Posts Categorized: Privilege/Work Product

Posted: March 25, 2020

That Counsel Might Have Relevant Evidence is Insufficient to Create At-Issue Privilege Waiver

On March 3, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Securitized Asset Funding 2011-2, Ltd. v. Canadian Imperial Bank of Commerce, 2020 NY Slip Op. 30700(U), holding that the fact that counsel might have relevant evidence is insufficient to create an at-issue waiver of privilege, explaining: An at... Read more »

Posted: March 6, 2020

Third-Party’s Presence Did Not Waive Attorney-Client Privilege

On March 3, 2020, the First Department issued a decision in Spicer v. GardaWorld Consulting (UK) Ltd., 2020 NY Slip Op. 01448, holding that the presence of a third-party did not (necessarily) waive attorney-client privilege, explaining: Plaintiffs were the sole shareholders of Hestia B.V. (the Company) prior to selling all of their shares to defendant.... Read more »

Posted: March 3, 2020

Employees’ E-mails With Counsel Sent on Employer’s Computer System Not Privileged

On February 11, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Rad v. IAC/Interactivecorp, 2020 NY Slip Op. 30410(U), holding that employees’ e-mails sent on their employers’ computers were not privileged, explaining: In Peerenboom v. Marvel Entertainment, LLC, the Appellate Division, First Department endorsed application of the four factors... Read more »

Posted: December 29, 2019

Documents Prepared for Uses Other Than Litigation Cannot be Withheld for Production Even if They Also Were Prepared in Anticipation of Litigation

On December 20, 2019, the Fourth Department issued a decision in John Mezzalingua Assoc., LLC v. Travelers Indem. Co., 2019 NY Slip Op. 09157, holding that documents prepared for uses other than litigation cannot be withheld from production even though they also were prepared for litigation, explaining: CPLR 3101 establishes three categories of protected materials:... Read more »

Posted: December 10, 2019

Privilege Determined by Law of Location of Trial or of Proceeding Seeking Discovery

On November 27, 2019, the Second Department issued a decision in Askari v. McDermott, Will & Emery, LLP, 2019 NY Slip Op. 08547, holding that a question of privilege must be determined by the law of the location of trial or of the proceeding seeking the evidence, explaining: Here, in the complaint, the plaintiffs seek... Read more »

Posted: September 23, 2019

First Department Recognizes Narrow Exception to Rule that Privilege Rules Applied to Evidence Are Those of Forum in Which Evidence Will Be Used

On September 17, 2019, the First Department issued a decision in Ambac Assur. Corp. v. Nomura Credit & Capital, Inc., 2019 NY Slip Op. 06574, recognizing a narrow exception to the rule that the law regarding the attorney-client privilege applied to evidence is that of the forum in which the evidence will be used, explaining:... Read more »

Posted: September 11, 2019

Insurer’s Claims-Handling Documents Not Privileged Even If Prepared By Attorneys

On August 30, 2019, Justice Masley of the New York County Commercial Division issued a decision in Otsuka Am., Inc. v. Crum & Forster Specialty Ins. Co., Index No. 650463/2019, ruling that coverage opinions prepared by outside counsel for an insurer are discoverable, explaining:   In the context of insurance, the payment or rejection of... Read more »

Posted: August 22, 2019

Documents Not Prepared in Anticipation of Litigation Not Entitled to Work-Product Protection

On August 7, 2019, Justice Borrok of the New York County Commerical Division issued a decision in Spicer v. Gardaworld Consulting (UK) Ltd., 2019 NY Slip Op. 32375(U), holding that documents that were not prepared in anticipation of litigation are not entitled to work product protection, explaining: Gardaworld argues that the Post-Closing Documents are not... Read more »

Posted: June 27, 2019

Communications Seeking Legal Advice Through Third-Parties Privileged

On June 18, 2019, the First Department issued a decision in Perella Weinberg Partners LLC v. Kramer, 2019 NY Slip Op. 04896, holding that communications seeking legal advice made through third parties nonetheless were privileged, explaining: Nonparty respondents were seeking legal advice through third parties and had a reasonable expectation that their communications would remain... Read more »