filed 1998-04-29(d)(2)

The court erred, however, in denying that part of plaintiffs’ motion for an in camera inspection of the adjuster’s notes, beginning with the filing of the claim until the signing of the release, and we modify the order by granting that part of plaintiffs’ motion. Although the adjuster’s notes were unquestionably prepared in contemplation of litigation, plaintiffs have demonstrated their substantial need for the notes in preparation of their case and that the notes or their equivalent are not otherwise obtainable by them (see, CPLR 3101 [d] [2]; DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 196; Mardiros v Ghaly, 206 AD2d 413, 414).

Section 3101(d) conditionally protects an A-4 Report and its underlying appraisal as material prepared for litigation; the protection is lost if the State adopts the appraisal by using it with a third party in a way that vouches for its authenticity.

815 Associates, Inc. v. State · filed 1998-06-22(d)

As a general rule, documents such as the A-4 Report and the underlying appraisal enjoy the conditional immunity from disclosure which is conferred on material prepared for litigation by CPLR 3101 (d) (see, First Natl. City Bank v State of New York, 72 AD2d 762; Matter of Town of Oyster Bay [Bruce], 54 AD2d 762).

Section 3101(d)(2) requires a showing of substantial need and inability to obtain equivalent materials without undue hardship.

Simpson v. K-Mart Corp. · filed 1997-12-31(d)(2)

Because defendant never made a showing that it was in “substantial need of the [exemplar cords in plaintiffs possession] * * * and [was] unable without undue hardship to obtain the substantial equivalent of the[se] materials by other means” (CPLR 3101 [d] [2]), its claim of prejudice in permitting plaintiffs expert to testify about his pretrial testing is unpersuasive.

Section 3101(d)(2) does not protect materials from a prior administrative proceeding when they were not prepared in anticipation of the civil action.

Marten v. Eden Park Health Services, Inc. · filed 1998-11-19(d)(2)

We also conclude that the materials sought from the prior administrative proceedings, which involved an inquiry into plaintiffs conduct in relation to the deceased patient, were not prepared in anticipation of the instant litigation and, thus, are not protected under the privilege asserted by plaintiff based on CPLR 3101 (d) (2) (see, Bennett v Troy Record Co., 25 AD2d 799, 799-800; see also, CPLR 3101 [d] [2]).

Section 3101(d)(2) conditionally protects witness statements made in anticipation of litigation; disclosure requires a showing of undue hardship.

Hannold v. First Baptist Church · filed 1998-10-02(d)(2)

Although made before commencement of the litigation, those statements were made in anticipation of the litigation and thus are conditionally privileged ... Plaintiff failed to establish that he would suffer undue hardship if his motion for disclosure were denied ... Thus, plaintiffs motion for discovery of those statements is denied.

Section 3101(d)(2) shields materials prepared in anticipation of litigation from disclosure.

Aetna Casualty & Surety Co. v. Certain Underwriters at Lloyd's · filed 1999-07-01(d)(2)

Finally the subject materials were properly found not to be shielded from disclosure under CPLR 3101 (d) (2) since they were not prepared in anticipation of litigation.

Section 3101(d)(2) protects spreadsheets prepared by accountants hired by a party’s attorneys in anticipation of litigation from disclosure.

Carrafiello v. Massachusetts Mutual Life Insurance · filed 1999-11-23(d)(2)

Disclosure of the two spreadsheets appellant seeks was properly denied, after an in camera inspection, on the ground that they were prepared by accountants hired by plaintiff’s former attorneys in anticipation of litigation (CPLR 3101 [d] [2]; see, Stevenson Corp. v Dormitory Auth., 112 AD2d 113, 119).

Section 3101(d)(2) permits disclosure of material prepared in anticipation of litigation only when the requester shows that its substantial equivalent cannot be obtained by other means without undue hardship.

Davila v. Environmental Products & Services, Inc. · filed 2000-03-06(d)(2)

In addition, the appellants failed to demonstrate that the substantial equivalent of the material sought cannot be obtained by other means without undue hardship (see, CPLR 3101 [d] [2]; Recant v Harwood, supra; Volpicelli v Westchester County, supra).

Section 3101(d) conditionally shields an appraisal prepared for litigation from disclosure; its possible later use to impeach an expert does not require disclosure before trial.

CMRC Corp. v. State · filed 2000-03-07(d)

To the extent that the report might become relevant and discoverable for the purpose of impeaching the State’s appraisal expert at trial, disclosure at this juncture is premature.

Section 3101(b) and (d)(2) protect qualifying privileged or litigation-prepared materials from discovery, but permit disclosure of documents that do not qualify for either protection.

Niagara Frontier Transportation Authority v. Buffalo Sewer Authority · filed 2000-05-10

Supreme Court erred in denying in its entirety the motion of Buffalo Sewer Authority (defendant) to compel discovery of documents alleged by plaintiff to be material prepared for litigation (see, CPLR 3101 [d] [2]) or protected by the attorney-client privilege (see, CPLR 3101 [b]; Rossi v Blue Cross & Blue Shield, 73 NY2d 588, 591-593).

Section 3101(d)(2) permits a court to deny disclosure of notes made in anticipation of litigation when their substantial equivalent is available through depositions.

Nyhlen v. Hospitals · filed 2000-09-29(d)(2)

Supreme Court did not abuse its discretion in denying plaintiffs motion to compel discovery of the notes after an in camera review of the notes and a review of defendant’s deposition testimony. ... Implicit in the court’s decision is the determination that the notes were made in anticipation of litigation, and the court expressly determined that the “substantial equivalent” of the notes would be available through the depositions of defendants (CPLR 3101 [d] [2]).

CPLR 3101(d)(2) protects an eyewitness statement prepared for litigation unless the party seeking it shows substantial need and cannot obtain its substantial equivalent without undue hardship.

Rojas v. New York City Transit Authority · filed 2000-10-23(d)(2)

Since the plaintiff failed to demonstrate that the “substantial equivalent” of this statement could not “be obtained by other means without undue hardship” (Davila v Environmental Prods. & Servs., 270 AD2d 224), it need not be disclosed.

Section 3101(d)(2) permits disclosure of material prepared for litigation when a party has substantial need of it and cannot obtain its substantial equivalent.

Rochford v. Long Island Railroad · filed 2000-06-12(d)(2)

Accordingly, the statement should be disclosed pursuant to the provision of CPLR 3101 (d) (2), which permits disclosure of material prepared for litigation where the plaintiff has substantial need of it and is unable to obtain its substantial equivalent (see, CMRC Corp. v State of New York, 270 AD2d 27; Matter of Hicksville Props. v Board of Assessors, 116 AD2d 717).

Section 3101(d)(2) does not protect a study primarily aimed at improving vehicle safety and design when there is no evidence it was made to assist in defending litigation.

Kellner v. General Motors Corp. · filed 2000-06-26(d)(2)

Contrary to the appellant’s contention, the Supreme Court’s determination that the subject documents were not protected from disclosure by the attorney-client privilege, as attorney work product, or as material prepared for litigation (see, CPLR 3101 [b], [c], [d] [2]; 4503) was a provident exercise of discretion. ... Despite the fact that the appellant labelled the documents a “Litigation Study”, the primary impetus for and predominant purpose of the study was to improve the safety and design of the seating components in its vehicles. Moreover, there is no evidence that the study was generated to assist the legal staff in the defense of any pending or future litigation.

A party seeking witness statements prepared in anticipation of litigation must show that it cannot obtain their substantial equivalent without undue hardship; extensive witness testimony can supply that equivalent.

Salzer v. Farm Family Life Insurance · filed 2001-02-08(d)(2)

Finally, we agree with Supreme Court that defendants failed to demonstrate that they cannot obtain the substantial equivalent of the witness statements without undue hardship. Both Forquer and Denue were examined and cross-examined at length regarding their respective accounts of the underlying accident, the circumstances surrounding the preparation of their written statements and the contents thereof. Under such circumstances, we cannot say that defendants failed to obtain through such testimony the substantial equivalent of the material contained in the witness statements.

Section 3101(d)(2) does not shield fire investigation files when the party resisting disclosure fails to show they were prepared solely for litigation.

Flex-O-Vit USA, Inc. v. Niagara Mohawk Power Corp. · filed 2001-03-21(d)(2)

Those documents are discoverable pursuant to CPLR 3101 (a) (1), and plaintiff failed to establish that they were prepared solely for the purpose of litigation and thus immune from disclosure under the qualified privilege afforded by CPLR 3101 (d) (2) (see, Carden v Allstate Ins. Co., 105 AD2d 1048; Zampatori v United Parcel Serv., 94 AD2d 974, 975; Hawley v Travelers Indem. Co., 90 AD2d 684).

Section 3101(d)(2) permits disclosure of a nonparty witness’s litigation statement when it materially conflicts with the witness’s deposition testimony and the plaintiff cannot obtain its substantial equivalent without undue hardship.

Yasnogordsky v. City of New York · filed 2001-03-19(d)(2)

However, where the statement of a nonparty-witness is inconsistent in a material respect with his or her testimony at a deposition, the statement should be disclosed pursuant to that provision of CPLR 3101 (d) (2) which permits the disclosure of material prepared for litigation where the plaintiff has substantial need of it and is unable to obtain its substantial equivalent without undue hardship (see, Rochford v Long Is. R. R. Co., 273 AD2d 291).

Section 3101(d)(2) protects material prepared for litigation from disclosure unless the requesting party shows substantial need and cannot obtain its substantial equivalent without undue hardship.

