N.Y. C.P.L.R. § 3101

Section 3101(d) protects statements prepared for litigation from discovery when withholding them causes no undue hardship to the requesting party.

Albano v. Schwab Bros. Trucking, Inc. · filed 1967-03-30(d)(1), (d)(2)

There will be no undue hardship upon plaintiff if the statements are not produced for he has already had an oral examination of defendant Wykoff and does not allege he could not obtain one of defendant Baker. Plaintiff thus would not be entitled to relief under CPLR 3101 (subd. [d], pars. 1, 2).

Section 3101(d)(2) conditionally protects materials prepared for litigation from disclosure, and the party claiming that protection must show the materials qualify.

Haire v. Long Island Rail Road · filed 1967-04-14(d)(2)

The defendants, by recitation of an attorney-investigator relationship only, have not shown the statements alluded to to be materials prepared for litigation pursuant to CPLR 3101 (subd. [d]).

Section 3101(d) permits production of statements and reports to determine whether they were prepared for litigation or made in the regular course of business.

Haire v. Long Island Rail Road · filed 1967-12-18(d)

As indicated by the modification here made, the statements and/or reports referred to are to be produced so that it may be ascertained whether they were made in preparation for litigation or in the regular course or business (CPLR 3101, subd. [d]).

Section 3101(d)(2) treats an insured’s statement to her insurer as material prepared for litigation even if no lawsuit against the insured follows.

Cunningham v. Cook · filed 1968-02-14(d)(2)

By CPLR 3101 (subd. [d], par. 2) it is provided that a writing or anything created by or for a party or its agent, in preparation for litigation, shall not be obtainable unless the court finds that the withholding of it will result in injustice or undue hardship. As to whether or not this material is prepared for litigation, it must be held that it was, even in the absence of an eventual lawsuit against the plaintiff.

Section 3101(d)(2) allows an insured or assignee suing an insurer to discover materials the insurer prepared for the earlier suit against the insured.

Collins v. Jamestown Mutual Insurance · filed 1968-06-05(d)(2)

The theory is that while the materials may have been prepared for litigation, the litigation for which they were prepared was the prior suit in which the insurer represented the insured, or failed to represent the insured as herein, and not the present suit in which the insurer represents itself.

Subdivision (d) exempts material prepared for litigation from disclosure unless the requester shows that changed conditions prevent duplication and withholding it would cause injustice or undue hardship.

Clarke v. First Presbyterian Church of East Aurora · filed 1968-06-24(d)

It was unquestionably material prepared for litigation which was exempt from disclosure, unless defendant established that it could no longer be duplicated because of a change in conditions and that withholding it would result in injustice or undue hardship. (CPLR 3101, subd. [d].) This it has failed to do.

Section 3101(d)(2) protects material created by or for a party in preparation for litigation, including expert opinions, from disclosure unless duplication is impossible and withholding causes injustice or undue hardship.

In re the Town of Hempstead ex rel. Town of Hempstead Park District · filed 1966-03-18(d)(2)

Outside of the limited permissible questions, the examination of the experts is barred by CPLR 3101 (subd. [d]). It is not necessary to add to the developing body of law which attempts to define the ‘‘ work product of the attorney. ’ ’ The expert opinion of the appraiser and the engineer is not obtainable under CPLR 3101 (subd. [d], par. 2). (See Valley Stream Lawns v. State of New York, 6 Misc 2d 607. See, also, Renewal Prods, v. Kleen-Stik Prods., 43 Misc 2d 644.)

Section 3101’s limits on disclosure of material prepared for litigation do not bar disclosure in a declaratory judgment action of a statement primarily prepared for a different action.

Empire Mutual Insurance v. Cleckner · filed 1966-04-11

However, whether such conditions are met in this case should not control, because the preparation of this statement was primarily preparation for the pending base action and not for this declaratory judgment action and under those circumstances, should not be subject to the limitations of section 3101.

Section 3101(d) protects material prepared for litigation from disclosure unless it can no longer be duplicated and withholding it would cause injustice or undue hardship.

Brunswick Corp. v. Ætna Casualty & Surety Co. · filed 1966-04-26(d)

When three investigators, as agents, investigate a fire for 27 insurers, who retain a firm of experienced attorneys in fire-loss cases, and report evidence of apparent incendiarism to two of those attorneys the day after the fire, and one of these attorneys accompanies the investigators to the scene to see for himself, and the following day the senior partner of these attorneys returns after a day’s absence to confer and advise with the investigators and his junior law partners, and all three attorneys recommend and advise the 27 insurers to resist any claims, the investigation and reports thereof to the 27 insurers and that law firm are material prepared for litigation, and so unavailable to the insured or loss payee, “unless the court finds that the material can no longer bo duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship.” (CPLR 3101, subd. [d].) Here, the investigators’ reports and studies cannot be duplicated because the burned premises have been “ completely refurbished.” Nevertheless, there is no showing that the withholding will result in injustice or undue hardship.

CPLR 3101(c) and (d) do not protect documents that section 66-a of the Public Officers Law requires to be disclosed.

Eifert v. Bush · filed 1966-07-22(c) and (d)

With respect to the homicide investigation report, the attorney’s work product and material prepared for litigation limitations of CPLR 3101 (subds. [c] and [d]) do not protect from disclosure any document which section 66-a of the Public Officers Law requires disclosure of* since a special statute providing for a particular class of cases is not repealed by a subsequent statute general in terms unless the two aré so completely inconsistent that they cannot operate together (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 396; cf. Donnelly v. County of Nassau, 46 Misc 2d 895).

Section 3101(d)(2) protects material prepared for litigation from disclosure unless the material cannot be duplicated and withholding it would cause injustice or undue hardship.

Corona Courts, Inc. v. Frank G. Shattuck Co. · filed 1966-07-25(d)(2)

It does not follow that it was made in the ordinary course of business and thus is without the protection of CPLR 3101 (subd. [d], par. 2). ... These reports were in my judgment ‘ material prepared for litigation” within the meaning of CPLR 3101 (subd. [d]) and may not be made available to Shattuck (see Kandel v. Tocher, 22 A D 2d 513; and Siegel, Work Product or Litigation Material: the CPLR’s Major Headache, McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 3101 to 3400 [1965 Supp., p. 11]) failing a showing (1) that the material can no longer be duplicated because of a change in conditions and (2) that withholding it will result in injustice or undue hardship.

Section 3101(d) protects material prepared for litigation unless it cannot be duplicated and withholding it would cause injustice or undue hardship.

Rivera v. Carlton · filed 1966-08-17(d)

CPLR 3101 (subd. [d]) provides that “ any writing or anything created by or for a party or his agent in preparation for litigation ” shall not be obtainable “ 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 ”. (Italics supplied.) ... Plaintiffs have not shown that Mr. Conners’ statement cannot be duplicated and that withholding it will result in injustice or undue hardship, as required by CPLR 3101 (subd. [d]).

Section 3101(d) permits protection against pretrial examination of an insurer’s auditor hired to investigate a loss in anticipation of a claim.

Kent v. Maryland Casualty Co. · filed 1966-03-31(d)

'Order entered October 21, 1965, denying defendant’s motion made pursuant to CPLR 3101 (subd. [d]) and 3103, for a protective order against the examination before trial by plaintiff of defendant’s independent auditor, employed by defendant to audit plaintiff’s books under the policy of robbery and burglary insurance upon which plaintiff has brought suit herein, reversed on the law, on the facts, and in the exercise of discretion, with $30 eosts and disbursements to the defendant-appellant, and the motion granted. After the alleged burglary and before suit was brought, defendant employed the auditor to examine plaintiff’s books with respect to the loss, in anticipation of a claim therefor.

Section 3101(d) does not protect employee statements made in the regular course of business about what employees observed and did.

Dikun v. New York Central Railroad · filed 1968-05-06(d)

Employee statements made in the regular course of business stating what they observed and did are not material prepared for litigation protected from discovery by CPLR 3101 (subd. [d]).

Section 3101(d) protects appraisals prepared for litigation from disclosure absent special circumstances.

City of Binghamton v. Arlington Hotel, Inc. · filed 1969-05-21(d)

The disputed notice is deficient in this regard, and as presently broadly phrased, would appear to encompass all appraisals in respondent’s possession even those prepared for litigation, material to which the City is not entitled, absent special circumstances (CPLR 3101, subd. [d]).

Section 3101(d)(2) protects an employee’s accident report from disclosure when it is sent directly to counsel and used exclusively to prepare for litigation.

O'Neill v. Manhattan & Bronx Surface Transit Operating Authority · filed 1967-03-07(d)(2)

As such, it is a writing created by the agent for a party in preparation for litigation, and hence not subject to disclosure (CPLR 3101, subd. [d], par. 2).

Section 3101(d) permits disclosure of expert opinions prepared for litigation when withholding them would cause injustice or undue hardship.

