N.Y. C.P.L.R. § 3101

Section 3101(d)(2) permits disclosure of factual material in an expert’s report when the requesting party has a substantial need for it and cannot obtain its substantial equivalent by other means.

Lundell v. Ford Motor Co. · filed 1986-05-12(d)(2)

Thus, Ford has established that there is a substantial need for any reports within the plaintiff’s possession and control with respect to the vehicle and that it is unable to obtain the substantial equivalent of the materials by any other means (see, CPLR 3101 [d] [2]). Only the factual data contained in those reports, and not the opinions contained therein, should be revealed (see, Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733; Anastasia v Barnes, 109 AD2d 769).

Section 3101(d) does not protect an examining physician’s report from disclosure when CPLR 3121(b) requires its exchange.

Pierson v. Yourish · filed 1986-07-21(d)

The plaintiffs’ argument that the material is privileged since the unnamed physician in question was retained as an expert and examined the injured plaintiff solely in preparation for litigation (CPLR 3101 [d]) is without merit.

Former § 3101(d) permits disclosure of factual information in a litigation expert’s report, but protects the expert’s opinions unless the inspection and tests cannot be duplicated and withholding the opinions would result in injustice.

Wallace v. Benedictine Hospital · filed 1986-10-30(d)

Our in camera review of the report reveals that in initially redacting said report, the hospital not only redacted opinions, as it was entitled to do, but it also incorrectly redacted some factual information which Special Term had originally determined the parties were allowed to receive.

Section 3101(d)(1) permits disclosure of the substance and grounds of expert opinions, but expert reports are immune from disclosure and a demand for their dates may be stricken.

Pizzi v. Muccia · filed 1987-04-30(d)(1)

While we recognize that the purpose of the 1985 amendment of CPLR 3101 (d) was "to expand disclosure, not contract it” (Siegel, 1985 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:29 [1987 Pocket Part], at 7), the amendment permits disclosure of only the substance of the experts’ facts and opinions and a summary of the grounds for the opinions; as was the case before the 1985 amendment, the experts’ reports themselves are immune from disclosure (see, Renucci v Mercy Hosp., 124 AD2d 796). In light of this, we see no legitimate purpose to be served by disclosure of the reports’ dates, and this demand should be stricken.

Section 3101(d) permits disclosure of factual data and test results in litigation-prepared expert reports when changed conditions prevent the opposing party from duplicating them.

Town of North Hempstead v. Wiedersum · filed 1987-06-15(d)

In connection with the other structural problems at the PAC, we find that the appellants were never given an opportunity to fully investigate the matter prior to the reconstruction and repair of the building. Since the factual material in issue can no longer be duplicated, justice requires that the factual data and test results in the experts’ reports with respect to those other structural problems be disclosed.

Under the former version of CPLR 3101(d), sufficient circumstances can warrant limited disclosure of experts’ reports.

McKinstry v. Werner Machine Co. · filed 1987-09-14(d)

However, the third-party defendant has demonstrated the existence of circumstances sufficient under the former provisions of CPLR 3101 (d), to warrant limited disclosure of the experts’ reports prepared for the plaintiff and the defendant third-party plaintiff (see, Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733; Anastasia v Barnes, 109 AD2d 769; Terwilliger v Leach Co., 88 AD2d 910, 911).

Former CPLR 3101(d) bars disclosure of expert reports prepared for litigation when withholding them causes no injustice or undue hardship, unless CPLR 3121 permits an exchange.

Dorato v. Schilp · filed 1987-10-15(former [d])

Since the reports, containing the opinions of experts, were concededly prepared for litigation, and since there is no claim of injustice or undue hardship if the reports are withheld, CPLR 3101 (former [d]) clearly precludes disclosure of the medical reports unless CPLR 3121 is applicable (see, Hoenig v Westphal, 52 NY2d 605, 609-610).

Section 3101(d) limits discovery of an expert’s opinion prepared for litigation; receiving the expert’s report can defeat a claim that further discovery is needed to avoid injustice or undue hardship.

Calo v. Ahearn · filed 1987-12-17(d)

In view of the fact that defendant has already been furnished with a copy of the expert’s report, there has not been a sufficient showing by defendant that it will suffer "injustice or undue hardship” in foregoing additional discovery of the nonparty expert, American Standards.

Section 3101(d), as it read at the time of the accident, required disclosure of an expert’s report only when changed conditions made the material impossible to duplicate and withholding it would cause injustice or undue hardship.

Zillante v. Putnam Rolling Ladder Co. · filed 1988-11-15(d)

CPLR 3101 (d), as it read at the time of the alleged accident, did not require that the report of an expert be disclosed to another party "unless 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”. No such showing was made here.

Former § 3101(d) generally prohibited discovery of expert reports unless changed conditions made the material impossible to duplicate and withholding it would cause injustice or undue hardship.

Stella Theatres, Inc. v. United Artists Theatre Circuit, Inc. · filed 1989-01-23(d)

The instant action was commenced prior to that date and is thus subject to the earlier rule which generally prohibited discovery of experts’ reports unless such material could not be duplicated by reason of a change in conditions and withholding such information would result in injustice or undue hardship. ... The defendant has failed to demonstrate the existence of circumstances sufficient under CPLR 3101 (former [d]) to warrant disclosure of any reports prepared by experts on behalf of the plaintiff or the third-party defendant or to compel a deposition of such experts.

Under the former version of Section 3101(d)(1), limited disclosure of an expert’s report requires a showing of circumstances warranting it.

Reno v. Mitts & Merrill, Inc. · filed 1989-01-17(d)(1)

Moreover, our review of the record reveals that the defendant has failed to demonstrate the existence of such circumstances under the former provisions of CPLR 3101 (d) (1), as to warrant limited disclosure of the experts’ reports prepared for the plaintiffs.

Under the former provisions of CPLR 3101(d), circumstances may warrant limited disclosure of an expert’s report without requiring the expert’s deposition.

Pole v. Frame Chevrolet, Inc. · filed 1989-02-06(d)

The defendant third-party plaintiff and the third-party defendant have demonstrated circumstances sufficient to warrant limited disclosure of the plaintiff’s expert’s report pursuant to the former provisions of CPLR 3101 (d), which govern this action (see, McKinstry v Werner Mach. Co., 133 AD2d 361; Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733; Anastasia v Barnes, 109 AD2d 769; Terwilliger v Leach Co., 88 AD2d 910; see also, Kellar v Vassar Bros. Hosp., 105 AD2d 691, 692; Morrison v Ellis, 91 AD2d 1172).

Section 3101(d)(1)(iii) permits a court to order disclosure of an expert’s report when special circumstances exist, including when the subject vehicle has been sold and is no longer in the party’s possession.

Breslauer v. Dan · filed 1989-05-01(d)(1)(iii)

Furthermore, upon a showing of "special circumstances”, a court may direct that an expert’s report be disclosed (CPLR 3101 [d] [1] [iii]). At bar, the appellants admitted that the subject vehicle had been sold and was no longer in their possession. This constituted "special circumstances” permitting the court to direct disclosure of the expert’s report (see, Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1989 Supp Pamph, CPLR C3101:29, at 15-16).

CPLR 3101(d)'s qualified immunity for expert material prepared for litigation generally does not apply to material prepared for another action.

Chemical Bank v. Arthur Andersen & Co. · filed 1989-05-03(d)

Although this appears to be true, I need not reach this issue since the immunity granted by CPLR 3101 (d) does not, with limited exceptions, apply to other actions.

Section 3101(d)(1)(iii) permits disclosure of an expert’s factual observations when physical evidence was lost or destroyed after that expert inspected it but before the other side could inspect it.

Rosario v. General Motors Corp. · filed 1989-06-27(d)(1)(iii)

We hold that when material physical evidence is inspected by an expert for one side, and then lost or destroyed before the other side has had an opportunity to conduct its own expert inspection, a special circumstance exists within the meaning of CPLR 3101 (d) (1) (iii) that per se warrants disclosure directly from the expert concerning the facts surrounding his inspection.

Section 3101 permits disclosure of an expert’s report examining an item that is no longer available for inspection by the opposing party’s experts.

Beauchamp v. Riverbay Corp. · filed 1989-12-07(d)(1)(i), (d)(1)(iii)

In addition, IAS acted properly in directing plaintiffs to furnish defendant with a copy of their expert’s report concerning his examination of the subject washing machine which was disposed of and no longer available for inspection by defendant’s experts.

Section 3101(d)(1) does not entitle a party to the report of an expert retained only as a litigation consultant who will not testify at trial.

Santariga v. McCann · filed 1990-05-10(d)(1)

Plaintiff cannot, therefore, claim entitlement to the report based on CPLR 3101 (d) (1) (i) or (iii).

Section 3101(d)(1)(iii) requires a showing of special circumstances to depose an opposing party’s expert.

Hawksby v. New York Hospital · filed 1990-06-12(d)(1)(iii)

However, in the absence of any showing by defendants of special circumstances, as required by CPLR 3101 (d) (1) (iii), it was error for the court to allow the deposition.

Section 3101(d)(1)(iii) requires a showing of special circumstances to depose an opposing party’s expert witnesses; a conclusory claim that the depositions are needed to prepare for litigation is insufficient.

