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A child suffered a playground injury. During the course of litigation, his attorney hired a professional engineer to inspect the playground for defects and made arrangements with the defendants’ attorneys for the inspection.

Issuance of Subpoena

The child’s attorney prepared the case for trial, including hiring another expert to testify about the negligence of the defendants. One of the defendant’s attorneys kept the contact information of the inspecting engineer in his file. The attorney issued a subpoena to the inspecting engineer to have him appear for a deposition to testify about his inspection of the playground four years after the incident had occurred. The attorney claimed that the subpoena was legitimately served on the engineer since he was not designated as the plaintiff’s expert and he had previously inspected the playground. Accordingly, his deposition was sought as a fact witness concerning his inspection.

Motion to Quash Subpoena

The personal injury attorney for the child retained Richard A. Klass, Esq., Your Court Street Lawyer, as special counsel to file a motion to quash (or stop) the subpoena to prevent the deposition of the consulting engineer.

A: Subpoena was defective on its face:

It was first argued that the subpoena should be quashed because it was defective. Civil Practice Law and Rules [CPLR] § 3101(a)(4) states that, as to third parties, disclosure shall be had “upon notice stating the circumstances or reasons such disclosure is sought or required.” On its face, it did not state any of the circumstances or reasons why disclosure is being sought from the non-party witness. See, Matter of Kapon v Koch, 23 NY3d 32 [2014] (A party seeking discovery from a nonparty pursuant to CPLR 3101(a)(4) by service of a subpoena must sufficiently state the “circumstances or reasons” underlying the subpoena, either on the face of the subpoena itself or in a notice accompanying it.); Capacity Group of NY, LLC v Duni, 186 AD3d 1482, 1483 [2d Dept 2020] (“Here, the plaintiff failed to specify with “reasonable particularity” the documents and other items requested (CPLR 3120 [2]). Furthermore, the subpoenas seeking the testimony of numerous nonparties were defective, since the plaintiff failed to provide the nonparties with a sufficient explanation of the circumstances or reasons requiring disclosure either on the face of the subpoenas or in any accompanying material (see CPLR 3101 [a] [4]; Matter of Kapon v Koch, 23 NY3d 32, 39 [2014]; Gandham v Gandham, 170 AD3d 964, 966 [2019]; Needleman v Tornheim, 88 AD3d 773, 774 [2011]).”)

B: Retention of Consulting Engineer:

The personal injury attorney consulted with the forensic engineer concerning the facts of the case; ordered an investigation; and exchanged documents and information with the engineer as a consulting expert.

In Santariga v McCann, 161 AD2d 320, 321-22 [1st Dept 1990], the court held that expert consultants who assist counsel in analyzing or preparing the case are beyond the scope of disclosure under CPLR 3101, holding:

CPLR 3101 (d) (1) sets forth the scope of disclosure with regard to experts. That section provides that “(i) [u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion” (see, Breslauer v Dan, 150 AD2d 324). Clause (iii) permits a court to order further disclosure of a report prepared by an expert expected to testify upon a showing of special circumstances (Beauchamp v Riverbay Corp., 156 AD2d 172; Rosario v General Motors Corp., 148 AD2d 108).

Clause (i) only applies to litigation experts retained to testify at trial (3A Weinstein-Korn-Miller, NY Civ Prac para. 3101.52a, at 31-214). “Accordingly, an expert who is retained as a consultant to assist in analyzing or preparing the case is beyond the scope of this provision; in fact, such experts are generally seen as an adjunct to the lawyer’s strategic thought processes, thus qualifying for complete exemption from disclosure under [CPLR 3101] subdivision (c) [attorney’s work product] and, now, the ‘mental impressions …’ exclusion of CPLR 3101 (d) (2) as well”. (Ibid.)

Paragraph (2) of CPLR 3101 (d) permits the discovery of material prepared in anticipation of litigation or for trial only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

Defendants aver that the radiologist was merely retained as a consultant to evaluate the validity of plaintiff’s allegations and to assist in the preparation of a defense and will not testify at trial. Plaintiff cannot, therefore, claim entitlement to the report based on CPLR 3101 (d) (1) (i) or (iii). Since the expert was neither a treating nor examining physician, 22 NYCRR 202.17 (b) is also unavailing. Moreover, the report was clearly prepared in anticipation of litigation and plaintiff has failed to demonstrate a substantial need or that she could not obtain the substantial equivalent of the report by other means (see, Renucci v Mercy Hosp., 124 AD2d 796).

It was argued that the defendants were seeking, through the subpoena, to delve into the plaintiff’s strategy, documents, privileged communications and work product. All of the documents and information sought through the subpoena were improper and beyond scope of proper disclosure, as they are confidential and privileged. Delta Fin. Corp. v Morrison, 14 Misc 3d 428, 432 [Sup Ct 2006] (“The First Department in Santariga v. McCann, 161 A.D.2d 320, 555 N.Y.S.2d 309 (1st Dep’t 1990) held, citing 3A Weinstein–Korn–Miller, N.Y. Civ. Prac. 3101.52a at 31–214, that “an expert who is retained as a consultant to assist in analyzing or preparing the case is beyond the scope … [CPLR 3101(d)]; in fact, such experts are generally seen as an adjunct to the lawyer’s strategic thought processes, thus qualifying for complete exemption from disclosure under subdivision [3101(c) Attorney’s work product] and, now, the mental impressions exclusions of CPLR 3101(d)(2) as well.” Santariga, 161 A.D.2d 320, 555 N.Y.S.2d 309 (1st Dep’t 1990); see also Lichtenberg v. Zinn, 243 A.D.2d 1045, 663 N.Y.S.2d 452 (3rd Dep’t 1997); Xerox Corporation v. Town of Webster, 206 A.D.2d 935, 616 N.Y.S.2d 119 (4th Dep’t 1994).”)