DeGourney v. Mulzac · filed 2001-10-29(d)(2)

This statement is immune from disclosure pursuant to CPLR 3101 (d) (2) since it constitutes material prepared for litigation (see, Yasnogordsky v City of New York, 281 AD2d 541; Kane v Her-Pet Refrig., 181 AD2d 257, 262; Zellman v Metropolitan Transp. Auth., 40 AD2d 248), and the appellant failed to demonstrate that she had a substantial need of it and was unable to obtain its substantial equivalent without undue hardship (see, CPLR 3101 [d] [2]).

Section 3101(d)(2) protects materials prepared in anticipation of litigation unless the party seeking disclosure shows substantial need and cannot obtain their substantial equivalent without undue hardship.

Heimanson v. Farkas · filed 2002-03-11(d)(2)

The materials were prepared in anticipation of litigation and Varriale and DiMaio failed to establish that they had a substantial need of the materials in the preparation of their case and could not, without undue hardship, obtain the substantial equivalent of the materials by other means (see, CPLR 3101 [d] [2]).

A party resisting disclosure of reports under section 3101(d)(2) must provide specific facts showing they were prepared solely for litigation; conclusory assertions do not suffice.

Claverack Cooperative Insurance v. Nielsen · filed 2002-07-25(d)(2)

Notably, self-serving statements that the party seeking to avoid disclosure is not in the business of filing insurance reports and that all reports prepared were in anticipation of litigation are insufficient to establish that the material qualifies for the privilege of CPLR 3101 (d) (2) (see, James v Metro N. Commuter R.R., supra at 268; Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645).

Expert files prepared for litigation are exempt from disclosure unless the requesting party shows substantial need and undue hardship or special circumstances requiring production.

Martinez v. KSM Holding Ltd. · filed 2002-05-02(d)(2)

There being no support for defendants’ assertion that the files were prepared for purposes other than litigation, the files are exempt from disclosure under CPLR 3101 (d) (2), unless defendants can show that they have a “substantial need” for the files and cannot obtain the substantial equivalent thereof by other means without “undue hardship,” or that “special circumstances” exist within the meaning of CPLR 3101 (d) (1) (iii) necessitating production of the files. No such showings are made.

Section 3101(d)(2) protects an attorney’s or party representative’s mental impressions, conclusions, opinions, and legal theories concerning litigation from discovery.

Stenovich v. Wachtell, Lipton, Rosen & Katz · filed 2003-01-02(d)(2)

However, complying with the statutory mandate of CPLR 3101 (d) (2), that this court protect the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation, this court finds that documents labeled 19, 24, 37, 38, 42, 45, 73, 171, 212, 213, 252, 253, 261, 298 and 312 are immune from discovery.

Section 3101(d)(2) conditionally protects materials prepared in anticipation of litigation; disclosure requires a showing of substantial need and inability to obtain their substantial equivalent by other means.

Kephart v. Burke · filed 2003-06-13(d)(2)

With respect to Dr. Leone, his report constitutes material prepared in anticipation of litigation and is therefore conditionally privileged (see CPLR 3101 [d] [2]; Renucci v Mercy Hosp., 124 AD2d 796, 797 [1986]). Plaintiff failed to show that she has a substantial need for that report or that she could not obtain the substantial equivalent of that report by other means (see Santariga v McCann, 161 AD2d 320, 322 [1990]; see also Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946 [1998], lv denied 92 NY2d 817 [1998]; Massachusetts Bay Ins. Co. v Stamm, 228 AD2d 321, 322 [1996]).

Section 3101(d)(2) permits disclosure of factual materials gathered by opposing experts when the requesting party cannot obtain the same information without undue hardship, even if the materials were prepared exclusively for litigation.

Russell v. City of Buffalo · filed 2004-02-11(d)(2)

However, where, as here, plaintiff demonstrated that she could not obtain the same information without undue hardship or by any other means because she did not have the power to shut down Route 33 to investigate the accident, the court erred in denying plaintiff access to the materials sought, regardless of whether those materials were prepared exclusively in anticipation of litigation (see CPLR 3101 [d] [2]).

Section 3101(d)(2) permits disclosure of litigation materials when a party has substantial need for them and cannot obtain their substantial equivalent without undue hardship.

Drizin v. Sprint Corp. · filed 2004-01-15(d)(2)

Even if the privilege had not been waived, defendants would still be entitled to the materials sought from plaintiff’s investigator, because they “ha[ve] substantial need of [them] in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the materials by other means” (CPLR 3101 [d] [2]).

Section 3101(d)(2) protects material prepared by non-attorneys from discovery only when it was prepared exclusively and specifically in response to imminent litigation.

Calabro v. Stone · filed 2004-10-07(d)(2)

Like the federal work-product rule, under New York law, "material prepared by non-attorneys in anticipation of litigation, such as accident reports, is immune from discovery only where the material is prepared exclusively and in specific response to imminent litigation.”

Section 3101(d) protects material prepared exclusively in anticipation of litigation from discovery and places the burden on the party asserting the privilege.

Bombard v. Amica Mutual Insurance · filed 2004-10-25(d)

The party asserting the privilege provided by CPLR 3101 (d) bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294 [1969]) by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645 [1989]; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]).

Section 3101(d)(2) protects materials prepared solely in anticipation of litigation, while section 3101(g) covers materials made in the regular course of business.

Friend v. SDTC-The Center for Discovery, Inc. · filed 2004-12-16(d)(2), (g)

Generally, “the party resisting disclosure has the burden of showing that the materials sought were prepared solely for litigation” (Martino v Kalbacher, 225 AD2d 862, 863 [1996]), “and this burden cannot be satisfied with wholly conclusory allegations” (Claverack Coop. Ins. Co. v Nielsen, 296 AD2d 789, 789 [2002]; see Martino v Kalbacher, supra at 863). ... Therefore, reporting to Burbage was not an unexpected or unusual occurrence and may be considered part of SDTC’s regular course of business operations (see CPLR 3101 [g]). Under the circumstances, “[i]t is not unreasonable to conclude that the report was ‘multimotived’, thereby not warranting immunity” (Vandenburgh v Columbia Mem. Hosp., 91 AD2d 710, 711 [1982]).

Section 3101(d) places the burden on the party asserting immunity to show that material was prepared solely in anticipation of litigation.

Pepsico, Inc. v. Winterthur International America Insurance · filed 2004-12-27(d)

“The burden of showing that specific material is conditionally immune from discovery under CPLR 3101 (d) because it was prepared solely in anticipation of litigation, is upon the party asserting the immunity” (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 99 [1986]).

Section 3101(d)(2) requires disclosure of litigation material when the requesting party has substantial need and cannot obtain its substantial equivalent by other means.

Grange v. Sweet · filed 2004-06-28(d)(2), (i)

Secondly, even if the tape is considered material prepared for litigation, defendant is entitled to a copy since she has substantial need for the tape and cannot obtain its substantial equivalent by other means (CPLR 3101 [d] [2]). In addition, Dr. McHale, as defendant’s paid expert, could be considered an employee or agent of defendant, thus requiring disclosure of the audiotape pursuant to CPLR 3101 (i).

Section 3101(d)(2) permits disclosure of work product materials when the requesting party has substantial need and cannot obtain their substantial equivalent without undue hardship.

Royal Indem. Co. v. Salomon Smith Barney, Inc. · filed 2004-06-29(d)(2)

Plaintiffs also have a substantial need for the withheld "assessment" materials, since the allegedly "privileged" "work product" records relate to central issues in the case such as late notice and settlement-fund-allocation, as well as the reasonableness of the settlements. Moreover, plaintiffs cannot obtain the substantial equivalent of these materials without undue hardship. See Lamitie v. Emerson Electric Co. , supra at 1083; CPLR 3101(d)(2).

Section 3101(d)(2) does not protect material that is not privileged; any privilege may also be waived through lack of due diligence.

Koramblyum v. Medvedovsky · filed 2005-06-27(d)(2)

The material sought to be excluded by a protective order was not privileged under CPLR 3101 (d) (2) (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; Agovino v Taco Bell 5083, 225 AD2d 569, 571 [1996]). Moreover, assuming that such a privilege existed, it was waived by the defendants’ lack of due diligence (see AFA Protective Sys., Inc. v City of New York, 13 AD3d 564, 565 [2004]; Bras v Atlas Constr. Corp., 153 AD2d 914, 915 [1989]; cf. Buxton v Ruden, 12 AD3d 475 [2004]).

Section 3101(d)(2) permits disclosure of material prepared for litigation when the requesting party has a substantial need for it and cannot obtain its equivalent without undue hardship.

Goldberg v. Hirschberg · filed 2005-08-26(d)(2)

CPLR 3101 (d) (2) provides that material prepared in anticipation of litigation or for trial may be discovered as long as the party requesting it has a “substantial need” for the material and is unable without “undue hardship” to obtain the equivalent of the material by other means. ... Moreover, defendants cannot obtain the information by any other means without “undue hardship.”

Section 3101(d)(2) protects material prepared in anticipation of litigation unless the party seeking it shows substantial need and an inability to obtain its substantial equivalent without undue hardship.

Foley v. West-Herr Ford, Inc. · filed 2006-09-22(d)(2)

The information sought is immune from disclosure because it constitutes material prepared in anticipation of litigation, and plaintiffs failed to demonstrate a substantial need for such information and that they were unable to obtain its substantial equivalent without undue hardship (see CPLR 3101 [d] [2]).

CPLR 3101 does not shield an e-mail from disclosure when it was neither prepared for litigation nor primarily a legal communication between attorney and client.

