dissents in a memorandum as follows: Plain-
tiff had a pacemaker implanted by his physician on October 28, 1981. Less than one month later, on November 24, 1981, the pacemaker was replaced and removed as defective. In its limited warranty covering the product, Intermedies required that any explanted pacemakers be returned to the company. They also become the property of the company. Plaintiff’s counsel informed defendant of the circumstances surrounding removal of the pacemaker by letter dated March 9, 1982. In this letter, counsel also stated that: “We believe that we can effectively resolve the matter at hand at the claims level and without resort to the Courts”. Upon receiving this letter from plaintiff’s counsel, defendant requested that the pacemaker be returned for testing and evaluation.
Plaintiff sought, and was granted at Special Term, disclosure of the defendant’s test results and the experts’ report related to those tests. Inasmuch as the tests were conducted prior to the plaintiff instituting his complaint, the test results should be discoverable. For discovery purposes, tests conducted prior to the commencement of litigation have been distinguished from tests conducted subsequent to the bringing of an action. (1 Weinberger, New York Products Liability, § 13:27; see, also, Abrams v Vaughan & Bushnell Mfg. Co., 37 AD2d 433; Baxter v Orans, 63 AD2d 875.) Plaintiff also claims that these reports were made in the ordinary course of business, inasmuch as the warranty specifically requests that all explanted pacemakers be returned to the defendant, not just the ones which may be the subject of litigation. As a result, the tests in the case at bar should be subject to disclosure.
Additionally, as the unit has been in defendant’s possession for an extended period of time since being explanted there is no way of determining whether or not the unit is in the same condition as when it was removed. “[Wjhile material prepared for litigation is not generally required to be made available because a disclosure proceeding should not be used as a substitute for independent investigation of the facts available to both parties * * * it would seem that here equal access is not possible.” (Vanderlofski v Nassau Reliance Fuel Corp., 59 AD2d 861.)
Defendant claims that these reports were made in preparation for impending litigation and therefore are not discoverable. In addition, defendant argues that plaintiff has the report, as it was sent to the plaintiff’s physician shortly after completion. *553Yet the report plaintiff has merely states that the pacemaker was not defective. It does not show how the unit was tested, nor what the experts concluded.
Since equal access to the facts involved does not seem possible, both parties should be treated in a substantially similar way. Therefore, the availability of the expert’s report can be conditioned on a reciprocal basis, to the extent that the adversary (plaintiff) has or should later have an expert’s report. (Vanderlofski v Nassau Reliance Fuel Corp., supra, at p 862.) As the defendant has already released part of the report to the plaintiff’s physician, it should not be permitted to withhold the remainder of the report.
An analogy may be drawn to rule 106 of the Federal Rules of Evidence (US Code, tit 28, Appendix) or its counterpart in the Proposed New York State Rules of Evidence (§ 106). If part of a document is released (introduced into evidence), then the other party should be entitled to see and/or release the other parts of the same document.
The determination of Special Term should be affirmed.