232 Broadway Corp. v. New York Property Insurance Underwriting Ass'n · filed 1991-03-25(d)(1)(iii)

Contrary to the Supreme Court’s decision, the "special circumstances” requirement of CPLR 3101 (d) (1) (iii) (dealing with expert witnesses), unlike its counterpart formerly found in CPLR 3101 (a) (4) (dealing generally with nonexpert, non-party witnesses), is more than a "nominal” barrier to discovery (see, Rosario v General Motors Corp., 148 AD2d 108, 113), and a conclusory allegation that such discovery is necessary to fully prepare for litigation is insufficient to establish that requirement.

Section 3101(d)(1)(iii) requires a showing of special circumstances for additional disclosure from an opposing party’s medical expert.

Robinson v. Aetna Life & Casualty Co. · filed 1991-10-04(d)(1)(iii)

Supreme Court properly exercised its discretion in concluding that plaintiff failed to show that "special circumstances” existed to warrant additional disclosure from defendant’s medical expert (CPLR 3101 [d] [1] [iii]; Siegel, NY Prac § 348A [2d ed 1991]; cf., Rosario v General Motors Corp., 148 AD2d 108; Brandes v Pettibone, Inc., 62 AD2d 1133).

Section 3101(a)(4) provides the procedure for obtaining disclosure from a nonparty in a criminal proceeding when the Criminal Procedure Law has no corresponding procedure.

People v. Radtke · filed 1992-03-03(a)(4)

CPLR 3101 (a) (4) sets forth the operative procedure to obtain disclosure from such a nonparty witness and, since there is no corresponding CPL provision, in terms of procedure, it is applicable to both civil actions and criminal proceedings (CPL 60.10).

Section 3101 protects an expert’s report prepared to assist an attorney as work product and bars disclosure of material prepared for litigation when the requesting party has no substantial need for it.

In re Rosalie S. · filed 1997-04-03(c), (d)(2)

Because the report was prepared to assist respondent’s attorney, the report and Dr. Schaul’s testimony as to its contents (neither of which respondent intends to offer in evidence at trial) are protected from disclosure as a part of the attorney’s work product. ... Moreover, Dr. Schaul’s report is immune from disclosure as material prepared for litigation. An opposite result is not required here because respondent voluntarily submitted to a psychiatric examination by petitioner’s expert, the results of which petitioner will offer in evidence at trial. As such, petitioner has no substantial need for the report’s disclosure.

Section 3101(d)(2) protects an expert’s report prepared for litigation unless the party seeking it shows substantial need and cannot obtain its substantial equivalent without undue hardship.

Barrowman v. Niagara Mohawk Power Corp. · filed 1998-07-08(d)(2)

The report itself constitutes material prepared for litigation and is not subject to disclosure unless the party seeking disclosure has a substantial need for the report and is unable without undue hardship to obtain its substantial equivalent by other means (see, CPLR 3101 [d] [2]; Marziano v City of Yonkers, 105 AD2d 832).

Section 3101 requires timely disclosure of expert information and permits discovery of accident reports and records prepared in the regular course of business, even when made solely for litigation.

Fava v. City of New York · filed 2004-03-29(d)(1)(i) and (g)

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ motion which was to preclude the appellants from producing their expert witness, Norman S. Marcus, EE., at trial on the ground that they were prejudiced by the appellants’ failure to comply with CPLR 3101 (d) (1) (i) until the eve of trial. ... The appellants also failed to establish that the material sought by the plaintiffs was not discoverable. The appellants failed to meet their burden of demonstrating that the written reports and records pertaining to the accident and its site were not prepared by the appellants in the regular course of business, even if made solely for the purpose of litigation (see CPLR 3101 [g]; Powell v County of Westchester, 269 AD2d 378 [2000]; Culbert v City of New York, 254 AD2d 385 [1998]; Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 453 [1994]; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]).

Section 3101(a) permits an expert inspection when it would yield evidence material and necessary to a defense.

High Point of Hartsdale I Condominium v. AOI Construction · filed 2006-07-25(a)

The appellant, which showed that an inspection by its expert engineer of the plaintiffs garage would yield evidence that is “material and necessary” to its defense (CPLR 3101 [a]), demonstrated that the case was “not ready for trial” (22 NYCRR 202.21 [e]; see Mosley v Flavius, 13 AD3d 346 [2004]; Rizzo v DeSimone, 287 AD2d 609, 610 [2001]; Perla v Wilson, 287 AD2d 606 [2001]; Audiovox Corp. v Benyamini, 265 AD2d 135, 138 [2000]).

Section 3101 does not authorize a pretrial demand to exchange appraisal reports in condemnation proceedings; CPLR 3140 and Appellate Division rules govern their exchange.

In re the Town of Hempstead · filed 1968-01-18(d)

The claimant bases his right to an exchange of appraisals upon CPLR, article 31, specifically section 3101. ... By reason of the explicit language of CPLR 3140 and the rules adopted by the Appellate Division, an appraisal report in condemnation proceedings is not within the purview of any pretrial or discovery proceedings.

Section 3101(d)(1)'s restriction on disclosure of litigation expert opinions does not prevent exchange of appraisal reports intended for use at a Fourth Department condemnation trial.

City of Buffalo v. Ives · filed 1968-01-19(d)(1)

In Fourth Department condemnation proceedings, a copy of all appraisal reports intended to be used at the trial shall be exchanged by counsel, regardless of whether or not they can be duplicated. (Spec. rule, 4th Dept., per CPLR 3140.) This rule returns all said appraisal reports to the general rule of full disclosure, or it is an exception to the exception excluding expert opinions.

Section 3101(b) protects attorney-client communications from discovery when the privilege applies.

Nunez-Unda v. Adrien · filed 2026-03-05(b)

The Plaintiff is not however entitled to (i) documents and communications for request numbers 206, 214, and 215 as the materials sought are protected by attorney-client privilege and/or prepared in anticipation of litigation and/or attorney work product (see CPLR §§ 3101[b], [c], ... [d][2]); ... and (iv) to the communications between the Lafayette-Defendants and their counsel regarding the Plaintiff’s immigration and visa status as they are protected by attorney-client privilege (see CPLR §§ 3101[b]).

Section 3101(b) and (c) protect a privileged corporate counsel investigation report from disclosure.

Berk v. Riverbay Corp. · filed 2026-02-05(b), (c)

Supreme Court providently exercised its discretion by concluding, after reviewing a partial copy of the Report submitted by plaintiff, that the Report was privileged and immune from disclosure (CPLR 3101[b], [c]; see Smith v Ford Found. , 231 AD2d 456, 456 [1st Dept 1996]).

Furnishing a statement in response to a demand under subsection (e), and submitting it to the court and on appeal, waives an asserted privilege over the statement.

Liberty Mutual Insurance v. Engels · filed 1964-06-15(e)

Other considerations aside, it is our opinion that the privilege here asserted was waived when, in compliance with the demand served by defendants’ attorney pursuant to statute (CPLR 3101, subd. [e]), the plaintiff’s attorneys furnished the defendants’ attorney with a copy of the allegedly privileged statement; and when such statement was submitted as an exhibit to the Special Term and as part of the record on appeal to this court (cf. People v. Ryan, 40 Ill. App. 2d 352; Matter of Warrington [State of New York], 277 App. Div. 1076, affd. 303 N. Y. 129; Matter of Krup, 173 Misc. 578; Baxter v. Baxter, 92 Misc. 567, 570, affd. 173 App. Div. 998; Matter of’ Saxl, 27 Misc 2d 658).

Section 3101(b) protects privileged medical information from disclosure, including professional opinions about a patient’s propensities, diagnosis, and prognosis.

Barry v. State · filed 1964-12-01(b)

This privilege is preserved by CPLR 3101, subd. (b) ... even though the Civil Practice Law and Rules have otherwise enlarged the scope of the provisions of section 296 of the former Civil Practice Act.

Section 3101 excludes privileged matter and an attorney’s work product from discovery.

Coffey v. Orbachs, Inc. · filed 1964-12-22(b), (c)

While failure of appellant to make a timely application for a protective order now halts inquiry into the propriety of items 4 and 5, we nevertheless presume that the notice to discover the documents called for in items 4 and 5, was intended to be impliedly limited by the provisions of CPLR 3101 (subds. [b], [c]), which respectively make privileged matter and the work product of an attorney unobtainable by discovery.

Section 3101(c) protects an attorney’s reports to a client about pending litigation, and advice or opinions given to a client facing litigation, as attorney work product.

Wickham v. Socony Mobil Oil Co. · filed 1965-02-15(c)

Reports of an attorney to his client as to the progress of pending litigation or advice and opinions rendered to a client who is on the brink of litigation should clearly ■be considered ‘ ‘ work product of an attorney ’ ’ and thus within the protection afforded by CPLR 3101 (subd. [c]).

Section 3101(c) and (d) do not exempt accident reports and witness statements gathered by an insurer on behalf of its insured from disclosure to that insured.

Colbert v. Home Indemnity Co. · filed 1965-02-25(c), (d)

As against this plaintiff those documents are not exempt under CPLR 3101 (subds. [c] or [d]) as attorney’s work product or material prepared for litigation.

Section 3101(b) prevents disclosure of privileged matter when a party objects, including answers that could incriminate the party.

