In New York City Schools Insurance Reciprocal v. Milburn Sales Co., Inc., the Second Department weighed in on the discoverability of party’s investigator’s materials.

Typically, materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has “substantial need” for the materials and is unable to obtain the information without “undue hardship.” The party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation bears the burden of demonstrating that the material it seeks to withhold is immune from discovery 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.”

In Milburn, a fire occurred at the plaintiff’s premises. On the day of and day after the accident, plaintiff’s investigator, Russo Consultants, was present at the scene. Coincidentally, the fire marshal was also conducting his investigation at that time. Six days after the accident, plaintiff wrote to Milburn and its insurer informing them that, based on the fire marshal’s findings, the negligence of Milburn’s employees may have contributed to the accident. After plaintiff commenced the action, Milburn served subpoenas on Russo for documents and depositions of the Russo employees present on the scene. Plaintiff moved to quash the subpoenas, claiming that the materials were prepared solely in anticipation of litigation. Milburn cross-moved to compel production of the requested materials and for the depositions. The Supreme Court granted plaintiff’s motion and quashed the subpoenas.

The Second Department modified the decision to compel Russo to comply with the subpoena for documents, holding that plaintiff failed to demonstrate that the materials were prepared in anticipation of litigation. One of the reasons for the court’s decision is that plaintiff apparently proffered only an attorney affirmation containing conclusory assertions. This, it found, was insufficient to meet demonstrate that the documents were immune. The second reason was that plaintiff could not demonstrate that, at the time the documents were prepared, it was contemplating a subrogation action.

There are a couple important takeaways from this decision. First, if you are going to assert that documents are immune because they were prepared in anticipation of litigation, you better be able to provide a specific reason why they are immune. Second, if you can support your arguments with more than an attorney affirmation, do so.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at