Category: CPLR § 3101

Although a municipality, in the first instance, has the right to
determine which of its officers or employees with knowledge of the
facts may appear for a deposition, a plaintiff may demand production of
additional witnesses when (1) the officers or employees already deposed
had insufficient knowledge or were otherwise inadequate, and (2) there
is a substantial likelihood that the person sought for deposition
possesses information which is material and necessary to the
prosecution of the case (see Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 933; Douglas v New York City Tr. Auth., 48 AD3d 615, 616; Sladowski-Casolaro v World Championship [*2]Wrestling, Inc., 47 AD3d 803, 804; Del Rosa v City of New York, 304
AD2d 786). The plaintiffs established that the witnesses produced by
the respondent for deposition had insufficient knowledge regarding the
making of a line-of-duty injury report which was material and necessary
to the prosecution of the action (see D & S Realty Dev., L.P. v Town of Huntington, 295 AD2d 306, 308; Harris v Town of Islip, 268 AD2d 459, 460-461; D'Ulisse v Town of Oyster Bay, 81
AD2d 825, 826). Furthermore, the employee the plaintiffs sought to
depose was the investigating officer who signed the line-of-duty injury
report and made the original records that were copied into the report (see CPLR
4518[a]). Accordingly, that branch of the plaintiffs' motion which was
to compel the respondent to produce the employee for a deposition
should have been granted.

The plaintiffs, however, failed to make a clear showing that
the respondent willfully and contumaciously defied the directive of the
preliminary conference order to produce all accident reports, or
willfully and contumaciously withheld relevant documents (see CPLR 3101[g]; Paca v City of New York, 51 AD3d 991, 993; Brandes v North Shore Univ. Hosp., 22 AD3d 778; Briggs v Allstate Ins. Co., 1
AD3d 392, 393). Accordingly, that branch of the plaintiffs' motion
which was pursuant to CPLR 3126 to strike the respondent's answer was
properly denied.

The trial court providently exercised its discretion in precluding
testimony from plaintiff's expert oncologist regarding a new theory of
liability that plaintiff failed to timely disclose and which was not
apparent from her prior expert disclosures. Although CPLR 3101(d)(1)
does not establish a specific time frame for expert witness disclosure,
a trial court has discretion to preclude expert testimony for failure
to comply with the statute. Here, plaintiff failed to timely serve her
supplemental expert disclosure or provide an adequate explanation
for the delay (see Lucian v Schwartz, 55 AD3d 687, 688 [2008], lv denied NY3d , 2009 NY Slip Op 63827 [2009]; Durant v Shuren, 33 AD3d 843 [2006]).

Nor did the trial court improvidently exercise its discretion in
precluding plaintiff's expert medical physicist from testifying
regarding the biological equivalent dose (BED) of the high dose rate
radiation brachytherapy administered to plaintiff. The expert is not a
medical doctor and had no experience calculating the BED under the
specific and unique circumstances involved in treating plaintiff's rare
illness. The calculation involved required specialized medical
knowledge in order to impute certain values to the type of tissue and
the tumor being treated (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 518 [2007]; Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895-896 [2004]; Jordan v Glens Falls Hosp., 261 AD2d 666, 667 [1999]).

"Summary judgment may not be awarded in a medical malpractice action
where the parties adduce conflicting opinions of medical experts" (Shields v Baktidy, 11
AD3d at 672). Accordingly, the Supreme Court correctly denied the
appellants' motions for summary judgment dismissing the complaint
insofar as asserted against them.
[*2]

Contrary to the appellants'
contention, the Supreme Court did not err in considering the affidavit
of the plaintiffs' expert, despite the plaintiffs' alleged failure to
comply with CPLR 3101(d)(1). The Supreme Court noted that there was a
"factual dispute" as to whether the plaintiffs had in fact complied,
and its decision to consider the affidavit solely for purposes of
summary judgment was a provident exercise of discretion (see Simpson v Tenore & Guglielmo, 287 AD2d 613, 613; cf. Construction by Singletree, Inc. v Lowe, 55 AD3d 861).

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.