Rolnick v. Rolnick · filed 1965-05-17(b)

The privilege has been reinforced with respect to disclosure proceedings by enactment of CPLR 3101, subd. (b) which provides: “Upon objection by a party privileged matter shall not be obtainable.”

Section 3101 permits discovery subject to protections for privileged matter and attorney work product.

Hable v. Anderson · filed 1965-06-14(b), (c)

Such rule does not apply, however, with respect to matters demanded for discovery and inspection, unless the plaintiffs with reasonable particularity specifically designate in the demand the documents sought to be inspected and the demand does not violate CPLR 3101 (subds. [b] or [c]) respecting privileged matter or attorney’s work product.

Section 3101 protects an opposing party’s attorney work product absolutely and limits use of a retained expert’s opinion without prior court permission.

Gugliano v. Levi · filed 1965-07-12(c), (d)

It permitted plaintiff indirectly to contravene the interdictions contained in the present practice code covering discovery procedures, which absolutely prohibit the utilization of an attorney’s work product by his adversary and which conditionally bar his use, without prior leave of the court, of the opinion of an expert who had been retained by an opposing party (CPLR 3101, subds. [c], [d]; Feingold v. Lewis, 22 A D 2d 447, 449; Zavaglia v. Engert, 23 A D 2d 790; Ehrlich v. Kubis, 23 A D 2d 782; Cohen v. Hardy, 23 A D 2d 793).

Section 3101(c) protects an attorney’s reports to clients as work product that is not obtainable through disclosure.

S. N. Hoffert Diamond Co. v. Valentine · filed 1967-12-05(c)

The reports of the Hew York counsel to the defendants, their clients, represent the work product of such attorney and are not obtainable (CPLR 3101, subd. [c]).

Section 3101(d) requires disclosure of relevant writings and facts while protecting materials created by or at the direction of attorneys in preparation for litigation.

Reliance Insurance v. Nedlloyd Line, N. V. Stoomvaart-Maatschappij "Nederland" · filed 1965-07-22(d)

The objections to interrogatories numbered 13 and 14 are also overruled with the qualification, however, that defendant need not reveal the substance of any reports, documents, correspondence or other written documents created by or at the direction of defendant’s attorneys in preparation for this litigation. The substance of any other writings of the kind referred to in such interrogatories, however, should be furnished regardless of whether or not they may have been prepared for litigation. As it appears that defendant has exclusive knowledge of the facts relating to the condition of the shipment in question while such shipment was in its exclusive custody and control, the withholding of such facts from plaintiff would result in its being placed in a most unjust and disadvantageous posture in this litigation (see CPLR 3101, subd. [d]).

Section 3101 protects attorney work product and materials prepared for litigation from disclosure unless the statutory exception is established.

Loubriel v. Grace Line, Inc. · filed 1966-10-24(c), (d)(2)

CPLR 3101 provides that a party “ shall [make] full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof ”. However “ the work product of an attorney shall not be obtainable ” (CPLR 3101, subd. [c]), nor shall the adverse party be entitled to disclosure of “ any writing or anything created by or for a party or his agent in preparation for litigation ” unless ‘ ‘ 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 ” (CPLR 3101, subd. [d], par. 2).

Section 3101 does not shield a transcript of a statutorily mandated examination conducted in the presence of the adversary’s attorney as attorney work product or material created for litigation.

Rodriguez v. City of New York · filed 1968-04-08(c), (d)(2)

The transcript of the examination of plaintiff by appellant was, in our opinion, a proper subject of discovery and inspection. It cannot properly be considered an attorney’s work product or thing created by a party for litigation (see CPLR 3101, subd. [c], subd. [d], par. 2), as the examination was mandated by statute and conducted in the presence of the adversary’s attorney. The disclosure statute (CPLR 3101) seeks to protect privately obtained information which might reveal the attorney’s strategy or legal theories. It was not intended to safeguard information already in the knowledge of an adversary or his attorney.

Section 3101(b) places the burden on the party resisting disclosure to establish that the material is a privileged attorney-client communication.

Aldrich v. Catel Service Co. · filed 1966-07-28(b)

Such determination is obviously a prerequisite to the proper determination as to the applicability of CPLR 3101 (subd. [b]). The burden of establishing that the statement sought to be discovered herein is a “ privileged communication between attorney and client “ is upon the parties resisting its disclosure upon that ground, and they have failed to meet such burden.

Section 3101(b) bars disclosure of privileged material on objection; the party seeking disclosure must show waiver or that the material is not privileged.

Koump v. Smith · filed 1968-04-22(b)

Under these statutes, plaintiff must not only show that defendant’s physical condition has been placed “ in controversy ”, as required by CPLR 3121 (subd. [a]), but he must also show that defendant has either waived his right to object under CPLR 3101 (subd. [b]) or, in the alternative, show that the information sought to be obtained is not privileged (cf. Vehicle and Traffic Law, § 1192, subd. 3). In our opinion, plaintiff has failed to sustain his burden of showing either waiver or nonprivilege and, therefore, it is not necessary to determine whether defendant’s physical condition has been placed “in controversy”.

Section 3101(b) bars disclosure of privileged matter.

Stepps v. State · filed 1968-10-29(b)

No privileged matter may be obtained (CPLR 3101, subd. [b]).

A party objecting to disclosure under section 3101(b) bears the burden of showing that the material is privileged.

Koump v. Smith · filed 1969-07-02(b)

We disagree, however, with the Appellate Division’s holding that the burden of showing either waiver or nonprivilege is on the plaintiff. In light of the strong policy in favor of full disclosure unless the information sought is immunized, the burden of showing the appropriate immunity should be on the party asserting it (Haire v. Long Is. R. R. Co., 53 Misc 2d 536).

A party’s failure to seek a protective order waives its objection to production when the requested material is not excluded by CPLR 3101.

Salmonsen v. Brown · filed 1970-04-15

The hospital did not apply for a protective order within five days of the notice (CPLR 3122), nor has it applied for one since or given any excuse for its failure to do so. Unless the item sought to be produced is excluded by CPLR 3101, which is neither the case nor the contention here, such conduct by the hospital constitutes a waiver of its right to object.

Section 3101 protects legal advice covered by attorney-client privilege and limits disclosure to evidence material and necessary to the action.

Allied Artists Picture Corp. v. Max L. Raab Productions, Inc. · filed 1971-12-21(a), (b), (d), (e)

The two interoffice memoranda prepared by plaintiff’s former resident counsel and vice-president were legal in nature, in effect, constituting analysis and advice by an attorney to his client. Accordingly, plaintiff has properly invoked the attorney-client privilege (CPLR 3101, subds. [b], [e], [d]). Moreover, the memoranda do not constitute “ evidence material and necessary ” to the defense of this action (CPLR 3101, subd. [a]).

Section 3101(c) does not bar examination of a party acting as his own attorney about facts underlying his pleading; work product objections to particular questions can be resolved during the examination.

In re the Estate of Rothko · filed 1973-03-23(c)

Subdivision (c) of CPLR 3101 exempts an attorney’s work product and material prepared for litigation from disclosure unless the court finds that withholding such information will result in injustice or undue hardship. Here we have the unusual situation where the party is also serving as his own attorney and, in effect, the party is appearing pro se. It is recognized that difficulty may be encountered in distinguishing between the information upon which the allegations of a pleading are based, clearly a proper area for disclosure, and the same party’s work product as an attorney. This is a problem which can be resolved only as the pretrial examination of -the party proceeds and particular inquiries, at this time not predictable, shall be made.

Section 3101(c) absolutely protects attorneys’ litigation notes, analysis, and trial strategy from disclosure, and a claim for attorneys’ fees does not itself waive that protection.

Lane Construction Corp. v. Winona Construction Co. · filed 1975-10-23(c)

The work product immunity under subdivision (c) of CPLR 3101 is absolute. In our view, the material requested was the attorneys’ work product prepared by them in preparation for litigation containing notes, analysis and trial strategy. From the record, it appears that plaintiffs produced all pertinent documents kept in the regular course of business. Under these circumstances, ,we conclude that plaintiffs did not waive their attorneys’ absolute work product by bringing an action for attorneys’ fees.

Section 3101 distinguishes attorney work product from material prepared for litigation; denial of a protective order can leave relevance and materiality objections open.

Victory Markets, Inc. v. Purer · filed 1976-03-01(c), (d)

requires awareness of the distinction between work product, however defined, and material prepared for litigation in addition to the attorney-client privilege. However, in view of the patently overbroad nature of the request for production of items at the depositions, our affirmance is not to be construed as prejudicing any claims or objections relating to the materiality and relevance of such items.

Section 3101(c)’s protection for attorney work product does not prevent a grand jury from subpoenaing a witness’s written statement held by an attorney.

In re Giovinazzo · filed 1976-03-23(c)

On the other hand is the policy in favor of protecting an attorney’s work product and limiting discovery proceedings in this regard — a policy expressed in CPL article 240 and in CPLR 3101 (subd [c]). ... The court decides that the policy affording protection to a lawyer’s work product is not as strong as the policy favoring a Grand Jury’s access to the information and evidence it needs.

Section 3101(c) protects an attorney’s analysis and strategy as work product when the documents are as represented.