Edwardes v. Southampton Hospital Ass'n · filed 1967-03-14(d)

The conditional nature of the immunity from disclosure provided for by CPLR 3101 (subd. [d]) has been emphasized. Thus, expert opinion prepared for litigation may be obtained if injustice or undue hardship will otherwise result. ... In view of its importance and central position in the lawsuit, and the apparent subsequent necessity of further similar alterations were it to be tested by all other parties, we find sufficient hardship present to warrant the circulation of the one expert opinion.

Section 3101(d) protects material obtained through investigation after an accident when it cannot be duplicated and withholding it would cause injustice or hardship.

Rivera v. Stewart · filed 1966-09-22(d)

If defendant or her representatives have such knowledge obtained by investigation after the happening of the accident as distinguished from personal observation at the scene, disclosure would seem protected by CPLR 3101 (subd. [d]). In Majchrzak v. Ragerty (supra), the court found that an extentive investigation on the part of plaintiffs had failed to disclose any witnesses and that it might be impossible for plaintiffs to prove their ease without the testimony of the witnesses sought. Such findings would seem essential to a conclusion that the material can no longer be duplicated and that withholding it will result in injustice or hardship.

Section 3101(a) requires a showing that requested information is material and necessary to prosecuting the action.

Lauren v. Gollin · filed 1967-08-18(a)

Plaintiffs have not demonstrated on what basis the mere names and addresses of such persons would be “ material and necessary ” in the prosecution of this action — an essential requirement for compelling disclosure under CPLR 3101 (subd. [a]).

Section 3101(a) requires requested records to be material and necessary to the issues in dispute.

In re the Estate of Stern · filed 1967-11-03(a)

At the present time there is no indication whatsoever that the conduct of decedent’s personal and business affairs for the extensive period for which examination is .sought is material and necessary to the questions of restraint and mental capacity on May 31, 1963 (CPLR 3101, subd. [a]).

Section 3101(a) permits disclosure of facts bearing on the controversy when obtaining them would reasonably help prepare for trial.

Allen v. Crowell-Collier Publishing Co. · filed 1968-02-21(a)

The words, “ material and necessary ”, arc, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.

Section 3101(a) permits examination of a city planning commission about material and necessary facts in a zoning challenge even though its recommendations are advisory.

Free Synagogue of Flushing v. Board of Estimate · filed 1968-05-24(a)

Defendants contend, however, that since the City Planning Commission’s recommendations are not self-executing and are advisory in nature, the examination of the City Planning Commission will not elicit information which is material and necessary. This court does not agree. ... Accordingly, examination before trial within the guidelines set forth above is proper in this zoning matter.

Material prepared for litigation must be disclosed when it cannot be duplicated and withholding it would cause injustice or undue hardship.

Bush v. E. H. Cottrell, Inc. · filed 1970-01-15(d)

The information gathered by plaintiffs’ attorney, consisting of statements made by an automobile mechanic who examined a ear owned by one of the plaintiffs, is material prepared for litigation. However, since it can no longer be duplicated and withholding it would result in injustice or undue hardship to the defendant, the plaintiffs should be required to produce it.

Section 3101(d)(1) does not require disclosure through interrogatories of reports prepared for the defense of litigation.

H. Diamond Co. v. Lloyd's Underwriters · filed 1970-05-19(d)(1)

Interrogatories four and five seek disclosure of material prepared for the defense of this litigation. ... This is tantamount to a request for the names of defendants’ witnesses. This court has held that such .reports need not be disclosed.

Section 3101(d) permits disclosure of material prepared for litigation only when changed conditions make it impossible to duplicate and withholding it would cause injustice or undue hardship.

Pickwick at Commack Corp. v. State · filed 1970-06-29(d)

However, the immunity of CPLR 3101 (subd. [d]) is only conditional — “ 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.” These are conjunctive conditions precedent and both conditions must be met to allow disclosure of the material (Carmody-Forkoseh, New York Practice [8th ed.], § 631). Here, there has been no change of conditions rendering the search and report, or even the underlying records, nonduplicable.

Section 3101(d) gives material prepared for litigation limited protection, allowing disclosure of signed witness statements in this probate proceeding.

In re the Estate of Roe · filed 1970-10-02(d)

The court is of the opinion that the statements should be disclosed. They constitute material prepared for litigation, hence have limited protection (CPLR 3101, subd. [d]).

Appraisals prepared for purposes beyond litigation are discoverable under CPLR 3101(d).

Rome Urban Renewal Agency v. Schneible · filed 1970-11-06(d)

Not having been prepared solely for the litigation the protection sought for them must be denied.

Section 3101(d)(2) gives material prepared for litigation a qualified privilege that can extend to prior related litigation when disclosure would be unfair.

Johnson, Drake & Piper, Inc. v. State · filed 1970-02-18(d)(2)

Thus, material prepared for litigation enjoys a qualified privilege. That this material was prepared for litigation is beyond question. ... However, an exception to this exception appears justifiable where the litigation for which the material was prepared is related to the one in which disclosure is sought and where disclosure would be unfair.

An insurer’s accident file has conditional immunity from disclosure as material prepared for litigation.

Ainsworth v. Union Free School District No. 2 · filed 1972-01-13(d)

The purpose of liability insurance is the defense and settlement of claims and, once an accident has arisen, there is little or nothing that the insurer or its employees do with respect to accident reports except in preparation for eventual litigation or for a settlement which may avoid litigation ... the file of the insurer, therefore being accorded a conditional immunity under CPLR 3101 (subd. [d]) as material prepared for litigation (Parker v. New York Tel Co., 24 A D 2d 1067).

Section 3101(d) protects witness statements obtained to prepare for anticipated litigation, even if they were taken before the action began.

Warren v. New York City Transit Authority · filed 1970-05-05(d)

It is quite clear that statements taken from witnesses to prepare for litigation are attorney’s work product and protected (Reese v. Long Is. R. R. Co., 24 A D 2d 581; Rios v. Donovan, 21 A D 2d 409). It is immaterial that the statements may have been taken prior to actual institution of the action (Finegold v. Lewis, 22 A D 447; Albano v. Schwab Bros. Trucking, 27 A D 2d 901).

Section 3101(a) permits inspection of notes a witness used to refresh her recollection before a deposition, even if the notes were previously protected as material prepared for litigation.

Doxtator v. Swarthout · filed 1972-01-20(a)

When these notes were used by defendant to refresh her recollection, they became material affirmatively used in litigation and thus removed from the protection afforded under discovery practice, because her adversary then had a legitimate interest in inspecting this material in order to conduct a meaningful examination.

Section 3101(d) does not shield material prepared for litigation from disclosure when withholding it would cause injustice or undue hardship.

Winston v. Mangan · filed 1972-12-06(d)

Third, the shield from disclosure does not apply where it causes “ injustice or undue hardship ”. ... Denying inspection of the reports would in an electoral context result in injustice or hardship to the public and the candidate.

Section 3101(d) permits disclosure of photographs prepared for litigation when changed conditions prevent duplication and withholding them would cause injustice or undue hardship.

Wolken v. E. W. Howell Co. · filed 1973-01-08(d)

Photographs'taken of the scene of the • accident on behalf of plaintiff are material prepared for litigation. Such material can "no longer be duplicated because ■ r ; change in conditions; and withholding it will result in injustice or undue hardship ni, therefore, it is subject to disclosure (CPLR 3101, subd. [d]; Saccente v. Toierhi, 35 A D 2d 692).

Section 3101 permits disclosure of an insurer’s claim and underwriting files in a declaratory judgment action against the insurer when the files were prepared to defend its insured against a possible lawsuit.

Firemen's Insurance v. Gray · filed 1973-04-19

Special Term considering both motions determined that the underwriting file and claim file of each defendant are subject to disclosure in that they did not consist of material prepared for litigation of this action for a declaratory judgment which was against the insurers themselves as distinguished from litigation of an action against their insureds which they were called upon to defend. ... Order affirmed, with one bill of costs to respondent.

CPLR 3101 limits discovery of materials prepared for litigation and attorney work product.

Brown v. Harlem Laundre-Centre, Inc. · filed 1973-06-05(d), (e)

Aside from the fact that defendants failed to make a sufficient showing to entitle them to obtain most of the items sought, since they were obviously prepared for litigation (CPLR 3101, subd. [d]) or protected as an attorney’s work product (CPLR 3101, subd. [e]), it appears from the record before us that defendants are attempting to use discovery procedures as a substitute for independent investigation and research.

Section 3101(d) does not treat an audit prepared in the ordinary course of an administrative settlement process as material prepared for litigation.

Spiegel v. Board of Assessors · filed 1973-07-25(d)

This further confirms that the audit is used by respondent in its administrative process as an aid in probing the merits of petitioner’s claim. This is not something prepared for litigation as set forth in subdivision (d) of CPLR 3101, as respondent would have us believe, but rather is material prepared in the ordinary course of respondent’s administrative process to aid in settlement.

Section 3101(d) does not shield a public police department’s accident investigation file as material prepared solely for litigation.

Romanchuk v. County of Westchester · filed 1973-07-30(d)

Logically, therefore, the material which comprised the Police Department's investigation file of the accident could not be material prepared solely for litigation as contemplated by CPLR 3101 (subd. [d]).