Kenney, Becker, LLP v. Kenney · filed 2006-11-16

After an in camera review, we find that the e-mail was not prepared for purposes of the litigation (CPLR 3101 [d] [2]), is not primarily a communication of a legal character between an attorney and client (CPLR 3101 [b]; see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377-378 [1991]), and is not otherwise immune from disclosure.

Section 3101(d)(2) permits discovery of explanations counsel gave a testifying expert to complete an expert report when the opposing party shows substantial need for grounds not otherwise provided in discovery.

Beller v. William Penn Life Insurance · filed 2007-01-26(d)(2)

The court also finds that Mr. Flynn has met his burden of showing an entitlement under CPLR 3101 (d) (2) to whatever “explanations” Ms. Dunn gave to Mr. White “in order for him to complete [his] expert report in that such grounds have not previously been provided in discovery.”

CPLR 3101(d) conditionally protects insurance disclaimer documents from discovery only if the party claiming protection proves they were prepared solely for litigation.

Rosario v. North General Hospital · filed 2007-05-10(d)

North General and Zikria were required to prove that the insurance disclaimer documentation constituted material prepared solely for litigation, in order for it to be conditionally immune from discovery pursuant to CPLR 3101 (d) (see Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689 [1993]).

A report prepared solely in anticipation of litigation need not be disclosed unless the requesting party shows substantial need and cannot obtain its substantial equivalent without undue hardship.

Daniels v. Armstrong · filed 2007-07-31(d)(2)

The plaintiff established that the report was prepared solely in anticipation of litigation (see CPLR 3101 [d] [2]; Kephart v Burke, 306 AD2d 924, 925 [2003]; Santariga v McCann, 161 AD2d 320, 322 [1990]). Further, the appellants failed to establish that they had a substantial need for the report in the preparation of their case and could not, without undue hardship, obtain the substantial equivalent of the report by other means (see CPLR 3101 [d] [2]; ...).

Section 3101(d)(2) requires a party opposing disclosure to show that a statement was prepared solely in anticipation of litigation; conclusory attorney assertions do not establish that protection.

Sigelakis v. Washington Group, LLC · filed 2007-12-18(d)(2)

The conclusory assertions contained in the affirmation of the appellant’s attorney failed to demonstrate that the statement was not prepared in the regular course of business, but was prepared solely in anticipation of litigation (see Meiliken v Hart, 261 AD2d 370 [1999]; Galyas v Giordano, 241 AD2d 539 [1997]; Agovino v Taco Bell 5083, 225 AD2d 569, 570 [1996]).

Section 3101(d)(2) allows disclosure of an investigation file when the requesting party cannot obtain its substantial equivalent by other means.

Polidori v. Groupe · filed 2007-04-24(d)(2)

Plaintiff shows that she cannot obtain the substantial equivalent of the investigation file by other means (CPLR 3101 [d] [2]).

Section 3101(d)(2) permits disclosure based on substantial need only for trial preparation materials.

American Re-Insurance Co. v. United States Fidelity · filed 2007-05-29(d)(2)

The only category of potential materials that is subject to disclosure based on substantial need is trial preparation materials (see CPLR 3101 [d] [2]; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]).

CPLR 3101(d)(2) exempts a consultant’s report prepared for counsel in anticipation of litigation from disclosure when it reflects counsel’s strategic thought processes.

Oakwood Realty Corp. v. HRH Construction Corp. · filed 2008-05-13(d)(2)

The report was “an adjunct to the lawyer’s strategic thought processes, thus qualifying for complete exemption from disclosure” under the attorney work-product doctrine as well as CPLR 3101 (d) (2) (Santariga v McCann, 161 AD2d 320 [1990]; see Delta Fin. Corp. v Morrison, 14 Misc 3d 428 [2006]).

Section 3101(d)(2) permits disclosure of trial preparation materials only when the requester shows substantial need and undue hardship in obtaining substantially equivalent materials by other means.

People v. Kozlowski · filed 2008-10-16(d)(2)

We cannot say that this conclusion represents an abuse of the trial court’s discretion. Defendants made no effort to show any “undue hardship” that would have prevented them from securing their own “substantially] equivalent” interviews with the director-witnesses (see CPLR 3101 [d] [2]).

CPLR 3101(d)(2) protects materials prepared solely for litigation; once that is shown, the party seeking disclosure must establish substantial need and undue hardship in obtaining the materials elsewhere.

Straus v. Ambinder · filed 2009-04-07(d)(2)

In any event, the plaintiff also established that the requested documents were protected as material prepared by the accountants for his attorneys in anticipation of litigation (see CPLR 3101 [d] [2]; Carrafiello v Massachusetts Mut. Life Ins. Co., 266 AD2d 117 [1999]). Where, as here, the party seeking to prevent disclosure makes the required showing that the documents were prepared solely for litigation, the burden shifts to the party seeking disclosure to establish that there is a substantial need for the materials and they cannot be obtained elsewhere without undue hardship (see Volpicelli v Westchester County, 102 AD2d 853 [1984]; Zimmerman v Nassau Hosp., 76 AD2d 921 [1980]).

Section 3101(d)(2) protects reports prepared in anticipation of litigation unless the party seeking them shows substantial need and cannot obtain their equivalent without undue hardship.

Lakes v. Lavelle School for the Blind · filed 2009-04-16(d)(2)

Defendant demonstrated that the reports sought by plaintiffs were prepared in anticipation of litigation (CPLR 3101 [d] [2]). Plaintiff failed to make the requisite showing that he 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” (id.).

Section 3101(a) does not require disclosure of documents shown to have been prepared in anticipation of litigation.

Tower Insurance v. Murello · filed 2009-12-15(a)

In this case, the plaintiff met its burden of demonstrating that the demanded documents were privileged “by virtue of being material prepared in anticipation of litigation” (Marten v Eden Park Health Servs., 250 AD2d 44, 47 [1998]; Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98 [1986]).

Section 3101(d)(2) limits disclosure of materials prepared in anticipation of litigation.

Roswell Park Cancer Institute Corp. v. Sodexo America, LLC · filed 2009-12-30(d)(2)

Finally, with respect to the two remaining documents challenged by plaintiff on appeal, i.e., document 19 in exhibit “A” and document 8 in exhibit “B,” we conclude that they were not subject to disclosure because they were prepared in anticipation of litigation (see CPLR 3101 [d] [2]).

Section 3101(d)(2) conditionally protects an insurer’s claim file prepared in anticipation of litigation, but permits disclosure upon a showing of substantial need and inability to obtain equivalent material without undue hardship.

Litvinov v. Hodson · filed 2010-06-18(d)(2)

Nevertheless, material prepared in anticipation of litigation may be subject to disclosure upon a showing of substantial need and the inability “without undue hardship to obtain the substantial equivalent” of the material from another source (CPLR 3101 [d] [2]) and, here, plaintiff made such a showing (see Dempski v State Farm Mut. Auto. Ins. Co., 249 AD2d 895, 896 [1998]).

Section 3101(d)(2) conditionally protects material prepared for litigation; disclosure may be required if the other party has substantial need and withholding it would cause undue hardship.

Fernekes v. Catskill Regional Medical Center · filed 2010-07-22(d)(2)

Yet the privilege attached to material prepared for litigation is conditional, with the possibility of a party being required to disclose it, even if the privilege is not waived, if the other party has substantial need of it and withholding the document would result in undue hardship (see CPLR 3101 [d] [2]).

Section 3101(d)(2) protects materials prepared for litigation unless the party seeking them shows substantial need and cannot obtain their substantial equivalent without undue hardship.

Giordano v. New Rochelle Municipal Housing Authority · filed 2011-05-03(d)(2)

The Supreme Court correctly determined that the information subpoenaed was not discoverable because it was privileged as material prepared for litigation, and the plaintiffs failed to demonstrate that they had a substantial need for the materials, or that they were unable, without undue hardship, to obtain the substantial equivalent of the materials by other means (see CPLR 3101 [d] [2]; see also Daniels v Armstrong, 42 AD3d 558, 558-559 [2007]; Martinez v KSM Holding, 294 AD2d 111 [2002]).

Section 3101(d)(2) protects witness statements taken by counsel for litigation unless the party seeking them shows substantial need and cannot obtain their substantial equivalent elsewhere without undue hardship.

Valencia v. Obayashi Corp. · filed 2011-05-03(d)(2)

With respect to certain portions of Alpers’ recorded conversations, the appellant failed to meet its burden of substantial need and inability to obtain the substantial equivalent elsewhere without undue hardship in order to overcome the qualified privilege.

Section 3101(d)(2) requires a party claiming protection for material prepared in anticipation of litigation to identify the particular material and establish with specificity that it was prepared exclusively for litigation.

Caruso v. Northeast Emergency Medical Associates, P.C. · filed 2011-06-30(d)(2)

The party claiming that privilege bears the burden of “identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” (Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004]; see Claverack Coop. Ins. Co. v Nielsen, 296 AD2d 789, 790 [2002]; see also CPLR 3101 [d] [2]). Here, defendant failed to identify any particular document that was privileged, and the affidavits of MLMIC employees only made conclusory statements that their work was prepared in anticipation of litigation.

Section 3101 does not require depositions about a party’s investigation in anticipation of litigation when the requesting party shows no undue hardship.

Wilson v. State · filed 2011-10-28

I decline to defer determination of this motion in order to allow for depositions of Mr. Uebelhoer or Mr. Peters, or to strike their affidavits for nondisclosure pursuant to CPLR 3101. ... I note that claimants have made no showing of undue hardship necessitating those depositions in the preparation of their case, and indeed, have sought disclosure solely in relation to investigative efforts by those two individuals as part of the defense, which constitutes material prepared in anticipation of the litigation itself.

