In this action, Christies, Inc., the long-term tenant of a warehouse under a lease with defendants Robert Zirinsky and Ruth Zirinsky, as Executors and Trustees Under the Last Will and Testament of Ralph Zirinsky ("Zirinsky"), seeks damages arising from a roof replacement. After commencement of the action, defendants served notices of default, dated July 28, 2005 and September 23, 2005, alleging that Christie's violated its lease by performing roof work incompatible with the structural deck below the roof and in violation of the applicable Building Code. Christie's moves, and Zirinsky cross-moves, to compel certain discovery and preclude other discovery.

Christie's motion involves three main discovery issues: the adequacy of responses to its interrogatories; the scope of deposition testimony from defendants' engineer, Ronald Ogur, and production of materials prepared by him; and the propriety of deposition notices served by defendants.

Interrogatories

Christie's seeks to compel defendants to provide "appropriate responses" to Christie's third set of interrogatories. These interrogatories, dated November 17, 2006, seek detailed information about the bases for the alleged lease defaults referred to in defendants' notices of default. Ordinarily, a party is "free to choose both the discovery devices it wishes to use and the order in which to use them." (Coventry Edwards-Pitt v Doe, 294 AD2d 395, 396 [2d Dept 2002].) However, a party is generally required to complete a discovery device before resorting to another. (Samsung Am., Inc. v Yugoslav-Korean, Consulting & Trading Co., 199 AD2d 48 [1st Dept 1993]; Giffords Oil Co. v Spinogatti, 96 AD2d 851 [2d Dept 1983].) Moreover, the court [*2]retains the power to regulate discovery to prevent abuse (see Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482 [2d Dept 2005], lv dismissed 5 NY3d 746), and to preclude the use of interrogatories where they will not "expedite the discovery process." (See Coventry Edwards-Pitt, 294 AD2d at 396.)

Christie's was aware from the outset of the litigation that it needed information about defendants' bases for its alleged lease defaults. Without having first obtained what it considered to be satisfactory responses to its interrogatories, Christie's proceeded with the deposition of Robert Zirinsky, at which it also inquired at length about the bases for the lease defaults. Under these circumstances, the court holds that defendants should not be compelled to provide further answers to the third set of interrogatories.

Discovery from Defendants' Engineer

At a deposition of defendants' engineer, Ronald Ogur, to which the parties agreed, Ogur was repeatedly directed by his personal attorney and defendants' attorney not to answer questions that called for expert testimony. Mr. Ogur has been defendants' long-time consulting engineer. He has provided services to defendants with respect to the warehouse since at least 1987, and examined the roof prior to the landlord's installation of a new roof in 1987 before Christie's took occupancy of the premises. (See Zirinsky Dep. at 66, 152.) Defendants have stated that a number of their objections to the roof replacement project that Christie's performed starting in 2004 were based on Ogur's opinions. (See id. at 469-471, 486, 492.) Christie's seeks to question Ogur about his factual observations concerning the roof before and after Christie's roof replacement, and apparently also seeks to elicit testimony about the nature and basis for Ogur's opinions regarding Christie's roof replacement. Defendants take the position that Ogur was retained as a non-testifying litigation consultant in connection with this action. They offered the following compromise of the parties' dispute regarding the permissible scope of questioning of Ogur: Defendants agreed not to assert a privilege against questions seeking the factual bases for any opinions by Ogur on engineering issues for defendants regardless of time period, and not to assert a privilege regarding opinions formed prior to the date on which defendants "reasonably anticipated litigation with plaintiff." However, defendants sought to reserve the right to assert a privilege against questions seeking opinions given after litigation was reasonably anticipated. (Mar. 2, 2007 email [Ex. J to Aff. In Opp.].)

Under New York law, deposition testimony of non-medical experts "may be obtained only by court order upon a showing of special circumstances." (See CPLR 3101[d][1][iii]; Padro v Pfizer, Inc., 269 AD2d 129 [1st Dept 2000].) As the parties agreed to Ogur's deposition, their dispute is only as to its scope. On the instant motion, plaintiff does not show or, indeed, even claim, that special circumstances warrant inquiry into Ogur's opinions. Defendants have thus in effect offered to permit more disclosure as to Ogur's opinions than would be authorized on the showing made on this record. The scope of Ogur's opinion testimony will therefore be limited to that agreed to by defendants that is, to the opinions he gave regarding the roof before defendants reasonably anticipated litigation. Defendants claim that they reasonably anticipated litigation as of February 20, 2004, the date of a letter from Christie's to Zirinsky (Ex. M to Aff. In Opp.), requesting that Zirinsky contribute to the costs of the roof replacement. As discussed below, the court does not find that defendants could reasonably have anticipated litigation based on this letter. However, this date will be accepted for purposes of limiting the discovery of [*3]Ogur's opinions at the deposition because, as held above, plaintiff would not be entitled to any discovery of Ogur's opinions absent defendants' agreement. As to Ogur's testimony about facts, it is undisputed that plaintiff should be permitted to inquire about his factual observations regarding the roof, without restriction as to time.

