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Andrea M. Alonso and Kevin G. Faley Andrea M. Alonso and Kevin G. Faley

In an attempt to clarify the exact parameters when IME Watchdogs are subject to discovery demands, the Appellate Division, First Department reversed its decision in Markel v. Pure Power Boot Camp, stating that “substantial need” is required for an IME observer’s notes to be discoverable. The specific question of whether such an IME “Watchdog” or other observer’s notes are discoverable under CPLR 3101(a)’s broad iteration of full disclosure is an issue that has resulted in varying decisions among the trial courts. These disparate decisions result in conflicting opinions as to when such materials can be protected from disclosure. While this decision was meant to clarify the law, it’s possible that the reversal in Markel will only create more confusion as other departments rule on this issue.

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