Section 3101(d) gives conditional immunity from disclosure to an appraisal report prepared and used exclusively for negotiation and settlement.

Swartout v. State · filed 1974-04-11(d)

Thus, the report enjoys the conditional immunity from disclosure conferred on material prepared for litigation by CPLR 3101 (subd. [d]).

Section 3101 permits discovery of an insurer’s adjuster’s observations and reports from a routine fire-loss investigation before counsel was retained.

Khoudary v. Home Insurance · filed 1974-05-02(d)

Plaintiffs, therefore, had the right under CPLR 3101 to discover all material and necessary matters, except as limited by subdivisions (b), (c) and (d), relating to privileged matters, attorneys’ work product and material prepared for litigation, respectively. These exceptions do not prevent discovery respecting observations made by the adjusting firm representatives when they examined the premises before defendants’ attorneys were retained or any reports thereof.

Section 3101(d) protects material prepared for litigation unless the requester shows it can no longer be duplicated and withholding it would cause undue hardship.

Downey v. Lunney · filed 1975-01-21(d)

In order to obtain the information requested the defendants would have to demonstrate that the material can no longer be duplicated and that withholding it would result in undue hardship. This they have failed to do.

Section 3101(d) permits disclosure of material prepared for litigation when it cannot be duplicated and withholding it would cause undue hardship.

Barton v. Diesel Construction Co. · filed 1975-03-06(d)

While it may be deemed material obtained in preparation of litigation, as envisioned by CPLR 3101 (subd. [d]), the items sought therein are obtainable since they can no longer be duplicated and withholding same would result in undue hardship to plaintiff (CPLR 3101, subd. [d]).

Subdivision (d) can limit a party’s ability to depose an opposing party about its tests of disputed goods.

In re the Arbitration between Darlington Fabrics Corp. & Aqua Free Corp. · filed 1973-11-19(d)

Respondent’s cross motion for leave to take petitioner’s deposition on its tests of the fabric is denied, pursuant to subdivision (d) of CPLR 3101.

Subdivision (d) does not require disclosure of a litigation report by a physician who never examined or treated the claimant.

Duerr v. Star Supermarkets, Inc. · filed 1975-04-21(d)

The report is, therefore, not subject to discovery pursuant to CPLR 3101 (subd [d]).

CPLR 3101(d) protects material prepared in contemplation of litigation even if it was created before an action began.

Fitzpatrick v. County of Nassau · filed 1975-09-23(d)

That the material sought to be disclosed by this proceeding was made prior to the commencement of an action does not preclude the privilege against disclosure afforded by CPLR 3101. It is sufficient to prevent disclosure if the material was prepared in contemplation of litigation.

Section 3101(d) bars discovery of statements given to an insurer or retained consultant when the statements were prepared for litigation.

Verini v. Bochetto · filed 1975-09-30(d)

In addition, Special Term erred in directing appellant to deliver to plaintiffs’ attorneys copies of any statements made by him and given to his insurance carrier or to any consultant retained by him in connection with plaintiffs’ claim. These materials were clearly prepared for litigation and hence are not available for discovery (CPLR 3101, subd [d]; Kandel v Tocher, 22 AD2d 513).

Section 3101(d) protects a transcript prepared for subrogation litigation from disclosure unless the requesting party shows that it cannot duplicate the material and that withholding it would cause hardship and injustice.

Point Tennis Co. v. Irvin Industries, Inc. · filed 1976-02-10(d)

It is obvious that the statement taken by attorney Gwertzman of the plaintiff’s president (after the routine investigation of plaintiff’s claim by the adjustor had been completed) was taken in preparation of this subrogation litigation within the meaning of CPLR 3101 (subd [d]). Thus, it should not be made available to the defendants in the absence of a showing that the material can no longer be duplicated and that to withhold the transcript from defendants will result in hardship and injustice.

Section 3101(d) does not protect employee statements prepared in the regular course of business rather than for litigation.

Post v. Great Eastern Management Corp. · filed 1976-05-04(d)

Thus they are documents prepared for defendant in the regular course of its business ... rather than documents prepared for litigation. Hence, they are subject to discovery ... and not to be protected under CPLR 3101 (subd [d]).

Section 3101(d) permits withholding material prepared for anticipated litigation unless withholding it would cause injustice or undue hardship.

Westchester Rockland Newspapers, Inc. v. Mosczydlowski · filed 1976-07-19(d)

Where, as here, a person dies while in police custody, I feel the Corporation Counsel was acting reasonably in assuming that there would be litigation against the city and had a right to consider any reports made by the police investigators as material prepared for litigation. ... disclosure may be denied unless it can be shown "that withholding it will result in injustice or undue hardship.” (CPLR 3101, subd [d].) Such injustice or hardship has not been demonstrated.

Section 3101(d) protects an insurer’s investigation prepared for litigation from disclosure when it was not part of a routine claims investigation.

Ritrovato v. Hartford Insurance Group · filed 1976-09-28(d)

Defendant takes the position that it is protected by the provisions of CPLR 3101 (subd [d]) with respect to the matters of disclosure sought by plaintiff. The court must agree. The facts presented clearly establish that the investigation here involved from the very beginning was not "the normal, routine investigation which usually follows a fire loss.”

Section 3101(d) permits disclosure of material prepared for litigation, including witnesses’ names and addresses, when special circumstances are shown.

People v. Bestline Products, Inc. · filed 1976-04-26(d)

Furthermore, even material prepared for litigation is discoverable upon a showing of special circumstances (CPLR 3101, subd [d]). ... The paucity of material available to Bestline and the broadness of the allegations combine to provide sufficient special circumstances to warrant granting of the disclosure requested.

The party resisting disclosure under CPLR 3101(d) bears the burden of showing that the material is immune because it was prepared for litigation.

Mobil Oil Corp. v. State · filed 1976-05-14(d)

Memorandum: On a motion to determine whether the material sought was prepared for litigation and is thus immune from discovery pursuant to CPLR 3101 (subd [d]), the burden is on the party resisting disclosure to show immunity (Koump v Smith, 25 NY2d 287, 294; Dikun v New York Cent. R.R., 58 Misc 2d 439; Weisgold v Kiamesha Concord, 51 Misc 2d 456).

Section 3101(d) protects information gathered in contemplation of litigation from discovery.

Foremost Insurance v. 3 Grace Avenue, Inc. · filed 1977-06-13(d)

CPLR 3101 (subd [d]) provides immunity from discovery of information gathered in contemplation of, and in preparation for, litigation.

Section 3101(d) does not protect an accident report prepared by an employee for her employer in the regular course of business as material prepared solely for litigation.

Kaisee v. South Nassau Communities Hospital · filed 1977-06-20(d)

The accident report prepared herein by an employee for her employer in the regular course of business is not material prepared solely for litigation (see CPLR 3101, subd [d]).

Section 3101(d) exempts material prepared solely for litigation from disclosure; a report prepared for multiple purposes does not qualify.

Westchester Rockland Newspapers, Inc. v. Mosczydlowski · filed 1977-07-11(d)

Material which is exempt from disclosure pursuant to CPLR 3101 (subd [d]) because prepared solely for purposes of litigation is, in our view, similarly exempt from disclosure under the Freedom of Information Law (see Public Officers Law, § 88, subd 7, par a).

Section 3101(d) shields prior appraisals used for negotiation and settlement from discovery as material prepared for litigation.

Miller v. State · filed 1977-11-03(d)

Appraisals so used are neither admissible nor discoverable, pursuant to CPLR 3101 (subd [d]), as material prepared for litigation.

Section 3101(d) requires a party claiming that an investigation file was prepared for litigation to carry the burden of showing it.

Stengel v. Long Island Lighting Co. · filed 1978-02-27(d)

Defendant-appellant did not sustain its burden of showing that the investigation file was "Material prepared for litigation” within the meaning of CPLR 3101 (subd [d]) (see Mobil Oil Corp. v State of New York, 52 AD2d 1033; Koump v Smith, 25 NY2d 287).

Section 3101(d) protects material prepared for litigation unless it can no longer be duplicated because conditions have changed and withholding it would cause injustice or undue hardship.

Lefkowitz v. Raymond Lee Organization, Inc. · filed 1978-02-27(d)

Aside from questions of materiality or necessity, the results of any questionnaires or interviews by plaintiff are clearly material prepared for litigation, and thus not discoverable "unless the court finds that it can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship”.

CPLR 3101(d) permits a protective order for an insurer’s reports prepared to resist a claim and for litigation, even before the insurer rejects the claim.

Seaview Chef, Inc. v. Transamerica Insurance Co. · filed 1978-03-27(d)

... it appears that reports made to it beyond that time were intended to aid in the resistance of the claim and prepared for litigation (cf. Millen Ind. v American Mut. Liab. Ins. Co., 37 AD2d 817; CPLR 3101, subd [d]).

The protection for litigation materials under CPLR 3101(d) is not waived by failing to seek a protective order within CPLR 3122’s time limit.