Section 3101(d)(2) protects material prepared in anticipation of the litigation in which protection is invoked; material prepared for an earlier action is not protected in a later proceeding.

McCrory v. Village of Mamaroneck · filed 2011-10-27(d)(2)

So even assuming that the material which petitioner seeks would be entitled to protection under CPLR 3101 (d) (2) in the damages action, it is not entitled to such protection in the instant proceeding because it was not prepared in anticipation of the instant proceeding.

Section 3101(d)(2) protects materials prepared primarily in anticipation of litigation from disclosure.

MBIA Insurance v. Countrywide Home Loans, Inc. · filed 2012-03-27(d)(2)

Plaintiff met its burden of establishing that the documents concerning its remediation efforts were primarily prepared in anticipation of litigation and are, thus, privileged matter (see JP Foodservice Distribs. v Sorrento, Inc., 305 AD2d 266 [2003]; CPLR 3101 [d] [2]).

Section 3101(d)(2) permits discovery of material prepared for litigation when the requesting party has a substantial need for it and cannot obtain the information by other means.

Beach v. Touradji Capital Management, LP · filed 2012-08-21(d)(2)

The information in the reports as to how the search was conducted, what was found, what was deleted, when it was deleted, etc., is material prepared for litigation, and defendants have demonstrated a substantial need for the reports and are unable to obtain the information by any other means (CPLR 3101 [d] [2]; see Drizin v Sprint Corp., 3 AD3d 388, 390 [2004]).

Documents prepared in anticipation of litigation are protected from disclosure unless the requesting party shows substantial need and undue hardship.

Gama Aviation Inc. v. Sandton Capital Partners, L.P. · filed 2012-10-02(d)(2)

We find that Gama’s affidavit in opposition to defendants’ motion adequately explained that these documents were prepared in anticipation of litigation, and that defendants failed to show the “substantial need” and “undue hardship” required to overcome the privilege (see CPLR 3101 [d] [2]).

Section 3101(d)(2) protects materials prepared for litigation from disclosure unless the requesting party shows substantial need and an inability to obtain their equivalent.

Fields v. First Liberty Insurance · filed 2012-11-01(d)(2)

The court finds that the Certified Restoration estimate dated June 14, 2011, the SOS inventory dated October 17, 2011, and the PCI Services estimate dated November 2, 2011 were prepared after the defendant issued the denial letter. Thus these documents fall within the parameters of CPLR 3101 (d), material prepared for litigation, and are immune from disclosure unless the plaintiffs counsel can demonstrate a substantial need and the inability to duplicate the reports, which plaintiff has failed to do.

Section 3101(d)(2) places the initial burden on a party claiming immunity from disclosure to show that the materials were prepared solely and exclusively for litigation.

Madison Mutual Insurance v. Expert Chimney Services, Inc. · filed 2013-02-21(d)(2)

Significantly, CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action,” and the party claiming immunity from disclosure has the initial burden of showing that the materials being sought were prepared solely and exclusively for litigation purposes (see CPLR 3101 [d] [2]; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486, 487 [2009]; Martino v Kalbacher, 225 AD2d 862, 863 [1996]; Carden v Allstate Ins. Co., 105 AD2d 1048, 1049 [1984]).

Section 3101(d)(2) requires the party resisting disclosure to establish that the requested material was prepared solely in anticipation of litigation.

New York Schools Insurance Reciprocal v. Milburn Sales Co. · filed 2013-04-03(d)(2)

Here, the plaintiff failed to meet its burden of establishing that the requested material was prepared solely in anticipation of litigation and, thus, is protected from disclosure by the qualified immunity privilege of CPLR 3101 (d) (2).

Section 3101(d)(2) gives qualified immunity from discovery to statements obtained by a liability insurer solely in anticipation of litigation.

Kin Hwa Ku v. City of New York · filed 2013-05-01(d)(2)

Statements given to a liability insurer’s claims department which are solely “prepared in anticipation of litigation” are entitled to qualified immunity from discovery pursuant to CPLR 3101 (d) (2) (see Sigelakis v Washington Group, LLC, 46 AD3d 800 [2007]).

Section 3101(d)(2) permits discovery of materials prepared for trial when the requesting party has substantial need for them and cannot obtain their substantial equivalent without undue hardship.

Abdur-Rahman v. Pollari · filed 2013-06-06(d)(2)

As for the expert discovery sought by defendants, CPLR 3101 (d) (2) only permits the discovery of materials prepared in anticipation of trial “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.” ... Further, the court properly directed plaintiff to disclose to defendants written materials and recordings made in connection with the inspection (whether photographic, video, or other), since without them defendants will be at a palpable disadvantage and unable to determine whether any spoliation occurred.

Trial preparation materials may be disclosed when the requesting party has a substantial need for them and cannot obtain their substantial equivalent without undue hardship.

In re New York City Asbestos Litigation · filed 2013-06-06(d)(2)

The results of the published studies commissioned by GP are relevant, and it cannot be seriously disputed that plaintiffs have a substantial need for the underlying data in the preparation of their cases. ... A significant expenditure of time and money would be required to duplicate the studies, if they could be exactly duplicated at all, whereas scrutiny of the underlying data may provide a permissible manner in which to attack the findings that would be consistent with the intent of the CMO to minimize the cost of and streamline discovery.

Section 3101(d)(2) does not protect investigative materials prepared primarily for employee discipline and business judgment rather than litigation strategy.

Ford v. Rector · filed 2013-11-26(d)(2)

Thus, the court properly concluded that the primary purpose of investigating the source of the faxes was employee discipline, and that this task was related to business judgment, rather than any legal strategy related to the then pending SDHR complaint.

Section 3101(d)(2) protects materials prepared solely for anticipated litigation from disclosure unless the requesting party shows substantial need and undue hardship.

Donohue v. Fokas · filed 2013-12-11(d)(2)

“[s]ince the report was not prepared solely for litigation, CPLR 3101 (d) (2) does not apply and [the] plaintiff[ ] [was] under no obligation to justify disclosure of the report with a showing of undue hardship”

Section 3101(d)(2) allows disclosure of materials prepared for litigation when the requesting party shows substantial need and cannot obtain equivalent materials without undue hardship.

Lerner v. State · filed 2014-01-09(d)(2)

Materials prepared in anticipation of litigation enjoy conditional immunity and are subject to disclosure only upon a showing of substantial need of the materials to prepare for trial and the inability to obtain equivalent materials by other means without undue hardship (see CPLR 3101 [d] [2]).

Section 3101(d)(2) conditionally protects material prepared in anticipation of litigation from disclosure, subject to waiver when used to refresh a witness's recollection.

GUZEK, GREGORY G. v. B&L WHOLESALE SUPPLY, INC. · filed 2015-03-27(d)(2)

That statement, prepared in anticipation of litigation, was conditionally privileged (see CPLR 3101 [d] [2]; Johnson v Murphy, 121 AD3d 1589, 1590), and the record does not support plaintiffs’ contention that the statement was used to refresh the recollection of the nonparty witness at his deposition, thereby waiving the privilege (see Hannold v First Baptist Church, 254 AD2d 746, 747).

Section 3101(d)(2) protects materials prepared exclusively in anticipation of litigation from disclosure, but the party asserting the privilege must establish that purpose specifically.

Ligoure v. City of New York · filed 2015-05-27(d)(2)

An attorney’s affirmation containing conclusory assertions that requested materials are conditionally immune from disclosure pursuant to CPLR 3101 (d) (2) as material prepared in anticipation of litigation, without more, is insufficient to sustain a party’s burden of demonstrating that the materials were prepared exclusively for litigation (see Koump v Smith, 25 NY2d 287 [1969]; New York Schools Ins. Reciprocal v Milburn Sales Co., Inc., 105 AD3d at 718).

Section 3101(d) protects material prepared primarily for litigation from disclosure.

Grech v. HRC Corp. · filed 2015-06-10(d)

plaintiff cannot claim privilege pursuant to CPLR 3101 (d) (see Hoenig v Westphal, 52 NY2d 605, 609 [1981] [“Nor can plaintiffs now claim the exemption for material prepared for litigation, as the requests here on their face seek only reports of specified attending or treating doctors concerning medical history, diagnosis and treatment. Plaintiffs did not below and do not here support a claim that such reports are material prepared primarily, if not solely, for litigation”]).

Section 3101(d)(2) conditionally protects materials prepared solely for litigation; the party resisting disclosure must establish that protection with more than conclusory assertions.

Hewitt v. Palmer Veterinary Clinic, PC · filed 2016-12-29(d)(2)

As a result, the clinic failed to meet its initial burden of demonstrating that conditional immunity attached to any of the demanded documents (see Wheeler v Frank, 101 AD3d 1449, 1449 [2012]; Pinkans v Hulett, 156 AD2d 877, 878 [1989]; McKie v Taylor, 146 AD2d 921, 922 [1989]; Sack v North Am. Sys., 115 AD2d 721, 721 [1985]).

Section 3101(d)(2) places the burden on a party withholding materials to show they were prepared solely in anticipation of litigation.

MOSEY, ACEA v. COUNTY OF ERIE · filed 2017-03-24(d)(2)

Moreover, based upon our review of the documents and the fact that they were all generated long before any notice of claim or complaint was filed against the County, we conclude that the County “failed to carry its burden of demonstrating that the materials sought were prepared solely in anticipation of litigation” (Zampatori v United Parcel Serv., 94 AD2d 974, 975; see CPLR 3101 [d] [2]; Flex-O-Vit USA v Niagara Mohawk Power Corp., 281 AD2d 980, 981).

