9394 LLC, et al.
On May 2, 2003, in 9394 LLC, et al. v. Kehler, et al., Supreme Court, Westchester County, Index No. 09307/2002 (Nastasi, J.), the New York state court issued a significant decision concerning pretrial disclosure obligations, and rejected a defendants’ arguments that a “consultant” is immune from being deposed. Based on an application which Kucker Marino Winiarsky & Bittens, LLP made on behalf of plaintiffs, an order was rendered which directed defendants to comply with plaintiffs’ demands for disclosure, including document demands, and determined that plaintiffs were entitled to depose a non-party witness whom defendants characterized as a “consultant.” Plaintiffs’ underlying civil complaint alleged that defendants unlawfully constructed a large solid concrete block in a tidal wetlands area of the Long Island Sound immediately adjacent to plaintiffs’ residential property, which violated plaintiffs’ riparian rights and caused ecological damage to plaintiffs’ property. In ruling in favor of plaintiffs’ motion to compel disclosure concerning defendants’ so-called “consultant,” the Court agreed with KMWB that the documents and reports which defendants claimed were prepared in anticipation of litigation by their purported consultant at maximum were only conditionally privileged, and the burden of proving that such material was prepared solely in anticipation of litigation rested on defendants as the party asserting the privilege and challenging discovery. The Court also agreed with Kucker Marino Winiarsky & Bittens that defendants’ counsel’s affirmation, replete with conclusory assertions, was insufficient to establish the requested documents were immune from disclosure.