Whittington v. Rectors of the Church of Advent · filed 1976-10-18(d)

The same rule should apply to matter immunized under CPLR 3101 (subd [d]) as applies to matter immunized under CPLR 3101 (subds [b], [c]) (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3122:2, pp 596-597).

Section 3101(d) protects a defendant's statement to an insurance representative, broker, or agent from discovery when the statement was prepared for litigation.

Salomon v. Bergin · filed 1978-04-24(d)

The matter sought constitutes material prepared for the purposes of litigation and as such cannot be obtained (see CPLR 3101, subd [d]; Finegold v Lewis, 22 AD2d 447; Kandel v Tocher, 22 AD2d 513; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.50b).

Section 3101(d) protects material prepared for litigation from discovery when the requester has not shown that it cannot be duplicated or that its unavailability would cause injustice or undue hardship.

Soifer v. Mount Sinai Hospital · filed 1978-05-22(d)

The matter sought by plaintiffs, furthermore, was demonstrably prepared for litigation; nor was it established that it cannot be duplicated or that its unavailability would presently result in injustice or undue hardship (see CPLR 3101, subd [d]).

Section 3101(d) requires disclosure of an insurer’s expert investigation reports unless the insurer had already rejected the claim or firmly decided to do so.

Buy for Less Wine & Liquors, Inc. v. Commercial Union Insurance · filed 1978-06-12(d)

In an action on a fire insurance policy, investigation reports of experts employed by the insurer are not material prepared for litigation (see CPLR 3101, subd [d]) and are subject to disclosure, unless (as is not the case here) the insurer had previously rejected the claim or had made a firm decision to do so (see Mold Maintenance Serv. v General Acc. Fire & Life Assur. Corp., 56 AD2d 134; Millen Ind. v American Mut. Liab. Ins. Co., 37 AD2d 817).

Section 3101(d) does not protect reports prepared to administer a contractual claim rather than in anticipation of litigation.

Cayuga-Crimmins Co. v. Fisher · filed 1978-06-14(d)

Special Term denied appellant’s request to compel inspection of these engineering reports on the ground that they constitute material prepared for litigation and may not be examined (see CPLR 3101, subd [d]). We disagree and hold that the material in question is not protected from disclosure in that it was compiled as part of the orderly administration of the "changed conditions” clause of the contract and not, as respondent contends, in anticipation of any litigation of appellant’s claim.

Section 3101(d) gives qualified protection from disclosure to material prepared for litigation.

Moon v. MacKay · filed 1978-09-22(d)

Among the limited exceptions is the one at issue here, i.e., the qualified immunity granted material prepared for litigation (CPLR 3101, subd [d]).

Section 3101(d) requires a party resisting disclosure of an accident report to show that it was prepared solely for litigation; a conclusory attorney statement does not meet that burden.

Hunt v. Joseph · filed 1979-01-22(d)

In these circumstances, the burden rested upon the appellants to demonstrate that the report was prepared solely for purposes of litigation and, therefore, was immune from disclosure (see CPLR 3101, subd [d]; Mobil Oil Corp. v State of New York, 52 AD2d 1033; Weisgold v Kiamesha Concord, 51 Mise 2d 456). The conclusory statement of appellants’ attorney was not sufficient to meet this burden.

CPLR 3101(d)(2) exempts an accident report from disclosure when it was prepared solely for litigation rather than for a business purpose.

Braun v. Great Atlantic & Pacific Tea Co. · filed 1979-02-05(d)(2)

Accordingly, unlike the document sought in Green v Carey Transp. (38 AD2d 711), which apparently was prepared for the benefit of the employer in his business, this accident report is exempt from disclosure under CPLR 3101 (subd [d], par 2) (see Reese v Long Is. R. R. Co., 24 AD2d 581; Kandel v Tocher, 22 AD2d 513).

For investigative reports outside a liability insurer’s investigation, the party resisting disclosure must show that the material was prepared solely for litigation rather than in the regular course of business.

Garcia v. Brooklyn Union Gas Co. · filed 1979-06-13(d)

As to any other investigative reports, the burden is upon Shell to show that "the material was prepared solely for litigation and not in the regular course of business.”

Section 3101(d) exempts appraisals prepared for litigation from disclosure, subject to applicable exceptions.

First National City Bank v. State · filed 1979-11-13(d)

Those appraisals constitute material prepared for litigation, exempt from disclosure pursuant to CPLR 3101 (subd [d]), except as provided in CPLR 3140 and section 678.1 of the rules of this court (22 NYCRR 678.1).

Section 3101(d) provides conditional protection for material prepared solely for litigation; the court may inspect a disputed report to determine its purpose and whether its substance can be obtained by other means.

Sovereign Industries Corp. v. Raleigh Warehouse, Inc. · filed 1980-03-06(d)

In modifying the order of Special Term, we direct an in camera review to allow a more informed determination of whether this particular report was indeed prepared for the express purpose of litigation, in order to qualify for immunity from discovery (Haire v Long Is. R. R. Co., 29 AD2d 553), or was made in the ordinary course of business of the insurance companies.

Section 3101(d) does not shield records of an examination primarily undertaken for diagnosis and treatment, even when litigation was also contemplated.

Zimmerman v. Nassau Hospital · filed 1980-06-30(d)

Nor may the records sought by defendants be considered "material prepared for litigation” within the purview of CPLR 3101 (subd [d]). On the facts before us, we conclude that the Zimmermans’ primary motivation in bringing the infant plaintiff to Dr. Kara was not for consultation with respect to litigation, but rather was for a thorough examination, diagnosis and treatment. Although the prospect of litigation may have been cogent at the time, such multimotivated reports do not warrant immunity if litigation is but one of the motives.

Section 3101(d) does not protect accident reports or photographs from disclosure unless they were prepared solely for litigation.

Pinn v. Supermarkets General Corp. · filed 1980-07-03(d)

In view of the foregoing facts and law this court concludes that the accident report and photographs sought by the plaintiff are not material prepared solely for litigation and, therefore, are not immune from disclosure under CPLR 3101 (subd [d]).

Section 3101(d) places the burden on the party claiming immunity to show that the materials were prepared for litigation.

Yannick v. Tube City Iron & Metal Co. · filed 1980-07-21(d)

Since appellants’ affidavits give no indication of when, if ever, CNA rejected or decided to reject Tube City’s related property damage claim, appellants have failed to meet their burden of demonstrating that the subject materials were prepared for the purpose of litigation.

Section 3101(d) protects material prepared solely for litigation, but material also prepared in the regular course of business is discoverable, and the party resisting disclosure bears the burden of showing its exclusive litigation purpose.

Weaver v. Waterville Knitting Mills, Inc. · filed 1980-09-12(d)

Where the material sought serves a dual purpose it is discoverable (Moon v MacKay, 64 AD2d 1022), since disclosure may not be avoided simply by shifting the investigation of all accidents to a workers’ compensation or liability carrier.

Section 3101(d) protects a report prepared solely for litigation from discovery when the requesting party does not show an inability to duplicate it or that withholding it would cause injustice or undue hardship.

Coastal Pollution Control Services, Inc. v. Poughkeepsie Housing Authority · filed 1980-11-03(d)

Mechanical thus sustained its burden of showing that the subject report was prepared solely for litigation purposes. (See CPLR 3101, subd [d]; see, also, Koump v Smith, 25 NY2d 287.) Since the authority failed to show its inability to duplicate the engineer’s report or that withholding same would result in injustice or undue hardship, Special Term’s order directing the discovery and inspection of the report was error.

CPLR 3101(d) protects materials prepared for litigation from disclosure when they qualify for the Freedom of Information Law exemption.

Sea Crest Construction Corp. v. Stubing · filed 1981-08-31(d)

Initially we find that Special Term’s determination regarding the materials prepared for litigation was proper, and as such, those materials deemed immune under that exemption are not discoverable (see Matter of Westchester Rockland Newspapers v Mosczydlowski, 58 AD2d 234).

Section 3101(d) allows discovery of materials obtained in the ordinary course of business or for mixed purposes; materials gathered solely for litigation are conditionally protected.

New England Seafoods of Amherst, Inc. v. Travelers Companies · filed 1981-10-30(d)

Where the material is obtained in the ordinary course of business or for a mixed purpose of which litigation is but one, it is discoverable (Moon v MacKay, 64 AD2d 1022). Even where solely gathered for litigation, the documents are still only conditionally immune from discovery and may be inspected where they cannot be duplicated because of changed circumstances or where its withholding will create hardship (Siegel, New York Practice, § 348).

Section 3101(d)(2) permits disclosure of material prepared for litigation when changed conditions prevent duplication and withholding it would cause injustice or undue hardship.