Section 3101(d)(2) permits disclosure of materials prepared in anticipation of litigation when the requesting party has substantial need for them and cannot obtain their substantial equivalent without undue hardship.

MARGERUM, EUGENE v. CITY OF BUFFALO · filed 2017-03-31(d)(2)

Moreover, materials covered by a “conditional privilege,” such as the privilege for materials prepared in anticipation of litigation (Matter of Grand Jury Proceedings [Doe], 56 NY2d 348, 354), may be disclosed but “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” (CPLR 3101 [d] [2]).

Section 3101(d)(2) conditionally protects trial preparation materials, but a party withholding documents must establish that the protection applies.

Mananghaya v. Bronx-Lebanon Hospital Center · filed 2017-02-10(d)(2)

But Aggreko has not met its burden of establishing the file’s entitlement to protection either by the attorney-client privilege or CPLR 3101 (d) (2)’s conditional privilege for trial preparation materials (see Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 624 [2016]; Ligoure v City of New York, 128 AD3d 1027, 1028-1029 [2d Dept 2015]). Aggreko has not indicated the nature of the documents withheld, the circumstances and timing of their preparation, or even the identity of the attorney allegedly involved in their preparation.

Section 3101(d)(2) conditionally protects material prepared for litigation, but permits disclosure when the requesting party shows substantial need and undue hardship.

Curci v. Foley · filed 2017-04-20(d)(2)

This conditional privilege may have to yield to disclosure where the other party demonstrates a substantial need for the material and withholding same would result in undue hardship (see CPLR 3101 [d] [2]). ... In our view, Stauffer’s affidavit, coupled with Gavin’s own characterization of the interview as part of the normal claims process, satisfied defendant’s threshold burden of proof (see Kin Hwa Ku v City of New York, 106 AD3d 698, 699 [2013]). There is no dispute that ownership of the log splitter is a key issue, but plaintiffs have other means available to explore this issue, and they have not demonstrated any undue hardship if the statement is withheld.

Section 3101(d)(2) gives statements prepared solely for litigation qualified protection from discovery; a necessary witness statement may be obtained through a proper pretrial demand.

Vrlaku v. Plaza Construction Corp. · filed 2017-08-22(d)(2)

Statements given to a liability insurer’s claims department which are solely prepared in anticipation of litigation are entitled to qualified immunity from discovery pursuant to CPLR 3101 (d) (2) (Kin Hwa Ku v City of New York, 106 AD3d 698 [2013]). ... It must be concluded that had the plaintiff made a proper demand during pretrial discovery, the digital recording of Col-bourne would have been discoverable. However, this apparently was never done. ... Therefore, defendant did not have to turn over the recording to the plaintiff when requested at trial.

Section 3101(d)(2) conditionally protects materials prepared exclusively in anticipation of litigation; the party claiming protection must establish that purpose with specificity.

Micro-Link, LLC v. Town of Amherst · filed 2017-11-17(d)(2)

With respect to the merits of the contention, plaintiff contends that the materials related to the forensic accountant and his firm are discoverable because they were not “prepared in anticipation of litigation” (CPLR 3101 [d] [2]), i.e., the forensic accountant was not hired “solely” or “exclusively” for litigation purposes. We reject that contention. ... We conclude that defendant met its burden of establishing that the forensic accountant and his firm were retained in anticipation of litigation.

Section 3101(d)(2) provides qualified protection for investigation materials prepared in anticipation of litigation.

Matter of Peerenboom v. Marvel Entertainment, LLC · filed 2018-04-05(d)(2)

Perlmutter also has demonstrated that certain documents concerning an investigation undertaken by Kroll Advisory Solutions are entitled to the qualified protection provided by CPLR 3101(d)(2) for materials prepared in anticipation of litigation.

Section 3101(d)(2)(a) protects materials prepared in anticipation of litigation, but permits disclosure when the requesting party has a substantial need and cannot obtain the substantial equivalent without undue hardship.

Wrubleski v. Mary Imogene Bassett Hosp. · filed 2018-07-12(d)(2)(a)

In any event, this privilege does not attach to the medication log inasmuch as it was not prepared in anticipation of the instant litigation ( see Marten v Eden Park Health Servs. , 250 AD2d 44, 47 [1998]), and the Bassett defendants have established "a substantial need [for] the [document] in the preparation of the case and [are] unable without undue hardship to obtain the substantial equivalent of the [document] by other means" (CPLR 3101 [d] [2] [a]).

Section 3101(d)(2) conditionally protects materials prepared for litigation and requires a showing of substantial need and undue hardship before disclosure.

Teran v. Ast · filed 2018-09-26(d)(2)

However, the court erred in finding that Ast met his burden of demonstrating that he had a "substantial need" for the materials in the carrier's file, and that he could not obtain their "substantial equivalent" by other means "without undue hardship" (CPLR 3101[d]; see Straus v Ambinder , 61 AD3d at 673; Davila v Environmental Prods. & Servs ., 270 AD2d at 224; Recant v Harwood , 222 AD2d 372, 373).

Section 3101(d)(2) requires the party withholding insurer claim materials to show they were prepared solely for litigation before the requesting party must demonstrate undue hardship.

Cascade Builders Corp. v. Rugar · filed 2017-10-19(d)(2)

Since Utica First failed to establish that the withheld documents were prepared solely in anticipation of litigation, the burden did not shift to plaintiff to demonstrate an undue hardship justifying disclosure of the pre-denial claim file (see CPLR 3101 [d] [2]; Donohue v Fokas, 112 AD3d at 667).

Section 3101(d)(2) requires a party withholding materials prepared in anticipation of litigation to establish the basis for protection with specificity before the requesting party must show substantial need and undue hardship.

People v. New York City Hous. Auth. · filed 2019-02-27(d)(2)

Since the defendant 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 the plaintiffs to establish that they had "substantial need" for the material and could not obtain it without "undue hardship" ( see New York Schools Ins. Reciprocal v Milburn Sales Co., Inc. , 105 AD3d at 718).

Section 3101(d)(2) protects materials prepared in anticipation of litigation unless the party seeking them shows substantial need and an inability to obtain their substantial equivalent without undue hardship.

1591 Second Ave. LLC v. Metropolitan Transp. Auth. · filed 2019-02-28(d)(2)

Supreme Court did not abuse its discretion in concluding that the requested materials were prepared in anticipation of litigation ( see CPLR 3101[d][2]), or in failing to conduct an in camera inspection of the subject materials. Furthermore, given that defendants failed to contest that their experts inspected the allegedly damaged properties, they failed to show a substantial need for the report and the materials incorporated into it that was prepared by plaintiffs' experts, and that they would be unable to obtain the substantial equivalent without undue hardship ( see id.; see also Gama Aviation Inc. v Sandton Capital Partners, L.P. , 99 AD3d 423, 424 [1st Dept 2012]).

Materials an attorney’s agent prepares for trial receive qualified protection; a party seeking them must show substantial need and an inability to obtain their substantial equivalent without undue hardship.

Markel v. Pure Power Boot Camp, Inc. · filed 2019-03-19(d)(2)

The IME observer, however, is an agent of the plaintiff's attorney. Consequently, the requested notes and materials constitute materials prepared for trial, bringing them within the conditional or qualified privilege protections of CPLR 3101(d)(2). Materials prepared in anticipation of litigation and preparation for trial may be obtained only upon a showing that the requesting party has a "substantial need" for them in the preparation of the case and that without "undue hardship" the requesting party is unable to obtain the substantial equivalent by other means (CPLR 3101[d][2]; see also Forman at 661-662).

Section 3101(d)(2) protects an insurer’s accident investigation report prepared for litigation against its insured from disclosure absent a showing of hardship.

Dabo v. One Hudson Yards Owner, LLC · filed 2019-10-29(d)(2)

Documents in an insurer's claim file, including an accident investigation report, that were prepared for litigation against its insured are immune from disclosure ( see CPLR 3101[d][2]; Recant v Harwood , 222 AD2d 372, 373-374 [1st Dept 1995]). ... In the absence of any demonstration of hardship by plaintiff, the insurer's accident investigation report remains privileged ( see Veltre v Rainbow Convenience Store, Inc. , 146 AD3d 416 [1st Dept 2017]).

Section 3101(d)(2) protects materials prepared solely in anticipation of litigation; mixed purpose reports do not qualify.

John Mezzalingua Assoc., LLC v. Travelers Indem. Co. · filed 2019-12-20(d)(2)

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 ( see Ural v Encompass Ins. Co. of Am. , 97 AD3d 562, 566-567 [2d Dept 2012]; see also Ligoure v City of New York , 128 AD3d 1027, 1028-1029 [2d Dept 2015]; Madison Mut. Ins. Co. , 103 AD3d at 996).

Section 3101(d)(2) protects materials prepared solely for litigation or trial unless the requesting party shows substantial need and undue hardship in obtaining equivalent information.

Bennett v. State Farm Fire & Cas. Co. · filed 2020-03-18(d)(2)

The plaintiffs established that the data sought was generated solely in anticipation of litigation or for trial ( see CPLR 3101[d][2]; Daniels v Armstrong , 42 AD3d 558). Further, Creative Landscaping failed to establish that it had a substantial need for the report and deposition in the preparation of its case and could not, without undue hardship, obtain the substantial equivalent of the information sought by other means ( see CPLR 3101[d][2]; Giordano v New Rochelle Mun. Hous. Auth. , 84 AD3d 729, 732; Daniels v Armstrong , 42 AD3d at 558).

