Hermes Valencia, etc., et al., respondents, v. Obayashi Corporation, et al., defendants, E.W. Howell Co., Inc., etc., appellant (and third-party titles). (2011)

Submitted—February 22, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant E.W. Howell Co., Inc., appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Westchester County (Scheinkman, J.), entered November 30, 2009, as granted that branch of the plaintiffs' motion which was for a protective order precluding discovery of audio recordings, if any, of the plaintiffs' counsel's conversations with, or interviews of, nonparty witnesses other than witness Barry Alpers, and (2) an order of the same court entered December 28, 2009, as, upon an in camera inspection of the audio recording and transcript of the interview with Barry Alpers pursuant to the order entered November 30, 2009, granted that branch of the plaintiffs' motion which was for a protective order precluding discovery of certain portions of the subject audio recording and transcript.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

In an order entered November 30, 2009, the Supreme Court, inter alia, granted that branch of the plaintiffs' motion which was for a protective order precluding discovery of any audio recordings of counsel's conversations with, or interviews of, nonparty witnesses other than the witness Barry Alpers.   Witness statements taken by a party's counsel are subject to the qualified privilege for materials prepared in anticipation of litigation or for trial (see CPLR 3101[d][2];  DeGourney v. Mulzac, 287 A.D.2d 680;  Volpicelli v. Westchester County, 102 A.D.2d 853;  Dworkin v Metropolitan Transp.   Auth., 54 A.D.2d 922).   To overcome this privilege, it was the appellant's burden to establish its substantial need for the materials and inability to obtain the substantial equivalent elsewhere without undue hardship (see CPLR 3101[d][2];  Straus v. Ambinder, 61 AD3d 672, 673;  Volpicelli v. Westchester County, 102 A.D.2d at 853).   The appellant failed to meet this burden and, accordingly, the Supreme Court providently granted the protective order (see DeGourney v. Mulzac, 287 A.D.2d at 680;  Volpicelli v. Westchester County, 102 A.D.2d at 853;  Dworkin v Metropolitan Transp.   Auth., 54 A.D.2d at 922;  cf.  Yasnogordsky v. City of New York, 281 A.D.2d 541;  Rochford v. Long Is. R.R. Co., 273 A.D.2d 291, 292).

An order entered December 28, 2009, granted in part and denied in part that branch of the plaintiffs' motion which was for a protective order precluding disclosure of recorded conversations between the plaintiffs' counsel and nonparty witness Barry Alpers.   With respect to certain portions of Alpers' recorded conversations, the appellant failed to meet its burden of substantial need and inability to obtain the substantial equivalent elsewhere without undue hardship in order to overcome the qualified privilege.   Thus, the Supreme Court properly granted the plaintiffs' motion for a protective order with respect to those portions of the recording (see CPLR 3101[d][2];  DeGourney v. Mulzac, 287 A.D.2d 680).

ANGIOLILLO, J.P., LEVENTHAL, HALL and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court