Giambrone v. Flushing Motor Service, Inc. · filed 1981-12-14(d)(2)

Assuming, arguendo, both that the document in question is not a “report of an accident” within the meaning of CPLR 3101 (subd [g]) and that the document was prepared solely for litigation so as to be generally immune from discovery under the qualified privilege contained in CPLR 3101 (subd [d], par 2), the document must still be disclosed because, under the particular circumstances of this case, the document “can no longer be duplicated because of a change in conditions and * * * withholding it will result in injustice or undue hardship” within the meaning of CPLR 3101 (subd [d]) (see Babcock v Jackson, 40 Misc 2d 757; cf. Meadow Brook Nat. Bank v Lerner, 25 AD2d 436).

CPLR 3101(d) conditionally protects materials prepared for litigation, but a grand jury may obtain them upon a showing of good cause.

People v. Doe · filed 1982-01-29(d)

Under all of the circumstances, it is our view that the Grand Jury, acting through the respondent, has demonstrated good cause for discovery of these items and that petitioners’ motion to quash based on the conditional privilege contained in CPLR 3101 (subd [d]) must be rejected (cf. Matter of Grand Jury Investigation, 599 F2d 1224, 1232-1233 [3d Cir]).

Section 3101 permits disclosure of postaccident photographs and expert reports when they can no longer be duplicated and withholding them would cause injustice and hardship.

Tessoni v. E.W. Bliss Co. · filed 1981-04-13(a)(4), (d)

In view of the facts and allegations of the parties, we find that “adequate special circumstances” exist requiring disclosure of photographs taken and experts’ reports prepared at the request of the respondent with regard to the condition of the power press machine after the accident (see CPLR 3101, subd [a], par [4]). Respondent’s objection that the reports and the photographs are privileged as material prepared for litigation is without merit inasmuch as the materials can no longer be duplicated because of the lapse of time and withholding them would result in injustice and hardship. Therefore, these materials are discoverable (see CPLR 3101, subd [d]; Brandes v Pettibone, Inc., 62 AD2d 1133; Wasmuth v Hinds-Toomey Auto Corp., 39 AD2d 723).

CPLR 3101(d) protects material prepared for litigation from disclosure, but the party opposing discovery must prove that the protection applies; conclusory attorney allegations are insufficient.

Baratta v. Pallotta · filed 1981-05-27(d)

A party opposing discovery bears the burden of proving that the material sought was prepared for litigation and, therefore, was immune from disclosure pursuant to CPLR 3101 (subd [d]) (Koump v Smith, 25 NY2d 287, 294; Mobil Oil Corp. v State of New York, 52 AD2d 1033). The attorney’s conclusory allegations were insufficient to meet this burden (Hunt v Joseph, 67 AD2d 697).

Section 3101(d) conditionally protects witness statements prepared for litigation; disclosure requires a showing that the material is necessary and unavailable elsewhere or obtainable only with difficulty.

Reisch v. J & L Holding Corp. · filed 1981-10-23(d)

While not the subject of the attorney-client privilege, such statements would be materials prepared for litigation and subject to a conditional privilege under CPLR 3101 (subd [d]). ... As such, the statements can only be discovered upon a proper showing that the material contained therein is “material and necessary” to the movant’s case and that the material is no longer available or may be obtained only with difficulty. ... In the case at bar movant has failed to establish that the material sought is unobtainable from any other source.

Section 3101(d)(2) does not shield an insurer’s arbitration transcripts and medical reports from disclosure when they arose from an adversarial no-fault claim rather than the litigation at issue.

Milone v. General Motors Corp. · filed 1981-11-13(d)(2)

These items are material and relevant and are discoverable (see Allen v Crowell-Collier Pub. Co., 21 NY2d 403) and may not be claimed to be immune from disclosure in this case which, although it is related to the prior litigation is based on a discrete claim.

Section 3101(a) allows an insured to examine an insurer’s fire investigator when the insurer has not established that the investigation was prepared for litigation.

Ogden v. Allstate Insurance · filed 1982-02-24(a)

CPLR 3101 (subd [a]) provides that there shall be a full disclosure of all evidence material and necessary in the prosecution or defense of an action without regard to the burden of proof. ... In view of the observations made, the motion of the plaintiffs to take the testimony of the expert or experts who examined their property on behalf of Allstate is granted.

Section 3101 protects an insurer’s reports and investigations prepared for litigation after notice of an accident, but requires disclosure of accident reports whenever made.

North East Insurance v. Allegretta Motel, Inc. · filed 1982-03-29(d), (g)

Order reversed insofar as appealed from, with one bill of $50 costs and disbursements, and plaintiff’s motion for a protective order is granted to the extent of any materials created after the date on which plaintiff received written notice that the accident in question occurred, except for any accident reports whenever made, and the motion is otherwise denied.

Section 3101 permits disclosure of accident-scene photographs prepared for litigation when changed conditions make the scene impossible to duplicate and withholding the photographs would be unfair.

Barber v. Town of Northumberland · filed 1982-05-13(d)

Obviously, the conditions are material and relevant to the issue of liability, and necessary in preparation of the defense of the action. Conditions have changed making duplication of the scene impossible. An unfair and unjust advantage would result from nondisclosure.

Section 3101(d) permits discovery of litigation materials that cannot be duplicated when withholding them would cause injustice and hardship, but disclosure of an expert report is limited to its factual data, not the expert’s opinions.

Terwilliger v. Leach Co. · filed 1982-06-01(d)

Nevertheless, we are not convinced that there should be full disclosure of the expert reports. Only the factual data contained therein, and not the opinions of plaintiff’s expert, should be revealed.

Section 3101(d) permits disclosure of material prepared for litigation when withholding it would cause substantial injustice and undue hardship.

Tucker v. Weissman · filed 1982-08-02(d)

It is somewhat disingenuous for a defendant to seek disqualification of opposing counsel based on information from an unnamed witness and simultaneously argue that the information is not subject to disclosure as material prepared for litigation (CPLR 3101, subd Id]). Plaintiff should not have to proceed to trial under the threat that his attorney might be required to disqualify himself in the middle of the proceedings. In our view plaintiff has made a sufficient showing that the failure to disclose the information will work substantial injustice and undue hardship.

Section 3101(d) places the burden on the party seeking a protective order to show that requested materials were prepared solely for litigation.

Du Four v. Blaw-Knox Corp. · filed 1982-08-23(d)

The burden of showing that materials were prepared solely for the purposes of litigation, and are therefore not discoverable unless incapable of duplication, falls upon the party seeking the protective order (see CPLR 3101, subd Id]; Koump v Smith, 25 NY2d 287; Weisgold v Kiamesha Concord, 51 Misc 2d 456).

Section 3101(d) protects material prepared for litigation from disclosure unless withholding it would cause injustice or undue hardship.

Rosado v. Mercedes-Benz of North America, Inc. · filed 1982-10-18(d)

This was clearly material prepared for litigation which enjoys a privilege from disclosure except in certain circumstances (see CPLR 3101, subd [d]). While it may be true, as Special Term found, that the photographs taken and tests performed by the appellant may not be duplicated at this time by reason of the condition of the vehicle, we are not convinced that the withholding of this matter will result in “injustice or undue hardship” (see CPLR 3101, subd [d]). By the time that the appellant retrieved the vehicle from the junk yard, the plaintiff had had an ample opportunity to test and examine the vehicle in any way she saw fit.

CPLR 3101(d) protects reports prepared for litigation but does not shield information identifying their authors.

Hamdan v. New York Property Insurance Underwriting Ass'n · filed 1982-10-19(d)

While the reports are not obtainable as material prepared for litigation, the information concerning their authors is not protected under the language of CPLR 3101 (subd [d]).

Section 3101(d)(2) conditionally exempts reports made to a liability insurer in preparation for litigation from disclosure.

Hill v. Misericordia Hospital Medical Center · filed 1983-01-11(d)(2)

The reports in dispute in the instant case were specifically made by defendant Cavalli to his liability insurer; they are exempt under CPLR 3101 (subd [d], par 2).

Section 3101(d)(1) requires a party seeking litigation materials to show that changed conditions prevent duplication of the material.

Thibodeau v. Rob Leasing, Inc. · filed 1982-06-17(d)(1)

As to the first three appeals, there is no claim that the material sought to be discovered can no longer be duplicated because of a change in conditions as required by CPLR 3101 (subd [d], par 1). ... Special Term denied defendant’s request on the ground it failed to meet its burden of proof to demonstrate any material change or the likelihood that such a change occurred sufficient to require discovery of the materials sought by defendant. We agree and are to affirm.

Section 3101(d)(2) protects an insurer’s investigation report from disclosure when a substantial bona fide reason to investigate the claim shows that the report was prepared for litigation.

Moskowitz v. Traveler's Indemnity Co. · filed 1983-01-03(d)(2)

Under the circumstances in this case, we conclude that at the time the special investigation unit report was prepared, a substantial bona fide reason existed to investigate the legitimacy of plaintiffs’ loss. Therefore, the report was prepared for litigation and was immunized from discovery by CPLR 3101 (subd [d], par 2) (North East Ins. Co. v Allegretta Motel, 87 AD2d 645; Seaview Chef v Transamerica Ins. Co., 61 AD2d 1043).

Section 3101(d)(2) does not protect reports prepared for both business purposes and anticipated litigation; the party claiming protection must show they were prepared solely for litigation.

