In Jackson v. OpenCommunications Omnimedia, LLC, the New York State Supreme Court ordered defendants to produce “all documents and notes related to an internal investigation conducted … in connection with the Plaintiff’s complaints of sexual harassment and discrimination.” Defendants resisted production on the ground of privilege.
Citing the liberal discovery principles embodied in CPLR 3101, the court granted plaintiff’s cross-motion to compel defendants to produce these materials:
The general rule is that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101[a]). However, materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has “substantial need” for the materials and is unable to obtain the information without “undue hardship” (CPLR 3101[d]). The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery. More particularly, the party
asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation … bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation. An attorney’s affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain the movant’s burden of demonstrating that the materials were prepared exclusively for litigation.