Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts
Posted: May 9, 2016

Court Properly Ordered Deposition of Transactional Counsel; Privilege Assertions Must Be Specific

On May 5, 2016, the First Department issued a decision in China Privatization Fund (Del.), L.P. v. Galaxy Entertainment Group Ltd., 2016 NY Slip Op. 03597, ordering transactional counsel to appear for deposition and requiring that any refusal to answer questions be justified by protecting specific privileged conversations or communications, explaining:

The motion court providently exercised its discretion in ordering the continued deposition of plaintiff’s former deal counsel . . . and requiring him to answer questions regarding the underlying transaction, to the extent he can do so without revealing attorney-client privileged communications.

[Counsel’s] deposition testimony established that he led the team which primarily drafted the indenture at issue, and that he was familiar with the intended structure of the indenture and its conversion price provisions, which are the heart of the parties’ dispute in the underlying breach of contract lawsuit. He thus possesses information that is material and necessary to the prosecution and defense of the action.

Plaintiff bears the burden of establishing any right to protection on attorney-client privilege grounds. [Counsel’s] conclusory and speculative assertions during his initial deposition, that he did not recall any specific conversations but did not “feel confident” that he could answer “without potentially revealing” privileged communications, did not suffice to meet that burden. The motion court properly ordered [counsel] to specify the basis for his assertion of the privilege, such as by identifying specific conversations or communications with plaintiff.

(Citations omitted) (emphasis added).

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