Zampatori v. United Parcel Service · filed 1983-05-25(d)(2)

“Mixed purpose reports are not exempt from disclosure under CPLR 3101 (subd [d], par 2)”

Section 3101(d) gives material prepared for litigation conditional immunity from discovery.

Lamparelli v. Ford Motor Co. · filed 1983-06-20(d)

As to the report of plaintiffs’ expert, CPLR 3101 (subd [d]) confers a conditional immunity on material prepared for litigation and Special Term did not abuse its discretion when it exempted that report from discovery.

Reports a defendant prepares for its insurer in anticipation of litigation are conditionally privileged under CPLR 3101(d).

Friedman v. White Lake Hotel & Cottage, Inc. · filed 1983-10-25(d)

Such reports from a defendant to its insurer, having been made in preparation for litigation, are conditionally privileged (CPLR 3101, subd [d]; Hill v Misericordia Hosp. Med. Center, 91 AD2d 915; Vernet v Gilbert, 90 AD2d 846).

Section 3101(g) covers accident reports prepared in the regular course of business, while section 3101(d) conditionally protects statements prepared for litigation.

Williams v. Metropolitan Transportation Authority · filed 1984-01-23(d), (g)

Unlike the accident report which was made and filed by the driver in the course of the regular internal operations of MSBA, the driver’s signed written statement was not prepared in the regular course of MSBA business. Therefore, the statement does not fall within the scope of CPLR 3101 (subd [g]) (see Pataki v Kiseda, supra). Rather, the statement constitutes material prepared for litigation which is conditionally exempt from disclosure under CPLR 3101 (subd [d]) (Schneider v Schneider, supra; Hill v Misericordia Hosp. Med. Center, 91 AD2d 915; Weiser v Krakowski, supra; Vernet v Gilbert, supra; cf. Matos v Akram & Jamal Meat Corp., 99 AD2d 527).

Section 3101(d)(1) permits disclosure of material prepared for litigation when changed conditions prevent duplication and withholding it would cause injustice or hardship; an expert’s opinions may be deleted from the disclosed report.

Miller v. George Haug Co. · filed 1983-08-18(d)(1)

Generally, material prepared for litigation is not subject to disclosure unless a court finds that the material can no longer be duplicated because of a change in conditions and that withholding the material will result in injustice or induce hardship (CPLR 3101, subd [d]). Leyland has clearly shown a change in conditions by demonstrating that parts of the Jaguar have already been discarded. Undoubtedly, Leyland will be placed at a disadvantage at trial unless the report of plaintiff’s expert, with his opinions deleted, is made available for discovery.

Section 3101(d) conditionally protects material prepared for litigation; a party seeking disclosure must show that it cannot duplicate the material and that withholding it would cause injustice or undue hardship.

Volpicelli v. Westchester County · filed 1984-06-11(d)

Inasmuch as the record is bereft of evidence as to even a minimal good-faith effort on the part of defendant Westchester County to contact the nonparty witness Hernandez, whose last known place of employment was furnished by plaintiff, the county has failed to demonstrate that the material sought is no longer available for duplication and that its withholding will result in injustice or undue hardship (CPLR 3101, subd [d]).

Section 3101 restricts disclosure of attorney work product and materials prepared for litigation when they cannot be duplicated only upon a showing of changed conditions and injustice or undue hardship; responsive investigations or reports prepared in the regular course of business remain discoverable.

Valet v. American Motors Inc. · filed 1984-11-20(c), (d)

In the absence of a finding, or an apparent basis for such a finding, that such material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship, defendants need not submit further answers to these interrogatories except insofar as they may seek investigations or reports prepared in the regular course of business.

CPLR 3101(d) protects material prepared for litigation from disclosure except in certain circumstances.

Marziano v. City of Yonkers · filed 1984-11-26(d)

The material sought by plaintiff is clearly material prepared for litigation which enjoys a privilege from disclosure except in certain circumstances not present here (see CPLR 3101, subd [d]; Rosado v Mercedes-Benz, 90 AD2d 515).

Section 3101(d) protects materials prepared for litigation from disclosure unless changed conditions prevent duplication and withholding them would cause injustice or undue hardship.

Mers v. Intermedics, Inc. · filed 1985-01-03(d)

The record herein unequivocally indicates that the defendant prepared the documents for litigation and, therefore, they are entitled to be protected from disclosure “unless * * * 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]).

CPLR 3101(d) conditionally exempts reports prepared for litigation from disclosure, including reports made to a liability insurer.

Winter v. Motel Associates of La Guardia · filed 1985-02-26(d)

The latter constitute, at a minimum, material prepared for litigation which is conditionally exempt from disclosure under CPLR 3101 (d) ... The reports requested cannot be construed as being any other than reports made by the alleged tort-feasor in this matter to its liability insurer and are thus, upon the above authority, exempt from discovery.

Section 3101(d)(2) does not conditionally exempt no-fault claim records prepared in the ordinary course of handling the claim rather than solely for litigation.

Hinrichs v. Tonnssen · filed 1985-03-25(d)(2)

And inasmuch as the “No-Fault” Insurance Law (see, Insurance Law § 5101 et seq., formerly Insurance Law § 670 et seq.) was enacted in part to reduce or avoid litigation (cf. Insurance Law § 5104, formerly Insurance Law § 673; Montgomery v Daniels, 38 NY2d 41) it can hardly be said that reports and documents prepared in the ordinary course of handling a “no-fault” claim (see, CPLR 3101 [g]) were prepared solely for this litigation (see, Braun v Great Atl. & Pac. Tea Co., 67 AD2d 898) so as to render them even conditionally exempt within the meaning of CPLR 3101 (d) (2).

Section 3101(d) does not require disclosure of photographs and expert reports prepared for litigation when the requesting party had ample opportunity to examine and photograph the underlying evidence.

Austin v. Coastal Industries, Inc. · filed 1985-07-01(d)

Therefore, the withholding of this material will not result in "injustice or undue hardship” (see, CPLR 3101 [d]).

Section 3101(d) conditionally protects statements prepared for litigation, but permits disclosure when the statement cannot be duplicated and withholding it would cause injustice and undue hardship.

Gaglia v. Wells · filed 1985-07-01(d)

While such a statement constitutes material created by or for a party or his agent in preparation for litigation and is, therefore, conditionally privileged (see, CPLR 3101 [d]; Cohen v Hardy, 23 AD2d 793), plaintiff has shown that it can no longer be duplicated, since defendant Wells now cannot recall the accident, and that withholding it would result in injustice and undue hardship since the only other witness to the accident, the plaintiff, has amnesia.

Section 3101(d) generally protects material prepared solely for litigation from disclosure, unless it can no longer be duplicated and withholding it would cause injustice or undue hardship.

Greene v. Lee · filed 1985-07-01(d)

With regard to the merits, (1) as previously noted, it is a well-settled rule that material prepared solely for litigation purposes is generally not discoverable and (2) an exception to this well-settled general rule exists when the material can no longer be duplicated and withholding it would result in injustice or undue hardship (CPLR 3101 [d]; Morrison v Ellis, supra).

Section 3101(d) protects an accountant’s report prepared at lawyers’ request solely for litigation, but does not protect reports prepared in the ordinary course of business.

J. R. Stevenson Corp. v. Dormitory Authority · filed 1985-07-25(d)

The record indicates that the consultant who prepared the report for the Dormitory Authority did so at the behest of the Authority’s lawyers for the sole purpose of auditing Stevenson in preparation for trial. Thus, that report, as urged by the Board and the Authority, was privileged pursuant to CPLR 3101 (d) as material prepared for litigation.

Section 3101(d) exempts material prepared for litigation from discovery.

Lilling v. Syracuse Bros. · filed 1985-11-18(d)

Moreover, interrogatory no. 55, as stated, seeks material prepared for litigation, which is exempt from discovery (see, CPLR 3101 [d]; Foremost Ins. Co. v 3 Grace Ave., 58 AD2d 590; Workman v Boylan Buick, 36 AD2d 978).

CPLR 3101(d)(2) protects an insurer report prepared for possible litigation when the report is not multi-motived.

Gavigan v. Otis Elevator Co. · filed 1986-02-27(d)(2)

Defendant contends that the disclosure of a report of the incident prepared by it for its insurer is exempt from disclosure pursuant to CPLR 3101 (d) (2). We agree. ... The instant report is not "multi-motived” and, therefore, falls within the ambit of CPLR 3101 (d).

A witness waives the conditional protection for material prepared for litigation by using it to refresh her memory and basing her deposition testimony on it.

Rouse v. County of Greene · filed 1985-11-21(d)(2)

Where, as here, a witness testifying at a pretrial examination uses some writing to refresh her memory and bases her deposition testimony on that writing, any claim that the writing is privileged as having been prepared for litigation has been waived (see, id.).

Section 3101(d) conditionally protects a liability insurer’s accident claim file from disclosure when the requester has not shown that the material cannot be duplicated and that withholding it may cause injustice or undue hardship.