Section 3101(d)(2) protects material prepared in anticipation of litigation unless the party seeking it shows substantial need and cannot obtain its substantial equivalent without undue hardship.

Color Dynamics, Inc. v. Kemper Sys. Am., Inc. · filed 2020-08-20(d)(2)

We thus conclude that the court did not abuse its discretion in denying the motion on the ground that the reports in question were material prepared in anticipation of litigation, and petitioner failed to demonstrate a substantial need for such information and that it was unable to obtain the substantial equivalent of that information without undue hardship ( see CPLR 3101 [d] [2]; Foley v West-Herr Ford, Inc. , 32 AD3d 1236, 1236 [4th Dept 2006]; see also Micro-Link, LLC , 155 AD3d at 1643).

Section 3101(d)(2) permits disclosure of material prepared for litigation when the requesting party has substantial need for it and cannot obtain its substantial equivalent.

Harmon v. Diocese of Albany · filed 2022-04-21(d)(2)

The list of the six alleged victims and only the name, last known address and phone number of the man allegedly abused in a school closet were properly subject to disclosure pursuant to the provision of CPLR 3101 (d) (2), which permits disclosure of material prepared for litigation where the plaintiff has substantial need for it and is unable to obtain its substantial equivalent ( see Yasnogordsky v City of New York , 281 AD2d 541, 541 [2001]; Rochford v Long Is. R.R. Co. , 273 AD2d 291, 292 [2000]).

A party claiming the conditional privilege for material prepared in anticipation of litigation must support the claim with more than conclusory assertions.

Sinatra & Co. Real Estate, LLC v. 1000 Elmwood Assoc., LLC · filed 2022-07-08(d)(2)

We conclude that S & T and KLW failed to meet their burden on their motion inasmuch as their assertion of the conditional privilege afforded by CPLR 3101 (d) (2) was conclusory.

Section 3101(d)(2) protects materials prepared for litigation by a party’s representative unless the party seeking them shows substantial need and cannot obtain their substantial equivalent without undue hardship.

Bent-Anderson v. Singh · filed 2022-10-12(d)(2)

However, the subject notes and reports are immune from discovery pursuant to the conditional privilege of materials prepared in anticipation of litigation or for trial ( see CPLR 3101[d][2]; Markel v Pure Power Boot Camp, Inc. , 171 AD3d 28, 31). CPLR 3101(d)(2) provides, in relevant part, that "materials . . . 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 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." Here, the appellant has not shown any such "substantial need" and that the substantial equivalent cannot be obtained by other means.

Section 3101(d)(2) protects material prepared primarily in anticipation of litigation unless the requesting party shows substantial need and undue hardship in obtaining its equivalent.

Smartmatic USA Corp. v. Fox Corp. · filed 2024-02-06(d)(2)

The majority of the subject text messages are protected from disclosure as trial preparation material under CPLR 3101(d)(2) because they were prepared primarily in anticipation of litigation. The text messages reflect a discussion between plaintiff's corporate executives about what damages should be asserted in the soon-to-be-filed complaint in response to counsel's request for their input about damages. On this record, defendants have not demonstrated a substantial need for the text messages or that they are unable without undue hardship to obtain the substantial equivalent of the information in the text string by other means ( see generally CPLR 3101[d][2]).

Section 3101(d) protects litigation reports and expert opinions, but permits disclosure when changed conditions make the material impossible to duplicate and withholding it would cause injustice or undue hardship.

Hayward v. Willard Mountain, Inc. · filed 1966-01-08(d)

Laboratory reports performed for use in an action on materials which are the subject of litigation clearly fall within the qualified protection of CPLR 3101 (subd. [d]) but this immunity is removed where, as admittedly here as to a certain object or objects concerning which there has been a substantial change of condition, the material can longer be duplicated and, obviously, the withholding of the reports will result in injustice or undue hardship (Board of Educ. v. Ace Test Boring, 47 Misc 2d 864; Baczmaga v. Reynolds, 44 Misc 2d 997; Montgomery Ward v. City of Lockport, 44 Misc 2d 923, 925; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3101.53).

Section 3101(d)(1) permits disclosure of expert opinions prepared for litigation only when the material can no longer be duplicated because of changed conditions and withholding it would cause injustice or undue hardship.

In re the City of New York · filed 1966-05-24(d)(1)

Although production is here sought on trial rather than before trial, the conditions to warrant disclosure set forth in CPLR. 3101 (subd. [d], par. 1) are equally applicable, that is, opinions of experts prepared for litigation are not obtainable unless the material can no longer be duplicated because of a change in conditions and withholding it will result in injustice or undue hardship.

Section 3101 excludes an insurer’s expert reports from discovery and inspection in this fire loss dispute.

Penn Plaza Venture v. Glens Falls Insurance · filed 1969-06-19(e), (d)

Reports of defendant’s experts are excluded from such discovery and inspection by the provisions of CPLR 3101 (subds. [e], [d]).

CPLR 3101(d) bars disclosure of reports from physicians who neither examined nor treated the decedent and other experts retained for litigation unless circumstances justify disclosure.

Donato v. Eli Lilly & Co. · filed 1971-10-12(d)

No circumstances are shown relieving respondent from the proscription of disclosure of such reports contained in CPLR 3101 (subd. [d]) nor does section 660.11 of the Rules require the exchange of reports of other than examining or treating physicians.

Section 3101(d) generally protects expert opinions prepared for litigation from disclosure, subject to qualifications.

County of Onondaga v. Lawson Acres, Inc. · filed 1969-08-12(d)

This Special Rule was .adopted pursuant to CPLR 3140 which itself is an exception to the provisions of CPLR 3101 (subd. [d]). The latter statute makes immune from disclosure, with certain qualifications, the opinion of an expert prepared for litigation.

Subdivision (d) permits disclosure of an expert report and photographs when deterioration of the physical evidence would make it unfair to require a party to defend without them.

Wasmuth v. Hinds-Toomey Auto Corp. · filed 1972-05-01(d)

Defendant General Motors is entitled to disclosure of the report prepared by plaintiff’s expert and to photographs of plaintiff’s vehicle and its component parts showing their condition shortly after the fire.

CPLR 3101(d) does not shield from disclosure the report of a doctor who examined the plaintiff on the defendant’s behalf.

Scott v. Berry · filed 1975-03-31(d)

Finally the defendant turns to his last argument, to wit: that the report of Dr. Ship is protected under CPLR 3101 (subd [d]) as "material prepared for litigation”. The court is of the opinion that such medical report is not within the ambit of that section.

Section 3101(d) protected from discovery an expert report prepared for an insurer to adjust or defend against a potential claim.

Teachers Insurance & Annuity Ass'n of America v. Third 44th Corp. · filed 1975-06-26(d)

On this record such report is not obtainable (CPLR 3101, subd [d]); Kandel v Tocher, 22 AD2d 513; Ainsworth v Union Free School Dist. No. 2, Queensbury, 38 AD2d 770, 771.) Concur—Markewich, J. P., Murphy, Capozzoli, Lane and Nunez, JJ.

Section 3101’s full disclosure rule permits a malpractice plaintiff to question a defendant’s physician witness about accepted medical practice during a pretrial deposition.

Johnson v. New York City Health & Hospitals Corp. · filed 1975-11-03

Since it is clear under McDermott (15 NY2d 20, 29-30, supra) that "a plaintiff in a malpractice action is entitled to call the defendant doctor to the stand and question him both as to his factual knowledge of the case (that is, as to his examination, diagnosis, treatment and the like) and, if he be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” and since the CPLR (section 3101) provides for "full disclosure of all evidence” and for "examination and cross-examination” (section 3113) of a witness before trial as in a trial of action in an open court, I see no basis for the Special Term’s ruling in this case.

Section 3101(c) and (d) support a protective order against disclosure of appraisal reports.

Smith v. Providence Washington Insurance · filed 1976-03-11(c), (d)

We are also of the view that Special Term properly granted an order of protection as to the appraisal reports in question. (CPLR 3101, subds [c], [d].) Order affirmed, with costs.

Section 3101(d) generally protects unfiled appraisals used only for settlement, but an appraisal adopted by a condemning authority in dealings with a third party is discoverable.

Erie Lackawanna Railway Co. v. State · filed 1976-11-05(d)

Once used in dealing with some third party, the report is not material prepared solely for litigation even though it may also be used for settlement or negotiation.

CPLR 3101(d) does not shield an insurer’s expert report obtained during a claim investigation absent a bona fide showing that the expert was hired in preparation for expected litigation.

Mold Maintenance Service v. General Accident Fire & Life Assurance Corp. · filed 1977-02-18(d)

We do hold that in the absence of a bona fide showing that defendant had reasonable grounds for disclaiming and so employed an expert in preparation for expected litigation, the report is not privileged as against defendant’s insured.

Section 3101(d) protects expert opinions prepared for litigation from disclosure when the party seeking them has not shown that withholding them would cause injustice or undue hardship.

Dunning v. Shell Oil Co. · filed 1977-04-07(d)

It is not uncommon for experts to arrive at divergent opinions from identical sources of information and there has been no showing in the instant case that injustice or undue hardship would be worked on defendants if they were denied the benefit of having the opinions of plaintiffs’ expert. ... Under the circumstances presented, we think the distinct objectives of CPLR 3101 (subd [d]) will be properly served by excluding the opinions of plaintiffs’ expert from the disclosure directed by Special Term.

