Puntoriero v. Johnson

Order unanimously modified, on the law, and, as modified, affirmed without costs, in accordance with the following memorandum: Defendants’ motion for a protective order should have been granted with respect to materials sought under paragraph 3 of plaintiffs’ CPLR 3120 demand. Defendants’ affidavits establish that the Board of Education retained professional investigators to interview witnesses and prepare reports solely to assist the Board in defense of plaintiffs’ action. Plaintiffs failed to rebut that but argue that material prepared for litigation is only conditionally immune from disclosure and may be inspected if it cannot be duplicated. Because the Board’s investigation took place immediately after the incident, plaintiffs contend that these investigative reports contain information which is now stale or unobtainable. Plaintiffs have made no showing that they have attempted to interview people with knowledge of the incident or been unable to do so. The order is therefore modified to preclude inspection of these reports without prejudice to renewal of the demand on a showing that plaintiffs have been unable to duplicate the material and will be prejudiced without it (see, New England Seafoods v Travelers Cos., 84 AD2d 676, 677; see also, Matter of Weaver v Waterville Knitting Mills, 78 AD2d 574, 575). (Appeals from order of Supreme Court, Erie County, Francis, J.—protective order.) Present— Dillon, P. J., Callahan, Denman, Boomer and Pine, JJ.