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NEW YORKWilliam D. YoquintoCARTER, CONBOY, CASE, BLACKMORE,MALONEY & LAIRD, P.C.20 Corporate Woods BoulevardAlbany, NY 12211-2350Phone (515) 465-3484www.carterconboy.comwyoquinto@carterconboy.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Yes – if the material was prepared in anticipation of litigation. Agovino v. Taco Bell5083, 225 AD2d 569, 639 N.Y.S.2d 111 (2d Dept 1996). The scope of disclosure isdefined under New York Civil Practice Law and Rules § 3101 (CPLR). The general ruleof full disclosure is tempered by the rule that, subject to exception, privileged matter,attorney's work product and trial preparation materials are not discoverable. CPLR §3101 (b),(c). Protected materials may be obtained only upon a showing of a substantialneed and the inability, without undue hardship, to obtain their substantial equivalent byother means. The burden of proving that materials are exempt is on the party opposingdiscovery. The argument is strengthened when “anticipation of litigation” is clearlyindicated as the only purpose of the report, the authors and recipients are identified andwhen it is stated that the investigation was prepared at the suggestion of counsel. SeeCrazytown Furniture, Inc. v. Brooklyn Union Gas Co., 145 A.D.2d 402; 535 N.Y.S.2d401 (2nd Dept. 1988). Do not label any document as an "accident report" as there"shall be full disclosure of any written report of an accident report prepared in theregular course of business operations or practices…" CPLR § 3101 (g). This part ofthe statute is intended to relate to discovery of regular course of business materials; notinvestigation for anticipated litigation, so avoid the opportunity for confusion. When aproduct is no longer available for inspection, New York Courts typically will requiredisclosure of the otherwise protectable material. See Lamitie v. Emerson Elec.Company-White Rodgers Div., 208 A.D.2d 1081, 617 N.Y.S.2d 924 (3rd Dept. 1994).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?New York requires that statements of an opposing party must be disclosed. CPLR §3101 (e). The discovery of written or recorded statements of non-parties is governedby the rules discussed above. Even when production is ordered, the court is required toprotect against disclosure of the mental impressions, conclusions, opinions or legaltheories of an attorney or other representative of a party concerning the litigation. CPLR§ 3101 (d)(2).