CPLR 3101(a)(4) requires special circumstances to justify taking an expert’s deposition before trial.

St. George v. Dennis · filed 1977-04-15(a)(4)

Plaintiff’s attorney’s affidavit in support of the motion gives no explanation for the failure to take all desired depositions before the filing of the statement of readiness. "Moreover, no special circumstances are indicated warranting the taking of the deposition of the expert before trial. (CPLR 3101, subd. [a], par. [4].)” ... In the circumstances the granting of the order directing the taking of the deposition in Massachusetts was an improvident exercise of discretion.

Section 3101(d) permits discovery of a litigation expert’s opinion when the underlying conditions cannot be duplicated and withholding it would cause injustice or undue hardship.

Dunlop Tire & Rubber Corp. v. FMC Corp. · filed 1977-05-31(d)

CPLR 3101 (subd [d]) provides that the opinion of an expert which has been prepared for litigation is discoverable where the court finds that the material forming the basis for the opinion can no longer be duplicated because of a change in conditions, and if denying discovery will result in injustice or undue hardship. ... The conditions which existed at the time of the 1973 explosion in defendant’s plant obviously no longer exist and cannot be duplicated. Given the gravity of the damage caused by this explosion, there would be serious injustice to the positions of plaintiffs should the ADL report be withheld.

Section 3101(d) permits examination of a retained expert about factual observations and test results when special circumstances make the evidence unavailable through a new examination.

Brandes v. Pettibone, Inc. · filed 1978-04-07(d)

The order insofar as it directs the oral examination of third-party defendant’s experts pertaining to factual evidence including their observations, findings, the tests performed, and the results thereof should be affirmed. Special circumstances have been demonstrated to warrant such examination.

Section 3101(a)(4) permits examination of a litigation expert upon a showing of adequate special circumstances; a conclusory affidavit does not establish them.

Luchsinger v. County of Onondaga · filed 1978-05-19(a)(4)

Although CPLR 3101 (subd [d]) provides that any opinion of an expert prepared for litigation shall not be obtainable in discovery proceedings, CPLR 3101 (subd [a], par [4]) provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action "where the court on motion determines that there are adequate special circumstances”. ... We agree with Special Term that the affidavit attached to the defendant’s motion is conclusory in nature and insufficient to establish special circumstances which would permit the examination before trial of plaintiff’s expert.

Section 3101(d) does not shield attending physicians’ reports from disclosure merely because the patient is suing over the injuries they treated.

Baker v. Younts · filed 1978-09-01(d)

Certainly this material (reports of attending physicians) is not prepared solely for litigation.

Section 3101(d) permits disclosure of an expert’s factual observations when the requesting party cannot obtain those facts independently.

Nicolazzi v. Travelers Insurance · filed 1980-12-12(d)

However, defendant’s opposition implicitly recognizes plaintiff’s right to disclosure of the factual observations made by the expert since the premises in question have been rebuilt and plaintiff cannot secure the data by his own efforts. (CPLR 3101, subd [d].) Therefore, the defendant shall furnish the plaintiff with a copy of the facts observed by John F. Connell Consultants and contained in their report within 20 days after service upon it of a copy of this order.

Section 3101 permits limited written questions about an opposing expert’s factual observations when special circumstances require disclosure, while protecting the expert’s opinions and identity.

Coley v. Michelin Tire Corp. · filed 1980-04-21(d)(1)

In view of the facts and allegations of the parties, we find that special circumstances exist requiring disclosure beyond the production of the expert’s reports. ... In view of the foregoing, Michelin may proceed with written interrogatories of plaintiffs’ expert witness embracing the following: (1) the condition of the tire and valves before their destruction or mutilation; (2) the manner in which the right rear tire was cut; and (3) photographs, if any, of the valves. Such interrogatories may not include questions as to the witness’ opinions. Furthermore, the name of plaintiffs’ expert need not be disclosed.

Section 3101 permits disclosure of material and necessary reports from treating physicians when a personal injury plaintiff has waived the privilege; those reports are not attorney’s work product or material prepared for litigation.

Ricciuti v. Town of Schaghticoke · filed 1980-07-10

In the application of the principles delineated in this decision, the court finds the motion must be granted. The reports sought are material and necessary in the defense of the action (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, supra); the exemption of CPLR 3101 (subd [b]) is waived (Koump v Smith, 25 NY2d 287; Greuling v Breakey, 56 AD2d 540, supra); the options not to call treating physicians as witnesses thereby excluding such medical reports from discovery do not exist in the Third Department (cf. Greuling v Breakey, supra; Moses v Woodbury, 54 AD2d 961, supra; Kaza v Gardner, 65 AD2d 958, supra); reports of attending physicians who examined and treated plaintiff are not exempt under CPLR 3101 (subd [c]) as attorney’s work product (3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.44, p 31-114; 7 Carmody-Wait 2d, NY Prac, § 42:60; Baker v Younts, 96 Misc 2d 132); nor are such reports exempt under CPLR 3101 (subd [d]) as material prepared for litigation (Duerr v Star Supermarkets, 81 Misc 2d 975; Kenford Co. v County of Erie, 55 AD2d 466; Baker v Younts, supra); and the demand contains specific items sufficient to comply with existing requirements (Ciembroniewicz v Madigan Mem. Hosp., 72 AD2d 653, supra).

Section 3101(a) permits discovery of attending physicians’ reports when a plaintiff seeks damages for a physical condition and the reports are material and relevant to the action.

Calhoun v. Pickett · filed 1980-07-31(a)

Plaintiffs should not be able to assert a physical condition in seeking damages and at the same time contend that medical reports of attending physicians are immune from disclosure pursuant to CPLR article 31.

Section 3101(d)(1) restricts disclosure of an expert opinion prepared for litigation, including at a General Municipal Law section 50-h hearing.

Wilson v. City of Johnstown · filed 1980-11-13(d)(1)

In our view, the restrictions imposed by article 31 of the CPLR are applicable to a hearing under section 50-h of the General Municipal Law. CPLR 3101 (subd [d], par 1) provides that an opinion of an expert prepared for litigation shall not be obtainable except under conditions not here present (see Binke v Goodyear Tire & Rubber Co., 55 AD2d 632).

Section 3101(d) shields the names and addresses of proposed expert witnesses and copies of their reports from discovery through the interrogatory at issue.

Myers v. Myers · filed 1981-03-30(d)

The sole objectionable interrogatory is Item No. 69 which seeks the disclosure of the names, addresses of any expert witness and copies of the reports of any proposed expert witnesses. That request is shielded from discovery under CPLR 3101 (subd [d]) and should be deleted.

Section 3101(a) permits discovery of treating physicians’ reports material and necessary to the defense of a personal injury action, even when the plaintiff has not requested an exchange of medical reports.

Hoenig v. Westphal · filed 1981-05-05(a)

Since there can be no dispute that the reports sought are “material and necessary” to the defense, CPLR 3101 on its face permits discovery.

Section 3101 allows disclosure of treating physicians’ records when the request identifies the physicians and the records are material to the injuries for which recovery is sought.

Ryan v. Haskell · filed 1982-02-18

The discovery notice is sufficiently specific in that documents of named treating physicians are sought. The materials sought are relevant and material to the case in that they relate to the injuries for which recovery is sought in the instant action.

Section 3101(d) protects expert reports containing factual material that can be duplicated, but not reports containing material that cannot be duplicated.

Martinez v. CPC International Inc. · filed 1982-05-24(d)

The experts’ reports prepared on behalf of the plaintiffs and defendants do not contain factual material which cannot be duplicated, as do the reports prepared for Warner-Lambert immediately after the explosion. The former are therefore ...privileged under CPLR 3101 (subd [d]), while the latter are not (see Abraham v Hanover Ins. Co., 66 AD2d 808).

When a party relies on a substitute for a lost product, Section 3101 permits disclosure of the expert’s factual report while allowing the expert’s opinion to be withheld.

Ramos v. Torres · filed 1982-05-26(b)(1)

Defendant’s motion is made pursuant to CPLR 3101 (subd [b], par 1) which' permits disclosure of “material prepared for litigation” if “the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship”. ... Second, plaintiff’s expert who examined the substitute jack shall furnish Ford with his report to the extent of setting forth the reasons for choosing this similar jack, any differences he perceived between it and the stolen jack, and the manner in which the expert developed his hypothetical proof using the substitute jack (i.e., precisely what he has done to/with the jack). In short, the expert’s entire report, other than his opinion concerning the defects in the jack, is to be produced, in addition to the information just specified.

Section 3101 generally protects an expert’s opinion prepared for litigation from disclosure, but permits disclosure when the material cannot be duplicated and withholding it would cause injustice or undue hardship.

Morrison v. Ellis · filed 1983-01-21(d)

It is settled law that an expert’s opinion, prepared for litigation, is generally not discoverable (CPLR 3101, subd [d], par 1). An exception to this general rule operates when, the material can no longer be duplicated and withholding it would result in injustice or undue hardship (CPLR 3101, subd [d]).

Subdivision (d)(1) excludes expert opinions prepared for litigation from an order requiring disclosure of treating physicians’ reports.

Cramer v. Toledo Scale Co. · filed 1982-09-24(d)(1)

...should not be read to require disclosure of “any opinion of an expert prepared for litigation” (CPLR 3101, subd [d], par 1). The order should be modified to provide that plaintiff be directed to furnish to defendants’ counsel within 30 days after service of a copy of the order herein copies of reports of all physicians who have rendered care and treatment to the infant plaintiff in connection with the injuries for which recovery is sought and who may be called to testify on his behalf.