Jarai-Scheer Corp. v. St. Paul Fire & Marine Insurance · filed 1976-04-20(c)

According to defendant’s attorneys the documents here sought "were prepared by our firm and reflect our analysis-and strategy.” As such, the documents would appear to be privileged both as attorneys’ work product (CPLR 3101, subd [c]) and a confidential communication between attorney and client (CPLR 4503). Because of the view the court below took, it never examined the documents to determine whether they were in fact privileged communications. Accordingly, if plaintiff desires to do so, plaintiff may renew the motion requesting the court at Special Term to examine the documents ex parte (as defendant has offered to let us do) to determine whether or not the documents are as represented and are thus privileged.

Section 3101 protects an attorney’s facts and observations conveyed to a consulting expert as work product, but does not shield other information disclosed to the expert.

People v. Edney · filed 1976-06-08(c)

This is not to say, however, that an attorney cannot consult a psychiatrist in order to obtain advice concerning the efficacy of an insanity plea or, for that matter, any trial strategy, without fear of later courtroom disclosure. The product of such a consultation is protected, of course, by the work product doctrine (see CPLR 3101). However, that doctrine affords protection only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may thus be subject to trial exclusion. The work product doctrine does not operate to insulate other disclosed information from public exposure.

Section 3101(c) makes an attorney’s work product unavailable for disclosure, including through a Freedom of Information Law request.

Cavalier v. McCue · filed 1976-08-05(c)

Under subdivision (c) thereof, an attorney’s work product is not obtainable and is thus exempted by statute.

Section 3101(b) permits disclosure of matters relating to a malpractice plaintiff’s physical condition when the plaintiff puts that condition in controversy and thereby waives the physician-patient privilege.

Josephs v. Oliver · filed 1975-05-19(b)

Plaintiff Millie Josephs placed her physical condition in controversy by commencing this action and thereby waived the physician-patient privilege (see CPLR 3101, subd [b]) with regard to matters relating to such condition (Koump v Smith, 25 NY2d 287; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3121.01, p 31-389).

Section 3101(b) protects privileged matter even when an objection to an interrogatory is made after the 10-day period in CPLR 3133(a).

Rinaldo v. Syracuse University · filed 1976-01-16(b)

Interrogatories Nos. 13 and 14 clearly deal with privileged matter (CPLR 3101, subd [b]). While it might have been better practice for the third-party plaintiff to have moved within the 10-day time period in CPLR 3133 (subd [a]) such time limitation does not override the more important considerations underlying the immunity provisions of CPLR 3101.

Section 3101(c) does not shield discoverable facts merely because a client learned them through an attorney’s investigation.

Kenford Co. v. County of Erie · filed 1977-01-14(c)

In light of the narrow scope afforded section 3101 (subd [c]), it is clear that information and material which would otherwise be discoverable under section 3101 (subd [a]) cannot be shielded from discovery merely because the client has obtained his knowledge through his lawyer’s investigative efforts.

Section 3101(b) exempts privileged matter from disclosure, but a plaintiff seeking affirmative relief may not use the privilege against self incrimination to withhold testimony needed by the opposing party.

Cronk v. Cayuga County Patrons' Fire Relief Ass'n · filed 1977-06-28(b)

CPLR 3101 (subd [b]) exempts “privileged matter” from disclosure, including subjects embraced by the constitutional privilege against self incrimination. ... Thus, while the privilege will attach to nonparty witnesses and to defendants involuntarily before the court, it may not be asserted by plaintiffs who seek affirmative relief.

Section 3101 does not permit disclosure of privileged matter during a pretrial examination.

Rockwood National Corp. v. Peat, Marwick, Mitchell & Co. · filed 1978-01-03

Privileged matter is not discoverable (see CPLR 3101; Cirale v 80 Pine St Corp., 35 NY2d 113, 117).

Section 3101(c)'s absolute work product protection does not cover an employee statement taken by house counsel for possible litigation before a demand for payment or disclaimer of liability.

Chemical Bank v. National Union Fire Ins. · filed 1979-06-26(c)

It suffices here to state that a statement taken from an employee by house counsel "for possible use in litigation” well before any demand for payment was made to the defendant and months before the defendant disclaimed liability, does not qualify for the absolute prohibition set forth in CPLR 3101 (subd [c]).

Section 3101(c) does not require an attorney to notify an adversary that a witness’s pretrial testimony may be impeached at trial.

Taylor v. Dayton Suregrip & Shore Co. · filed 1978-07-07(c)

Dayton’s attorney was under no compulsion to notify plaintiff, his adversary, that the testimony of the Elia witness might be impeached at the trial (CPLR 3101, subd [c]; cf. ... during pretrial discovery).

Section 3101 shields investigative reports and witness statements from disclosure when they are work product or material prepared for litigation.

Carhart v. Relmar Operating Corp. · filed 1978-12-12(c), (d)

Defendants’ investigative reports and witnesses’ statements were privileged, either as a work product (Hickman v Taylor, 329 US 495; CPLR 3101, subd [c]), or as material prepared for litigation (Nicholson v Henderson, 29 AD2d 939; CPLR 3101, subd [d]), and should not have been ordered turned over.

Communications made before an accident are not material prepared for litigation under CPLR 3101(d)(2).

Sharapata v. Town of Islip · filed 1979-03-19(d)(2)

Special Term correctly held that communications which preceded the happening of the accident do not constitute "Material prepared for litigation” within the purview of CPLR 3101 (subd [d], par 2) (...).

Section 3101(b) protects privileged patient identities and treatment information in a physician’s charge book from discovery.

Del Terzo v. Manufacturers Hanover Trust Co. · filed 1979-03-29(b)

However, those portions of the "charge book” that would identify patients other than decedent, together with the treatment rendered to them, constitute privileged matter not subject to discovery (see Judd v Park Ave. Hosp., 37 Misc 2d 614, affd 18 AD2d 766; CPLR 3101, subd [b]; 4504, subd [a]).

Section 3101 permits disclosure of no-fault forms because correspondence between a party and an insurer is not privileged.

Owens v. Baltzel · filed 1979-10-22(b)

This court cannot agree with the contention of the plaintiffs that the no-fault forms are privileged matter as correspondence between the defendant and his carrier. This court knows of no such privilege.

CPLR 3101(b) exempts privileged communications between a town attorney and municipal officers from disclosure.

Town of Oyster Bay v. Preco Chemical Corp. · filed 1980-03-03(b)

Special Term properly ruled that the items which are the subject of the defendants’ appeal were exempt from disclosure under CPLR 3101 (subd [b]) and 4503 (subd [a]).

Section 3101 requires a party resisting disclosure on privilege grounds to identify the privilege and show that it covers the requested material.

City of New York v. BusTop Shelters, Inc. · filed 1980-03-26(b)

The City does not state what specific statutory or common-law privilege it claims under the FIL or CPLR 3101 (subd [b]). ... With regard to interrogatories 21 and 22, the City has failed to meet either test and the motion for a protective order is denied.

Section 3101(b) bars disclosure of privileged medical records upon objection, even when they are material to the defense.

Burgos v. Flower & Fifth Avenue Hospital · filed 1980-09-10(b)

The Legislature has elected between these conflicting interests: “Upon objection by a party privileged matter shall not be obtainable” (CPLR 3101, subd [b]).

Section 3101(c) protects statements taken by a party’s attorney from that party’s employees from disclosure.

Cornell Manufacturing Co. v. Mushlin · filed 1981-12-07(c)

The statements taken by plaintiff’s attorney from plaintiff’s employees are privileged under CPLR 3101 (subd [c]) and are protected from disclosure (see Pataki v Kiseda, 80 AD2d 100; Upjohn Co. v United States, 449 US 383).

Section 3101(c) absolutely protects attorney work product from disclosure.

People v. Marin · filed 1982-03-30(c)

There is no question that the materials directed to be produced by Kaye Scholer pursuant to the County Court’s order clearly constituted attorney’s work product pursuant to CPLR 3101 (subd [c]) and is absolutely privileged in New York State, as opposed to the conditional privilege relating to material prepared for litigation contained in CPLR 3101 (subd [d]) (see Kenford Co. v County of Erie, 55 AD2d 466; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C310L26, pp 30-31).

CPLR 3101 permits inquiry into privilege even when a party’s failure to seek a timely protective order forecloses other objections to a discovery notice.

Caveney v. Sorrano · filed 1981-10-19

The failure of the defendant doctors to make a timely motion for a protective order under CPLR 3122 forecloses all inquiry concerning the propriety of the notice of discovery and inspection and the information sought to be discovered thereunder, except as to matters of privilege under CPLR 3101 (see Coffey v Orbachs, Inc., 22 AD2d 317, 319-320; Lane — Real Estate Dept. Store v Ziv Chestnut Realty Corp., 76 AD2d 902).

Section 3101(b) protects confidential communications between a party and counsel from disclosure under the attorney-client privilege.

Lehman v. Piontkowski · filed 1981-11-09(b)

We agree with Special Term insofar as the conversations between plaintiff Lehman and his counsel Feigert were confidential communications protected from disclosure by the attorney-client privilege (see CPLR 4503, subd [a]; 3101, subd [b]; Upjohn Co. v United States, 449 US 383; Rockwood Nat. Corp. v Peat, Marwick, Mitchell & Co., 60 AD2d 837).

CPLR 3101 preserves objections to excluded material despite a failure to seek a protective order, but records that are neither privileged nor prepared for litigation do not qualify for that exception.

