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IME Watchdog Materials Held Privileged

On March 19, 2019 the Appellate Divison of New York’s Supreme Court ruled that the materials held by and created by a third-party observer to an independent medical evaluation were protected by litigation privilege. The observer, a service called “IME Watchdog” was hired by the plaintiff’s counsel in a civil action. The service describes itself as “a weapon against insurance companies and their hired gun IMEs.”

This is a case of first impression in New York and can be found atMarkel v. Pure Power Boot Camp. In Markel, the plaintiff appeared for a physician exam with an IME doctor chosen by the defense. The plaintiff’s attorney hired a person from IME Watchdog to be present. The defense then served a subpoena on the IME Watchdog service seeking notes, reports, and other materials. The IME Watchdog ultimately prevailed in having the subpoena quashed as the court found that the qualified litigation privilege applied.

The court ruled that the materials (including the notes and reports created by the IME Watchdog and which were the subject of the subpoena) were created in preparation for litigation. The court found that the IME Watchdog was an agent of plaintiff’s attorneys and therefore the materials were protected under CPLR 3101(d)(2).

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