Cite as: Klossner v. Goldsmith, 2010-2530, NYLJ 1202577718967, at *1 (Sup., CHEM, Decided September 26, 2012)

Justice Judith F. O'shea

Decided: September 26, 2012






In a notice of motion dated August 22, 2012, Defendant Lawrence Goldsmith, D.O., seeks to strike certain portions of his examination before trial testimony that he claims contains information obtained in violation of the attorney-client privilege.

As explained in the Court's previous Decision and Order of July 11, 2012, this medical malpractice action concerns the alleged misread of pathology slides of a skin biopsy taken from Linnea M. Klossner's back.

During Dr. Goldsmith's June 14, 2012 examination before trial, he testified that at the time of his November 2008 examination of the pathology slide, he did not believe it to be




malignant, and then spontaneously volunteered that "subsequently I've changed my mind." When asked by plaintiff's counsel when this change occurred, he explained that after viewing a photograph of the pathology slide that was provided by his attorney, he noticed "some irregularities and abnormalities" that he would be "very concerned about," whereby he stated that the biopsy could be malignant, thereby changing his diagnosis. During this exchange, there was a series of objections raised by defendant's counsel, citing the attorney-client privilege.

Defendant's counsel's affidavit in support of the motion explains that he had an attorney-client meeting with Dr. Goldsmith on May 12, 2011 for purposes of providing him with legal advice relating to this litigation. Some time prior to the meeting, counsel had procured a photograph of the pathology slide that was taken by a pathology expert for the purpose of showing it to Dr. Goldsmith to obtain his opinions and impressions. Counsel asserts that the use of the photograph and the discussions with Dr. Goldsmith occurred in a "confidential attorney-client setting and was held solely for the purpose of obtaining confidential information and providing legal opinion and advice." Accordingly, this testimony is sought to be stricken and prohibited from use at trial.

Defendant Arnot Ogden Medical Center joins in the motion.

Plaintiff has filed opposing papers, along with a cross-motion pursuant to CPLR §3124 to compel the production of the photograph(s) of the pathology slide, and seeking a further deposition of Dr. Goldsmith limited to questioning him about the photograph(s) and his opinions related thereto. Plaintiff initially complains that the photographs of Linnea M. Klossner's body-a skin biopsy sample-was never produced in discovery (despite demand), nor was it identified in a privilege log. Along with claiming that defendant has not specifically identified the exact portions of the testimony which he seeks to strike, plaintiff also contends that defendant's counsel did not preserve his objection for review. More importantly for purposes of the applications before The Court, plaintiff argues that the attorney-client privilege does not apply for the following reasons: Dr. Goldsmith's viewing of the photographs does not constitute a confidential communication between himself and his attorney; his opinion rendered after viewing the photographs is not confidential or privileged, and; the photograph does not constitute legal advice or rise to the level of a communication, privileged or otherwise.

As far as the application to compel production of the photograph and a further deposition of Dr. Goldsmith, it is argued that the photograph of plaintiff's body is discoverable under CPLR §§3120 and 3101 (i). Plaintiff also contends that the photograph does not constitute attorney work product under CPLR §3101 (c), since it does not encompass counsel's opinion, analysis, or theory or strategy of the case. Likewise, plaintiff maintains that the skin biopsy, which was subsequently photographed, cannot be deemed material prepared in anticipation of litigation, since it was acquired as part of Linnea Klossner's ordinary medical care and treatment on or about November 12, 2008.

Dr. Goldsmith opposes the cross-motion, explaining that the photograph was created for the purposes of an investigation undertaken for the defense of a probe conducted by the New York State Department of Health and this eventual litigation. Therefore, defendant maintains




that the photograph constitutes attorney work product that was prepared in anticipation of litigation, and hence not discoverable and thus unnecessary to list in a privilege log. Finally, defendant claims that since the photograph is not unique, it is exempt from disclosure.

Additional correspondences and position papers have been submitted by the parties.


CPLR §3101(a) states that "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Furthermore, disclosure requirements are liberally construed (see, Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403 [1968]; Jordan v. Blue Circle Atlantic Inc., 296 A.D.2d 752 [3rd Dept. 2002]), and the court is afforded discretion as to supervising and determining the scope of discovery. See Marten v. Eden Park Health Services, Inc., 250 A.D.2d 44 (3rd Dept. 1998); Jordan v. Blue Circle Atlantic Inc., supra; The test used to determine what is discoverable is one of "usefulness and reason." Allen v. Crowell-Collier Publ. Co., supra, at 406. "This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise" (Spectrum Sys. Intl, Corp. v. Chemical Bank, 78 N.Y2d 371, 376 [1991], citing 3A Weinstein-Korn-Miller, NY Civ Prac ¶¶3101.01-3101.03).

As further explained in Spectrum Sys. Intl. Corp. v. Chemical Bank, supra at 376:

"By the same token, the CPLR establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR §3101 [b]); attorney's work product, also absolutely immune (CPLR §3101 [c]); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship in obtaining the substantial equivalent of the materials by other means (CPLR §3101 [d][2])."

"Consequently, the burden of establishing any right to protection is on the party asserting it; the protection must be narrowly construed; and its application must be consistent with the purposes underlying the immunity" (Id. at 377, citing Matter of Priest v. Hennessy, 51 N.Y.2d 62, 69; Matter of Jacqueline F., 47 N.Y.2d 215, 218-219; Koump v. Smith, 25 N.Y.2d 287, 294; see generally, Note, The Attorney-Client Privilege and the Corporate Client; Where Do We Go After Upjohn?, 81 Mich L Rev 665 [1983]).

I. The Attorney-Client Privilege:

As codified in CPLR §4503, "unless the client waives the privilege, an attorney…shall




not disclose, or be allowed to disclose [any] communication [made between the attorney and the client in the course of professional employment], in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing…" As stated in Matter of Priest v. Hennessy, supra at 69, "in order to make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a confidential communication made to the attorney for the purpose of obtaining legal advice or services." See, also Rossi v. Blue Cross & Blue Shield of Greater N.Y., 73 N.Y.2d 588, 594 (1989).

Based upon the record before The Court, Dr. Goldsmith has not met his burden in establishing that the attorney-client privilege mandates that portions of his examination before trial testimony regarding the photograph be stricken. Initially, it is important to note that during the deposition, Dr. Goldsmith was not asked to reveal any of the discussions that he had with his counsel that occurred at their May 2011 meeting, nor does the transcript indicate that any such conversations or communications were in fact testified to. Rather, a thorough reading of the transcript clearly indicates that Dr. Goldsmith volunteered ("…subsequently I have changed my mind"), without prompting by plaintiff's counsel, that his initial opinion that the skin biopsy was benign was no longer valid. Dr. Goldsmith thereafter stated that his change in opinion occurred after seeing a photograph presented by his attorney. Clearly, Dr. Goldsmith was not asked about, nor did he reveal, any communications, confidential or otherwise, that took place between himself and his attorney when he was shown the photograph. The mere fact that Dr. Goldsmith was shown a photograph, without more (divulging, eliciting, etc. testimony as to the contents and/or specifics of verbal communications between them) does not rise to the level of a confidential communication wherein the attorney-client privilege would apply. Furthermore, the photograph of the skin biopsy cannot be deemed confidential in nature, given that it is part of the hospital record that was obtained through discovery. See, also Marten v. Eden Park Health Services Inc., 250 A.D.2d 44 (3rd Dept. 1998)("…the [attorney-client] privilege applies only to confidential communications with counsel, not to information obtained from or communicated to third parties").




II. Attorney Work Product:

In Bloss v. Ford Motor Co., 126 A.D.2d 804, 805 (3rd Dept. 1987), The Court held that "the term 'work product' has been narrowly construed to include only material prepared in an attorney's professional capacity and which necessarily involved professional skills" (citing Graf v. Aldrich, 94 A.D.2d 823, 824 [3rd Dept. 1983]; Hoffman v. Ro-San Manor, 73 A.D.2d 207, 211 [1st Dept. 1980]). Furthermore, attorney work product also includes "…materials prepared by an attorney, which contain his analysis and trial strategy" (Slazer ex rel. Salzer v. Farm Family Life Ins. Co., 280 A.D.2d 844 [3rd Dept. 2001], citing Graf v. Aldrich, supra at 824; Central Buffalo Project Corp. v. Rainbow Salads, 140 A.D.2d 943, 944 [4th Dept. 1988]).

In light of the fact that Dr. Goldsmith's counsel obtained the photograph from a third-party, and there being no proof that the photograph itself contains counsel's trial strategy, analysis of the case or legal opinion, the burden to show immunity from disclosure has not been met.

III. Materials Prepared in Anticipation of Litigation:

While counsel's affidavit reflects that the photograph was prepared by a third-party at his direction for the purposes of his defense in the investigation of Linnea Klossner's care and treatment by the New York State Department of Health, and in anticipation of this eventual litigation, as will be discussed further, infra, CPLR §3101 (d)(2) does not apply to bar disclosure.

IV. Plaintiff's Cross-Motion to Compel:

As stated in CPLR §3101 (i),

"In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) ["a party"] of this section…"

In Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 388 (2003), The Court explicitly held that under the plain language of CPLR §3101 (i), the "specified materials (here, the photograph of the skin biopsy) are subject to full disclosure [and] parties seeking disclosure of any of the specified items under §3101 (i) need not make a showing of substantial need or undue hardship."

Accordingly, in light of CPLR §3101 (i), along with the fact that it is undisputable that the photograph at issue is of Linnea Klossner's body (albeit a skin biopsy), it is subject to disclosure and not entitled to any statutory privilege as outlined in CPLR §3101 (d)(2).

It is therefore,

ORDERED, that Defendant Goldsmith's motion is hereby denied in its entirety; and it is further

ORDERED, that plaintiff's motion to compel production of the subject photograph and a further limited examination before trial of Dr. Goldsmith, is hereby granted in its entirety.

This shall constitute the Decision and Order of The Court.