Surrogate Nora Anderson
In a contested probate proceeding, objectants sought denial of a motion seeking to compel discovery of the notes of communications forming the basis for their objections. They claimed the notes were shielded by qualified privilege, as they were prepared in anticipation of litigation. Proponent discovered that objectants based their objections solely on information obtained from conversations with third parties after decedent’s death. The court noted the qualified privilege of CPLR 3101(d)(2) applies only to materials prepared exclusively for litigation. But, it stated, where the motive for preparing the materials is mixed, even if the predominant motive is for use at trial, the privilege is unavailable. The court stated that materials prepared during an investigatory stage, assisting a party in its decision of whether to litigate or not, despite it later becoming a litigation, are generally not privileged as they are considered to have mixed purposes. Accordingly, the court concluded as objectants could not demonstrate the requested notes were prepared exclusively for litigation, it ruled they were not shielded from discovery and must be disclosed.
