Upon the foregoing papers, it is Ordered that this motion by non-party Medical Liability Mutual Insurance Company for an Order pursuant to CPLR 3101, subdivision (d), paragraph 2, quashing a subpoena duces tecum served by plaintiff is denied.

Plaintiff has interposed a claim against defendant Mount Vernon Hospital for negligence in hiring Dr. Agnant to work in its OB/GYN clinic. Plaintiff has served a subpoena wherein she seeks production of records, reports and file materials concerning "medical malpractice claims, settlements and judgments against Guirlaine Agnant, M.D.," the imposition of a surcharge for Dr. Agnant's liability insurance and limitations on his coverage. [*2]

Non-party Medical Liability Mutual Insurance Company is moving for an Order quashing said subpoena, arguing that the subpoena is overly broad and that the documents sought are protected both under the attorney work product privilege and as material prepared for litigation under CPLR 3101, subdivision (d), paragraph 2, as well as under the privacy protection afforded Dr. Agnant's patients who are not parties to this litigation.

Under CPLR 3101, subdivision (a), "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant. See Kellner v. General Motors Corp., 273 AD2d 444 (2nd Dept. 2000). If immunity or privilege are raised as the reason for non-disclosure, the party challenging "bears the burden of establishing that the information sought is immune from disclosure," Bloss v. Ford Motor Co., 126 AD2d 804, 805 (3rd Dept. 1987), by showing that the requested material is privileged by virtue of being material prepared in anticipation of litigation, attorney-client privilege, or protected under Public Health Law § 2803-d(6)(e) or some other statute or regulation which provides confidentiality. See Marten v. Eden Park Health Services Inc., 250 AD2d 44 (3rd Dept. 1998).

Initially, the Court finds that the requested documents are relevant and material to the allegations at bar, specifically with respect to what the Hospital knew or should have known before hiring Dr. Agnant.

Moreover, the Court finds that the attorney-client privilege does not protect the requested documents because such a privilege "applies only to confidential communications with counsel, not to information obtained from or communicated to third parties." See Marten v. Eden Park Health Services Inc., supra., citing Eisic Trading Corp. v. Somerset Marine, Inc., 212 AD2d 451 (1st Dept. 1995).

Further, any materials which may have been prepared in the context of other litigation and not in anticipation of this litigation clearly are not protected. See Marten v. Eden Park Health Services Inc., 250 AD2d 44, 46 (3rd Dept. 1998). Indeed, even where material has been prepared in anticipation of the subject litigation, it nevertheless is discoverable if it has been prepared for mixed or other purposes, as well. See Friend v. SDTC-Center for Discovery, Inc., 13 AD3d 827 (3rd Dept. 2004); Koramblyum ex rel. Koramblyn v. Medvedovsky, 7 Misc 3d 1009(A) (NY Sup. Ct. 2005). [*3]

Here, movant only has submitted its attorney's affirmation containing conclusory assertions that the reports are immune from disclosure pursuant to CPLR 3101 (d), paragraph (2), as material prepared exclusively in anticipation of litigation. This affirmation, without more, is wholly insufficient to sustain movants' burden of demonstrating that the reports were prepared exclusively for this litigation. See Agovino v. Taco Bell 5083, 225 AD2d 569 (2nd Dept. 1996).

Also, records relating to the imposition of an insurance premium surcharge and a doctor's claims, settlements and judgment history are created by insurance companies as part of their routine business practices of underwriting insurance policies and making risk assessments; as such, they are required to be disclosed. See Id.; Wylie v Consolidated Rail Corp., 198 AD2d 884 (4th Dept. 1993).

To the extent that privacy interests of other patients of Dr. Agnant are implicated by the document production, those patients names and identifying data simply shall be redacted.

Dated: May 30, 2006

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C.