Frazier v. Alphonso · filed 1982-02-25

In the absence of a viable excuse, failure to move is a waiver of the objection, except as to any item which falls under an exclusionary provision of CPLR 3101 (Matter of Handel v Handel, 26 NY2d 853, 855; Greuling v Breakey, 56 AD2d 540). Plaintiff offered no viable explanation for her failure to seek a protective order. Since the subject items are neither privileged, nor material prepared for litigation (see Hoenig v Westphal, 52 NY2d 605, 608-609), further objection is precluded.

Section 3101(c) does not protect a report that a layperson could prepare, and section 3101(d) does not protect a report unless it was prepared exclusively for litigation.

Mogollon v. South African Marine Corp. · filed 1982-05-03

The document is not an attorney’s work product protected by CPLR 3101 (subd [c]), since the report could have been made by a lay person (see Hoffman v Ro-San Manor, 73 AD2d 207; Wolf v Davis, 108 Misc 2d 19; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:28). Nor is the report protected from disclosure under CPLR 3101 (subd [d]), since it was not prepared exclusively for litigation (see Pataki v Kiseda, 80 AD2d 100, mot for lv to app dsmd 54 NY2d 831; Braun v Great Atlantic & Pacific Tea Co., 67 AD2d 898).

Section 3101(c) gives attorney work product absolute immunity from discovery, unlike subsection (d)’s qualified protection for litigation materials.

Railroad Salvage of Conn., Inc. v. Japan Freight Consolidators (U.S.A.) Inc. · filed 1983-02-23(c)

The distinction is significant because CPLR 3101(c) accords “attorney work product” an absolute immunity from discovery unlike 3101(d)’s qualified immunity.

Section 3101(c)’s attorney work-product exemption applies in New York State grand jury investigations.

In re Grand Jury Subpoena for Documents in the Custody of the Bekins Storage Co. · filed 1983-03-01(c)

The court accordingly holds that the work-product exemption (CPL 240.10, subds 2, 3; CPLR 3101, subd [c]) applies in State Grand Jury investigations.

CPLR 3101(c) and (d)(2) do not shield records and expert reports from a client’s successor counsel when the attorneys are not adversaries and withholding the materials would prejudice the client.

Melendez v. Union Hospital of Bronx · filed 1982-06-08(c), (d)(2)

Respondent raised the defenses of attorney work product (CPLR 3101, subd [c]), and material prepared for litigation (CPLR 3101, subd [d], par 2). However, under the facts of this case both of these defenses are unavailing.

Section 3101(b) protects attorney-client communications from disclosure.

City of Elmira v. Larry Walter, Inc. · filed 1982-07-08(b)

After reviewing the materials submitted by Travelers to Special Term for review in camera, it is our opinion that the memoranda and correspondence between Bollinger and Harrison were protected by the attorney-client privilege and thus not subject to disclosure (CPLR 3101, subd [b]; see Upjohn Co. v United States, 449 US 383).

Section 3101 protects privileged matter from disclosure even when a party fails to timely object to interrogatories.

Blessin v. Greenberg · filed 1982-08-09

Plaintiff, having failed to timely object to the propriety of the interrogatories, is now foreclosed from challenging the interrogatories, except as to requests for matter privileged under CPLR 3101 (see Lane—Real Estate Dept. Store vZiv Chestnut Realty Corp., 76 AD2d 902). Since none of the interrogatories request privileged matter, plaintiff must respond to them with the specificity demanded by appellant.

Section 3101(b) protects privileged matter from disclosure, and a party cannot be sanctioned for refusing to disclose it.

Oak Beach Inn Corp. v. Babylon Beacon, Inc. · filed 1983-03-07(b)

Defendants were not required to disclose privileged matter (CPLR 3101, subd [b]), and it was therefore error to impose sanctions upon them for their refusal to disclose this privileged matter.

Section 3101(c)’s attorney work product exemption does not cover a plaintiff’s letters to her physician merely because they contain her attorney’s instructions and impressions.

Graf v. Aldrich · filed 1983-05-05(c)

Nor are we persuaded by plaintiff’s contention that the letters are exempt as attorney’s work product (CPLR 3101, subd [c]) because they contain the attorney’s instructions and impressions. ... Clearly, these letters do not fall within the “work product” exemption.

Section 3101(b) protects privileged information from disclosure, making an attorney’s examination futile when the relevant answers would be privileged and the privilege is claimed.

Osserman v. Osserman · filed 1983-03-28(b)

Since relevant answers to questions pertaining to defendant’s financial condition, sought to be asked by plaintiff’s counsel, would be privileged (CPLR 3101, subd [b]), and are here claimed so to be, it would be futile to permit such inquiry of defendant’s counsel (Di Francesco v Di Francesco, 47 Mise 2d 632; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.38).

Section 3101(b) protects attorney-client communications from disclosure when the client has not waived the privilege.

Jakobleff v. Cerrato, Sweeney & Cohn · filed 1983-11-28(b)

However, it simply cannot be said that plaintiff has placed her privileged communications with her present attorney in issue, or that discovery of such communications is required to enable defendants to assert a defense or to prosecute their third-party claim.

Section 3101(c) and (d)(2) do not bar testimony when the subpoena does not concern attorney work product or material prepared for litigation.

Martin v. John Hancock Mutual Life Insurance · filed 1983-08-16(c), (d)(2)

It is further clear that the subject matter of such subpoena is not concerned with postdeath material prepared for litigation, i.e., CPLR 3101 (subd [d], par 2), or attorney’s work product (CPLR 3101, subd [c]) and such is denied on these issues only without prejudice.

Section 3101(c) protects attorney-prepared materials containing legal analysis or trial strategy; the court may inspect disputed correspondence in camera to determine whether the privilege applies.

People v. Essner · filed 1984-07-10(c)

“Because it affords an unqualified privilege, the commentators agree that the ambit of CPLR 3101 (subd [c]) is to be construed narrowly to include only those materials prepared by an attorney which contain his analysis and trial strategy”. ... Therefore, PMM shall produce for this court’s in camera inspection any documents which meet the specifications of PMM 4.

Section 3101(c) does not protect attorney bills as work product because a bill is not material uniquely associated with an attorney’s professional skills.

Brandman v. Cross & Brown Co. of Florida, Inc. · filed 1984-08-01(c)

Finally, the plaintiffs argue that the bills in question should be precluded because of the work product doctrine codified in CPLR 3101 (subd [c]). The courts have limited construction of this section to materials uniquely associated with an attorney’s professional skills (Hoffman v Ro San Manor, 73 AD2d 207, 211). This court declines to attribute a bill to the unique skills of an attorney.

Section 3101(c) protects attorney work product in a prosecutor’s memorandum, but statements relating to the attorney’s trial testimony must be disclosed.

People v. Essner · filed 1984-10-09(c)

The Assistant District Attorney has produced, in camera, a memorandum and requests a ruling whether it constitutes Rosario material which must be made available to the defendant pursuant to CPL 240.45, or attorney’s work product (CPLR 3101, subd [c]), exempt from such production. ... These statements should be disclosed to the extent they relate to matters covered or to be covered by her testimony. ... Finally, to the extent the balance of the Memorandum contains attorney’s work product not falling into one or the ... other of the above categories, disclosure is not required and the court has redacted that portion of the Memorandum.

Section 3101(c) protects an attorney’s work product from disclosure, and a client’s review of it before an examination does not waive the privilege.

Geffers v. Canisteo Central School District No. 463201 · filed 1984-11-07(c)

The fact that the memorandum was reviewed by his client in preparation for an examination before trial does not constitute a waiver of the privilege under CPLR 3101 (subd [c]) (see Hickman v Taylor, 329 US 495, 511; Kenford Co. v County of Erie, 55 AD2d 466, 470).

Section 3101(c) permits withholding an attorney’s retainer letter and investigator’s report when the expert did not base his opinion on them.

Stein v. Lebowitz-Pine View Hotel, Inc. · filed 1985-05-30(c)

Since plaintiff’s expert witness confirmed that his opinion was not premised on a retainer letter and investigator’s report provided by plaintiff’s attorney, defendant was properly precluded from viewing these documents (CPLR 3101 [c]; see, Sachs v Fumex Sanitation, 75 AD2d 595, 596).

Section 3101(c) absolutely protects attorney work product from disclosure, including work product prepared for other litigation.

Beasock v. Dioguardi Enterprises, Inc. · filed 1986-02-21(c)

We hold that the absolute privilege protecting attorney’s work product from disclosure (CPLR 3101 [c]) extends not only to materials prepared for the litigation then in progress, but also to work product prepared for other litigation.

A party resisting disclosure under CPLR 3101 must establish that the requested information is immune from discovery; unsworn assertions by counsel are insufficient.

County of Chemung v. Fenwal, Inc. · filed 1985-05-23

Since Fenwal has not sustained its burden of establishing that the information sought is immune from discovery under CPLR 3101, its unsworn assertions by counsel being inadequate for this purpose, the order as amended must be affirmed.

Section 3101’s broad disclosure rule does not override the physician-patient privilege.

Iseman v. Delmar Medical-Dental Building, Inc. · filed 1985-12-05(b)

The liberal disclosure provisions contained in CPLR 3101, which allow disclosure of evidence despite the fact that it may be inadmissible at trial, do not circumscribe the scope of the physician-patient privilege (Greene v New England Mut. Life Ins. Co., 108 Misc 2d 540, 542).