Christie's request that the deposition of Ogur be completed at the courthouse will be denied as unnecessary. Ogur's deposition was commenced before the effective date of new rules §§ 221.1 and 221.2 of the Uniform Rules for the New York State Trial Courts (22 NYCRR). While his personal attorney's conduct at the prior deposition was obstructive, the continued deposition will be subject to the new rules, and court supervision should therefore be unnecessary.

The parties further dispute whether Ogur should be required to produce written materials he prepared regarding the roof. Christies identifies two categories of such materials: 1) memoranda and notes which Ogur generated and gave to defendants' attorney, and which Ogur reviewed in preparation for his deposition (see Ogur Dep. at 4-5); and 2) letters from Ogur to Zirinsky or his counsel or from Zirinsky or his counsel to Ogur, made in the period from May 24, 2004 through November 29, 2005, as identified in defendants' privilege log (Ex. G to P.'s Motion).

In seeking the first category of materials, Christie's apparently relies on the general precept that a party is entitled to inspect all materials used by a witness before testifying at a deposition or at trial to refresh recollection. (See Prince-Richardson on Evidence, § 6-215 [11th ed].) However, the right to inspect should not apply, and any privilege applicable to the materials should not be deemed waived, unless the witness has actually used the material to refresh recollection and the material has "become the basis of pretrial testimony." (See Merrill Lynch Realty Comm. Servs., Inc. v Rudin Mgt. Co., 94 AD2d 617 [1st Dept 1983]; Stern v Aetna Cas. & Sur. Co., 159 AD2d 1013 [4th Dept 1990]; Hayes v Henault, 131 AD2d 930 [3d Dept 1987]; Prince-Richardson on Evidence, § 6-215, supra. But see Hermann v General Tire & Rubber Co., 79 AD2d 955 [1st Dept 1981].) As there is no indication in this record that Ogur actually used the documents to refresh recollection at the deposition, the request for their production should be denied.

As to the letters between Ogur and Zirinsky or his counsel, defendants contend that they are exempt from disclosure because they were prepared in anticipation of litigation. CPLR 3101(d)(2) provides that materials "prepared in anticipation of litigation" by a party or the party's representative, including an attorney, consultant 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." It is well settled that the burden of showing that an item is immune from disclosure is on the party asserting the immunity. (See Koump v Smith, 25 NY2d 287 [1969]; Mavrikis v Brooklyn Union Gas Co., 196 AD2d 689 [1st Dept 1993].) The determination of whether a document was prepared in anticipation of litigation is a fact-based, sui generis determination. (Connors, Practice Commentaries [McKinney's Cons Laws of NY], Book 7B, CPLR C3101:30.) However, case law provides useful guidelines (id.), including that immunity does not apply to material prepared in the ordinary course of business (id. CPLR C3101:33) or to material "assembled to aid defendant in the operation of its business." (Spectrum Sys. Intl. Corp. [*4]v Chemical Bank, 157 AD2d 444 [1st Dept 1990], revd on other grounds 78 NY2d 371 [1991].) Moreover, "[m]ulti-motivated reports do not warrant the immunity if litigation is but one of the motives. In order to qualify as litigation' material under CPLR 3101(d), the document must have been prepared primarily if not solely for litigation." (Id. at 448 [internal quotation marks and citation omitted]; Mavrikis, 196 AD2d at 690.)

In claiming that the letters at issue are immune, defendants cite deposition testimony of Ogur and Zirinsky that Ogur was retained as Zirinsky's litigation consultant. However, the naming of an expert as a litigation consultant does not, without more, immunize materials prepared by the expert. (See City of Rochester v E & L Piping, Inc., 2001 WL 1263377 [Sup Ct, Monroe County 2001].) Nor does the routing of the letters to an attorney establish as a matter of law that they were materials prepared in anticipation of litigation. (Spectrum Sys., 78 NY2d at 379, supra; Connors, Practice Commentaries [McKinney's Cons Laws of NY], Book 7B, CPLR C3101:35.)

