CPLR § 3101(c); § 3101(d)(2)

People v. Kozlowski,
2008 NY Slip Op 07759, (Ct. App.)

Today's issue of the New York Law Journal contained a roundup of a few recent Court of Appeals decisions.  The article is authored by Roy L. Reardon and Mary Elizabeth McGarry, partners at Simpson Thacher & Barlett.  One of the decisions, People v. Kozlowski,
2008 NY Slip Op 07759, addressed the work product privilege and how the privilege can be overcome when a party is looking for "investigation materials."

Next, the Court discussed privilege and waiver. Our readers may find it
helpful to be reminded of New York's attorney privilege terminology,
which differs from that of some other jurisdictions. CPLR 3101(c)
provides that, "[t]he work product of an attorney shall not be
obtainable." The Court observed that the drafters of §3101(c)
apparently were attempting to protect attorney-client privileged
materials from disclosure in distinguishing absolutely privileged "work
product" from materials "prepared in anticipation of litigation or for
trial," which are only conditionally protected under CPLR 3101(d)(2).

None of the parties asserted that Boies Schiller's interview materials
were attorney-client privileged. The People maintained that they
constituted absolutely protected work product, while the defendants
argued that they constituted qualifiedly privileged trial preparation
materials. The Court of Appeals agreed with the trial court that the
factual portions of interview notes and memoranda were trial
preparation materials, observing that "the mere fact that a narrative
witness statement is transcribed by an attorney is not sufficient to
render the statement 'work product.'"


The trial court found that defendants had failed to meet their burden
of establishing the elements of the §3101(d)(2) test for overcoming the
conditional protection of trial preparation materials, i.e., a
"substantial need" because the defendants could not obtain the
"substantial equivalent of the materials" without "undue hardship." The
Court of Appeals affirmed, stating that it could not conclude that the
trial court had abused its discretion as a matter of law.

Between the lines of the decision, however, is the suggestion that, had
the judges decided the issue in the first instance, the outcome may
well have been different. The opinion took note of the fact that the
interviews of directors and employees are a common feature of internal
investigations, as are "consult[ation]" between prosecutors and a
corporation's counsel seeking to protect his or her client from
criminal sanctions. It recognized that such "collaboration" may have a
public benefit, but stated that it also "may come at the expense of the
proper safeguarding of the rights of individual corporate employees."
The Court instructed that these factors should be balanced in deciding
whether to grant a defendant access to trial preparation materials
under a claim of "substantial need."

The article discussed several other cases which are not mentioned here.  To read the rest of the article, click HERE.

The bold is mine.