On January 24, 2018, the Second Department issued a decision in Saint Annes Dev. Co. v. Russ, 2018 NY Slip Op. 00451, holding that documents were protected by the common interest privilege, explaining:
The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege. To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party. The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar. Moreover, the communication must relate to litigation, either pending or anticipated, in order for the exception to apply.
Here, the Supreme Court properly denied the defendants’ motion to compel the production of the subject documents, as these documents were protected by the common-interest privilege.
(Internal quotations and citations omitted).
An issue that arises in almost all complex commercial litigation is identifying evidence that should be withheld from production in evidence because it is subject to the attorney-client or other privilege. Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client have questions regarding the attorney-client, common interest, work product or other privileges or exemptions from production of evidence.
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