Defendants also argue that although there is no evidence in the record as to the exact date on which Ogur was retained as a litigation consultant, immunity should attach from the time of Christie's February 20, 2004 letter to Zirinsky. This letter sets forth Christie's position that testing of the roof installed by the landlord before Christie's leased the premises revealed some "disturbing issues," including that the old roof may have been wet when the landlord installed the new roof, the old roof contained asbestos and, as a result, Christie's contemplated roof replacement had "turned into a complex, expensive and highly regulated asbestos-abatement project." The letter further stated that the cost of the job had tripled, and it requested that the landlord "consider shouldering some of the additional costs." The letter does not directly or implicitly threaten litigation, and therefore does not on its face furnish a basis on which defendants could reasonably have contemplated litigation.

The court therefore cannot determine on this record whether the letters between Ogur and Zirinsky or his counsel were materials prepared in anticipation of litigation.^[FN1] In order to make this determination, an in camera review of the letters should be conducted. (See Spectrum Sys., 78 NY2d at 381; Mavrikis, 196 AD2d at 689; Haire v Long Is. R.R. Co., 29 AD2d 553 [2d Dept 1967].)

Defendants' Deposition Notices & Continued Deposition of Zirinsky

To date, Christie's has conducted depositions of three people: Zirinsky, Ogur and Pasquale Guigliano, the roofer who worked on the warehouse in 1987. Defendants have conducted depositions of seven people: Barbara Strongin, Christie's former director of operations (and author of the February 20, 2004 letter); John Flanagan, Christie's chief engineer; Gary Figueroa, a former warehouse manager; Sharon Lobo, formerly of LZA Technology, an architect who was involved in the roof work done in 2004; Daniel Stubbalo of Allied Construction Corp., the construction manager of the roof work done in 2004; Larry Lane, an architect who supervised renovations performed by Christie's to the warehouse in 2001; and Sorin Moise of LZA Technology, an engineer who was the project manager for the roof work [*5]done in 2004. (See Reply Aff., ¶ 16; Aff. In Support, ¶¶ 52, 54-55.)

Christie's seeks a further deposition of Zirinsky. Defendants seek depositions of five additional people: Jo Laird, Christie's general counsel; Jean-Claude Noel, Christie's former chief operating officer; Robert Levien, an architect who supervised renovations to the warehouse before Christie's took possession in 1988; Milton Clark, a former Christie's security manager at the warehouse; and Jeffrey Kuduk, Christie's vice president, general services and construction. (Reply Aff., ¶ 16; Aff. In Support, ¶¶59, 52.) Defendants also seek continuing depositions of Strongin and Moisi.

Neither side demonstrates that continuing depositions of already deposed parties are material and necessary to the prosecution or defense of the action. (See CPLR 3101[a].) While each side asserts that it received documents after the depositions were conducted, neither makes any specific showing as to the nature of or need for further questioning about the documents.

Defendants also fail to make any showing as to the materiality or necessity for the five additional depositions. Moreover, four of these depositions were noticed between March 26 and 28, 2007. (See Ex. M to P.'s Motion.) However, by compliance conference order dated November 16, 2006, this court granted a second and final extension, to January 1 and January 31, 2007, to complete party depositions and non-party discovery, respectively. The deposition notices are therefore also untimely, and will not be enforced.

Defendants' Cross-Motion

Defendants seek production of various documents and audio tapes. However, they fail to counter plaintiff's showing that the materials have either been produced or cannot be located. Defendants also fail to explain their delay in seeking production of documents identified at depositions. Defendants' motion should therefore be denied.

Conclusion

This case is one in which discovery has truly gone awry, both sides having served burdensome and often needless demands. Discovery must be promptly concluded with production of any documents that may be directed at the in camera review, followed by the deposition of Ogur.

It is accordingly hereby ORDERED that plaintiff's motion is granted to the following extent:

1) The parties shall appear in Part 57 of this Court on September 20, 2007 at 11:30 a.m. for in camera review of all documents listed on the privilege log annexed as Exhibit G to plaintiff's motion. At least 2 days before this date, defendant shall deliver to the Clerk of Part 57 copies of the following: the privilege log; all documents listed in the log; and any other documents necessary to review the documents pursuant to this decision. No briefs or explanatory letters shall be submitted; and

2) Ronald Ogur's deposition shall be completed by October 15, 2007.This date is final. The deposition shall be conducted pursuant to the terms of this decision and 22 NYCRR Part 221; and

3) Defendants' notices to take the depositions of Jo Laird, Jean-Claude Noel, Robert Levien, Milton Clark, and Jeffrey Kuduk are struck; and

4) Except as provided herein, no other discovery is authorized; and it is further

ORDERED that defendants' cross-motion is denied; and it is further [*6]

ORDERED that plaintiff shall file a note of issue by October 31, 2007.

This constitutes the decision and order of the court.

Dated: New York, New York

August 29, 2007

________________________

Marcy Friedman, J.S.C.