Friday, April 25, 2008

No Privilege For Expert Report

In an action to enforce a disability policy issued by the defendants, the New York Appellate Division for the First Judicial Department held that a letter to the plaintiff from an expert analyzing rights under the policy was not protected by attorney-client privilege or the work product doctrine. The letter was prepared shortly before the plaintiff had retained counsel. Further:

"although the letter was prepared after defendants' rejection of plaintiff's claim...litigation was not commenced for two years. No explanation is provided for this gap between the letter's creation and commencement of litigation, indicative of uncertainty whether to pursue litigation. Absent any indication that plaintiff's attorney even knew of the letter until its disclosure by third-party defendant, we reject plaintiff's argument that the circumstances warrant an in camera review of not only the letter itself but also of the circumstances surrounding its creation." (Mike Frisch)

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