Section 3101(d)(1) does not shield an employee expert’s opinion when the opinion was not sought solely in preparation for litigation.

Maser v. County of Onondaga · filed 1982-11-09(d)(1)

Defendant’s employee-expert does not fall within CPLR 3101 (subd [d], par 1) as his opinion was not sought solely in preparation for litigation.

Section 3101(d) requires a showing of changed conditions and injustice or undue hardship to obtain the expert witness material sought here.

Manganero v. Grega · filed 1982-11-22(d)

The record fails to establish “a change in conditions and that withholding [the material sought] will result in injustice or undue hardship” (see CPLR 3101, subd [d]). Thus, the material sought to be discovered is not obtainable and the motion should have been denied.

Section 3101(d) protects expert material prepared for litigation; when special circumstances justify disclosure, inquiry may be limited to the expert’s factual observations.

Miracolo v. Mercedes-Benz of North America, Inc. · filed 1982-12-27(d)

In addition, we find that such disclosure is justified by special circumstances, in that plaintiff’s expert has exclusive knowledge of certain of those relevant facts. However, inasmuch as an expert is involved, an oral deposition creates a high risk that material prepared for litigation, protected by CPLR 3101 (subd |d]), will be discovered. It therefore becomes necessary to set certain limits on such disclosure so that all that may be elicited are the factual observations of the plaintiff’s witness.

Section 3101(d) protects an expert report prepared for litigation from disclosure when it contains no factual material that cannot be duplicated.

Fedorcyzk v. New York University · filed 1983-06-20(d)

Where, as here, an expert’s report prepared for purposes of litigation is devoid of any factual material which cannot be duplicated, that report is immune from disclosure pursuant to CPLR 3101 (subd [d]) (see Martinez v CPC Int., 88 AD2d 656).

Section 3101(a)'s requirement to disclose physicians' reports does not, by itself, compel production of physicians' records.

Montag v. Young Men's Christian Ass'n · filed 1983-07-11(a)

Special Term properly denied defendant’s motion to compel plaintiff to authorize production of her attending physicians’ records, reports, bills, notes and memoranda.

Section 3101(d) requires a specific showing that inspection materials cannot be duplicated because conditions changed and that withholding them would cause injustice or undue hardship.

Kroll v. Long Island Lighting Co. · filed 1984-06-04(d)

There was an inadequate showing that the material sought “can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship” (CPLR 3101, subd [d]). Plaintiffs may seek discovery of the reports and photographs in issue, if they be so advised, following completion of defendant’s inspections, upon a more specific showing that destructive or altering testing took place.

Section 3101(d) protects an expert’s pension evaluation report from discovery when the requesting party has not shown that its contents cannot be duplicated by her own actuary.

Flach v. Flach · filed 1985-11-18(d)

Special Term properly denied the wife’s motion for an order authorizing discovery of the pension evaluation report prepared by the husband’s expert, as that report was immune from discovery pursuant to CPLR 3101 (d), and it was not shown that its contents could not be duplicated by the wife’s own actuary (see, Myers v Myers, 108 Misc 2d 553).

Section 3101(d) permits disclosure of expert scientific test reports to prevent undue hardship, limited to test results and factual data rather than expert opinions.

Castro v. Alden Leeds, Inc. · filed 1986-01-13(d)

Therefore, in order to prevent injustice or undue hardship to Westrock in its defense of this action, we modify the order appealed from by granting that branch of West-rock’s motion which sought, as an alternative to further testing, a direction that plaintiffs provide Westrock with any reports pertaining to scientific testing of the residue conducted on plaintiffs’ behalf (CPLR 3101 [d]; see also, Anastasia v Barnes, 109 AD2d 769; Kellar v Vassar Bros. Hosp., 105 AD2d 691; Miller v Haug Co., 96 AD2d 790; Morrison v Ellis, 91 AD2d 1172; Zimmerman v Nassau Hosp., 76 AD2d 921). Such disclosure shall be limited to test results and factual data, and shall not include the opinions, if any, of plaintiffs’ experts (Anastasia v Barnes, supra).

Section 3101(d)(1) protects material prepared by a party’s expert for possible use at trial from an opposing party’s deposition when the information can be obtained from the party’s representative.

County of Chenango Industrial Development Agency v. Lockwood Greene Engineers, Inc. · filed 1985-05-09(d)(1)

Since what Lockwood sought to obtain was material prepared by plaintiffs’ expert for possible use at trial, Special Term’s decision was proper (CPLR 3101 [d] [1]). There is nothing in the record to indicate that Lockwood is entitled to any information which cannot be obtained from a representative of plaintiffs. Thus, Lockwood’s motion to depose plaintiffs’ expert was properly denied (Nagel v Metzger, 96 AD2d 738).

Section 3101(d)(1) governs disclosure of expert reports prepared for litigation; a party seeking disclosure must support a claim of injustice or undue hardship with proof.

Krianciunas v. Suburban Propane Gas Co. · filed 1985-11-18(d)(1)

There is no dispute that the interrogatory requesting disclosure of the contents of the report prepared by plaintiffs expert seeks discovery of material prepared for litigation and thus is subject to the provisions of CPLR 3101 (d) (1).

Section 3101(d)(1) exempts an expert report prepared for litigation from disclosure.

Martin v. County of Monroe · filed 1985-12-20(d)(1)

The report prepared by plaintiff’s expert is clearly material prepared for litigation and is exempt from disclosure (CPLR 3101 [d] [1]; Morrison v Ellis, 91 AD2d 1172).

Section 3101(d) generally protects unfiled appraisal reports prepared for settlement and not intended for trial from discovery, but does not bar using an inconsistent report to impeach a trial expert.

Hicksville Properties, Inc. v. Board of Assessors · filed 1986-01-27(d)

Unfiled reports used for settlement negotiations and not intended for use at trial generally remain immune from discovery as material prepared solely for litigation (see, CPLR 3101 [d]; First Natl. City Bank v State of New York, 72 AD2d 762, 763; Swartout v State of New York, 44 AD2d 766; Erie Lackawanna Ry. Co. v State of New York, 54 AD2d 1089; Matter of Town of Oyster Bay [Bruce], 54 AD2d 762). However, where an unfilled appraisal report was prepared by a party’s trial expert and is inconsistent with his trial testimony, the unfiled report may be introduced into evidence for impeachment purposes and used to cross-examine the witness (see, CPLR 4514; Richardson, Evidence § 502 [Prince 10th ed]; Swartout v State of New York, supra; Matter of City of New York [Brooklyn Bridge Southwest Urban Renewal Project], 50 Mise 2d 478, 480).

Section 3101(d)(1)(i) permits a request for expert witness information through demands in a bill of particulars.

Salander v. Central General Hospital · filed 1985-11-22(d)(1)(i)

Upon request, there must be full disclosure of expert opinion testimony. The fact that such a request may be in the form of a number of demands propounded in a bill of particulars does not, in the court’s opinion, make the request improper.

Section 3101(d)'s expert-witness disclosure requirement applies only to actions commenced after July 1, 1985, and interrogatories are not the proper procedure for obtaining that information.

In re the Estate of Flynn · filed 1985-12-03(d)

An amendment to CPLR 3101 (d) became effective July 1, 1985 requiring such disclosure (L 1985, ch 294). However, the legislation specifically provides that it is applicable only to actions commenced after July 1, 1985. The instant matter was at issue prior to July 1, 1985; The specificity with which the Legislature delineated the applicability of this new disclosure requirement precludes expanding it to pending matters by judicial fiat. In any event, interrogatories are not the proper procedure for obtaining information on expert witnesses even under the new provisions of CPLR 3101 (d). Interrogatory number 6 is vacated.

The 1985 amendment requiring disclosure of expected trial experts does not apply to a third-party action added to a main action commenced before July 1, 1985.

Rogowski v. Royce W. Day Co. · filed 1986-01-21(d)(1)(i)

However, the amendment was part of the Medical Malpractice Insurance Comprehensive Reform Act passed in 1985 (L 1985, ch 294, § 25) which provided that it would apply "to any actions commenced on or after [July 1, 1985]” (emphasis added). ... They have utilized the provisions of CPLR 1007 and expanded the thrust of plaintiffs original action which was commenced prior to the effective date of the amendment of CPLR 3101 (d). ... It is this court’s view that the main action and the third-party action are different parts of a single action which was commenced on June 21,1985 (CPLR 304).

Section 3101(d) permits a court to order an expert’s deposition when the material the expert examined is no longer available for the other side to inspect.

RPM, Inc. v. Pentagon Chemical & Paint Works, Inc. · filed 1985-11-25(d)

Because the material examined by defendants’ expert is no longer available for inspection by plaintiffs, Special Term did not abuse its discretion in ordering that the expert be deposed (see, CPLR 3101 [d]; compare, Fedorcyzk v New York Univ., 95 AD2d 822, with Cepin v Cepin, 66 AD2d 764).

Section 3101(d)(1)(i) does not require a party to retain an expert by a set time or disclose expert information before depositions.

Dunn v. Medina Memorial Hospital · filed 1986-05-09(d)(1)(i)

In the action before the court, there is no evidence that there is an insufficient time before the commencement of trial for the prescribed disclosure and, therefore, lacking any other direction by the Legislature to force any party to retain their expert by a given time or event in the development of an action proceeding to trial, and clearly no direction that the expert disclosure required be made before depositions, the court will not sanction action which the Legislature did not address in its efforts to encourage disclosure in all actions (not merely medical malpractice) which it addressed in Laws of 1985 (ch 294), medical malpractice insurance comprehensive reform.