Sprague v. International Business Machines Corp. · filed 1985-11-25(d)

The workers’ compensation carrier’s claim file for the plaintiff in the underlying action is, in fact, the file of the liability insurer for purposes of defendant and third-party plaintiff’s claim for contribution and/or indemnification against the third-party defendant. It is well established that the file of a liability insurer in an accident case, as well as reports prepared by an insured for his liability insurer, fall within the scope of the conditional exemption from disclosure afforded material prepared for litigation (CPLR 3101 [d]; Vernet v Gilbert, 90 AD2d 846; Kandel v Tocher, 22 AD2d 513).

Section 3101(d) permits discovery of reports and appraisals when the party resisting disclosure fails to show that they were prepared solely for litigation.

Sack v. North American Systems, Inc. · filed 1985-12-30(d)

Under the circumstances of this case, we find that appellant North American Systems, Inc., should have been granted discovery of any reports and appraisals included as part of the files of the adjuster and the insurance company. Respondents failed to sustain their burden of showing such material to have been prepared solely for litigation purposes (see, CPLR 3101 [d]).

Section 3101(d)(2) protects a defendant’s examining physician’s records prepared solely for litigation when the plaintiff can obtain their substantial equivalent from other medical materials.

Fulciniti v. European American Bank · filed 1986-07-22(d)(2)

Certainly by utilizing the reports of all physicians and the records of his own physicians, the plaintiff, Sam Fulciniti, is able to prepare his case and can obtain the substantial equivalent of the materials sought. Thus, the records sought do not fall within the contemplation of the exceptions set forth in CPLR 3101 (d) (2).

CPLR 3101(d) exempts documents prepared in contemplation of litigation from disclosure.

Faraone v. Carrollwood Associates · filed 1986-09-15(d)

Special Term was correct in holding as to items 3, 5 and 6 that "[s]ince these documents were prepared in contemplation of litigation, they are privileged and exempt from disclosure under CPLR 3101 (d)” (see, Matos v Akram & Jamal Meat Corp., 99 AD2d 527; Vernet v Gilbert, 90 AD2d 846).

Section 3101(d)(2) exempts a medical report prepared for litigation from disclosure unless the requesting party shows need and undue hardship in obtaining a substantial equivalent.

Renucci v. Mercy Hospital · filed 1986-11-24(d)(2)

Absent a showing that a party seeking discovery has need of materials in the preparation of the case and is unable without undue hardship to obtain a substantial equivalent by other means, materials prepared "in anticipation of litigation or for trial” are exempt from disclosure (CPLR 3101 [d] [2]). Accordingly, a medical report prepared for litigation remains exempt under the 1985 revision of CPLR 3101 (d) (L 1985, ch 294, § 4; cf. Hoenig v Westphal, 52 NY2d 605, 608-609; Zimmerman v Nassau Hosp., 76 AD2d 921, 922; Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:29, p 8 [1986 Pocket Part]).

Section 3101(d)(2) gives materials prepared for litigation conditional protection when they do not reflect an attorney’s work product.

People v. Grady · filed 1986-11-26(d)(2)

The statements were not obtained by an attorney and clearly do not reflect an attorney’s training, analysis or strategy. Thus, these documents constitute materials prepared for litigation covered by CPLR 3101 (d) (2) and not work product.

Section 3101(d)(2) does not protect a document prepared for both litigation and another purpose from discovery.

Crowe v. Lederle Laboratories · filed 1986-12-31(d)(2)

Inasmuch as defendant failed to adequately buttress its contention that the report of its professional medical services department relating to plaintiff served but one exclusive purpose, and mixed purpose documents are not within the scope of CPLR 3101 (d) (2) (Vandenburgh v Columbia Mem. Hosp., 91 AD2d 710, 711), Special Term properly concluded the report was subject to discovery.

Section 3101 exempts from disclosure an expert’s opinion about how a party will prove an alleged violation, though the party may be required to identify the rules or standards allegedly violated.

Albany Custom Floors, Inc. v. Urbach, Kahn & Werlin · filed 1987-03-05

Requiring a plaintiff to state what, if any, statutes, regulations or rules are alleged to have been violated is not onerous and narrows the issues to be litigated. Going further and requiring a plaintiff to reveal the manner in which the statutes, regulations or rules was violated forces him to reveal how he will prove his case and most likely would require him to reveal his expert’s opinion. Such matter is exempt from disclosure.

Section 3101(d)(2) conditionally exempts material prepared solely in anticipation of litigation from disclosure.

Gentile v. Wakeel · filed 1987-04-22(d)(2)

As material prepared solely in anticipation of litigation, the Reports are conditionally exempt from disclosure pursuant to CPLR 3101 (d) (2).

Section 3101(d)(2) does not protect handwriting exemplars from disclosure as material prepared for litigation when they are sought in response to an affirmative defense of forgery.

Passaro v. Passaro · filed 1986-05-19(d)(2)

There is no merit to the defendant’s contention that such exemplars constitute material prepared for litigation, which would be qualifiedly protected from disclosure pursuant to CPLR 3101 (d) (2) (see, Rosenblatt v Danzis, supra).

Section 3101(d) conditionally protects expert reports prepared primarily for litigation; reports prepared mainly to diagnose and repair a problem are discoverable.

Crow-Crimmins-Wolff & Munier v. County of Westchester · filed 1986-10-27(d)

In short, we find that the precounterclaim reports do not meet the definition of material prepared for litigation, and, under all of the circumstances, that the November 18, 1982 date of interposition of the engine-related counterclaims serves as the appropriate dividing line between privileged and conditionally privileged documents.

Section 3101(d) permits disclosure of litigation material when the requesting party cannot duplicate it without undue hardship, but disclosure of experts’ reports is limited to factual data and test results, excluding opinions.

Perfido v. Messina · filed 1986-12-31(d)

In any event, since the subject premises have been destroyed, the plaintiffs’ inability to duplicate the material would overcome the privilege as undue hardship would result if the material in the appellant’s possession were withheld (see, CPLR 3101 [d]). However, with regard to the experts’ reports, the disclosure shall be limited to the factual data and test results and shall not include the opinions of experts (see, Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733; Castro v Alden Leeds, Inc., 116 AD2d 549).

Section 3101(d)(2) permits discovery of materials prepared to evaluate a State Finance Law claim before the Comptroller rejects it because they were not prepared in anticipation of litigation.

E. B. Metal Industries v. State · filed 1988-02-08(d)(2)

An investigation or report undertaken by the State, in connection with such a claim and prior to its rejection by the Comptroller, is not a report prepared in anticipation of litigation — it was prepared only to enable the Comptroller to make a decision whether or not to allow such claim. Therefore, such materials are discoverable.

Former CPLR 3101(d) conditionally protects photographs prepared for litigation but allows disclosure when changed conditions prevent duplication and withholding them would cause unjust or undue hardship.

O'Connell v. Jones · filed 1988-05-31(d)

Pursuant to the statutory provision applicable to this action, the subject photographs are material prepared for litigation and conditionally immune from disclosure (see, former CPLR 3101 [d]). However, if photographs can no longer be duplicated because of a change of conditions of the accident scene, and if withholding them will result in unjust or undue hardship, they are subject to disclosure (see, Barber v Town of Northumberland, 88 AD2d 712; Binke v Goodyear Tire & Rubber Co., 55 AD2d 632; Wolken v Howell Co., 41 AD2d 545; Pinn v Supermarkets Gen. Corp., 104 Misc 2d 1112, 1115).

Section 3101(d)(2)'s qualified privilege for materials prepared for litigation is waived for portions included in prefiled testimony.

Village of Tuckahoe v. Public Service Commission · filed 1989-05-08(d)(2)

The qualified privilege covering materials prepared for litigation was waived with respect to those portions of the report which were photocopied and included in prefiled testimony.

Section 3101(d)(2) does not exempt reports prepared for both ordinary business purposes and anticipated litigation from disclosure.

Merrick v. Niagara Mohawk Power Corp. · filed 1988-11-23(d)(2)

Inasmuch as mixed-purpose documents are not within the scope of CPLR 3101 (d) (2) (Vandenburgh v Columbia Mem. Hosp., 91 AD2d 710, 711, supra; see, Crowe v Lederle Labs., 125 AD2d 875), Supreme Court properly concluded that the written reports of Schumacher and Gaudreau were subject to discovery.

Section 3101(d)(2) requires a showing of undue hardship to obtain reports prepared by nonexperts.

Breslauer v. Dan · filed 1989-05-01(d)(2)

The third-party defendant-respondent is not entitled to reports prepared by nonexperts. CPLR 3101 (d) (2) is applicable here rather than CPLR 3101 (d) (1) (iii). Thus, the controlling standard is "undue hardship”, not "special circumstances”.

Section 3101(d)(2) does not provide blanket immunity from disclosure merely because a party is self-insured or its attorneys conducted the investigation.

