Even Records Demonstrated to Be Material and Necessary to the Prosecution or Defense of an Action Are Not Discoverable If Privileged and the Privilege Is Not Waived

Even though disclosure of a non-party sibling’s medical records was demonstrated to be material and necessary (CPLR 3101(a)(1)), the Second Department determined discovery was precluded because the records are privileged (CPLR 3101 (b)) and the privilege was not waived:

Even when the party seeking disclosure has demonstrated that such disclosure is material and necessary in the prosecution or defense of an action (see CPLR 3101[a][1]), discovery may still be precluded where, as here, the requested information is privileged and thus exempted from disclosure pursuant to CPLR 3101(b) … . “Once the privilege is validly asserted, it must be recognized and the sought-after information may not be disclosed unless it is demonstrated that the privilege has been waived” … . Washington v Alpha-K Family Med. Practice, P.C., 2015 NY Slip Op 03831, 2nd Dept 5-6-15