Section 3101(b) protects privileged medical information from disclosure unless the party affirmatively places their physical or mental condition in controversy.

Soybel v. Gruber · filed 1986-06-20(b)

CPLR 3101 (b) provides that upon objection of a party, privileged matter shall not be obtainable. ... CPLR 3121 (a) limits the application of section 3101 (b) to the extent that a party who affirmatively places his physical or mental condition in controversy waives the privilege and the doctor-patient communication may be discoverable. ... Respondent in this proceeding did not take any action to place her physical or mental fitness in controversy for petitioner to examine her pursuant to CPLR 3121 (a).

Section 3101 protects privileged matter from disclosure even when a party fails to object to a discovery demand on time.

Corriel v. Volkswagen of America, Inc. · filed 1987-02-17

The failure of a party to make a timely motion to strike interrogatories forecloses all inquiry into the propriety of the information sought except as to requests for matter privileged under CPLR 3101 ... No claim of privilege is raised by the plaintiff. Therefore, the plaintiff must respond to the interrogatories with the specificity demanded by the appellant.

Section 3101(b) protects information from disclosure when it would reveal confidential attorney-client communications.

Bloss v. Ford Motor Co. · filed 1987-01-08(b)

Nor has defendant shown that the indexes are immune from disclosure under CPLR 3101 (b). ... There is no indication in the record that the indexes contained confidential communications between defendant and its attorneys.

CPLR 3101(b) protects discussions, tests, and observations made to pursue settlement under an agreement that the information will not be used in litigation.

Crow-Crimmins-Wolff & Munier v. County of Westchester · filed 1987-01-26(b)

The question on appeal is whether the information CCWM sought from Delaval’s manager of engineering, Gerald Trussell, during his examination before trial, was privileged matter pursuant to CPLR 3101 (b) and thus protected from disclosure. ... Therefore, to the extent that the information sought by CCWM was the content of discussions had during the plant visit, discovery was clearly barred. ... Actions taken and observations made for the stated purpose of arriving at a settlement agreement, and expressly not for litigation, which actions would not have been accomplished except in a mutual attempt to reach a settlement, should likewise generally be protected by the same public policy of encouraging attempts at settlement.

A privilege under CPLR 3101 is waived when a party or witness uses a written statement to refresh recollection before a deposition or trial.

Grieco v. Cunningham · filed 1987-03-02(b), (c)

Any privilege under CPLR 3101 was waived when Vincent Grieco used his written statement prior to his deposition to refresh his recollection as to the events of the incident, and when the plaintiffs’ witness reread her statement prior to the trial for the same purpose.

CPLR 3101 preserves privilege as a ground to resist disclosure even when an untimely motion for a protective order forecloses other objections.

Dalley v. LaGuardia Hospital · filed 1987-05-11

With respect to these demands, the plaintiffs’ failure to timely move for a protective order pursuant to CPLR 3122 "forecloses all inquiry concerning the propriety of the notice of discovery and inspection and the information ... sought * * * thereunder, except as to matters of privilege under CPLR 3101” (Caveney v Sorrano, 84 AD2d 557; see also, Faraone v Carrollwood Assocs., 123 AD2d 344; Liga v Long Is. R. R., 121 AD2d 606; Zambelis v Nicholas, 92 AD2d 936, 937). As the foregoing materials are not protected by privilege and, moreover, since it cannot be said that the demands are "palpably improper” in scope (see, Liga v Long Is. R. R., supra), the material requested thereunder should be produced.

Section 3101(c) protects an attorney’s legal analysis and conclusions from discovery as attorney work product.

Rossi v. Blue Cross & Blue Shield · filed 1988-05-12(c)

The second reason for finding against disclosure is that the document, which contains the attorney’s legal analysis and conclusions, is immune from discovery as an attorney’s work product pursuant to CPLR 3101 (c).

CPLR 3101(c) does not protect a report prepared by a third party and later sent to an attorney as attorney work product.

Central Buffalo Project Corp. v. Rainbow Salads, Inc. · filed 1988-05-27(c)

Nor is the Mahaney report exempt from disclosure as the work product of an attorney (CPLR 3101 [c]).

Section 3101(b) bars disclosure of privileged matter upon a party’s objection; suppression can restore that protection when the matter has been obtained covertly.

In re Beiny · filed 1987-06-18(b)

The point to be made is that regardless of whether suppression of the improperly obtained privileged material was appropriate pursuant to CPLR 3103 (c), it was in any case necessary to fulfill to the extent possible when disclosure was already a fait accompli, the command of CPLR 3101 (b) that "[U]pon objection by a party privileged matter shall not be obtainable.” Obviously, the fact that privileged material has been covertly obtained does not make it "obtainable” within the meaning of the statute. When that which is not obtainable has been obtained, the only appropriate judicial response is to attempt through suppression to restore the status quo prior to the unauthorized disclosure.

Section 3101 does not shield relevant litigation materials and work product from disclosure in a bad-faith action between an excess insurer and a primary insurer.

Zurich Insurance v. State Farm Mutual Automobile Insurance · filed 1988-02-02

Respondent’s assertion of the litigation and work product privilege for the materials sought by appellant is unavailing in this bad-faith action between issuers of primary and excess insurance policies.

Section 3101(b) does not shield a fiduciary’s legal advice about estate administration from beneficiaries, but the privilege protects advice prepared when litigation has commenced or is anticipated.

In re the Estate of Baker · filed 1988-02-11(b)

In addition, confidential communications between attorney and client made for the purpose of obtaining professional legal advice are protected from disclosure under CPLR 3101 (b) and CPLR 4503. ... This court is of the opinion that a fiduciary has an obligation to disclose the advice of counsel with respect to matters affecting the administration of the estate (2A Scott, Trusts § 173 [4th ed]). This is subject to the limitation that the fiduciary should have the protection of the privilege when litigation has commenced or is anticipated (2A Scott, Trusts § 173 [4th ed]; see, In re LTV Sec. Litig., 89 FED 595).

Section 3101(a)’s material-and-necessary standard does not suffice to compel disclosure of a reporter’s newsgathering photographs; the litigant must meet the more demanding constitutional test.

O'Neill v. Oakgrove Construction, Inc. · filed 1988-03-29(a)

In the present case, the Appellate Division, finding no constitutional protection for nonconfidential press materials, returned plaintiff’s discovery motion to Supreme Court for a hearing to determine whether the photographs sought "depicted] relevant evidence not shown in the police photographs” and were, therefore, "material and necessary” to plaintiff’s personal injury claim within the meaning of CPLR 3101. As discussed above, that standard affords inadequate protection to the newsgathering activities of the press. The more stringent, constitutionally mandated test that we have outlined should be applied.

Section 3101(c)’s attorney work product protection can be overcome by a sufficient showing of fraud in a grand jury investigation.

In re the Grand Jury Subpoenas Served Upon Doe · filed 1988-08-11(c)

With respect to the records called for by item 1 of the subpoena dated November 4, 1987 (files numbered 500-506), item 4 of the subpoena dated December 23, 1987 (files numbered 557-572), and the subpoena dated May 19, 1988 (files numbered 606-609), the People have, in camera, made a sufficient showing of fraud to overcome any valid claim of attorney work product privilege.

Section 3101(c) protects an attorney’s internal, undisclosed thoughts and analyses from disclosure.

In re the Estate of Johnson · filed 1989-02-06(c)

The documents at issue here are internal, undisclosed notations of an attorney’s thoughts and analyses and are absolutely protected from disclosure.

Section 3101(c) protects an attorney’s litigation interviews and notes as work product even when information from them is used to prepare court papers.

Corcoran v. Peat, Marwick, Mitchell & Co. · filed 1989-06-29(c)

The fact that information elicited by a lawyer may be utilized in order to submit papers and exhibits to the court, including an attorney’s affirmation, and is not restricted to assisting counsel in delivering oral presentations does not generally render the work product less exempt from discovery.

A party claiming protection for materials prepared for litigation under CPLR 3101(d) must establish the grounds for it; conclusory allegations are insufficient.

Commercial Union Insurance v. Jedamich Enterprises, Inc. · filed 1989-01-17(d)

The insured also contends that the plaintiff should be obligated to indemnify it because the plaintiff provided the attorneys for the plaintiff in the underlying action with its investigatory file of the underlying claim, which file allegedly contained confidential and privileged information pursuant to CPLR 3101 (d), i.e., materials prepared for litigation. It is well settled that a party claiming a privilege must demonstrate the grounds for invoking it (see, Big Apple Concrete Corp. v Abrams, 103 AD2d 609; Stanwick v A.R.A. Servs., 124 AD2d 1041). In support of its contention, the insured merely set forth conclusory allegations which are not sufficient to demonstrate that any privilege was breached.

Section 3101(b) protects privileged attorney-client communications from disclosure unless the client waives the privilege.

Raphael v. Clune White & Nelson · filed 1989-01-30(b)

We note that since the documents sought to be discovered were made between attorney and client in the course of professional employment for the purpose of obtaining legal advice they therefore fall within the privilege (CPLR 4503 [a]) and, as such, are not discoverable (CPLR 3101 [b]) unless the privilege has been waived by the client (see, Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835).

