Opinion
May 27, 1988
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Doerr, J.P., Green, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Special Term properly concluded that the report based upon a review of petitioner's books and financial records prepared by William Mahaney, CPA, was not exempt from discovery. CPLR 3101 (a) provides that "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action" and this provision is accorded a liberal interpretation in favor of disclosure (Nitz v Prudential-Bache Secs., 102 A.D.2d 914, 915). When a party claims that particular records or documents are exempt or immune from disclosure, the burden is on the party asserting such immunity (Zimmerman v Nassau Hosp., 76 A.D.2d 921). This burden is imposed because of the strong policy in favor of full disclosure (Koump v Smith, 25 N.Y.2d 287, 294). Respondents failed to satisfy their burden of showing such immunity. The report does not constitute evidence of an offer of settlement which would be exempt from disclosure (see, Tennant v Dudley, 144 N.Y. 504, 507-508). Rather, it constitutes factual admissions made during settlement negotiations that are not privileged from disclosure unless expressly stated to be without prejudice (see, e.g., Crow-Crimmins-Wolff Munier v County of Westchester, 126 A.D.2d 696, 697; see also, Paine, Webber, Jackson Curtis v Alanthus Corp., 82 A.D.2d 877). Here, no limitation or restriction was placed upon the use of the report. Moreover, the report is not exempt from disclosure because of the attorney-client privilege (CPLR 4503). The report is not a communication between respondents and their attorney but is an exchange between the attorney and a third party hired to review certain operating costs charged by petitioner (see, Kenford Co. v County of Erie, 55 A.D.2d 466, 469). Nor is the Mahaney report exempt from disclosure as the work product of an attorney (CPLR 3101 [c]). The work product of an attorney is a concept which has been very narrowly construed (Chemical Bank v National Union Fire Ins. Co., 70 A.D.2d 837). It embraces "interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs" that were held, prepared or conducted by the attorney (Hickman v Taylor, 329 U.S. 495, 511). Here, the Mahaney report was prepared by a third party and thereafter conveyed to the attorney and hence, does not come within the exclusion (Kenford Co. v County of Erie, supra, at 469-470; see also, People v Edney, 39 N.Y.2d 620). Finally, we note that respondents' claim that the Mahaney report is exempt from disclosure by virtue of the expert opinion privilege (CPLR 3101 [d]) is raised for the first time on appeal and is unpreserved for our review (see, Van Wormer v Leversee, 87 A.D.2d 942, 943). Were we to reach the merits of this claim, however, we would conclude that the Mahaney report is not exempt from discovery on this ground because there is no showing that it was prepared "in anticipation of litigation or for trial" (CPLR 3101 [d] [2]). On the contrary, respondents' attorney averred in his affidavit that Mahaney was retained "solely for the purposes of being advised as to whether to approve or ratify the said settlement proposal."