Commercial Division Blog

Posted: August 23, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Privilege/Work Product, Discovery/Disclosure

Substantive Time Entries in Attorney Invoices Not Privileged

On July 13, 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Mehra v. Morrisson Cohen LLP, 2023 NY Slip Op 50714(U), holding that substantive time entries in attorney invoices were not privileged and had to be produced by plaintiffs seeking attorneys' fees as part of their damages, explaining:

In New York, not all communications to an attorney are privileged (Priest v Hennessy, 51 NY2d 62, 69, 409 N.E.2d 983, 431 N.Y.S.2d 511 [1980]). Legal invoices are discoverable (In re Nassau Cnty. Grand Jury Subpoena Duces Tecum 4 N.Y.3d 665, 679, 830 N.E.2d 1118, 797 N.Y.S.2d 790 [2005]). Communications regarding the identity of a client and information about fees paid by the client are not generally protected under the attorney-client privilege, nor are communications regarding the payment of legal fees by a third person (id.).

In order to make a valid claim of privilege, it must be shown that the information sought to be protected from disclosure was a 'confidential communication' made to the attorney for the purpose of obtaining legal advice or services" (Matter of Priest, 51 NY2d at 69). Plaintiffs fail to make that showing here. Defendants will not be required to rely upon plaintiffs' good faith estimated breakdown of billing invoices.

Defendants are entitled to challenge that estimation through examination of the documentary evidence itself. Defendants do not seek impermissible attorney-client communications, advice, or impressions. [*4] Defendant's demand for unredacted billing records is granted.

While communications between attorney and client concerning a request for, or the provision of, legal advice is protected as privileged, billing information often isn't. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning privilege issues.