Section 3101(b) excludes privileged information from disclosure even when it is otherwise material and relevant.

Dillenbeck v. Hess · filed 1989-02-23(b)

The statutory scheme, by expressly providing an exception for privileged information, clearly contemplates that certain information, though otherwise material and relevant to a legal dispute, "shall not be obtainable” where it is shown to be privileged (CPLR 3101 [b]).

Section 3101(d)(2)’s requirement that material be prepared for litigation does not govern the immunity afforded materials prepared to settle a claim.

Randall Electric, Inc. v. State · filed 1989-05-04(d)(2)

Finally, the fact that the material was not prepared solely for litigation (see, CPLR 3101 [d] [2]) is irrelevant. The immunity afforded materials prepared in connection with settlement of a claim is not derived from CPLR 3101 (d) (2) (see, Crow-Crimmins-Wolff & Munier v County of Westchester, supra).

Section 3101(c) protects materials that counsel prepared in a professional capacity using legal reasoning, analysis and skill as attorney work product.

ACWOO International Steel Corp. v. Frenkel & Co. · filed 1990-09-18(c)

The documents herein were prepared by counsel in his professional capacity in an attempt to resolve this commercial dispute and involved legal reasoning, analysis and professional skills and thus fall within the parameters of the attorney work product doctrine.

Section 3101(b) places the burden on a party opposing disclosure to establish privilege, which can bar compelled answers when a pending postconviction motion could lead to a retrial where those answers might incriminate the party.

Brahm v. Hatch · filed 1991-07-11(b)

In this case, it is clear that the evidence plaintiffs seek is material and useful in their wrongful death action and defendant has the burden of establishing that the information sought is privileged or not otherwise subject to disclosure ... Accordingly, we hold that defendant has satisfied his burden and may not be compelled to answer said questions while his CPL article 440 motion is pending.

Section 3101(b) makes privileged attorney-client communications absolutely immune from disclosure, including a confidential lawyer’s report that primarily conveys legal advice.

Spectrum Systems International v. Chemical Bank · filed 1991-10-24(b)

CPLR 4503 (a) states that a privilege exists for confidential communications made between attorney and client in the course of professional employment, and CPLR 3101 (b) vests privileged matter with absolute immunity.

Section 3101 permits a party to assert privilege over confidential client transaction records despite an untimely objection to a discovery notice.

King v. Olsen · filed 1991-12-16

"[T]he failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought, except as to material which is privileged under CPLR 3101 or as to requests which are palpably improper” (Muller v Sorensen, 138 AD2d 683, 684). Here, the defendants’ claim of privilege for confidential records of transactions by the defendants’ clients in the commodity markets has merit, and thus the order appealed from is modified to the extent noted.

CPLR 3101 (b) and (c) protect detailed legal bills from disclosure when they reveal privileged communications and attorneys’ work.

Licensing Corp. of America v. National Hockey League Players Ass'n · filed 1992-01-24(b), (c)

After reviewing in detail the submitted bills, this court finds that they are not subject to discovery pursuant to CPLR 3101 (b), (c) and, because of the attorney and client privilege.

Section 3101(b) protects privileged matter from disclosure, including a psychologist’s patients’ identities sought during financial discovery.

Frederick R. C. v. Helene C. · filed 1992-03-09(b)

Moreover, even at a deposition with its somewhat relaxed rules of evidence (CPLR 3115), the protections surrounding privileged matter are available. (CPLR 3101 [b].) ... It is, therefore, the determination of this court that the identities of the plaintiff’s patients are privileged and confidential.

Section 3101 protects attorney-client communications, attorney work product, and materials prepared for litigation from disclosure unless an exception applies.

Occidental Chemical Corp. v. Hartford Accident & Indemnity Co. · filed 1992-06-05

In light of the parties’ contentions, unless an exception to the privileges set forth in CPLR 3101 (b), (c) and (d) (2) applies, the material that defendants now seek is privileged or otherwise not discoverable (see, Manufacturers & Traders Trust Co. v Servotronics, Inc., 132 AD2d 392).

Section 3101(c) and (d)(2) protect specified requested items from discovery when the required showing is made.

Independence Savings Bank v. St. Paul Fire & Marine Insurance · filed 1992-11-09(c), (d)(2)

We agree with the Supreme Court that the defendant met its burden of demonstrating that the requested items are immune from discovery pursuant to CPLR 3101 (c) and 3101 (d) (2) (see, Koump v Smith, 25 NY2d 287; Volpicelli v Westchester County, 102 AD2d 853).

Section 3101(b) protects privileged matter from disclosure when a party objects.

Scalone v. Phelps Memorial Hospital Center · filed 1992-12-07(b)

Similarly, in the instant case, the mere fact that the plaintiff has commenced this action as a personal representative and distributee is insufficient to effect a waiver of her privilege. In addition, the plaintiff admittedly refused to answer questions relating to her health at her deposition, thereby invoking her privilege under CPLR 3101 (b) and 4504 (a).

Section 3101(b) protects privileged attorney-client communications from disclosure.

Ortiz v. Rivera · filed 1993-05-11(b)

Further, as the referring attorney herein had been contacted in his capacity as an attorney, for the purpose of obtaining legal advice and services, the attorney client privilege precluded his testimony (CPLR 3101 [b]; 4503; see, Matter of Priest v Hennessy, 51 NY2d 62, 68-69).

Section 3101(c) protects an attorney’s work product from the client’s adversaries, but does not bar disclosure to the client for whom it was prepared.

Finn v. Riley · filed 1994-03-24(c)

Contrary to plaintiff’s assertion, the material sought to be inspected does not constitute attorney’s work product thereby precluding its disclosure and excepting it from the waiver rule (see, supra; see also, CPLR 3101 [c]). Attorney’s work product contemplates material prepared by an attorney on behalf of a client and is shielded from the client’s adversaries (see, Beasock v Dioguardi Enters., 117 AD2d 1016). Here, the very client for whom the materials were prepared seeks disclosure in aid of her defense.

Section 3101(c) protects an attorney’s work product, including a recording of an interview conducted while representing an estate, from discovery.

Manning v. Sikorskyj · filed 1994-05-27(c)

The record reflects that the attorney conducted the interview in question while acting as attorney for the estate of Lisa M. Manning, and we conclude that the tape recording of the interview was protected from discovery as attorney work product (see, CPLR 3101 [c]).

When a party claims that investigative reports are privileged litigation materials under CPLR 3101, the court should inspect them in camera before granting a protective order.

City of New York v. Church Street Realty Associates · filed 1993-09-09

We express no opinion as to whether the privilege is properly claimed and hold only that the motion court should inspect the documents in camera to determine the privilege claim.

Section 3101(c) protects material prepared to assist an attorney in analyzing a case as attorney work product.

Xerox Corp. v. Town of Webster · filed 1994-07-15(c)

In any event, the material sought from the appraiser was prepared to assist plaintiff’s attorney in analyzing plaintiff’s case. Thus, it is protected from disclosure as part of the attorney’s work product (see, CPLR 3101 [c]; Santariga v McCann, 161 AD2d 320, 321).

Section 3101(b) and (c) protect attorney-client communications and attorney work product from disclosure.

Lipin v. Bender · filed 1994-11-01(b), (c)

While the Appellate Division made plain that it would reach the same result whether or not the documents were actually privileged, in fact both courts agreed as to the protected nature of the documents, which plainly fall within the ambit of work product and the attorney-client privilege (see, CPLR 3101 [b], [c]; see also, Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377, 380).

CPLR 3101(b) and (c) protect privileged matter and attorney work product from disclosure; a court may inspect disputed legal bills in camera to determine whether they are protected.

De La Roche v. De La Roche · filed 1994-11-01(b), (c)

While CPLR 3101 (a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action”, the CPLR also provides that privileged matter and an attorney’s work product are absolutely immune from discovery (CPLR 3101 [b], [c]; see, Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371). ... Inasmuch as defendant requested plaintiffs legal bills, and since such material may be privileged, the matter must be remanded to the IAS Court before which plaintiff is directed to submit the challenged material for in camera inspection for a determination as to whether the documents are protected from disclosure.

Section 3101(c) does not protect documents as attorney work product when they were not prepared by attorneys employed as such.

Eisic Trading Corp. v. Somerset Marine, Inc. · filed 1995-02-21(c)

Most of the documents at issue here were either disclosed to or authored by third parties, such as claims adjustors, or contained nonprivileged factual information, and cannot be considered attorney work product since they were not prepared by attorneys employed as such (Graf v Aldrich, 94 AD2d 823, 824).

Section 3101(c) protects attorney work product from disclosure.

Russo v. Lupow · filed 1995-05-30(c)

Contrary to the plaintiffs’ contention, the Supreme Court properly concluded that the requested documents constituted attorney work product and therefore were not subject to discovery (see, CPLR 3101 [c]).

Section 3101(c) does not automatically protect descriptions in an attorney’s fee bill as work product; protection depends on whether the material is uniquely the product of the attorney’s professional skills.

Orange County Publications, Inc. v. County of Orange · filed 1995-06-15(c)

Respondent’s denial of the FOIL request cannot be upheld unless the descriptive material is uniquely the product of the professional skills of respondent’s outside counsel. ... Therefore, the attorney work product privilege does not serve as an absolute bar to disclosure of the descriptive material.

