Court Denies Plaintiffs’ Motion for Protective Order and to Quash Subpoena Holding That IME WatchDog Records Are Not Privileged and Must Be Produced to Defendants

In a decision dated January 4, 2019, the Hon. Lucy Billings denied the plaintiffs’ motion for a protective order and to quash the defendants’ (our clients’) subpoena duces tecum served upon IME WatchDog, Inc. for all records pertaining to the injured plaintiff’s examinations by the defendants’ physicians. The plaintiff, a local 28 union tin knocker/sheet metal worker employed by Tishman Construction Corporation of New York subcontractor Heritage Mechanical Services, alleges that  he sustained personal injuries while engaged in ductwork and HVAC unit installations at a construction project. In the plaintiffs’ motion to quash, they argued that IME Watchdog’s records were protected from discovery by the attorney work product privilege (CPLR  § 3101(c)) and as materials prepared for litigation (CPLR § 3101(d)(2)).  In opposition, the defendants argued that the attorney work product privilege does not attach because IME WatchDog employs non-attorney representatives whose services are not necessary to facilitate attorney-client communications.  The defendants also argued that these records are not immune from disclosure as material prepared in anticipation of litigation because the plaintiffs anticipated calling IME WatchDog representatives as trial witnesses and, as such, these records are relevant and subject to disclosure, pursuant to CPLR § 3101(d)(4).  The defendants also argued that the plaintiffs failed to establish any special and unusual circumstances for transcribing the examinations, which would have required prior court approval, and that any such recordings are subject to disclosure, pursuant to CPLR § 3101(i).  The Court held that, because the IME WatchDog representative who appeared at the examinations was not serving as the plaintiffs’ attorney, the records were not protected by the attorney work product privilege.  The Court also held that even though the records constituted materials prepared for litigation, they were subject to disclosure because the defendants established that the recorded observations of the IME WatchDog representatives could not be obtained from any other source.  Therefore, the Court held that non-party IME WatchDog was compelled to provide its records because they are relevant to the defense of the action.

Kevin Sheehan v. 30 Park Place Residential LLC, et al., Index No. 157153/2015 (N.Y. Co. Sup. Ct., Jan. 4, 2019)

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