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Criteria for Demonstrating Documents Were Material Prepared in Anticipation of Litigation

The Second Department explained the burden of proof for demonstrating documents are immune from discovery as material prepared in anticipation of litigation as follows:

“The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . More particularly, “[t]he party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation . . . bears the burden of demonstrating that the material it seeks to withhold is immune from discovery … by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . An attorney’s affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain the movant’s burden of demonstrating that the materials were prepared exclusively for litigation … .  New York Schools Ins Reciprocal v Milburn Sales Co, Inc, 2013 NY Slip Op 02227, 2012-01697, Index no 2848/11, 2nd Dept 4-3-13

 

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Where Attorney Is a Party to a Lawsuit, Attorney’s Submission of an Affirmation... Delay in Notification Justified Refusal to Defend and Indemnify