Mercury Ins. Co., litigated to stay Uninsured Motorist arbitration, and to bring in GEICO. GEICO's rep was deposed and referred to docs in the claim file to refresh her memory when responding to questions. Merc's counsel wanted a look-see at the file; counsel for GEICO refused claiming that the contents were privileged. The court disagreed: the privilege that applies to materials prepared for litigation if that material is reviewed by a witness to refresh their recollection prior to a trial or deposition and the testimony is based, at least in part, on that material.
How to Protect Privilege: Provide a detailed privilege log (CPLR 3122); request in camera (court's eyes only) inspection of the claim file.
Matter of Mercury Ins. Group v Brown-Fort