CPLR 3101(a) directs that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The right to disclosure, although broad, is not unlimited. The statute establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery; attorney's work product, also absolutely immune; and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship. A party asserting that material is privileged bears the burden of demonstrating that the material it seeks to withhold is immune from discovery. Whether a particular document is protected is necessarily a fact-specific determination, most often requiring in camera review.
Here, the Appellate Division remits the matter to the Supreme Court for an camera review of the documents requested in the subpoena before it determines whether to compel compliance with the subpoena or to grant a protective order.
Bronstein v. Omega Constr. Group, Inc., NY Slip Op 05487 (2d Dep't November 1, 2023)
