Citation Numbers: 135 Misc. 2d 301
Judges: Grow
Filed Date: 4/22/1987
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Defendants move for a protective order relating to so much of plaintiffs’ notice to produce dated January 7, 1987 as pertains to the production of reports prepared by a private investigator hired by defendants’ liability insurance carrier (Reports). Defendants contend that the Reports are material prepared for litigation and therefore are exempt from disclosure pursuant to CPLR 3101 (d) (2). Plaintiffs oppose the motion and argue that the Reports were prepared in the regular course of business operations and are therefore subject to disclosure pursuant to CPLR 3101 (g).
At the outset, the court notes that the kind of insurance carried by defendants is significant in determining whether
Since the Reports were prepared by a private investigator who was retained by defendants’ liability insurance carrier, the court finds that they were not prepared in the regular course of defendants’ business operations. This is not a case in which the material sought to be disclosed was prepared by employees of the party and then sent to its liability insurance carrier as part of a routine business practice. Here defendants did not even directly procure the Reports. Rather, the matter was referred to defendants’ liability insurance (i.e., litigation insurance) carrier, who then retained a private investigator. The court cannot reasonably conclude that the Reports were prepared by the private investigator in the regular course of business, operations. On the contrary, the court finds that the Reports were prepared in anticipation of the defense and settlement of the claims upon which this action is based.
As material prepared solely in anticipation of litigation, the Reports are conditionally exempt from disclosure pursuant to CPLR 3101 (d) (2). (See, Harris v Processed Wood, 89 AD2d 220.) Defendants’ motion is therefore granted without prejudice to plaintiffs’ rights to move for disclosure of the Reports