CPLR § 3101 Scope of disclosure
Ural v Encompass Ins. Co. of Am, 2012 NY Slip Op 05407 (2nd Dept. 2012)
With respect to the parties' discovery issues, CPLR 3101(a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; Matter of Skolinsky, 70 AD3d 845; Riverside Capital Advisors, Inc. v First Secured Capital Corp., 292 AD2d 515). However, the discovery sought must be relevant to the issues at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably improper in that they are overbroad, lack specificity, or seek irrelevant or confidential information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks omitted]).
Here, the plaintiff's discovery demands included production of Encompass's entire claim file for the subject water damage. The plaintiff asserts that Encompass only produced part of the claim file. In response, Encompass asserts that it withheld only those parts of the claim file that were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370). However, the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294) 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 (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645; Crazytown Furniture v Brooklyn Union Gas Co., 145 AD2d 402). Here, Encompass's attorney's conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648; see also Agovino v Taco Bell 5083, 225 AD2d 569). Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to compel Encompass to produce the documents contained in the plaintiff's claim file to the extent of directing Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122; Clark v Clark, 93 AD3d 812), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera review of the allegedly privileged documents.
Although Encompass also failed to meet its burden of demonstrating that certain discovery demands involved undiscoverable trade secrets (see Hunt v Odd Job Trading, 44 AD3d 714, 716), aside from the claim file, the remaining discovery demands were nevertheless palpably improper in that they were overbroad, lacked specificity, or sought irrelevant information. Accordingly, the Supreme Court correctly denied that branch of the plaintiff's motion which was to compel Encompass to comply with these discovery demands (see Bell v Cobble Hill Health Ctr., Inc., 22 AD3d at 621).
Under the circumstances of this case, Encompass was not entitled to a protective order (see CPLR 3103).
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