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NOTES TAKEN BY AN OBSERVER HIRED BY PLAINTIFF’S ATTORNEY TO WITNESS AN INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF BY DEFENDANTS’ DOCTOR ARE PRIVILEGED AS MATERIAL PREPARED FOR TRIAL, THE OBSERVER WAS ACTING AS AN AGENT OF PLAINTIFF’S ATTORNEY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, in a matter of first impression, determined that the notes taken by an observer at an independent medical exam (IME) of plaintiff by defendants’ doctor are protected by the privilege afforded materials prepared for litigation. The observer was hired by plaintiff’s attorney and was deemed to be acting as an agent of the attorney:

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

The IME observer was hired to assist plaintiff’s attorney in advancing the litigation and preparing for trial … . Although present, she was not involved in the doctor’s examination of the plaintiff. Her function was to serve as the attorney’s “eyes and ears,” observing what occurred during the IME, and then reporting that information back to plaintiff’s attorney.

Defendants have not shown, in response, any “substantial need” for the IME observer’s notes, etc., or why they are unable, without undue hardship, to obtain the “substantial equivalent” of the materials by other means … . Key to this analysis is that the defendants’ doctor conducted plaintiff’s examination and can provide defendants with any information concerning what generally occurred and what he did at the IME. Markel v Pure Power Boot Camp, Inc., 2019 NY Slip Op 02049, First Dept 3-19-19

 

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