The First Department in Markel v. Pure Power Boot Camp, 171 A.D.3d 28 (1st Dept. 2019), recently held that the notes, reports and other materials prepared by an individual hired by an attorney for a plaintiff in a personal injury action to be an observer at an independent medical examination (IME) of the plaintiff were protected from disclosure pursuant to CPLR 3101(d)(2). The decision at a basic level is significant because it addressed and resolved an issue of discoverability which had not been uniformly analyzed and decided by the trial courts, as the First Department recognized. Id. at 30.

However, the decision is more than a mere resolution of a limited pre-trial discovery issue. Rather, the First Department, in a thoughtful and carefully crafted opinion authored by Justice Judith Gische, has alerted and educated the bench and bar to the discovery “privileges” which may preclude requested discovery, and their assertion at trial.