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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. Read More