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Posted: June 16, 2014

First Department Addresses Disclosure of Documents That Are Privileged as to Only Some Parties

On June 10, 2014, the First Department issued a decision in Arkin Kaplan Rice LLP v. Kaplan, 2014 NY Slip Op. 04154, addressing the disclosure of documents that were privileged as to some plaintiffs but not others.

Arkin Kaplan Rice, one of the plaintiffs moved “for, among other things, disclosure of a legal file maintained by a nonparty law firm . . . in connection with a prior joint representation of the individual defendants and” that plaintiff. The First Department affirmed, with modification, the trial court’s grant of that motion in a decision that addresses the sometimes complicated issue of documents that are privileged to some opposing parties but not others:

The parties agree that, to the extent the attorney-client privilege has not been waived, the documents in the joint-representation file are privileged with respect to persons other than [the moving plaintiff] and the individual defendants. . . . Accordingly, the IAS court erred in implicitly finding that defendants’ disclosure of the email waived the privilege with respect to any documents in the file pertaining to the specific subject matter addressed in the email. However, the email dated March 29, 2012, which revealed part of [the moving plaintiff’s] understanding of a call with the mediator and the information he relayed, was a privileged communication. Therefore, the IAS court correctly held (albeit implicitly) that defendants’ disclosure of that email waived the privilege with respect to any documents in the file pertaining to the subject matter of the email. Accordingly, [the moving plaintiff’s] coplaintiffs are entitled to only those documents in the file pertaining to the subject matter of the March 29, 2012 email.

This Court has already noted that the documents in the joint-representation file are not privileged as to [the moving plaintiff], and that she may use them in her litigation against the individual defendants. However, this Court also noted that the documents in the file are privileged as against [her] coplaintiffs, who were not jointly represented by the [the nonparty law] firm, and that she cannot unilaterally waive the privilege so as to benefit her coplaintiffs. Therefore, we remand to the IAS court to set forth guidelines and procedures for [the moving plaintiff’s] use in this litigation of the privileged documents in the file (i.e., those documents that do not pertain to the subject matter of the March 29, 2012 email) so as to protect the privilege.

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