MAISCH v. Theodore G. Costich, M.D., Defendant-Appellant.  (Appeal No. 1.). (2000)

 Supreme Court properly granted that part of the motion of defendant Theodore G. Costich, M.D. (defendant) seeking to compel discovery of statements made by defendant that are reflected in notes taken by plaintiffs during conversations with him (see, CPLR 3101[e] ).   The court erred, however, in failing to order that those notes be disclosed in their entirety.   The notes are discoverable in their entirety pursuant to CPLR 3101(e) (see, McKenzie v. McKenzie, 78 A.D.2d 585, 586, 432 N.Y.S.2d 424;  Walker v. Erie-Lackawanna R.R. Co., 43 Misc.2d 1098, 1099, 252 N.Y.S.2d 728;  see also, Theisen v. Sunnen, 186 A.D.2d 81, 588 N.Y.S.2d 21, lv. dismissed 81 N.Y.2d 759, 594 N.Y.S.2d 718, 610 N.E.2d 391;  Ancona v. Net Realty Holding Trust Co., 153 Misc.2d 946, 952, 583 N.Y.S.2d 784).   The court properly denied that part of defendant's motion seeking disclosure of certain daily logs documenting the condition of plaintiffs' daughter.   The daily logs were made in anticipation of litigation, and thus are conditionally privileged (see, CPLR 3101[d][2];  Hannold v. First Baptist Church, 254 A.D.2d 746, 747, 677 N.Y.S.2d 859).   Defendant failed to establish that he would suffer undue hardship if disclosure of the logs were denied (see, CPLR 3101[d][2] ).   Defendant also failed to establish that the daily logs were used to refresh the recollection of plaintiffs with respect to their deposition testimony, and thus that the privilege was thereby waived (see, Hannold v. First Baptist Church, supra, at 747, 677 N.Y.S.2d 859).

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: