## Facts

- Adriana Miranda was injured at work while operating a machine owned by her employer, Osrow Products, Inc. (Osrow), and manufactured by Blair Tool & Machine Corporation (Blair).
- Miranda sued Blair for personal injuries arising from the accident.
- Blair commenced a third-party action against Osrow.
- Miranda’s supervisor witnessed the accident and later gave an oral statement describing what occurred.
- The statement was made to representatives of Osrow and Blair, including Osrow’s president and Blair’s president, and also to an unidentified lawyer who may have been employed by a private investigation firm.
- The supervisor’s statement was recorded and later reduced to a written transcript.
- During discovery, Miranda served a notice seeking production of the transcript, characterizing it as an accident report within CPLR 3101(g).
- Osrow moved for a protective order to prevent disclosure, asserting (1) the transcript was inaccurate because the supervisor had a limited command of English and (2) the transcript was material prepared for litigation and therefore protected under CPLR 3101(d).
- In support, Osrow submitted an attorney affirmation stating the statement was not made in the regular course of Osrow’s business and was made solely for litigation purposes; the affirmation was not based on the attorney’s personal knowledge.
- Supreme Court granted Osrow’s protective order and denied Miranda’s application to compel production; Miranda appealed.

## Issues

1. Whether the transcript of the supervisor’s oral statement was discoverable as an accident report under CPLR 3101(g) or protected as litigation material under CPLR 3101(d) on the record presented.
2. Whether Osrow’s attorney affirmation, not based on personal knowledge, was sufficient to establish that the statement was not made in the regular course of business and was made solely for litigation.
3. Whether claimed inaccuracies in the transcript justified withholding it from discovery.

## Decision

- The Appellate Division, Second Department, reversed the order granting the protective order.
- Osrow’s motion for a protective order was denied.
- Miranda’s request to compel disclosure of the transcript was granted.
- Osrow’s time to comply with the discovery notice was extended to 20 days after service of the order with notice of entry.

## Legal Principles

- CPLR 3101(g) requires disclosure of “any written report of an accident prepared in the regular course of business,” subject to exceptions not at issue in this case.
- CPLR 3101(d) provides qualified protection for materials prepared in anticipation of litigation, but that protection does not defeat disclosure of an accident report that was prepared in the regular course of business.
- Read together, CPLR 3101(g) and CPLR 3101(d) permit disclosure of an accident report made in the regular course of business even if it was made solely for litigation purposes.
- A party resisting disclosure bears the burden of showing, with competent proof, that the material was not made in the regular course of business and was prepared solely for litigation so as to fall within CPLR 3101(d).
- An attorney affirmation lacking personal knowledge is not competent proof to establish a claimed CPLR 3101(d) exemption from disclosure.
- Alleged inaccuracies in a statement or transcript generally go to weight and use at trial, not to whether the material must be produced in discovery.

## Conclusion

The Second Department ordered production of the supervisor’s recorded-and-transcribed accident statement because Osrow did not provide competent, personal-knowledge proof that the statement fell outside CPLR 3101(g)’s disclosure rule and within CPLR 3101(d)’s litigation-material protection, and the claimed inaccuracies did not justify nonproduction.


Miranda v. Blair Tool & Machine Corp., 114 A.D.2d 941, 495 N.Y.S.2d 208 (1985)