New York Team Secures Key Discovery Ruling in Pedestrian-Knockdown Matter

(October 2022) - New York Partners Alecia Walters-Hinds and Kristen Carroll, with Associate Dean Pillarella, recently secured a protective order preventing the plaintiff from deposing an insurance carrier’s private investigator. In this alleged pedestrian-knockdown action, the plaintiff served a subpoena upon a private investigator retained by the insured’s carrier to investigate the scene of the accident in anticipation of litigation.

The plaintiff argued that the insured lacked standing to quash the subpoena because the carrier’s investigator was a non-party to the action who was hired by the insured’s carrier, rather than the insured, to investigate the alleged accident from a no-fault perspective. The plaintiff further argued that the investigator possessed relevant knowledge because he had taken written statements from the parties and potential witnesses shortly after the time of the accident.

The New York team quickly moved to quash the subpoena and further sought a protective order barring the deposition of the investigator or the service of further subpoenas upon him. In doing so, our office invoked the work-product doctrine, which, pursuant to CPLR 3102(d)(2), renders privileged all materials “prepared in anticipation of litigation … by or for another party, or by or for that other party’s representative (including an … insurer, or agent)….” To overcome the privilege, it was incumbent upon the plaintiff to demonstrate substantial need and undue hardship. In reply, the New York team argued that the plaintiff failed to establish substantial need and undue hardship because the investigator was not at the scene of the accident and lacked personal knowledge as to how the accident occurred. The team further argued that, in any event, the plaintiff was already in possession of the investigator’s written report and taken statements.

In granting the motion, the court agreed that the work-product doctrine applied because the investigator was hired in anticipation of litigation. The court further agreed that the plaintiff failed to demonstrate substantial need and undue hardship because the investigator was not at the scene of the accident and lacked personal knowledge, and the plaintiff was already in possession of the investigator’s prepared report and file. Accordingly, the court ruled that any further discovery from the carrier’s investigator would be “utterly irrelevant” and “futile.” It issued an order quashing the plaintiff’s subpoena and imposing a protective order.