No Work-Product Privilege for an Interview With the Adversary

Geffner v Mercy Med. Ctr.,

___ AD3d ___, 2015 NY Slip Op 01411 [2nd Dept., 2015]

In this medical malpractice-wrongful death action, the plaintiff interviewed one of the defendants before commencing the action, and recorded the conversation. The plaintiff is apparently an attorney, and appeared pro se in the the Appellate Division, leading to the inference that she is pro se in the action.

Defendants demanded a copy of the recording, to which the plaintiff objected. Supreme Court directed her to provide the copy or be precluded from using it at trial. On appeal, the Appellate Division held that the recording was not entitled to the absolute work product privilege merely because plaintiff made it in her capacity as an attorney. She did not show that failed to show that “the recording contained elements of opinion, analysis, theory, or strategy.” Similarly, there was no showing that it was trial preparation material, to which a conditional privilege applies. The order was therefore affirmed.

The opinion makes no mention of CPLR 3101 (e), which would seem to be the controlling paragraph. The paragraph is simple, direct and unequivocal: “A party may obtain a copy of his own statement.” In Briggs v. Spencerport Road Plaza, Inc., 19 A.D.2d 943, [4th Dept., 1963], the court observed that its purpose was to allow a party access to his own statements without having to prove special circumstances.

If a party statement does not become attorney work product merely because an attorney took it, the converse is also true: It does not cease to be a party statement, and the party should not be deprived of access to it, merely because the interviewer or recorder was an attorney.

It is difficult to see how the recording of the interview could have contained any “opinion, analysis, theory or strategy.” To the extent that the attorney recorded her musings on any of these things in the presence of the defendant, any privilege has been waived. To the extent that she mused on them out of the defendant’s hearing, such musings are not part of the statement and redaction is a simple matter. In either event, the defendant is entitled to a copy of so much of the recording as contains her actual statement.

As to the recording being trial preparation material, it would seem that a party should be entitled to copies of his own statements even if the adversary procured them exclusively in anticipation of litigation, perhaps especially if the adversary did so. The rule for statements should be the same as with accident reports in the ordinary course of business, which are disclosable even if made in anticipation of litigation. To be sure, CPLR 3101 (g) mandates disclosure of accident reports “in addition to any other matter which may be subject to disclosure,” and 3101 (e) does not. Still, the unequivocal language of 3101 (e) would seem to take precedence over the conditional privilege of 3101 (d)(2).

Finally, there is CPLR 3101 (i), which provides for disclosure of all audio tapes of any party, and which does mandate disclosure “in addition to any other matter which may be subject to disclosure.” This provides an independent basis for disclosure of the recording. Again, it should not matter whether the interviewer was an attorney.