Chakmakjian v. NYRAC, Inc. · filed 1989-10-30(d)(2)

Neither the contention that the appellant is a self-insurer nor the further allegation that the appellant’s attorneys have conducted all investigations into the subject matter of the lawsuit warrants the application of the blanket immunity pursuant to CPLR 3101 (d) (2) which it apparently seeks.

CPLR 3101(d)(2) requires a party opposing disclosure to show that a statement was prepared exclusively for litigation; submission to an insurer alone does not establish protection.

Pinkans v. Hulett · filed 1989-12-21(d)(2)

Clark, as the party opposing discovery, had the burden of demonstrating that the statement sought to be disclosed is indeed exempt from disclosure (see, CPLR 3101 [d] [2]; Carden v Allstate Ins. Co., 105 AD2d 1048, 1049). His counsel’s assertion, without more, that Clark’s statement to his insurance carrier was material prepared for litigation is insufficient to meet this burden (see, Merrick v Niagara Mohawk Power Corp., 144 AD2d 878, 879). Nothing of an evidentiary nature in the record indicates that Clark’s statement was prepared exclusively for litigation. The mere fact that a statement is submitted to an insurance carrier does not ipso facto render it privileged material (see, Carlo v Queens Tr. Corp., 76 AD2d 824).

Section 3101(d) protects a document as litigation material only if it was prepared primarily, if not solely, for litigation.

Spectrum System International Corp. v. Chemical Bank · filed 1990-06-07(d)

In order to qualify as "litigation” material under CPLR 3101 (d), the document must have been prepared primarily if not solely for litigation (ibid).

A conclusory assertion that accident reports were prepared exclusively for litigation does not establish the conditional privilege under CPLR 3101(d)(2).

James v. Metro North Commute Railroad · filed 1990-10-16(d)(2)

However, the mere recitation of this self-serving statement is insufficient to establish that the reports qualify for the privilege of CPLR 3101 (d) (2).

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

Sands v. News America Publishing Inc. · filed 1990-09-11(d)(2)

We find that plaintiffs showing on this issue was sufficient to overcome the qualified trial preparation privilege under CPLR 3101 (d) and therefore, we hold that if defendants have a copy, or a summary, of the contents of that report, it is to be made available to plaintiff.

Section 3101(d)(2) gives qualified protection to information gathered for litigation when the party seeking it has not shown undue hardship in obtaining it independently.

Mahoney v. Staffa · filed 1991-12-31(d)(2)

By so asserting, Mahoney has established a rebuttable presumption of qualified privilege and defendant has not offered any evidence of undue hardship in procuring the information he seeks by conducting interviews of his own (see, CPLR 3101 [d] [2]).

Section 3101(d)(2) protects material prepared for litigation when the requesting party fails to show that its substantial equivalent is unavailable.

In re the Estate of Pretino · filed 1991-03-18(d)(2)

The proponent has failed to establish that she is unable to obtain the substantial equivalent of the diary (CPLR 3101 [d] [2]).

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

In re Lenny McN. · filed 1992-05-21(d)(2)

Entirely ignored was the mandate of the last cited paragraph that, assuming the intervenor had made the threshold showing of necessity (which she clearly had not), "the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation" (emphasis added). We hold that a social worker, employed by a law guardian in a Family Court proceeding to determine custody in the best interest of an infant, is a "representative" of the infant for the purpose of this statute.

Section 3101(d)(2) covers material prepared in anticipation of litigation and can support withholding documents from an opponent.

In re the Conservatorship of Brownstone · filed 1993-03-02(d)(2)

The court made no finding that the documents contain material prepared in anticipation of litigation pursuant to CPLR 3101 (d) (2) and, therefore, there is no basis upon which to conclude that respondent would be substantially prejudiced by permitting appellant access to the documents (CPLR 3103 [c]).

Section 3101(d)(2) protects materials prepared solely for litigation from disclosure.

Wylie v. Consolidated Rail Corp. · filed 1993-03-16(d)(2)

If the sole purpose was litigation they were not discoverable under CPLR 3101 (d) (2).

Section 3101(d)(2) permits a plaintiff to inspect defense surveillance materials to verify their accuracy but does not permit using them in the plaintiff’s direct case.

Baird v. Campbell · filed 1992-10-15(d)(2)

Insofar as the plaintiffs are concerned, this court has adhered to and complied with the "conditional immunity” provisions of CPLR 3101 (d) (2) as interpreted by the decision of Kane (supra). In so doing, this court firmly believes that this is as far as the plaintiffs can go pursuant to the said CPLR section.

Section 3101(d)(2)'s qualified privilege requires the party claiming it to establish that the requested material was prepared in anticipation of litigation by or for another party or that party’s representative.

Port Washington Tennis Academy, Inc. v. United States Tennis Ass'n · filed 1993-09-20(d)(2)

Moreover, the plaintiff has failed to establish that the material sought in request no. 4 was prepared in anticipation of litigation by or for another party or by or for that party’s representative and that it therefore was entitled to the qualified privilege set forth in CPLR 3101 (d) (2).

Section 3101(d)(2) gives materials prepared for litigation qualified protection from disclosure, subject to an exception when the materials are otherwise unavailable.

Sullivan v. Smith · filed 1993-11-24(d)(2)

While, concededly, these materials are only qualifiedly immune from disclosure, we find that plaintiff has failed to satisfy her burden of proving that her situation comes within the exception, i.e., that the materials otherwise are unavailable (CPLR 3101 [d] [2]; see, e.g., Volpicelli v Westchester County, 102 AD2d 853).

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

Mardiros v. Ghaly · filed 1994-07-11(d)(2)

It is well established that materials that were prepared in anticipation of litigation are not discoverable unless the party seeking discovery can show that he or she has substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent of the material by other means (see, CPLR 3101 [d] [2]; see also, Harris v Processed Wood, 89 AD2d 220).

CPLR 3101(d) does not bar production of requested materials when the requester demonstrates a substantial need for them.

Durio v. MacKechnie · filed 1994-03-28(d)(2)

The petitioner has demonstrated a "substantial need” (CPLR 3101 [d] [2]) for the materials requested, so that the terms of CPLR 3101 (d) do not constitute an absolute bar to their production.

Section 3101(d)(2) protects material prepared in anticipation of litigation from disclosure absent a demonstrated necessity for it.

Equitable Life Assurance Society v. Rocanova · filed 1994-08-18(d)(2)

In this case, plaintiff has not demonstrated any necessity, such as undue hardship (CPLR 3101 [d] [2]), for resort to the unusual procedure of subjecting counsel to examination before trial (CPLR 3101 [a] [4]).

Section 3101(d)(2) does not require disclosure of witness statements prepared for litigation solely for impeachment when the party seeking them has not shown undue hardship.

Frawley v. Albrecht · filed 1994-12-09(d)(2)

Withholding the nonparty witness statements will not result in hardship or injustice for the plaintiff. This court is not willing to chip away at the privilege in CPLR 3101 (d) solely for the purposes of impeaching a nonparty witness.

CPLR 3101 (d) (2) requires its conditions for disclosure to be met before a party can compel answers to interrogatories seeking materials prepared for litigation, including witness statements and photographs.

Gardner v. Kawasaki Heavy Industries, Ltd. · filed 1995-03-09(d)(2)

Inasmuch as interrogatory Nos. 71, 72, 73, 74 and 75 seek materials prepared for litigation, i.e., statements of witnesses and photographic evidence together with information relating thereto, Supreme Court should not have compelled Kawasaki to answer them since plaintiff did not satisfy the conditions precedents to the disclosure of such information that are contained in CPLR 3101 (d) (2) (see, Sullivan v Smith, 198 AD2d 749; O’Connell v Jones, 140 AD2d 676).

Section 3101(d)(2) protects material an investigator prepared for litigation unless the party seeking it shows substantial need and undue hardship.

Lamitie v. Emerson Electric Company-White Rodgers Division · filed 1994-10-20(d)(2)

The record does establish, however, that the information acquired by Howard during his investigation pursuant to the request of plaintiffs’ counsel is material prepared in anticipation of litigation which is exempt from disclosure (CPLR 3101 [d] [2]; see, e.g., Careccia v Enstrom, 174 AD2d 48, 50; Volpicelli v Westchester County, 102 AD2d 853), absent a factual showing of substantial need and undue hardship (DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 196, cert denied sub nom. Poole v Consolidated Rail Corp., — US —, 114 S Ct 68). ... We find that defendants have satisfied their burden of proving the necessary elements for the production of material prepared for litigation.

Section 3101(d) protects an investigator’s work prepared in anticipation of litigation when the requesting party does not show that the information is unavailable elsewhere or that obtaining it would cause hardship.

Feig v. Lenox Hill Hospital · filed 1995-11-21(d)

A different conclusion must be reached, however, with regard to the Hospital’s contention that the Kroll investigation was performed in anticipation of litigation and is therefore exempt from discovery. ... This allegation is based on pure speculation for there is no recitation of what might repose in the file that cannot be secured elsewhere or that there is hardship. ... Accordingly, for that reason as well as CPLR 3101 (d) the motion to quash the subpoena duces tecum is granted.