Practice point: The Appellate Division found that, contrary to the plaintiff's contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy.
The Appellate Division rejected the plaintiff's alternative argument that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). The conclusory assertions set forth in the supporting affidavit are insufficient to meet the burden of establishing, with specificity, that the recording was prepared exclusively in anticipation of litigation.
Student note: Pursuant to CPLR 3102(c), attorney work product, which is absolutely privileged, is generally limited to materials prepared by an
attorney, while acting as an attorney, which contain the attorney's legal
analysis, conclusions, theory, or strategy. The mere fact that a narrative witness statement is
transcribed by an attorney does not make the statement
work product.
Case: Geffner v Mercy Med. Ctr., NY Slip Op 01411 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A dismissed counterclaim for tortious interference with prospective economic relations.
