It is not unusual for Buffalo personal injury attorneys to hire private investigators or other specialists to investigate the circumstances surrounding an injury. Whether the written materials prepared by that investigator must be disclosed to the other party depends on their purpose when prepared and the specific circumstances of a given case.
Civil Practice Law and Rules section 3101(d)[2] provides that “materials otherwise discoverable… and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained 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. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.”
Under this rule, an investigator’s notes would normally be considered material prepared in anticipation of litigation and therefore not discoverable unless the defense can demonstrate both a substantial need for the notes and undue hardship if they are not obtained. When this issue is disputed, the courts usually weigh the dispute on a case by case basis to determine what material must be disclosed in a personal injury lawsuit.
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