The Appellate Division, First Department recent considered whether the notes of an IME observer retained by the plaintiff’s attorney’s office for a defendant’s IME are discoverable in Markel v. Pure Power Boot Camp, Inc., 2019 NY Slip Op 020249 (March 19, 2019). The Court noted that a plaintiff is entitled to have a representative of their choice present for the IME. Where a watchdog is sent by plaintiff’s counsel, the Court found that the watchdog is an agent of the plaintiff’s attorney and therefore the notes are considered within the conditional or qualified privilege protections of CPLR 3101(d)(2) as materials prepared in anticipation of litigation. However, the Court found that it was significant to its ruling that the watchdog would not be testifying at trial on plaintiff’s affirmative case.