Section 3101(b) protects privileged matter from disclosure, including an inter-agency report the court found irrelevant to the claim and privileged.

Clark-Fitzpatrick, Inc. v. State · filed 1994-11-21(b)

Upon our in camera review of the requested document, we find that the Court of Claims properly determined that the inter-agency report of the Department of Transportation is irrelevant to the subject matter of the claim and privileged under CPLR 3101 (b) (see, Cirale v 80 Pine St. Corp., 35 NY2d 113, 117-118; Matter of Schwartz, 130 Misc 2d 786; see also, Public Officers Law § 87 [2] [g]; O’Shaughnessy v New York State Div. of State Police, 202 AD2d 508; Matter of Rome Sentinel Co. v City of Rome, 174 AD2d 1005, 1006; Matter of Town of Oyster Bay v Williams, 134 AD2d 267).

Section 3101 protects attorney-client communications, attorney work product, and materials prepared in anticipation of litigation from disclosure.

Falconwood Corp. v. In-Touch Technologies, Ltd. · filed 1995-06-22(b), (c), (d)(2)

The five documents which are the subject of this appeal were clearly prepared for the purpose of rendering legal advice from attorney to client and are immune from disclosure as attorney-client communications, attorney work product, or materials prepared in anticipation of litigation (CPLR 3101 [b], [c], [d] [2]).

A motion claiming that requested material is privileged under CPLR 3101 is not untimely merely because it follows earlier discovery orders.

Donald Rubin Inc. v. Schwartz · filed 1995-10-24

Nor was plaintiffs’ motion untimely, since it claimed that matter requested was privileged under CPLR 3101 (Corriel v Volkswagen of Am., 127 AD2d 729, 730).

Section 3101(b) permits a court to deny discovery of hospital records protected by the patient-physician privilege.

Navedo v. Nichols · filed 1996-11-12(b)

Even if the party seeking the information satisfies that initial burden, discovery may still be precluded if the requested information is privileged (CPLR 3101 [b]; 4504). ... Moreover, the appellant validly asserted the patient-physician privilege, which was not waived by his denial of the allegations of the complaint or by asserting his affirmative defenses.

Section 3101(b) does not create privileges; it prevents disclosure of privileged matter in civil litigation.

Greco v. Supp · filed 1997-01-31(b)

It should be noted that CPLR 3101 (b) establishes no privileges. It merely provides that privileged matter is not obtainable by way of disclosure in a civil litigation.

Section 3101(b) protects confidential communications between an attorney and client from disclosure, even when they concern matters of interest to another party.

Parisi v. Leppard · filed 1997-05-02(b)

Accordingly, Mr. Steiner may not be required to answer questions at a deposition or to produce documents concerning legal advice he gave to Dr. Leppard, or communications he received from Dr. Leppard that were in the context of such counsel, even if such exchanges concerned matters that were of contemporaneous interest to Dr. Parisi and POSA.

Section 3101(c) shields attorney work product from disclosure, and section 3101(d)(2) protects litigation materials reflecting an attorney’s or party representative’s mental impressions, conclusions, opinions, or legal theories.

Cushing v. Seemann · filed 1997-04-25(c), (d)(2)

After reviewing those documents in camera, we conclude that Supreme Court properly determined that they are immune from disclosure as the "work product of an attorney” (CPLR 3101 [c]). Moreover, the documents are "protected] against disclosure” as materials prepared for litigation insofar as they contain or reflect the "mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation” (CPLR 3101 [d] [2]).

A party opposing disclosure bears the burden of proving that demanded documents are privileged; a blanket assertion of privilege without identifying the documents is insufficient.

McCarthy v. Klein · filed 1997-04-28

However, the burden of proving that the demanded documents are privileged is on the party opposing disclosure (see, Spectrum Sys. Intl. Corp. v Chemical Bank, supra; Brown v Brown, 162 AD2d 429). The mere blanket assertion of privilege is insufficient (see, Brown v Brown, supra). Here, because the defendant has failed to even identify the documents at issue, he has a fortiori failed to demonstrate that such documents were privileged.

Section 3101(c) absolutely exempts from discovery a lawyer’s notes and memoranda from witness interviews conducted during litigation.

Siemens Solar Industries v. Atlantic Richfield Co. · filed 1998-01-27(c)

Notes and memoranda made in connection with a lawyer’s interview of a witness procured in the course of litigation constitute attorney’s work product, which is absolutely exempt from discovery (Corcoran v Peat, Marwick, Mitchell & Co., 151 AD2d 443, 445; People v Marin, 86 AD2d 40, 43-44; CPLR 3101 [c]).

Section 3101(c) protects documents an attorney creates about an interview with a treating physician as attorney work product.

Fraylich v. Maimonides Hospital · filed 1998-06-25(c)

Nor are plaintiffs entitled to any documents defendants’ attorney may have created relating to the interview, such being privileged as attorney work product (CPLR 3101 [c]; ...).

Section 3101 permits disclosure to be precluded when the requested information is privileged.

Conlin v. Birritella · filed 1997-11-10(b)

Even if the party seeking the information satisfies that initial burden, discovery may still be precluded if the requested information is privileged (see, CPLR 3101, 4504).

Section 3101(c) protects attorney work product, and section 3101(d)(2) conditionally protects material prepared for litigation; neither protects minutes recording business discussions.

Aetna Casualty & Surety Co. v. Certain Underwriters at Lloyd's London · filed 1998-02-17(c), (d)(2)

Plainly the minutes do not reflect the note-taking attorneys’ interviews with witnesses, “mental impressions, personal beliefs, case evaluation or trial strategy” which would have an absolute privilege from production under CPLR 3101 (c) (Feig v Lenox Hill Hosp., 167 Misc 2d 42, 46 [Sup Ct, NY County 1995]). ... Nor are the minutes material “prepared in anticipation of litigation or for trial” that are subject to a conditional privilege under CPLR 3101 (d) (2).

Section 3101(b) protects an internal litigation-strategy memorandum prepared in response to a threat of litigation as privileged matter, absent misconduct that would vitiate the privilege.

Newman v. Lotwin · filed 1999-05-04(b)

The document in issue, an internal office memorandum outlining possible litigation strategy, including potential witnesses, was clearly prepared in response to a threat of litigation from plaintiffs attorney, and is therefore privileged matter under CPLR 3101 (b). It contains no indication of crimes or other misconduct such as would vitiate the privilege.

Section 3101(b) shields privileged communications from discovery when the privilege holder objects.

In re D'Agostino · filed 1999-07-12(b)

Communications deemed privileged shall not be obtainable upon objection of a party or person holding the privilege and are shielded from discovery (CPLR 3101 [b]).

CPLR 3101 protects privileged material from disclosure even when a party fails to challenge a discovery notice on time.

Garcia v. Jomber Realty, Inc. · filed 1999-09-27

The failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101, or requests that are palpably improper (see, Holness v Chrysler Corp., 220 AD2d 721). In this case, the information sought by the defendant with regard to the individual who painted the plaintiffs’ apartment did not qualify under either exception and thus should be disclosed.

Section 3101(d)(2) permits a court to review materials claimed as work product in camera and decide whether to order their disclosure.

Hoag v. Chase Pitkin Home & Garden Center · filed 1999-12-30(d)(2)

Finally, the court did not abuse its discretion in directing defendant and its liability insurer to produce all reports, notes and memoranda concerning the display board and any photographs of it. Upon reviewing in camera any such materials claimed to be privileged work product, the court can exercise its discretion to determine whether disclosure should be ordered pursuant to CPLR 3101 (d) (2).

Section 3101 protects privileged material from disclosure even when a party did not timely challenge the request, but the party must show that the material is privileged.

Woo v. Shimunov · filed 2000-06-12

The only exceptions made are with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper ... The defendants failed to demonstrate that the name and address of the medallion owner is privileged information or that the request was palpably improper.

Section 3101 protects privileged material from disclosure despite an untimely objection to a discovery notice; a court should review a potentially privileged litigation file in camera before ordering its production.

Srinivasan v. City of New York · filed 2000-10-30

Although the defendant failed to challenge the plaintiffs request for production of the file within the time prescribed by CPLR 3122, the failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper (see, Otto v Triangle Aviation Servs., 258 AD2d 448, 449; Holness v Chrysler Corp., 220 AD2d 721; Titleserv, Inc. v Zenobio, 210 AD2d 314, 315).

CPLR 3101 privileges cannot be raised to resist disclosure when the law of the case requires the documents to be produced.

Kimmel v. State · filed 2001-09-28

The State Police defendants are prohibited by the law of the case from raising the CPLR 3101 privileges (see, Kimmel v State of New York, supra, 261 AD2d, at 844-845).

Section 3101(c) gives attorney work product absolute protection from disclosure; briefly showing an adversary part of a memorandum does not waive that protection when the adversary does not obtain it.

Charter One Bank v. Midtown Rochester · filed 2002-02-05(c)

Even assuming that one of these memos was revealed in part to the adversary, or was discussed with the plaintiff, this is insufficient to warrant removal of the absolute protection afforded the work product of an attorney. (See CPLR 3101 [c].) Unless the plaintiff has in its possession the written work product of defendant’s attorneys, by a voluntary and intentional disclosure, there can be no waiver of the absolute immunity from disclosure provided for attorney work product.