43 Misc. 2d 660 | N.Y. Sup. Ct. | 1964
In this action to recover for personal injuries, plaintiff moves pursuant to CPLR 3101 for discovery of any statement made prior to the institution of the action by the individual defendant, the operator of a truck belonging to the corporate defendant, to the insurance carrier covering defendants. Defendants admit that such a statement was taken ten days prior to service of summons on the individual defendant, but resist the application on the ground that the statement is work product and further that no special circumstances have been shown.
Prior to the CPLR, it was the rule that, except for documents referred to in pleadings or affidavits (Civ. Prac. Act, § 327; Opoliner v. Queensview Housing Enterprise, 27 Misc 2d 973), documents to be subject to inspection must be evidence themselves (Falco v. New York, New Haven & Hartford R. R. Co., 161 App. Div. 735, 737; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 29; Annotation, 73 ALR 2d 12, 106), and that may still be the rule (CPLR 3101; cf. 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3101.4). On this basis reports of investigation in preparation for trial were held not discoverable (People ex rel. Lemon v. Supreme Court, supra; Naiman v. Niagara Falls Ins. Co., 283 App. Div. 1016; White v. Sibley, Lindsay & Curr Co., 283 App. Div. 1007; Metropolitan Life Ins. Co. v. Goldberger, 1 A D 2d 823; Friedman v. Metropolitan Life Ins. Co., 1 A D 2d 766; De Vito v. New York Cent. R. R. Co., 32 Misc 2d 494, affd. 3 A D 2d 692; Zdonczik v. Pennsylvania & So.
People ex rel. Lemon v. Supreme Court (245 N. Y. 24, 29, supra) had recognized that “ No precedent can be found even in civil causes for compelling disclosure, in advance of the trial, of the office notes or memoranda prepared by an attorney after consultation with his witnesses ”. Hickman v. Taylor (329 U. S. 495) made clear that such material, the attorney’s work product, is privileged unless good cause be shown for disclosure.
In this setting the Advisory Committee on Practice and Procedure proposed a rule that would have given attorney’s work product and material prepared for litigation privileged status unless the court found that withholding it would result in injustice or undue hardship. The section as finally adopted was changed by deleting the reference to “ information reasonably calculated to lead to relevant evidence ” and to make the work product privilege absolute, but those changes have no
The court has not overlooked Bloom v. New York City Tr. Auth. (20 A D 2d 687); Babcock v. Jackson (40 Misc 2d 757); or Doughty v. Greenberg, 43 Misc 2d 267). From the memorandum in Bloom, it is not possible to ascertain the circumstances under which the report which the court found ‘ ‘ not made in preparation for trial” was obtained, but since one of the primary purposes of insurance is the defense of litigation, it is difficult to see how an insurance investigator’s report can realistically be considered not‘(.created * * * in preparation for litigation.” With deference, the court disagrees with the interpretation put upon the quoted portion of the First
In view of the decisional history outlined at the beginning of this memorandum, the court should perhaps note that the statement of the individual defendant may, if not within the attorney-client privilege or the work product privilege, become discoverable and, under appropriate circumstances, admissible during cross-examination of defendant, on the principle of People v. Rosario (9 N Y 2d 286) and Jencks v. United States (353 U. S. 657) (see Annotation 73 ALR 2d 12, 143, but cf. Schulgasser v. Young, supra). That the statement may become admissible in evidence, while it would have affected the result under the Civil Practice Act, has no bearing on the present determination, based as it is on the legislative intent evidenced by the First Preliminary Report quoted above.
Though the orders considered in the two Ciaffone appeals were made in September, 1963, it would appear from the memoranda and such of the briefs as are available to the court that the effect of the CPLR on the point under discussion was not presented.